State v. Gordon

2003 WI 69, 663 N.W.2d 765, 262 Wis. 2d 380, 2003 Wisc. LEXIS 439

• Court: Wisconsin Supreme Court
• Decided: June 27, 2003
• Docket: 01-1679-CR
• Status: Published

Opinions

DIANE S. SYKES, J.

¶ 1. Gary Gordon was charged with three criminal counts arising out of a domestic dispute: violating a domestic abuse injunction, disorderly conduct while armed, and second-degree recklessly endangering safety. He testified in his own defense and admitted to facts constituting the enhanced disorderly conduct count, to wit, that when the police arrived in response to the domestic violence dispatch, he grabbed two knives to hold the officers at bay while he attempted to evade arrest, and remained armed with those knives while the police pursued him on foot through the neighborhood.

¶ 2. During closing argument, Gordon's trial counsel argued for acquittal on the two more serious charges. As to the disorderly conduct count, however, Gordon's attorney conceded that "obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed." The jury returned verdicts of guilty all three counts.

¶ 3. On appeal, Gordon argued that his trial counsel's closing argument concession of guilt on the disorderly conduct while armed count constituted ineffective assistance of counsel of a type that is conclusively presumed to he prejudicial, automatically requiring a new trial. He also claimed instructional error: the jury instruction for the "while armed" penalty enhancer on the disorderly conduct charge did not include the Peete "nexus" instruction, which is required when the defendant is charged with committing the underlying crime "while possessing a dangerous weapon." See State v. Peete, 185 Wis. 2d 4, 9, 517 N.W.2d 149 (1994); Wis. Stat. § 939.63 (2001-2002).¹ Because the penalty enhancer is an element of the offense, Gordon contended that his trial counsel's failure to object to this error was per se prejudicial and therefore automatically reversible.

¶ 4. The court of appeals agreed, concluding that the attorney's concession was the functional equivalent of a guilty plea, which is a constitutional prerogative of the accused, not his lawyer. State v. Gordon, 2002 WI App 53, ¶ 25, 250 Wis. 2d 702, 641 N.W.2d 183. The court of appeals also concluded that the failure to object to the erroneous jury instruction was per se prejudicial. Id., ¶¶ 32-38.

¶ 5. We reverse. The concession by counsel was not the functional equivalent of a guilty plea under the circumstances of this case, where it came in closing argument, on one count in a multiple-count case, after full adversarial testing of the State's case and after the defendant had admitted on the witness stand the facts constituting the offense. In addition, the omission of the Peete instruction is subject to harmless error analysis under Neder v. United States, 527 U.S. 1 (1999), and State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. Therefore, the failure to object to the omission was not per se prejudicial for purposes of ineffective assistance of counsel analysis. We reverse State v. Howard, 211 Wis. 2d 269, 290-95, 564 N.W.2d 753 (1997), State v. Avila, 192 Wis. 2d 870, 891-93A, 532 N.W.2d 423 (1995), and State v. Krueger, 240 Wis. 2d 644, 649-51, 632 N.W.2d 211 (Ct. App. 2000), to the extent that those cases established a rule of automatic reversal where a jury instruction omits an element of the offense.

I. FACTS AND PROCEDURAL HISTORY

¶ 6. Margaret Wilder obtained a domestic abuse injunction against Gary Gordon on October 29, 1998. Gordon was Wilder's sometime boyfriend of 12 years who occasionally lived with her, though his drug and alcohol use strained the relationship. Despite the injunction, Wilder allowed Gordon to live with her and her six-year-old grandson in their Milwaukee apartment beginning sometime during the late spring of 1999, and continuing into the fall of that year. Wilder was wheelchair-bound and testified at trial that she had allowed Gordon to live with her to help care for her; Gordon testified that he was unaware when he resumed living with Wilder that the injunction was still in effect.

¶ 7. On the evening of October 1, 1999, Gordon was at Wilder's apartment and had nearly finished off a 32-ounce bottle of beer when he and Wilder got into an argument. Wilder testified that Gordon was "agitated" and "verbally abusive." She also feared that Gordon had been "doing drugs," based upon certain behaviors and characteristics that she had observed in him when he had previously done so.

