State v. Richard Michael Arrington

2022 WI 53, 976 N.W.2d 453, 402 Wis. 2d 675

• Court: Wisconsin Supreme Court
• Decided: July 1, 2022
• Docket: 2019AP002065-CR
• Status: Published

Opinion

2022 WI 53

SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2065-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Richard Michael Arrington, Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 398 Wis. 2d 198, 960 N.W.2d459 PDC No:2021 WI App 32 - Published

OPINION FILED: July 1, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 10, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Brown JUDGE: Timothy A. Hinkfuss

JUSTICES: ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs filed by Sara Lynn Shaeffer, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sara Lynn Shaeffer.

For the defendant-appellant, there was a brief by Suzanne L. Hagopian, assistant state public defender. There was an oral argument by Suzanne L. Hagopian. 2022 WI 53 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2065-CR (L.C. No. 2016CF516)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED v. JUL 1, 2022 Richard Michael Arrington, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant.

ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 PATIENCE DRAKE ROGGENSACK, J. We review the court of

appeals'1 decision reversing the circuit court's judgment of

conviction of Richard Michael Arrington on the charge of first-

degree intentional homicide with use of a dangerous weapon

pursuant to Wis. Stat. § 940.01 (2019-20),2 as well as being a

1State v. Arrington, 2021 WI App 32, 398 Wis. 2d 198, 960 N.W.2d 459. 2 All subsequent references to the Wisconsin Statutes are to No. 2019AP2065-CR

felon in possession of a firearm under Wis. Stat. § 941.29.3 On

appeal, the State asks us to reverse the court of appeals,

arguing that it did not violate Arrington's Sixth Amendment

right to counsel when a jail inmate secretly recorded

conversations with Arrington. The State further argues that

defense counsel's failure to object to the admission of the

recordings as evidence against Arrington was not deficient

performance and did not prejudice him, so as to warrant a new

trial for ineffective assistance of counsel.

¶2 We conclude that Arrington's Sixth Amendment right to

counsel was not violated because the jail inmate, Jason Miller,

was not acting as a State agent when he recorded his

conversations with Arrington. Further, a new trial is not

warranted because Arrington's counsel's performance was not

deficient and Arrington was not prejudiced by his counsel's

failure to object to the State's use of the recordings.

Accordingly, we reverse the decision of the court of appeals and

affirm the circuit court's judgment of the convictions. I. BACKGROUND

¶3 Arrington's convictions stem from a shooting that

occurred on April 2, 2016, and resulted in the death of Ricardo

Gomez. The shooting itself was described as the culmination of

the 2019-20 version unless otherwise noted. 3The Honorable Timothy A. Hinkfuss of Brown County Circuit Court presided.

2 No. 2019AP2065-CR

a weeks-long feud between Arrington and a third individual,

Rafeal Santana-Hermida, also known as "Shorty."

¶4 The feud began a few weeks before the shooting when a

"drug deal [went] bad" and Arrington robbed Shorty at gunpoint,

stealing Shorty's machine gun. Shorty responded by attacking

Arrington through a car window with a knife, cutting his lip.

At trial, witnesses testified that, following Shorty's attack,

Arrington threatened to "[expletive] Shorty up" and stated that

he was going to "handle his business." Another witness

testified that Arrington was "highly upset" and had been seen

carrying a machine gun.

¶5 On the day of the shooting, Shorty and his girlfriend

were at Craig Taylor's house. Taylor testified that he had seen

Arrington in a car near his house and was worried that he wanted

to kill Shorty. Arrington was circling the block in his car and

looked "like he was hunting." Taylor further testified that

Arrington "had that look in his eye like he wanted to kill

something." A separate witness, Lawrence Hawkins, came and left Taylor's house prior to the shooting. Hawkins testified that

when he left Taylor's house, he saw Arrington parked across the

street. Arrington asked him if Shorty was inside and Hawkins

responded that he did not know. When he walked away, Hawkins

called Taylor and told him that Arrington was outside asking

about Shorty.

¶6 In the moments immediately preceding the shooting,

Ricardo Gomez arrived at Taylor's house. Gomez walked up to the front door and told Shorty, who was standing in the open 3 No. 2019AP2065-CR

doorway, that someone was "outside looking for him." According

to Taylor, Arrington began shooting into the doorway as soon as

he saw Shorty. Taylor testified that he "was right there when

the bullets hit [Gomez]" and that he saw Gomez fall onto Shorty

after being hit. Taylor further asserted that he did not see

Shorty with a gun and Shorty "never reached for [anything]."

¶7 Two other witnesses, AVT4 and David Landrum, were in

the car with Arrington on the day of the shooting. AVT, who was

seated in the front passenger seat of the car, stated that

Arrington rolled down her window and exchanged words with

Shorty. Then Arrington started "shooting a gun right by [her]

face." AVT testified that a "shell hit me in my head, and

[Arrington] told me to shut up." She also never saw Shorty

shooting at the car and explained that if Shorty had returned

fire, she likely would have been hit in the process because she

"was sitting right there." She asserted that "[t]here was no

gun [that] came out [of] that house . . . ." This assertion was

confirmed by a thorough police search of Taylor's house, the people in Taylor's house, and the neighborhood that revealed no

firearms.

¶8 Following the shooting, AVT said she told Arrington

that she wanted to get out of the car, and he responded, "you on

a murder case with me now, you ain't going nowhere." She

testified that Arrington threatened to kill her and her family

4Pursuant to Wis. Stat. § (Rule) 809.81(8), we use a pseudonym when referring to the juvenile witnesses.

4 No. 2019AP2065-CR

if she spoke to the police. He also told her to burn her

clothes and clean the car that they used the day of the

shooting. AVT stated that Arrington later approached her in a

different car and ordered her to get in. He had a gun in his

lap and was wearing a mask and latex gloves. He threw her phone

out the window of the car and drove her around for the night

while threatening to "ice her" if she left. She woke up alone

in the car the next morning and ran.

¶9 Eugene and Erica Herrod testified that the night of

the shooting, Arrington came to their home and used bleach to

clean his hands, face, and hair. He told them that he had

"popped" someone and asked Eugene for a ride to Milwaukee.

Arrington told Eugene that he had "fanned Shorty down."

However, upon later learning that he had killed the wrong

person, Arrington told Eugene that he would come back and "get

that [expletive] Shorty and finish my job." Arrington testified

that after the shooting, he changed his hair and appearance to

try to hide from law enforcement. ¶10 After Arrington turned himself in, he was charged and

brought to Brown County jail. While he was in custody, and had

already made his initial appearance with counsel, Arrington

began having conversations with another inmate, Jason Miller.

Miller used a recording device given to him by law enforcement,

to record his conversations with Arrington. In these

recordings, Arrington made incriminatory statements regarding

his on-going feud with Shorty and his role in the shooting of Gomez. 5 No. 2019AP2065-CR

¶11 Finally, almost a year after the shooting, Arrington

requested an interview with Detective Brad Linzmeier. In this

interview, Arrington suggested, for the first time, that his

shooting was in self-defense. Regarding his earlier feud with

Shorty, Arrington claimed to have nothing to do with the machine

gun robbery and explained that he was seeking to give Shorty

money as repayment for the robbery when Shorty stabbed him

through the car window. On the day of the shooting, Arrington

claimed that the only reason he began to shoot was because he

saw Shorty reaching into his waistband. Even then, Arrington

claimed to have fired only at the porch. Arrington said that

Shorty, after ducking out of the way of Arrington's bullets,

fired a single shot in response to Arrington and hit Gomez.

Linzmeier testified that this was the first time that he heard

about Shorty having a handgun and shooting Gomez.

¶12 The case proceeded to a jury trial, which lasted six

days and saw a total of forty-two witnesses testify. At trial,

the State introduced the recorded evidence that it received from Miller in addition to the statements of witnesses relayed above.

Defense counsel acknowledged to the court that he had the

recordings "for quite some time" and had reviewed them "long

before trial." He told the court he had "no objection" to their

admission. He did, however, object to providing a transcript to

the jury, which objection was sustained.

¶13 Miller testified that, before he and Arrington began

speaking, he had been helping law enforcement with an unrelated homicide investigation. Specifically Miller had been gathering 6 No. 2019AP2065-CR

information on a defendant named Antwon Powell. Miller

explained that Arrington was the one who began their

conversations by asking him to read the criminal complaint

against him and asking whether "there was enough there."

¶14 Miller testified that, following their initial

conversation about the complaint, he and Arrington spoke about

the events of the shooting at Taylor's house. Arrington told

Miller that, upon seeing Shorty, all he could think about was

Shorty stabbing him, and then he "just got to shooting."