¶ 8. Wilder called the police to come to her apartment and enforce the injunction against Gordon. Officers Matthew Bongard and John Amberg were dispatched, and when they arrived outside the apartment, Gordon realized they were there for him and decided to attempt to "escape" by arming himself with two knives. He testified that he picked up the first knife because he "didn't want to go to jail," and then grabbed a second knife.

¶ 9. Wilder's grandson let Officer Bongard into the apartment. From her wheelchair in the living room, Wilder shouted, "He's right there and he has some knives," referring to Gordon, who was standing in an interior hallway.

¶ 10. Officer Bongard drew and pointed his gun at Gordon, ordering him to drop the knives. Officer Am-berg then ran inside to help. Gordon continually refused the officer's commands to drop the knives, saying that he "wasn't going to drop no fucking knives," and telling the officers, "I ain't going to no jail." The officers radioed for backup. Officer Amberg described the knives as a "butcher style knife" and a "steak knife."

¶ 11. Still armed with the knives, Gordon fled to a back bedroom and closed the door. Because this room had a door to the backyard, Officer Amberg went outside intending to secure the area. A neighbor had seen Gordon run outside and hide in some bushes, and alerted Officer Amberg.

¶ 12. Officer Bongard joined the search outside and spotted Gordon in the hedges, a few houses away from Wilder's apartment. Gordon was still clutching the knives. Officer Bongard drew his gun, yelled for Gordon to drop the knives, and ordered him to "freeze." Gordon did not comply, and the officer, at least one more time, ordered him to drop the knives. Gordon then stepped towards Officer Bongard and started to raise the knives. Gordon testified that he was attempting to surrender the knives. Interpreting Gordon's movement as an imminent attack rather than a surrender, Officer Bon-gard fired two shots at Gordon in quick succession. Gordon was hit in the arm and the stomach. The officers immediately summoned medical help.

¶ 13. Gordon was charged in Milwaukee County Circuit Court with three crimes: violation of a domestic abuse injunction, contrary to Wis. Stat. § 813.12(8)(a); disorderly conduct while armed, contrary to Wis. Stat. §§ 947.01 and 939.63; and second-degree recklessly endangering safety, contrary to Wis. Stat. § 941.30(2). At trial, he testified that when he first saw that police officers had arrived at the apartment, he armed himself with two knives in order to set in motion his escape: "Well, when I seen them coming I got up and I walked up and he came in. And then that's when, you know, I picked up the knife because I didn't want to go to jail. I ain't going to jail. You know what I'm saying?" He repeatedly testified that the reason he armed himself with the knives was to avoid going to jail:

Q: And you testified, sir, while you were being asked by your attorney these questions right in front of the jury here that you grabbed the knives when you realized that the officers were coming in because, quote, I am not going to jail. Is this correct? Is this what you told us?

A: Yeah. I said, "I'm not fitting to go to jail." They [the officers] told me that I was going to jail. I said, "I'm not going to go to no jail."

Q: That's why you grabbed the knife?

A: Yes.

Q: Did you grab both knives at the same time?

A: I grabbed one, then I grabbed the other one off the counter.

Q: So, the presence of these two knives you armed yourself with in the kitchen of this apartment was for the purposes of deterring these officers from grabbing you so you wouldn't go to jail, is that right?

A: Well, you could say so, yes.

¶ 14. Regarding the confrontation with the police outside the apartment, Gordon testified:

A: Yeah, he [the officer] seen me. We both like met up on each other as he came through the yard. We caught each other's eye and he turned to me and told me to freeze.

Q: Did he ... tell you repeatedly to drop the knives?

A: Twice he said, "Drop the knives, drop the fucking knives." Pardon my language. That is the exact words he said.

¶ 15. In closing argument, Gordon's trial counsel focused on disputing Gordon's guilt on the felony charge of second-degree recklessly endangering safety and the misdemeanor charge of violating the domestic abuse injunction. He said little, however, about the misdemeanor charge of disorderly conduct while armed, save for the following:

But I want to be very clear there is no doubt, there is no question that at the moment when Officer Bongard shot Mr. Gordon, Mr. Gordon was subject to arrest for disorderly conduct while armed. Obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed. But in and of itself that conduct does not create an unreasonable and substantial risk of death or great bodily harm.... Walking around the neighborhood with two knives doesn't create that kind of risk to anyone.

¶ 16. Gordon's trial counsel assailed the State's case on the first and third counts (violation of a domestic abuse injunction and second-degree recklessly endangering safety), contrasting the weight of the evidence on the disorderly conduct charge with the lack of evidence on the other two more serious charges.² He concluded his argument by saying: "I'm asking you folks to acquit Mr. Gordon on the first and third charges [violating a domestic abuse injunction and second-degree recklessly endangering safety]." He said nothing more of the enhanced disorderly conduct charge stemming from Gordon's use of the knives as part of his attempt to escape arrest.

¶ 17. The jury was instructed on the "while armed" enhancement element of the disorderly conduct charge as follows:

[C]ount 2 alleges not only that the defendant committed the crime of disorderly conduct, but also that he did so while possessing, using, or threatening to use a dangerous weapon. If you find the defendant guilty of the charge in count 2, you must answer the following question: Did the defendant commit the crime of disorderly conduct while possessing, using or threatening to use a dangerous weapon?

(emphasis added); see also Wis. Stat. § 939.63 and Wis JI — Criminal 990. In order to be found guilty of the "possession" form of a "while armed" enhanced crime under § 939.63, a defendant must be found to have possessed the weapon to "facilitate" the underlying crime. See Peete, 185 Wis. 2d at 9. Here, however, while all three statutory alternatives for enhancement— "possessing, using or threatening to use a dangerous weapon" — were given, the Peete "nexus" instruction was omitted.³ Gordon's attorney did not object to the omission.

¶ 18. The jury found Gordon guilty on all three counts, and the circuit court, the Honorable Richard J. Sankovitz, imposed consecutive sentences: two years on the felony second-degree recklessly endangering safety conviction, nine months on the misdemeanor domestic abuse injunction violation, and six months on the disorderly conduct while armed conviction. Gordon filed a post-conviction motion alleging, among other things, ineffective assistance of counsel stemming from the closing argument concession and the failure to object to the omission of the Peete instruction. The circuit court denied the motion by written decision, without a hearing, concluding that there was no prejudice.

¶ 19. Gordon appealed, and the court of appeals affirmed Gordon's conviction for second-degree recklessly endangering safety, but reversed his convictions for violating a domestic abuse injunction and for disorderly conduct while armed.⁴ State v. Gordon, 2002 WI , 250 Wis. 2d 702, 641 N.W.2d 183. The court of appeals concluded that the closing argument concession by Gordon's attorney was the functional equivalent of a guilty plea, a fundamental decision which the accused, not his lawyer, has the ultimate authority to make. Id., ¶¶ 25-27. The court remanded for a Machner hearing to determine whether Gordon had consented to the closing argument concession. Id., ¶ 31 (citing State v. Curtis, 218 Wis. 2d 550, 554-55, 582 N.W.2d 409 (Ct. App. 1998)(holding that a Machner hearing is a prerequisite to a claim of ineffective assistance of counsel)). The court of appeals also concluded that the omission of the Peete instruction was per se prejudicial and automatically reversible under Krueger. See id., ¶ 38 (citing Krueger, 240 Wis. 2d 644, ¶¶ 12, 15). We accepted review, 2002 WI 48, 252 Wis. 2d 148, 644 N.W.2d 685, and now reverse.

II. DEFENSE COUNSEL'S CLOSING ARGUMENT CONCESSION

¶ 20. The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const., amend. VI; see also Wis. Const. art. I, § 7.