However, Arrington confessed that "when he got to shooting,

Shorty jumped back, and when he jumped back, it hit [Gomez]."

Miller also testified that, over the course of their

conversations, Arrington never mentioned that he saw Shorty with

a gun in his hand or that he saw Shorty shoot Gomez.

¶15 Later, Miller asked Arrington if Shorty was "acting

like a beast?" And Arrington replied, "Yeah, that's what added

fuel to the fire," and that Shorty was "acting like a gorilla."

Miller told Arrington that his aim "ain't shit" because when he shot at Shorty, Arrington "hit the other [expletive]."

Arrington replied that he "just dumped the crib down" because he

did not know if Shorty would come back and retaliate.

¶16 Later in the trial, Arrington took the stand and

denied feuding with Shorty. Arrington testified that he forgave

Shorty following the stabbing and, contrary to other witness

testimony, was not upset at Shorty. Similarly, Arrington

explained that he was at Taylor's house the day of the shooting only because Landrum wanted to get some marijuana. When Shorty 7 No. 2019AP2065-CR

saw Arrington, Shorty started "going crazy." Arrington

testified that he thought he saw Shorty reach for a gun, but

that he actually didn't see a gun. In response to this,

Arrington fired three shots at the house. As he drove away,

Arrington explained that, what he saw was "Shorty come around

the door with the gun in his hand at the same time that

[Gomez] . . . was coming into the house, and what it looked like

to me was that Gomez had been shot by [Shorty]."

¶17 Following the shooting, Arrington denied doing

anything that would incriminate him in Gomez's shooting, and he

dismissed significant testimony to the contrary. For example,

Arrington denied speaking with Erica Herrod and asking for

bleach after "popping" someone. He denied having any contact

with AVT following the shooting, let alone kidnapping her. He

described AVT's testimony as "all lies." When asked why Eugene

Herrod testified that Arrington told him that he "got the wrong

guy but I'm going to come back and finish the job and get

Shorty," Arrington replied, "I don't know why Eugene told you guys that." Arrington also agreed when the State asked him

whether it "sound[ed] like a lot of people are making stuff up."

¶18 The jury convicted Arrington on both the first-degree

intentional homicide and being a felon in possession of a

firearm. After obtaining new counsel, Arrington moved for

postconviction relief. He asserted that the State violated his

Sixth Amendment right to counsel when it used Miller to obtain

recorded conversations after he had been charged and was represented by counsel. Arrington argued that the introduction 8 No. 2019AP2065-CR

of those statements was plain error, entitling him to a new

trial. Alternatively, he sought a new trial, asserting that his

attorney's failure to object to Miller's recordings at trial

constituted ineffective assistance of counsel.

¶19 The circuit court held a Machner5 hearing during which

Arrington, his trial counsel, Michael Hughes, and Detectives

Michael J. Wanta and Linzmeier testified. Hughes re-affirmed

that he had the recordings for "quite some time" before trial

and did not consider moving to suppress the recordings. The

circuit court also heard testimony from the detectives regarding

the origin of Miller's involvement in Arrington's case.

¶20 Wanta testified that Miller was assisting him on the

Powell homicide case. Wanta testified that, in an April 6, 2016

meeting, Miller had expressed an interest in "recording

conversations that he was having with the parties that we

identified [in regards to the Powell case]. Wanta told Miller

that the detectives would help "facilitate that. And the

information he [gathered] would . . . be used as part of his consideration." This conversation occurred before Arrington had

turned himself in on April 8, 2016. Accordingly, it had zero

relationship to any investigation into Arrington because no

investigation into Arrington existed at that time. Indeed,

Wanta explained that he was not "aware of any possibility of

See State 5 v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

9 No. 2019AP2065-CR

Mr. Miller's speaking to Mr. Arrington during [the] April 6

meeting[.]"

¶21 Following Arrington's custody, Miller approached Wanta

about recording Arrington. Wanta became aware of Miller's

request to speak with law enforcement about Arrington when

Miller's attorney contacted the District Attorney's office. The

District Attorney's office passed the request onto Wanta, who

met with Miller at the jail. Miller told Wanta that Arrington

"was talking with him and he believed that Mr. Arrington would

tell him things about the case and he asked if he should record

it. I said he could record conversations with Mr. Arrington."

The detectives also testified that they told Miller, "if you

want to record the conversation you can." Miller was never

instructed that he should record Arrington.

¶22 Wanta was aware that Miller was seeking consideration

for gathering information on Arrington, but testified that he

made it "very clear from the start" that he would "not get

involved in specifics regarding consideration" because that "comes from the District Attorney." There was never an offer of

consideration from law enforcement to Miller for information

gathered on Arrington.6 Wanta also explained that he did not

6Any indication or inference that the April 6 discussion of consideration for information gathered in the Powell case was tantamount to an offer of consideration for information gathered on Arrington's case is factually incorrect and purposefully misleading. The police did not assure Miller that information he gathered on Arrington "would . . . be used as part of his consideration." Linzmeier and Wanta, as instructed by their standard practice and training, were straightforward and "very clear from the start" that they would not speak to Miller about 10 No. 2019AP2065-CR

give any direction to Miller regarding the types of information

he should record or what type of questions he should ask

Arrington.

¶23 Wanta testified that law enforcement provided Miller

with the recording device and that there was no way "to monitor

it or listen to this particular device. It is a matter of

basically flipping a switch on the side of it on and off." They

could not listen "in live-time," and only Miller had the ability

to turn the recorder on and off. Miller made the recording that

was played at trial on April 13. There is no support in the

record for any agreement between Wanta and Miller that Miller

acted as the State's agent when he made that recording.

¶24 The postconviction court concluded that Miller was not

acting as an agent for the State when he recorded his

conversations with Arrington. Therefore, Arrington's Sixth

Amendment right to counsel was not violated. In the course of

its decision, the court made numerous findings of fact. First,

the court found that the "State did not put Mr. Miller and Mr. Arrington together in Fox Pod. It was a coincidence." It

also found that "[t]he police never approached Mr. Miller about

consideration or make promises of consideration to Miller for any information Miller provided on Arrington. No conversation regarding consideration for Miller's work on the Arrington case occurred. In the postconviction motion hearing, Wanta was asked whether "Mr. Miller ask[ed him] specifically for consideration in this case?" Wanta replied, "Not any specific consideration." Later Linzmeier was also asked if "[he] ever [spoke] to Mr. Miller about any consideration?" Linzmeier replied, "No, not specifics of anything."

11 No. 2019AP2065-CR

recording Mr. Arrington." Rather, it was Miller's attorney that

spoke to the District Attorney's office "about him voluntarily

contributing information to the police" and that this was what

prompted the police to "have a discussion with him" in the

Arrington investigation.

¶25 Furthermore, "before making any recordings, Mr. Miller

voluntarily asked the police if he should record any information

from Mr. Arrington, and the detective informed him that he could

record such conversations." And although the police were aware

that Miller was seeking consideration for gathering information

on Arrington from the District Attorney's office, "they made no

promises to Mr. Miller that the fact that he was giving

information would lead to a reduced sentence."

¶26 It was Miller who was "wearing a wire that he could

turn on and off on his own initiative." Arrington began talking

to Miller about his case "without Mr. Miller prompting the

conversation" and law enforcement "could not listen in on any

conversation, and had not told what questions Mr. Miller should ask Mr. Arrington." Law enforcement personnel have "no

affirmative duty to keep Mr. Miller away from Mr. Arrington when

they knew Mr. Miller was assisting with another case" and it is

not their responsibility "to protect defendants from their own

'loose talk.'" The postconviction court closed by explaining

that, although each of the facts on its own is likely

insufficient to disprove agency, "all the points together

certainly show that Mr. Miller was not an agent."

12 No. 2019AP2065-CR

¶27 The postconviction court also concluded that there was

no ineffective assistance of counsel based on its decision about

the Sixth Amendment. It further found that the conversation

between Arrington and Miller was not prejudicial or ineffective

but "consistent with the defendant's version of events. The

statements bolster[ed] defendant's self-defense claim."

¶28 The court of appeals reversed the circuit court and

granted Arrington a new trial. The court concluded that the

conduct of the detectives in equipping Miller with a recording

device was prohibited by the United States Supreme Court and

Wisconsin case law and that the State "violated Arrington's

Sixth Amendment right to counsel when Miller made the recordings

of conversations with Arrington while acting as an agent of the

State." State v. Arrington, 2021 WI App 32, ¶2, 398 Wis. 2d 198,

960 N.W.2d 459.

¶29 To support this conclusion, the court of appeals noted

that the detectives' decision to equip Miller with a recording

device and expressly authorize him to surreptitiously record his conversations with Arrington clearly showed an agency

relationship. Id., ¶36. Further, the detectives' actions

"violated the Sixth Amendment because they created a situation

likely to induce Arrington to make incriminating statements

without his counsel's assistance." Id. (citing United States v.

Henry, 447 U.S. 264, 274 (1980)).

¶30 After concluding that the detectives violated

Arrington's Sixth Amendment right to counsel, the court of appeals also concluded that Arrington's trial counsel was 13 No. 2019AP2065-CR

ineffective. It concluded that trial counsel's "failure to seek

suppression of the recording, or to object to Miller's testimony

at trial, for no strategic reason, fell far below an objective

standard of reasonableness." Arrington, 398 Wis. 2d 198, ¶44.

It also concluded that, had the tapes not been admitted into

evidence, "there would have been sufficient questions regarding

whether Arrington was acting in self-defense so as to raise a

reasonable doubt about Arrington's guilt on the homicide

charge." Id., ¶48.

¶31 Accordingly, the court of appeals reversed and

remanded the matter for a new trial on the homicide charge

without the use of the recordings and Miller's testimony about

his jailhouse conversations with Arrington.7 We granted the

State's petition for review, and now reverse the court of

appeals.

II. DISCUSSION

A. Standard of Review

¶32 Arrington asks us to review the State's admission of Miller's recordings at trial under the plain error doctrine or,

alternatively, for a determination that he received ineffective

assistance of counsel. Under the doctrine of plain error, an

appellate court may review error that was otherwise waived by a

party's failure to object properly or preserve the error for

7 Arrington conceded that, regardless of the violation of his Sixth Amendment rights or his counsel's deficient performance, reversal of his felon in possession of a firearm charge was not warranted. Arrington, 398 Wis. 2d 198, ¶48.

14 No. 2019AP2065-CR

review as a matter of right. State v. Mayo, 2007 WI 78, ¶29,

301 Wis. 2d 642, 734 N.W.2d 115. We do not remedy errors under

the plain error doctrine unless they are "obvious and

substantial[,]" and "so fundamental that a new trial or other

relief must be granted even though the action was not objected

to at the time." State v. Bell, 2018 WI 28, ¶8, 380 Wis. 2d

616, 909 N.W.2d 750 (quoting State v. Jorgensen, 2008 WI 60,

¶21, 310 Wis. 2d 138, 754 N.W.2d 77).

¶33 The "plain error" that Arrington asserts is a

violation of his Sixth Amendment right to counsel, which

"involves the application of constitutional principles to

historical facts." State v. Forbush, 2011 WI 25, ¶10, 332

Wis. 2d 620, 796 N.W.2d 741 (quoting State v. Hoppe, 2003 WI 43,

¶34, 261 Wis. 2d 294, 661 N.W.2d 407). We have adopted a two-

part standard of review for questions of constitutional fact.

Forbush, 332 Wis. 2d 620, ¶10. We uphold the circuit court's

findings of historical or evidentiary fact unless they are

clearly erroneous. State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. We then independently review the

application of constitutional principles to the facts found.

State v. Ward, 2009 WI 60, ¶17, 318 Wis. 2d 301, 767 N.W.2d 236.

In addition, we independently review as a question of law

whether the undisputed facts establish an agency relationship.

Lang v. Lions Club of Cudahy Wis., Inc., 2020 WI 25, ¶20, 390

Wis. 2d 627, 939 N.W.2d 582.

¶34 Furthermore, a claim of ineffective assistance of counsel presents a mixed question of law and fact. State v. 15 No. 2019AP2065-CR

Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. We

will uphold the circuit court's findings of fact unless they are

clearly erroneous. Id. Findings of fact include the

circumstances of the case and counsel's conduct and strategy.

Id. (citing State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571,

665 N.W.2d 305). Whether counsel's performance satisfies the

constitutional standard for effective assistance of counsel is a

question of law, which we independently review. Carter, 324

Wis. 2d 640, ¶19.

B. Sixth Amendment

¶35 The Sixth Amendment of the United States Constitution

guarantees that "the accused shall enjoy . . . the Assistance of

Counsel for his defense."8 Article I, Section 7 of the Wisconsin

Constitution similarly guarantees that "[i]n all criminal

8 In full, the Sixth Amendment of the United States Constitution reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const. amend. VI.

The Supreme Court applied the Sixth Amendment right to counsel to the states through incorporation by the Due Process Clause of the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335 (1963).

16 No. 2019AP2065-CR

prosecutions the accused shall enjoy the right to be heard by

himself and counsel."9 Generally, "the right to counsel under

the Sixth Amendment [of the United States Constitution] and

Article I, Section 7 [of the Wisconsin Constitution] 'attaches

only at or after the time that adversary judicial proceedings

have been initiated against [a defendant].'" Forbush, 332

Wis. 2d 620, ¶15 (quoting United States v. Gouveia, 467 U.S.

180, 187 (1984)); see also State v. Sanchez, 201 Wis. 2d 219,

226, 548 N.W.2d 69 (1996) (concluding that the Article I,

Section 7 of the Wisconsin Constitution right to counsel does

not create a right different from the Sixth Amendment right to

counsel).

1. Historical facts

¶36 In concluding that Miller was not acting as a

government agent at the time of the recordings, the

postconviction court made several relevant findings of fact.

In 9 full, Article I, Section 7 of the Wisconsin Constitution, "Rights of accused," reads:

In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

Wis. Const. art. I, § 7.

17 No. 2019AP2065-CR

Initially, it found that Arrington was not the target of law

enforcement's initial investigation and that it was a

coincidence that Miller and Arrington ended up being in the same

facility. It also found that Arrington was the person who

prompted the initial conversation between him and Miller. It

was after that initial conversation that Miller, through his

attorney, approached law enforcement about voluntarily

contributing information by recording Arrington. This offer was

what prompted law enforcement to consider using Miller in

Arrington's investigation.

¶37 Furthermore, the court found that Miller was under no

obligation to record the conversations. The detectives told

Miller that "he could record such conversations." The

detectives did not tell Miller what questions to ask Arrington

and the detectives could not listen in on any conversations.

Miller wore a recording device "that he could turn on and off on

his own initiative."

¶38 And although the detectives were aware that Miller was seeking consideration for gathering information on Arrington

from the District Attorney's office, "they made no promises to

Mr. Miller that the fact that he was giving information would

lead to a reduced sentence." The circuit court found that

"Miller was acting with the hope that the prosecutors in his

case would give him a more lenient sentence[.]"

¶39 The postconviction court held a hearing during which

it heard testimony from the detectives and Arrington regarding both parties' dealings and interactions with Miller. Upon 18 No. 2019AP2065-CR

review of the record, we conclude that the factual findings of

the postconviction court are supported by the record and are,

therefore, not clearly erroneous.

2. Constitutional principles

¶40 Once the right to counsel has attached and been

asserted, the State must honor it. Maine v. Moulton, 474 U.S.

159, 170 (1985). In a seminal Sixth Amendment case, Massiah v.

United States, the United States Supreme Court established that

the Sixth Amendment prohibits the government from deliberately

eliciting incriminating statements from a defendant, in the

absence of counsel, after the defendant has been indicted.

Massiah v. United States, 377 U.S. 201, 206 (1964).

¶41 In United States v. Henry, the FBI sought information

on a suspected bank robber, Henry, and reached an agreement with

Henry's cellmate, Nichols, to be a paid informant. Henry, 447

U.S. at 266. The FBI told Nichols to "be alert to any

statements" made by Henry, but not to initiate any conversation

with or question Henry regarding the bank robbery. Id. The arrangement between Nichols and the FBI was on a "contingent-fee

basis; Nichols was to be paid only if he produced useful

information." Id. at 270. Nichols was later released from

prison and was paid for the information he provided. Id. at

266.

¶42 In determining whether Nichols "deliberately elicited"

incriminating statements, the United States Supreme Court

concluded that three factors were important. Id. at 270. First, "Nichols was acting under instructions as a paid 19 No. 2019AP2065-CR

informant for the Government; second, Nichols was ostensibly no

more than a fellow inmate of Henry; and third, Henry was in

custody and under indictment at the time he was engaged in

conversation by Nichols." Id. These factors, when combined,

"intentionally creat[ed] a situation likely to induce Henry to

make incriminating statements without the assistance of counsel,

[and therefore,] violated Henry's Sixth Amendment right to

counsel." Id. at 274.