¶ 21. The decision to plead guilty is one of several "fundamental decisions regarding the case" over which the accused, not his lawyer, has the "ultimate authority." Jones v. Barnes, 463 U.S. 745, 751 (1983)(citing Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977) (Burger, C.J., concurring)). However, counsel is entrusted with the authority to make "tactical" decisions regarding trial strategy. See, e.g., Faretta v. California, 422 U.S. 806, 820 (1975).

¶ 22. Gordon's attack on his trial counsel's closing argument concession of guilt on the disorderly conduct count is made in the context of a claim of ineffective assistance of counsel, which is "squarely governed" by the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984).⁵ See Williams v. Taylor, 529 U.S. 362, 390 (2000). The familiar Strickland formulation of constitutional ineffectiveness is:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. Under Strickland, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.

¶ 23. "To establish ineffectiveness, a 'defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Williams, 529 U.S. at 390-91 (quoting Strickland, 466 U.S. at 688). "To establish prejudice he 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. at 391 (quoting Strickland, 466 U.S. at 694).

¶ 24. The court of appeals held that the defense attorney's closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea, improper if done without Gordon's consent, and conclusively presumed to be prejudicial. Gordon, 250 Wis. 2d 702, ¶ 25. We disagree. A guilty plea waives trial, cross-examination of witnesses, the right to testify and call witnesses in one's own defense, and the right to a unanimous jury verdict of guilt beyond a reasonable doubt. The concession in this case had none of these effects. Gordon had a jury trial, cross-examined the State's witnesses, testified in his own defense, and was adjudged guilty beyond a reasonable doubt by a unanimous jury.

¶ 25. Gordon's own testimony conceded the facts constituting the disorderly conduct while armed count. In summary, he admitted the following: that he had been drinking and had been involved in a domestic dispute with Wilder; that when the police arrived, he armed himself with two knives to facilitate his escape; that he refused the officer's commands to drop the knives; that he fled the apartment while still armed with the knives and was pursued through the neighborhood by the two police officers; that when the officers caught up with him they twice commanded him to drop the knives; that he initially refused to do so; and that when he changed his mind and started to surrender the knives, the police shot him in the arm and the stomach.

¶ 26. Under these circumstances it was not deficient performance for Gordon's attorney to concede the overwhelming weight of the evidence on the misdemeanor disorderly conduct count and focus his closing argument on the more serious charges in the case, which, unlike the disorderly conduct count, remained contestable after Gordon's testimony. While conceding that the facts out of Gordon's own mouth amounted to disorderly conduct while armed, Gordon's attorney argued vigorously for acquittal on the more serious felony and misdemeanor counts. This was a reasonable tactical approach under the circumstances, plainly calculated to maintain credibility with the jury and enhance the prospects of acquittal on the two more serious charges. Gordon's attorney did not concede anything that Gordon had not admitted as a factual matter on the witness stand; the concession, therefore, did not conflict with Gordon's own testimonial admissions. Accordingly, the defense attorney's conduct in this regard did not fall below an objective standard of reasonableness, nor was it prejudicial.

¶ 27. Gordon cites a number of cases that have held an attorney's concession of guilt during trial to be the functional equivalent of a guilty plea, and presumptively prejudicial if done without the defendant's consent, but each of these cases is factually distinguishable from this case, because each is characterized by one or more of the following: 1) a concession to all the charges (or the only charge) in the case; 2) a concession made in opening statement before any adversarial or eviden-tiary testing had occurred; 3) a concession made in the presence of a contemporaneous objection from the defendant; or 4) a concession made in direct conflict with the defendant's testimony.⁶

¶ 28. The more analogous cases hold that where counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective. See, e.g., United States v. Gomes, 177 F.3d 76, 83-84 (1st Cir. 1999), cert. denied, 528 U.S. 911 (1999); United States v. Wilks, 46 F.2d 640, 644 (7th Cir. 1995); United States v. Tobares, 951 F.2d 405, 409 (1st Cir. 1991); Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991); United States v. Simone, 931 F.2d 1186, 1194-97 (7th Cir. 1991);⁷ McClain v. Hill, 52 F.Supp. 2d 1133, 1143 (C.D. Cal. 1999); Ramirez v. United States, 17 F.Supp. 2d 63, 67-68 (D.R.I. 1998); United States v. Pledger, 887 F.Supp. 1400, 1406-07 (D. Kan. 1995); Williams v. State, 791 So.2d 895, 899-900 (Miss. Ct. App. 2001); State v. Silva, 24 P.3d 477, 483 (Wash. Ct. App. 2001); Richardson v. United States, 698 A.2d 442, 444-45 (D.C. Ct. App. 1997).