¶43 In Moulton, the United States Supreme Court concluded

that law enforcement violated the defendant's rights when it

arranged to record conversations between the defendant and its

informant, Colson. Moulton, 474 U.S. at 176. As part of his

arrangement with police, Colson agreed that, in exchange for "no

further charges [being] brought against him[,]" he would

"testify against Moulton and otherwise cooperate in the

prosecution of Moulton on the pending charges." Id. at 163.

¶44 The police had Colson record his phone conversations

with the defendant, and then after learning from these phone recordings that Colson planned to meet with the defendant in-

person, told Colson to wear a recording device to the meeting.

Id. at 164-66. At the meeting, Colson actively questioned the

defendant about facts and dates of the crime, in response to

which the defendant made incriminating statements. Id. at 165-

66. These statements then were used at the defendant's trial

that resulted in a conviction. Id. at 177. The Court held that

the State had deliberately elicited the statements by "knowingly circumventing the accused's right to have counsel present in a 20 No. 2019AP2065-CR

confrontation between the accused and a state agent." Id. at

176.

¶45 In Kuhlmann v. Wilson, 477 U.S. 436, 439 (1986),

detectives reached an agreement with the defendant's cellmate to

be an informant. The detectives told the cellmate not to ask

questions, but rather to simply "keep his ears open" to what the

defendant said. Id. The defendant made incriminating

statements which the informant reported to police. Id. The

United States Supreme Court held that the Sixth Amendment does

not forbid "admission in evidence of an accused's statements to

a jailhouse informant who was 'placed in close proximity but

[made] no effort to stimulate conversations about the crime

charged.'" Id. at 456 (quoting Henry, 447 U.S. at 271 n.9).

The Court concluded that the defendant in Kuhlmann did not

"demonstrate that the police and their informant took some

action, beyond merely listening, that was designed deliberately

to elicit incriminating remarks." Kuhlmann, 477 U.S. at 459.

¶46 From these cases, courts have determined that in order to find a Sixth Amendment violation, "the statements in question

must have been (1) deliberately elicited (2) by a government

agent." United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995).

Here, there is no dispute that Miller deliberately elicited

information from Arrington.10 Therefore, we turn next to the

second prong of the Sixth Amendment analysis, whether Miller was

Miller had conversations with Arrington about his case, 10

recorded those conversations, and gave the recordings to law enforcement for use in Arrington's trial.

21 No. 2019AP2065-CR

acting as a government agent when he recorded his conversations

with Arrington. We conclude that he was not.

¶47 Initially, a brief review of general agency principles

will be helpful to our discussion.11 We note that "a person or

business acting on behalf of another, and subject to control of

another, is an agent and the person or business they are acting

on behalf of, a principal." Lang, 390 Wis. 2d 627, ¶25.

¶48 An agency relationship is based on an agreement

between the principal and agent that expresses three

elements: "(1) the conduct of the principal showing that the

agent is to act for him or her; (2) the conduct of the agent

showing that he or she accepts the undertaking; and (3) the

understanding of the parties that the principal is to control

the undertaking." City of Milwaukee v. NL Indus., 2008 WI App

181, 315 Wis. 2d 443, 485, 762 N.W.2d 757 (quoting Wis JI——Civil

4000). At times, the existence of an agency relationship "is a

question of fact because the determination turns on 'the

understanding between the alleged principal and agent.'" Lang, 390 Wis. 2d 627, ¶20 (citing Soczka v. Rechner, 73 Wis. 2d 157,

163, 242 N.W.2d 910 (1976)).

¶49 "The agent's duty is to act solely for the benefit of

the principal in all matters connected with the agency, even at

the expense of the agent's own interests." Losee v. Marine

11 Although we acknowledge that, in prior Sixth Amendment "state agent" precedents, the United States Supreme Court has used a more specific, nuanced analysis to determine agency status, we include this discussion of common law agency principles for a fuller understanding of the concept as a whole.

22 No. 2019AP2065-CR

Bank, 2005 WI App 184, ¶16, 286 Wis. 2d 438, 703 N.W.2d 751.

Generally, an agent has the duty to obey all reasonable

directions as to its manner of performing the service it has

agreed to perform. See Restatement (Second) of Agency § 385

(1958). "What matters in forming an agency relationship is that

the principal has the right to control that conduct." Lang, 390

Wis. 2d 627, ¶30.

¶50 In the specific context of examining the work of a

government informant for purposes of an alleged Sixth Amendment

violation, federal courts have determined that "there is no

[Sixth Amendment] infringement unless the informant was a

government agent, and there is no agency absent the government's

agreement to reward the informant for his services." United

States v. York, 933 F.2d 1343, 1357 (7th Cir. 1991), overruled

on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir.

1999); see also Henry, 447 U.S. 26 at 270. In York, an inmate,

Beaman, reported to FBI that his cellmate, York, had confessed

to murdering his wife. York, 933 F.2d at 1355. Beaman had been acting as a prison informant for the FBI for years prior, but

the FBI did not purposefully place him in the same cell as York

to gather information. Id. at 1356. The FBI learned of York

only when Beaman came to them with York's confessions. Id.

¶51 After Beaman reported the confessions, the FBI told

him that they wanted him to gather more information on specific

crimes: murder, official corruption, and drug offenses. Id.

The FBI also conceded that there was an agreement with Beaman to assist his parole application by detailing the extent of his 23 No. 2019AP2065-CR

cooperation with the government on York's case. Id. at 1358.

The Court concluded that, as a matter of law, Beaman had acted

as an agent on behalf of the government. Id. It concluded that

the relevant question was whether the FBI "told Beaman to

collect information" and specifically noted that FBI agent Stoll

"told Beaman the type of information he was interested in

receiving; that statement was tantamount to an invitation to

Beaman to go out and look for that type of information." Id.

¶52 The Court further explained that, in deciphering

whether an agreement between law enforcement and an inmate is

formed, "[w]e must not confuse speculation about [an

informant's] motives for assisting the police for evidence that

the police promised [the informant] consideration for his help

or, otherwise, bargained for his active assistance." Id. at

1357 (quoting Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th

Cir. 1987), cert. denied, 488 U.S. 934, 109 S. Ct. 329 (1988)).

Undoubtedly, "most inmates who provide information to law

enforcement officials harbor the hope that their service will not go unrewarded[;]" however, just because "inmates realize

there is a market for information about crime does not make each

inmate who enters the market a government agent." Id. "[T]here

is no agency absent the government's agreement to reward the

informant for his services." Id.

¶53 Furthermore, federal courts have also concluded that

agency status is particularized to specific defendants. "[A]n

informant becomes a government agent for purposes of [Massiah] only when the informant has been instructed by the police to get 24 No. 2019AP2065-CR

information about the particular defendant." Moore v. United

States, 178 F.3d 994, 999 (8th Cir. 1999) (quoting United States

v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997)). In Moore, the

defendant, Moore, had been arrested for bank robbery and placed

in jail awaiting trial. Moore, 178 F.3d at 997. At trial,

Hartwig, a prisoner housed in the same cellblock with Moore,

testified for the government as to conversations he overheard

while in jail, in which Moore admitted his crimes. Id.

¶54 Importantly, during the same timeframe that Moore was

admitting to his crimes in jail, Hartwig had received and signed

a letter from the United States Attorney Office agreeing to

"provide an informal proffer of information concerning his

knowledge of drug-related criminal activity." Id. at 999. "The

stated purpose of the meeting was to assist the government 'in

determining what, if any, consideration should be afforded

[Hartwig] in exchange for [his] agreement to provide information

or other cooperation[.]'" Id. Hartwig revealed his information

regarding Moore's admissions in his next statement to law enforcement, as required under the proffer agreement.12 Moore

argued that Hartwig was a government agent and, therefore, his

12 "A proffer agreement is an agreement between a defendant and the government in a criminal case that sets forth the terms under which the defendant will provide information to the government during an interview, commonly referred to as a 'proffer session.'" Robert I. Smith, III, Fair Play and Criminal Justice: Drafting Proffer Agreements in Light of Total Waiver of Rule 410, 66 S.C. L. Rev. 809, 812 (2015) (quoting 1 Stephen E. Arthur & Robert S. Hunter, Federal Trial Handbook: Criminal § 31:3 (4th ed. 2014)).

25 No. 2019AP2065-CR

testimony regarding the jailhouse admissions ran afoul of his

Sixth Amendment rights.

¶55 The Court disagreed and reaffirmed that an informant

becomes a government agent only when law enforcement instructs

the informant to gather information on a particular defendant.