¶ 29. Underwood is one of the leading cases in this area:

[The defendant] argues that it is ineffective assistance of counsel per se for a lawyer to concede his client's guilt without the client's consent. What is true, although it really has nothing to do with ineffective assistance, is that a defendant cannot he made to plead guilty against his wishes, however wise such a plea would be. And if his lawyer told the jury in closing argument, "my client has decided to plead guilty," that would be a forced plea, and would deprive the defendant of his right to put the prosecution to its proof of guilt. It- is otherwise if in closing argument counsel acknowledges what the course of the trial has made undeniable — that on a particular count the evidence of guilt is overwhelming. Such acknowledgment can be a sound tactic when the evidence is indeed overwhelming (and there is no reason to suppose that any juror doubts this) and when the count in question is a lesser count, so that there is an advantage to be gained by winning the confidence of the jury. Such was this case.... [T]here was no way in the world that the jury was going to acquit [the defendant] of [the lesser charge]. The lawyer did not plead [the defendant] guilty; he merely acknowledged the weight of the evidence of [the lesser charge] in order to contrast it with the lack of direct evidence [on the more serious charge]. The lawyer's tactic was reasonable, and though... we cannot say that it had the consent of the client, a lawyer is not required to consult with his client on tactical moves.

Underwood, 939 F.2d at 474 (7th Cir. 1991) (internal citations omitted).

¶ 30. We reach the same conclusion here. The circumstances of this case do not warrant a rule of per se ineffectiveness. Defense counsel's closing argument concession was not constitutionally deficient, i.e., it did not fall below an objective standard of reasonableness within the meaning of Strickland. Strickland, 466 U.S. at 688. Beyond that, Gordon was not prejudiced. He has not demonstrated a reasonable probability that the result of the proceeding would have been different without the attorney's concession. Strickland, 466 U.S. at 694. After Gordon's testimony, "there was no way in the world that the jury was going to acquit" on the disorderly conduct while armed count. Underwood, 939 F.2d at 474. The closing argument concession did not constitute ineffective assistance of counsel.

III. THE PEETE ERROR

¶ 31. As we have noted, the circuit court instructed the jury on all three statutory alternatives for commission of disorderly conduct while armed for purposes of the "while armed" penalty enhancer: 1) possession; 2) use; and 3) threat of use of a dangerous weapon. Wis. Stat. § 939.63(1). Ordinarily, where the State alleges that the defendant possessed a dangerous weapon in the commission of a crime for purposes of the "while armed" penalty enhancer, a Peete nexus instruction is required. Peete, 185 Wis. 2d at 9. The nexus instruction explains that in order to be found guilty of "possessing" a dangerous weapon in the commission of the underlying crime, the defendant must have possessed the dangerous weapon to "facilitate" the underlying crime. Id, Here, the Peete nexus instruction on the possession alternative was omitted.

¶ 32. In contrast, where a defendant uses or threatens to use a dangerous weapon in the commission of a crime, a nexus exists for purposes of the penalty enhancer as a matter of law.⁸ Here, the evidence fully supports a beyond-a-reasonable-doubt conclusion that Gordon used the knives in the commission of the crime of disorderly conduct. Indeed, the knives were part and parcel of the disorderly conduct itself; Gordon's possession of the knives in his effort to escape arrest was largely what made his conduct disorderly in the first place. Nevertheless, the jury was instructed on the possession alternative, absent a Peete nexus instruction, and this was error. There was no objection, however; therefore, the error has been challenged in the context of Gordon's ineffective assistance of counsel claim.