Id. "To the extent there was agreement between Hartwig and the

government, there is no evidence to suggest it had anything to

do with Moore." Id. Rather, the proffer served as evidence

that Hartwig was willing to disclose pertinent criminal activity

in hopes of receiving a more favorable plea agreement. Id. In

rejecting Moore's Sixth Amendment claim, the court concluded

that "the link between Hartwig's relationship with the

government and his conduct at issue" was insufficient to be

considered a Massiah violation against Moore. Id. at 999–1000.

¶56 The Eighth Circuit doubled down on this particularized

agency analysis in United States v. Johnson, 338 F.3d 918, 921

(8th Cir. 2003) ("There is nothing obscure about this language.

. . . we said that an informant becomes a government agent for Massiah purposes only when the informant has been instructed by

the police to get information about a particular defendant.")

(emphasis in original). The district court in Johnson concluded

that agency was established, even in the "absence of express

instructions from the government to get information about a

particular defendant[,] 'by proof of an implicit agreement

arising from a longstanding informant's . . . "symbiotic

relationship"' with the government." Id. at 922.

26 No. 2019AP2065-CR

¶57 The Eighth Circuit rejected this analysis and,

instead, described Moore as a "bright-line rule[:] If an

informant has not been instructed by the police to get

information about the particular defendant, that informant is

not a government agent for Massiah purposes." Id. The Court

concluded that Moore's language could not be "explained away."

Id.

¶58 Likewise, the Wisconsin Court of Appeals concluded

that both (1) proof of an agreement between law enforcement and

the informant and (2) law enforcement control over the

investigation are necessary to a conclusion that the informant

was a state agent. State v. Lewis, 2010 WI App 52, ¶¶21-25, 324

Wis. 2d 536, 781 N.W.2d 730. In Lewis, an inmate, Gray,

approached police with information on his cellmate, Lewis, who

was awaiting trial on robbery charges. Id., ¶4. Law

enforcement had not placed Gray in the cell with Lewis and had

no knowledge of Gray until he approached them with information.

Id., ¶8. Gray testified that Lewis volunteered the information without prompting, id., ¶10, and "admitted that no law

enforcement agency or officer ever promised anything to him in

exchange for him providing information." Id., ¶9. He said he

came forward "in the hope that the government would take his

willingness to inform into account." Id. The circuit court

found that it was a "unilateral decision by Gray to volunteer

this information." Id., ¶15.

¶59 After being convicted, Lewis filed a postconviction motion arguing that Gray's testimony violated his Sixth 27 No. 2019AP2065-CR

Amendment right to counsel. Id., ¶7. Regarding Gray's status

as a government agent, Lewis argued that if the government

creates circumstances "whereby a person predisposed toward

giving information in the hope of a possible reward is in a

jailhouse setting, . . . that predisposed person is an agent

when information is retrieved, agreement or no agreement,

control or no control." Id., ¶21. The court of appeals

disagreed and concluded that there was no agreement between law

enforcement and Gray. Id., ¶23. The court explained that "the

key issue is the extent of government involvement. When the

government pays the informant, it is evidence (although not

conclusive) that a prior agreement between the government and

the informant existed, whether that agreement was explicit or

implicit." Id., ¶22 (quoting United States v. Surridge, 687

F.2d 250, 254 (8th Cir. 1982)). "The fact that the government

might know an informant 'hopes' to receive a benefit as a result

of providing information does not translate into an implicit

agreement[.]" Lewis, 324 Wis. 2d 536, ¶23. ¶60 The court refused to "extend the rule of Massiah and

Henry to situations where an individual, acting on his [or her]

own initiative, deliberately elicits incriminating information."

Id. (quoting United States v. Malik, 680 F.2d 1162, 1165 (7th

Cir. 1982)). It held that "[a]s long as the police do nothing

to direct or control or involve themselves in the questioning of

a person in custody by a private citizen, such questioning does

not violate the . . . [S]ixth Amendment[]." Lewis, 324 Wis. 2d 536, ¶25 (quoting Surridge, 687 F.2d at 255). 28 No. 2019AP2065-CR

¶61 Here, the circuit court found that Miller voluntarily

came to law enforcement and asked whether he could record his

conversations with Arrington. Rather than directing Miller to

speak with Arrington, the detectives simply told Miller, "if you

want to record the conversation you can." Like the informant in

Lewis, Miller made a unilateral decision to volunteer his

information to law enforcement. Miller acted on his own

initiative.

¶62 Additionally, Miller was not paid or promised payment

by the detectives for gathering information on Arrington.

Although not conclusive, payment is evidence of an agreement

between law enforcement and an informant. In Henry, one of the

Supreme Court's factors for determining that an inmate was a

government agent was that he was a paid informant. See Henry,

447 U.S. at 270 ("First, Nichols was acting under instructions

as a paid informant for the Government[.]"). See also Moulton,

474 U.S. at 163 (describing Colson's agreement to testify

against defendant and cooperate in police investigation in exchange for no further charges); York, 933 F.2d at 1359

(describing agreement with FBI to assist Beaman's parole

application by detailing his cooperation in York case).

Conversely, in Lewis, the court of appeals concluded that an

informant's "hope" that his services would be rewarded was not

enough to form the basis of an implicit agency agreement.

Something more is needed.

¶63 Here, the detectives were very clear to make no promises to Miller regarding consideration for gathering 29 No. 2019AP2065-CR

information on Arrington. They told Miller that any payment or

consideration would come from the District Attorney's office.

On this basis, the circuit court found that "Miller was acting

with the hope that the prosecutors in his case would give him a

more lenient sentence[.]" As with the court's conclusion in

Lewis, we similarly refuse to extend the application of Sixth

Amendment to instances where an individual is acting on his own

initiative to deliberately elicit information in the hope of

receiving consideration. Miller's decision to entrepreneurially

enter the information marketplace did not transform him into a

government agent. For Miller to be a government agent, there

must have been a prior agreement with the government. Whether

there was a promise of consideration is strong evidence of

whether there was a prior agreement. No consideration was ever

promised to Miller for gathering information on Arrington.

¶64 Moreover, to the extent that Miller had an agreement

regarding consideration for information he gathered on the

Powell case, there is no evidence to suggest that it had anything to do with Arrington. Moore, 178 F.3d at 999 (setting

out particularized agency determination); Johnson, 338 F.3d at

922 (describing Moore's particularized agency analysis as a

"bright-line rule"). The alleged agreement and the statement

that the information he gathered "would . . . be used as part of

his consideration" was particularized and concerned only the

Powell case. Furthermore, the statement occurred before

Arrington was in police custody; and therefore, it occurred before Miller had the opportunity to talk with Arrington. 30 No. 2019AP2065-CR

¶65 As the court in Moore explained, even the close

timeframe is not enough to impute an agreement regarding

information gathered on one case as an agreement regarding

information gathered on a separate case. See Moore, 178 F.3d at

999 (explaining that Moore was arrested and taken to jail on

February 20, 1998, and Hartwig had signed his proffer agreement

with law enforcement "[s]ometime between February 17 and

February 25, 1998"). Miller's readiness to gather information

on Powell in exchange for consideration showed nothing more than

his willingness to enter the informational market. Accordingly,

we conclude that there was no agency agreement between Miller

and the State for gathering information on Arrington.

¶66 The Lewis court similarly concluded that an element of

the agency analysis is whether law enforcement have control of

the questioning. It is a bedrock principle of agency law in

Wisconsin that "the principal has the right to control [the

agent's] conduct." Lang, 390 Wis. 2d 627, ¶30. Applying this

principle in a Sixth Amendment context, the court in Lewis held that "[a]s long as the police do nothing to direct or control or

involve themselves in the questioning of a person in custody by

a private citizen, such questioning does not violate

the . . . [S]ixth Amendment[]." Lewis, 324 Wis. 2d 536, ¶25

(quoting Surridge, 687 F.2d at 255). Law enforcement personnel

have no duty to protect defendants from their own "loose talk."

Lewis, 324 Wis. 2d 536, ¶24 (citing Malik, 680 F.2d at 1165).

¶67 Likewise, the United States Supreme Court has concluded that the level of government involvement and control 31 No. 2019AP2065-CR

of questioning are relevant to whether an agency relationship

exists. Compare Moulton, 474 U.S. at 176-77 (finding Sixth

Amendment violation when a wired informant actively questioned

defendant on details of a crime at request of police) with

Kuhlmann, 477 U.S. at 439 (finding no Sixth Amendment violation

when informant was told by police to just "keep his ears open"

to what the defendant said).

¶68 Here, the detectives did not direct or control

Miller's questioning of Arrington. Unlike the FBI agent in

York, who told Beaman which crimes to question York on, the

detectives never gave Miller any direction to speak with

Arrington, question Arrington, or ask Arrington follow-up

questions. The circuit court found that they did not tell

Miller which questions to ask Arrington or what information to

gather. Miller was under "no obligation" to record his

conversations with Arrington. Furthermore, when Miller did

choose to record, he was in control of what was recorded.

Miller wore a recording device "that he could turn on and off on his own initiative." The detectives could not listen into the

conversations in real-time. They did not control Miller's

recording or questioning.

¶69 The detectives also had no affirmative duty to protect

Arrington from Miller. If a defendant prompts conversations

with another inmate, he puts himself at risk. Law enforcement

has no duty to protect him from his own decisions regarding with

whom he chooses to converse. Similarly, the mere act of providing Miller with a recording device is not enough to 32 No. 2019AP2065-CR

constitute control of his questioning. The recording device in

this case was nothing more than an avenue for the police to

place a "listening ear" into Arrington's cell. See Kuhlmann,

477 U.S. at 461 (Burger, C.J., concurring). By itself, this act

did not elicit information from Arrington and did not violate

his Sixth Amendment rights.

¶70 Accordingly, because the detectives did not have an

agreement with Miller or control his questioning, we conclude

that there was no agency relationship between Miller and law

enforcement and no violation of Arrington's Sixth Amendment

right to counsel. Consequently, having determined that there

was no Sixth Amendment violation, Arrington has not identified

an error to which we may apply the plain error doctrine. This

necessarily means that we need not consider whether, if the

recordings had been improper, the impropriety "would have been

so obvious, substantial, and fundamental that it would

necessitate a new trial[.]" Bell, 380 Wis. 2d 616, ¶59.

C. Ineffective Assistance of Counsel ¶71 "Under the Sixth and Fourteenth Amendments to the

United States Constitution, a criminal defendant is guaranteed

the right to effective assistance of counsel." State v.

Lemberger, 2017 WI 39, ¶16, 374 Wis. 2d 617, 893 N.W.2d 232

(quoting State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358,

805 N.W.2d 334). The right to effective assistance of counsel

also is provided under Article I, Section 7 of the Wisconsin

Constitution. Lemberger, 374 Wis. 2d 617, ¶16. That counsel's assistance was ineffective, may be demonstrated by establishing 33 No. 2019AP2065-CR

that counsel's performance was deficient and that the deficient

performance was prejudicial. State v. Breitzman, 2017 WI 100,

¶37, 378 Wis. 2d 431, 904 N.W.2d 93 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). Courts need not address

both deficient performance and prejudice if the ineffective

assistance of counsel claim can be resolved either way. See id.

at 697.

¶72 To establish that an attorney's performance was

deficient, the defendant must prove that "counsel's performance

fell below an objective standard of reasonableness." State v.

Maday, 2017 WI 28, ¶54, 374 Wis. 2d 164, 892 N.W.2d 611. Courts

"must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance."

Strickland, 466 U.S. at 689. See also State v. Maloney, 2005 WI

74, ¶25, 281 Wis. 2d 595, 698 N.W.2d 583 ("Judicial scrutiny of

an attorney's performance is highly deferential."). "A fair

assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the

time." Strickland, 466 U.S. at 689.

¶73 Because we conclude that there was no Sixth Amendment

violation, it is necessarily true that Arrington's counsel was

not deficient in failing to object to the admission of the

recordings. See State v. Johnson, 2004 WI 94, ¶24, 273 Wis. 2d

626, 681 N.W.2d 901. Moreover, even if the law on this area were unsettled, which it is not, "ineffective assistance of 34 No. 2019AP2065-CR

counsel cases [are] limited to situations where the law or duty

is clear such that reasonable counsel should know enough to

raise the issue." Maloney, 281 Wis. 2d 595, ¶29 (quoting State

v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994)).

"[I]t is axiomatic that '[c]ounsel is not required to object and

argue a point of law that is unsettled.'" Maday, 374 Wis. 2d

164, ¶55. Consequently, we conclude that counsel's performance

was not deficient and, therefore, Arrington was not denied

effective assistance of counsel.

¶74 Although we need not address prejudice to conclude

that Arrington was not denied effective assistance of counsel,

see Strickland, 466 U.S. at 689, we choose to do so in this

case. To establish prejudice, "[t]he defendant 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." State v.

Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364 (citing Strickland, 466 U.S. at 694). "When a defendant challenges a

conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt." Domke, 337 Wis. 2d

268, ¶54. "It is not sufficient for the defendant to show that

his counsel's errors 'had some conceivable effect on the outcome

of the proceeding.'" Id. (quoting Carter, 324 Wis. 2d 640,

¶37). We examine the totality of the circumstances to determine whether counsel's errors, in the context of the entire case, 35 No. 2019AP2065-CR

deprived the defendant a fair trial. Domke, 337 Wis. 2d 268,

¶54 (citing Thiel, 264 Wis. 2d 571, ¶¶62-63).

¶75 Arrington argues that he was prejudiced by the

recordings because they "eviscerated" his claim of self-

defense.13 In the tapes, Arrington did not discuss Shorty having

a gun or that it was actually Shorty who shot Gomez, both of

which were crucial to his theory of the case. Conversely, the

State argues that Miller's recordings were cumulative evidence

piled on top of an already substantial amount of evidence of

guilt. The State presented numerous witnesses who testified to

Arrington's actions before, during, and after the shooting.

Each of these witnesses undermined Arrington's own testimony

regarding the shooting. Based on our review of the totality of

the evidence, we agree with the State and conclude that there is

not a reasonable probability that, but for the introduction of

the recordings, the result of the proceeding would have been

different.

¶76 A total of forty-two witnesses testified at trial. The jury heard testimony concerning the existing, violent feud

between Shorty and Arrington, as well as Arrington's pledge to

"[expletive] Shorty up" and "handle his business" prior to the

shooting. This testimony supported the State's case against

Arrington, specifically supplying a motive for why Arrington

would shoot at Shorty. The jury also heard testimony that

Arrington had the opportunity to commit this shooting, notably

13 Def. Appellant's Br. at 35.

36 No. 2019AP2065-CR

that Arrington was seen circling the block the day of the

shooting and "had that look in his eye like he wanted to kill

something." Additional witnesses testified that Arrington

opened fire on Taylor's house and that Shorty did not return

fire or have a gun. This testimony was further corroborated by

the results of the police search that found no firearms at the

scene or in Taylor's house.

¶77 Finally, there was also testimony that Arrington tried

to silence witnesses and evade capture in the aftermath of the

shooting. AVT, who was in the car with Arrington during the

shooting, testified that Arrington found her at a gas station in

Milwaukee, threatened her with a gun, kidnapped her, and then

stranded her in a car the next morning. Erica Herrod testified

that, after the shooting, Arrington asked her for bleach to

clean his gun and his body after "popp[ing] someone." Eugene

Herrod testified that Arrington admitted that he "fanned Shorty

down" and vowed to "finish the job and get Shorty" after

learning that he had shot the wrong person. The defendant himself admitted to changing his hair and appearance following

the shooting to hide from law enforcement.

¶78 Arrington's evidence in response to this testimony is

comparatively weak. Regarding his on-going feud with Shorty,

Arrington testified that he had forgiven Shorty for stabbing him

and that he had not been the one to rob Shorty. Arrington

explained that he was only at Taylor's house to get drugs and

that he shot at Shorty only when he saw Shorty reaching for something. In addition, Arrington said he aimed only at the 37 No. 2019AP2065-CR

bottom of the porch, rather than shooting to injure or kill.

Linzmeier testified that Arrington had not raised self-defense

until almost a year after the shooting of Gomez. Linzmeier had

heard nothing about Shorty having a gun until Arrington's

interview with him in the jail.

¶79 Arrington further denied all testimony that implied

that he tried to cover up evidence. For example, Arrington

described AVT's testimony as "all lies." When questioned about

Eugene Herrod's testimony, that Arrington told him he would

"finish the job and get Shorty," Arrington replied, "I don't

know why Eugene told you guys that."

¶80 As both parties acknowledge, the scientific evidence

in this case did not definitively confirm or refute either

side's theory.14 Instead, this case turned on the credibility of

each side's witnesses. The State had detailed testimony from

numerous witnesses who testified to Arrington's actions before,

during, and after the shooting. Arrington countered that the

State's witnesses were spreading lies and making things up. Even without Miller's recordings, Arrington's testimony was

sufficiently discredited by the multiple witnesses who all

corroborated the State's theory of the case. The recordings

merely provided additional discrediting support. Upon our

examination of the totality of the evidence, we conclude that

Arrington, 398 Wis. 2d 198, ¶47 ("The prosecutor conceded 14

in the State's closing argument that '[s]cience in this case hasn't been able to prove anything really for sure.'"); Def. Appellant Br. at 40-43.