¶ 33. Here, too, the court of appeals followed a rule of per se prejudice, citing Krueger. See Gordon, 250 Wis. 2d 702, ¶ 38. Krueger held that where defense counsel fails to object to a jury instruction that omits an essential element of the crime, prejudice under Strickland is conclusively presumed and reversal is automatic. Krueger, 240 Wis. 2d 644, ¶¶ 6-15. Krueger relied on two cases from this court, Howard and Avila, which held that harmless error analysis does not apply to an erroneous jury instruction that omits an element of the offense. Id., ¶¶ 11-12 (citing Howard, 211 Wis. 2d at 292, and Avila, 192 Wis. 2d at 893A).

¶ 34. Krueger, Howard, and Avila cannot survive our decision last term in Harvey, in which we applied harmless error analysis to an erroneous jury instruction that operated as a mandatory conclusive presumption on an element of a penalty enhancer. Harvey, 254 Wis. 2d 442, ¶¶ 47-49. Harvey adopted the United States Supreme Court's harmless error analysis in Neder, which reaffirmed and refined the harmless error test of Chapman v. California, 386 U.S. 18 (1967). Harvey, 254 Wis. 2d 442, ¶¶ 44-46; see also State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367.

¶ 35. In Harvey, we began by citing Neder's basic premise: that while a "limited class of errors" is deemed "structural," requiring automatic reversal regardless of any effect on the outcome (i.e., complete denial of counsel; a biased trial judge; racial discrimination in the selection of a grand jury; denial of self-representation at trial; denial of public trial; or a defective reasonable doubt instruction), most errors, including constitutional ones, are reviewed for harmlessness. Harvey, 254 Wis. 2d 442, ¶ 37 (citing Neder, 527 U.S. at 7).

¶ 36. We went on to note Neder's reaffirmation of the Chapman test for harmless error: " 'That test... is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."'" Harvey, 254 Wis. 2d 442, ¶ 44 (quoting Neder, 527 U.S. at 15-16, quoting in turn Chapman, 386 U.S. at 24). We also observed that in applying the Chapman test to the instructional error at issue in the case, the Supreme Court in Neder used "somewhat different language": " 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'" Harvey, 254 Wis. 2d 442, ¶ 46 (quoting Neder, 527 U.S. at 18).

¶ 37. This difference in language, we said, did not constitute an abandonment of the Chapman test, but a clarification by the Court of "what it takes to meet the test; that is, that, in order to conclude that an error 'did not contribute to the verdict' within the meaning of Chapman, a court must be able to conclude 'beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Id., ¶ 48 n.14 (quoting Neder, 527 U.S. at 18). Ultimately, the Court in Neder held that "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." Neder, 527 U.S. at 17.

¶ 38. Gordon argues that Neder is "completely irreconcilable" with the Supreme Court's more recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and suggests that "Neder's force is suspect" by virtue of the Court's decision in Apprendi.⁹ The cases are not inconsistent, and Apprendi has not undermined Neder.

¶ 39. Apprendi did not involve instructional error, but, rather, was a facial challenge to that portion of the New Jersey hate crimes law that committed to the judge rather than the jury, by a mere preponderance of the evidence, the elements of the hate crimes penalty enhancer. See Apprendi, 530 U.S. 466, 468-69 (2000). In any event, federal and state appellate courts have had no difficulty reconciling the two cases. Neder's harmless error analysis has been applied to Apprendi-type errors in every single federal appellate circuit.¹⁰ In addition, several state appellate courts have also applied Neder to Apprendi-type errors.¹¹ Contrary to Gordon's argument, acceptance of Neder, and its application in the context of Apprendi-type errors, appears to be practically universal.¹²