38 No. 2019AP2065-CR

the result of the trial would not have been different without

the introduction of Miller's recordings. Accordingly, we

further conclude that the admission of Miller's recordings at

trial did not prejudice Arrington. Therefore, a new trial is

not warranted.

III. CONCLUSION

¶81 We conclude that Arrington's Sixth Amendment right to

counsel was not violated because Miller was not acting as a

State agent when he recorded his conversations with Arrington.

Further, a new trial is not warranted because Arrington's

counsel's performance was not deficient and Arrington was not

prejudiced by his counsel's failure to object to the State's use

of the recordings. Accordingly, we reverse the decision of the

court of appeals and affirm the circuit court's judgment of

conviction.

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

reversed.

39 No. 2019AP2065-CR.rfd

¶82 REBECCA FRANK DALLET, J. (concurring). This case

involves a textbook example of a Sixth Amendment violation. In

a series of cases culminating nearly 40 years ago, the U.S.

Supreme Court held that the police violate a defendant's Sixth

Amendment right to counsel when they use a jailhouse informant

to secretly gather incriminating statements from the defendant.

The majority misapplies that law, concluding that Arrington's

right to counsel was somehow not violated when a jailhouse

informant, using a recording device provided by the police,

interrogated Arrington and recorded him making incriminating

statements. That said, there is no reasonable probability the

jury would have reached a different outcome if Arrington's

recorded statements or the informant's testimony had been

suppressed, because neither was inconsistent with Arrington's

defense theory. And so, although Arrington's trial counsel's

performance was deficient for failing to move to suppress those

statements, it did not prejudice Arrington's defense. I

therefore agree with the majority opinion's conclusion reversing the court of appeals' decision.

I

¶83 While he was incarcerated in the Brown County Jail,

Jason Miller "agree[d] to cooperate with law enforcement and

wear a . . . recording device" in exchange for "consideration"

in his case. Initially, Miller was gathering information

regarding an unrelated homicide case (the "Powell case") that Green Bay Detectives Wanta and Linzmeier were investigating.

1 No. 2019AP2065-CR.rfd

The detectives had provided Miller with a digital recording

device to "help facilitate" his information-gathering

activities, and they instructed him on how to use it. Wanta

would pick up the recordings each day and provide Miller with a

"fresh" recording device. Wanta assured Miller that "the

information [Miller] would gather would . . . be used as part of

his consideration" in his case. He explained that, although the

final consideration decisions are made by the district attorney,

generally the more information an informant produces, the more

he gets in return.

¶84 Several days after Miller began working with the

detectives, Arrington was arrested and placed in Miller's cell

block and started speaking to Miller about his case. Miller

then asked the detectives if he should record his conversations

with Arrington in addition to those related to the Powell case.

Linzmeier, who was investigating Arrington's case (Wanta was

not), told Miller that he should. Miller's first recording in

both cases occurred on April 11. Wanta collected the recording

device each day, and reviewed the recordings and passed along to Detective Linzmeier any information related to Arrington's case.

Linzmeier then prepared reports detailing the information he

received from Miller.

¶85 Miller initiated conversations with Arrington between

April 11 and 13 and he recorded each one. On April 11, Miller

went to Arrington's cell and asked him if he wanted to read a

magazine. Arrington testified at the post-conviction hearing

that, although he wasn't sure, he believed that Miller asked to see Arrington's criminal complaint. The next day, Miller called

2 No. 2019AP2065-CR.rfd

Arrington over to Miller's cell so they could talk. The third

day, April 13, is the when the conversation occurred that was

played at Arrington's trial.

¶86 During that conversation, Miller interrogated

Arrington about his case, including asking him how he "handled"

what Miller thought was problematic evidence against him. For

instance, regarding possible gunshot-residue evidence, Miller

asked Arrington if he "g[o]t rid of it"; if he "wipe[d]

everything down." Miller testified that, at the time, neither

he nor Arrington knew whether the police had, in fact, collected

or tested any gunshot-residue evidence. Miller also questioned

Arrington about his version of the shooting. Arrington told him

that he was sitting in his car with a woman when he saw two

people, Gomez and Santana-Hermida (also known as "Shorty"),

talking to each other outside of Taylor's house. Santana-

Hermida and Arrington had a violent history: three days before

the shooting, Santana-Hermida had stabbed Arrington. Arrington

told Miller that seeing Santana-Hermida in the driveway gave him

a "flashback" to Santana-Hermida stabbing him, which Arrington claimed caused him to "just [start] shooting." Miller asked

Arrington if he "hit the wrong person." Arrington responded

that he "hit Ricky [Gomez]" because "[Santana-Hermida] jumped

out of the way." After Arrington told Miller that Santana-

Hermida was unlikely to testify at trial, Miller commented that

the woman who was in the car with him was the only witness

Arrington had to "worry about," as she was the only other

3 No. 2019AP2065-CR.rfd

eyewitness.1 Miller then suggested that Arrington should arrange

for the woman's friends to convince the woman not to come to

court.

¶87 At trial, Arrington took the stand and testified that

he had started shooting in self-defense. He testified that

Santana-Hermida had previously "made an attempt [on his] life"

and that, before he started shooting, he saw Santana-Hermida

"reach for what [he] thought was a gun." Arrington described

firing three shots toward the bottom of the porch to "create a

diversion" allowing him to drive away. He asserted that he

"purposely" shot at the porch and not any person because he

"didn't want to hit anybody." According to Arrington's

testimony, as he started to drive away, he saw Santana-Hermida

"come around the door with the gun in his hand at the same

time . . . Gomez was coming into the house," at which point

Santana-Hermida fired and Gomez fell. Arrington claimed that

Gomez had "tried to move out of the way, but he was too late."

The jury ultimately rejected Arrington's self-defense theory,

convicting him of first-degree intentional homicide. ¶88 Arrington sought post-conviction relief on the grounds

that his trial counsel was ineffective for failing to move to

suppress Miller's testimony and jailhouse recording. At his

post-conviction hearing, Arrington explained that he did not

know that Miller was a police informant or that Miller was

wearing a recording device when they talked in jail, and that he

Taylor, whose house the shooting occurred at, also 1

testified, but he said he did not see the shooting. Santana- Hermida was on the State's pre-trial witness list, but he did not testify at trial.

4 No. 2019AP2065-CR.rfd

would not have talked to Miller had he known Miller was

recording their conversations. Arrington's trial counsel,

Hughes, testified that he knew the prosecution had recordings of

Arrington's conversations with Miller and that he had received

those recordings "quite some time" before trial. Based on those

recordings and police reports the State turned over before

trial, Hughes said that he was "aware that Jason Miller [was]

working as a confidential informant" while he was in the Brown

County jail. He also knew that Miller recorded his

conversations with Arrington after Arrington had obtained

counsel. Yet Hughes said that he did not consider whether

Miller's recordings violated Arrington's right to counsel——

indeed, he had never even researched the issue. Finally, Hughes

admitted that if he hadn't "missed" the issue, he "likely would

have" filed a pretrial motion to suppress Miller's testimony and

jailhouse recording.

II

¶89 Once a defendant's Sixth Amendment right to counsel attaches, the State has an "affirmative obligation not to act in

a manner that circumvents the protections accorded the accused

by invoking th[at] right." Maine v. Moulton, 474 U.S. 159, 176

(1985). That obligation bars the police not only from directly

questioning the defendant without his counsel present but also

from using an informant to "deliberately elicit[]" incriminating

information from the defendant. See Massiah v. United States,

377 U.S. 201, 206 (1964). The Sixth Amendment's protections extend to information deliberately obtained by the State through

5 No. 2019AP2065-CR.rfd

an agent, such as a jailhouse informant, preventing the police

from circumventing a defendant's right to counsel via an

indirect source:

An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then "arms' length" adversaries.

When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment "is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse." The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent. United States v. Henry, 447 U.S. 264, 273 (1980). The U.S.

Supreme Court has explained that even when the police do not

purposely place an informant in jail with the defendant, their

"knowing exploitation" of such "an opportunity to confront the

accused without counsel being present is as much a [Sixth

Amendment violation] as is the intentional creation of such an

opportunity." Moulton, 474 U.S. at 176. Determining whether

the police's use of an informant violates a defendant's Sixth

Amendment right to counsel turns on three factors: (1) the

informant is an agent of the police; (2) the informant is

"ostensibly no more than a fellow inmate" of the defendant's;

and (3) the informant takes "some action" to "deliberately . . . elicit" incriminating information after the

defendant has been indicted and placed in custody. See Henry, 6 No. 2019AP2065-CR.rfd

447 U.S. at 270; Kuhlmann v. Wilson, 477 U.S. 436, 459–60

(1986). There is no dispute that the second factor is present

here. The issues before the court are whether Miller was an

agent of the police and whether he took some action to

deliberately elicit incriminating information from Arrington.