¶ 40. There is no meaningful way to distinguish the instructional error in Harvey — an instruction that contained a mandatory conclusive presumption — -from an instruction that omits an element of the offense. Neder itself involved an instruction that erroneously omitted an element of the offense. Neder, 527 U.S. at 15. Both types of instructional error are reviewed under harmless error analysis, pursuant to Neder and Harvey. We overrule Howard and Avila to the extent that those cases established a rule of automatic reversal where a jury instruction omits an element of the offense. The holding in Krueger was based on Howard and Avila; Krueger is also overruled. Wisconsin harmless error law (including Howard, Avila, and, by implication, Krueger) has followed federal harmless error law. Harvey's adoption of Neder and its reaffirmation of the Chapman-based harmless error analysis requires that we overrule the automatic reversal rule of Krueger, Howard, and Avila.

¶ 41. The removal of the automatic reversal rule returns this issue to the realm of Strickland's prejudice analysis, because Gordon's attorney did not object to the omission of the Peete "nexus" instruction. We can confidently say that there is no reasonable probability of a different outcome had counsel alerted the circuit court to the missing Peete instruction.

¶ 42. Gordon testified that he armed himself with two knives during a heated confrontation with the police that spilled out from Wilder's apartment into the surrounding neighborhood, all in order to escape arrest. Under these circumstances, Gordon's possession of the knives not only "facilitated" the disorderly conduct, it was what made his conduct disorderly in the first place. It is patently obvious, based on Gordon's own testimony, that the knives were not merely possessed in the commission of the underlying crime but were actually used to commit the underlying crime.

¶ 43. In conclusion, we hold that the closing argument concession by Gordon's counsel was not the functional equivalent of a guilty plea on the disorderly conduct while armed count, but, rather, was a reasonable tactical decision under the circumstances of this case. The concession did not constitute deficient performance, and it was not prejudicial. Nor was the failure to object to the absence of a Peete nexus instruction prejudicial, because Gordon has not demonstrated a reasonable probability of a different result had the instruction been given.

By the Court. — The decision of the court of appeals is reversed.

1 All subsequent statutory references are to the 2001-2002 version of the Wisconsin Statutes.

2 Wilder testified that she had allowed Gordon to live with her and to help care for her. Gordon testified that, based upon this, he did not believe the injunction was still in effect.

3 A Peete "nexus" instruction is not necessary where the enhancer is charged on the basis of the defendant's use or threat to use a dangerous weapon, because in such cases a nexus exists as a primary matter. See State v. Peete, 185 Wis. 2d 4, 18, 517 N.W.2d 149 (1994) ("If a defendant commits a crime while using or threatening to use a dangerous weapon, a nexus is established.").

4 The reversal of the conviction for violating a domestic abuse injunction is not before us on this review. Subsequent to the court of appeals decision, this court decided State v. Harvey, 2002 WI 93, ¶ 35, 254 Wis. 2d 442, 647 N.W.2d 189, and State v. Tomlinson, 2002 WI 91, ¶¶ 58-59, 254 Wis. 2d 502, 648 N.W.2d , adopting and applying Neder v. United States, 527 U.S. 1 (1999), and holding that harmless error analysis is appropriate in a case of an erroneous jury instruction, including one that omits an element of an offense.

5 The dissent contends that this ineffective assistance of counsel claim is not governed by Strickland v. Washington, 466 U.S. 668 (1984), citing a dissent in Haynes v. Cain, 298 F.3d 375, 385 (5th Cir. 2002) (Parker, J., dissenting). Dissent, ¶ 71 n.30. We know of no authority for the assertion that ineffective assistance of counsel claims are not governed by Strickland's two-pronged analysis of deficient performance and prejudice.

6 See Haines v. Cain, 272 F.3d 757, 762 (5th Cir. 2001); United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991); United States v. Simone, 931 F.2d 1186 (7th Cir. 1991); Francis v. Spraggins, 720 F.2d 1190, 1193 (11th Cir. 1983); Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981); Brown v. Rice, 693 F.Supp. 381, 395-97 (W.D.N.C. 1988); Nixon v. Singletary, 758 So.2d 618 (Fla. 2000); Childers v. State, 782 So. 2d 513, 517 (Fla. Dist. Ct. App. 2001); People v. Hattery, 488 N.E.2d 513 (Ill. 1985); State v. Carter, 14 P.3d 1138, 1141, 1148 (Kan. 2000); State v. Arnold, 706 So. 2d 578, 584-86 (La. Ct. App. 1998); People v. Fisher, 326 N.W.2d 537, 539-40 (Mich. Ct. App. 1982); State v. Moore, 458 N.W.2d 90, 95-96 (Minn. 1990); Wiley v. State, 517 So.2d 1373, 1381-82 (Miss. 1987); Jones v. State, 877 P.2d 1052, 1056-57 (Nev. 1994); State v. Anaya, 592 A.2d 1142, 1145-47 (N.H. 1991); State v. Harbison, 337 S.E.2d 504, 506 (N.C. 1985).

7 The dissent's citation and quotation from United States v. Simone, 931 F.2d 1186 (7th Cir. 1991), is misleading. Dissent, ¶ 61 n.23. Simone says this: "But when the admissions concern only some of the charges to be proven, or when they do not actually concede guilt, counsel's concessions have been treated as tactical retreats and deemed to be effective assistance." Simone, 931 F.2d at 1196.

8 Peete, 185 Wis. 2d at 18:

If a defendant commits a crime while using or threatening to use a dangerous weapon, a nexus is established. The defendant's use or threat to use a dangerous weapon puts the crime victim in fear, protects the defendant, and protects any contraband in the defendant's possession. These effects of the use or threat to use a weapon facilitate commission of the predicate offense. Thus the nexus requirement we establish, that a defendant possess the weapon to facilitate commission of the predicate offense, makes the language "while possessing" in § 939.63 parallel in meaning to "while . . . using" or "while ... threatening to use."

Id. at 18 (emphasis added, ellipses in original).

9 We note that the Neder dissent (were it the law) would not help Gordon here, for it declared that reversal is appropriate only where a defendant has made a timely objection. Neder, 527 U.S. at 34-35 n.1 (Scalia, J., concurring in part and dissenting in part) ("[J]ust as the absolute right to trial by jury can be waived, so also the failure to object to its deprivation at the point where the deprivation can be remedied will preclude automatic reversal" because "[i]t is a universally acknowledged principle of law that one who sleeps on his rights — even fundamental rights— may lose them."). As we have noted, Gordon did not make a timely objection to the erroneous instruction.

10 See United States v. Bailey, 270 F.3d 83 (1st Cir. 2001); United States v. Joyner, 313 F.3d 40 (2nd Cir. 2002); United States v. Vazquez, 271 F.3d 93 (3d Cir. 2002); United States v. Stewart, 256 F.3d 231 (4th Cir. 2001); United States v. Matthews, 312 F.3d 652 (5th Cir. 2002); United States v. Zidell, 323 F.3d 412 (6th Cir. 2003); United States v. Nance, 236 F.3d 820 (7th Cir. 2000); United States v. Wheat, 278 F.3d 722 (8th Cir. 2001); United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002); United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001); United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001); United States v. Samuel, 296 F.3d 1169 (D.C. Cir. 2002).

11 See State v. Ring, 65 P.3d 915, 935 (Ariz. 2003); State v. Garcia, 28 P.3d 327, 331 (Ariz. Ct. App. 2001); People v. Scott, 111 Cal. Rptr. 2d 318, 328-29 (Cal. Ct. App. 2001); State v. Price, 767 A.2d 107, 113 (Conn. 2001); State v. Davis, 772 A.2d 559, 568 (Conn. 2001); People v. Thurow, 203 Ill.2d 352 (2003), 786 N.E.2d 1019; State v. Burdick, 782 A.2d 319, 328 (Me. 2001). See also Bellamy v. United States, 810 A.2d 401 (D.C. 2002).

12 We are able to locate only one case finding structural error, Esparza v. Mitchell, 310 F.3d 414, 421 (6th Cir. 2002), a capital case involving a challenge under the Eighth Amendment rather than the Sixth Amendment.