A

¶90 Regarding whether an informant is an agent of the

police, the majority wrongly looks to state law agency

principles. That novel approach has no support in either

Wisconsin or federal case law——unsurprising, given that no state

law can deprive a person of a federal constitutional right.

See, e.g., Kansas v. Garcia, 140 S. Ct. 791, 801 (2020).

Accordingly, the correct place to look for how to analyze

whether someone is an agent of the police for Sixth Amendment

purposes is the U.S. Supreme Court's Sixth Amendment

jurisprudence.

¶91 The Court's jurisprudence reveals that an agent is a

certain kind of informant; not every person who reports information to the police is an agent of the police. Rather, a

person is an agent if she obtains information from the defendant

pursuant to an agreement with the police. See Henry, 447 U.S.

at 270. Evidence of such an agreement includes a promise by the

police to compensate the informant for information, either with

money or by reducing the informant's sentence or the charges

against him. See id. at 270 & n.7. Such agreements don't have

to be formal or written; all that is needed is some "evidence that the parties behaved as though there were an agreement

7 No. 2019AP2065-CR.rfd

between them." See United States v. York, 933 F.2d 1343, 1357

(7th Cir. 1991), overruled on other grounds by Wilson v.

Williams, 182 F.3d 562 (7th Cir. 1999). And the agreement

doesn't have to specify exactly what consideration the informant

will receive, so long as there is some evidence that the reason

the informant gave the police information is because the

government "assured [him] that his good deeds would not go

unrewarded." See id. at 1358. Fundamentally, the question

turns on whether there was some "prearrangement" between the

informant and the police to collect information on the

defendant, as opposed to the informant acting on his own

initiative prior to any contact with the police. See Henry, 447

U.S. at 270–71; United States v. Malik, 680 F.2d 1162, 1165 (7th

Cir. 1982).

¶92 Just because an informant is an agent of the police,

however, does not mean that everything the agent does amounts to

a violation of a defendant's right to counsel. The Sixth

Amendment is not violated when the State obtains incriminating

information by "luck or happenstance," Moulton, 474 U.S. at 176, because the State is not obligated to protect defendants from

their own "loose talk," see Malik, 680 F.2d at 1165. Thus,

there is no Sixth Amendment violation when an agent who "only

listen[s]" to a defendant's "spontaneous and unsolicited

statements" and "at no time ask[s] any questions" reports those

statements to the police. Kuhlmann, 477 U.S. at 460. For an

agent of the police to violate the Sixth Amendment, the agent

must take "some action, beyond merely listening, that was

8 No. 2019AP2065-CR.rfd

designed deliberately to elicit incriminating remarks." Id. at

459.

B

¶93 Here, the record clearly demonstrates that Miller was

an agent of the police and that his actions violated Arrington's

right to counsel.

¶94 Regarding Miller being an agent of the police, Miller

approached police about recording his conversations with

Arrington "while he was still working as an informant" in the

Powell case. The police had already given Miller a recording

device and assured him that information he gathered in the

Powell case "would . . . be used as part of his consideration."

Detective Linzmeier then gave Miller the go-ahead to record his

conversations with Arrington. Armed with both the understanding

that he would receive consideration in exchange for information

and a police-issued recording device, Miller questioned

Arrington about his case and recorded those exchanges.

According to Wanta, the "first day that [Miller] made a recording for . . . [the Powell case] was on the 11th"——the same

day that Miller made his first recording of Arrington. Miller

questioned and recorded Arrington for two more days, with Wanta

collecting the recording device and replacing it with a "fresh"

one each day. Under these circumstances, Miller was an agent of

the police when he questioned and recorded Arrington. See Henry, 447 U.S. at 273 (explaining that a jailhouse informant is

an agent of the police when he is "acting by prearrangement" 9 No. 2019AP2065-CR.rfd

with the police to "stimulate[]" conversation with the

defendant).

¶95 The majority floats two explanations for why Miller

wasn't an agent of the police, neither of which is supported by

case law or the record. First, it claims that Miller's

consideration agreement was only for the unrelated homicide case

and that without the police instructing him to target Arrington

specifically, he was not acting as an agent of the police when

he questioned Arrington. That approach, however has been

rejected by many other courts, both federal and state and it has

never been adopted by the U.S. Supreme Court. See, e.g., Henry,

447 U.S. at 271; Ayers v. Hudson, 623 F.3d 301, 311 (6th Cir.

2010) (explaining that "direct" instructions to target the

defendant "would be sufficient to demonstrate agency," but they

were not necessary (emphasis added)); York, 933 F.2d at 1357

("Whether the principal exercises its control strictly, by

targeting specific individuals, or casually, by loosing an

informant on the prison population at large, is irrelevant.");

State v. Marshall, 882 N.W.2d 68, 94 (Iowa 2016) ("The invasion of an incarcerated prisoner's Sixth Amendment rights is not

affected by whether the informant is operating at large or with

a specific target."). There are good reasons why not: the

majority's simplistic, bright-line approach "would allow the

State to accomplish 'with a wink a nod' what it cannot do

overtly." See Ayers, 623 F.3d at 312. That is why determining

whether an informant is an agent of the police turns on "the

facts and circumstances of a particular case," id. at 311, which

10 No. 2019AP2065-CR.rfd

here demonstrate that Miller was such an agent when he

questioned Arrington.

¶96 Second, the majority asserts that Miller was not an

agent because the police made him no specific promise about the

consideration he would receive for gathering information on

Arrington. That may be true, but it doesn't mean Miller wasn't

a government agent. As both Wanta and Linzmeier testified, they

do not promise specific consideration in advance. Instead, the

district attorney negotiates the specifics after the fact, based

on the usefulness of the information the informant gathers.

Thus, if the majority were right that the absence of a specific

promise in Arrington's case meant that Miller wasn't an agent of

the police, then it's unclear how anyone could ever be.

¶97 But that is not the law. What matters for determining

whether someone is a government agent isn't whether they have a

promise of specific consideration in hand before gathering

information, but whether there was a "prearrangement" with the

police to gather the information, Henry 447 U.S. at 270-71, and

whether the police and the informant "behaved as though" there was an agreement between them, York, 933 F.2d at 1357-58. Both

of these conditions are met here. There is no question that the

police told Miller that the information he gathered

"would . . . be used as part of his consideration." To be sure,

they made that arrangement with Miller regarding the Powell case

and before Arrington arrived at the jail. But it was mere days

later that Miller approached the police about also recording his

conversations with Arrington. And the police never told Miller that the information-for-consideration deal applied only to the

11 No. 2019AP2065-CR.rfd

Powell case. In fact, they gave Miller the green light to

record Arrington. Thus, when Miller questioned and recorded

Arrington——using the same police-issued device, on the same day

he recorded Powell, and after "prearrang[ing]" with the police

to do so, see Henry, 447 U.S. at 273——both Miller and the police

were "behav[ing] as though" the general consideration

arrangement in the Powell case applied equally to Arrington's

case.2 See York, 933 F.2d at 1357–58 (holding that the police

promising some reward for information and evidence the parties

behaved consistent with that understanding is sufficient to

establish an agreement between the informant and the police);

Massiah, 377 U.S. at 206. Accordingly, Miller was an agent of

the police.

¶98 Miller also took "some action" to deliberately elicit

information from Arrington, and therefore violated Arrington's

Sixth Amendment right to counsel. See Kuhlmann, 477 U.S. at

459. In fact, Miller acted exactly as the police agents did in Moulton and Henry. Miller wore a recording device given to him

by the police and engaged Arrington in "prolonged discussion of

the pending charges," asking Arrington "what actually had

occurred." See Moulton, 474 U.S. at 165; Henry, 447 U.S. at

271, 274. He asked Arrington "what the State's evidence would

The district attorney's eventual offer of specific 2

consideration confirms that understanding, as it states that the "offer contemplates consideration" for Miller's information and testimony regarding both "Powell and Arrington" (emphasis added).

12 No. 2019AP2065-CR.rfd

show," including possible gunshot residue. See Moulton, 474

U.S. at 165; Henry, 447 U.S. at 271, 274. And he suggested

"what [Arrington] should do to obtain a verdict of acquittal"——

namely, that Arrington should convince the woman who was with

him in the car at the shooting not to testify. See Moulton, 474

U.S. at 165. Miller was no "passive listener"; he actively

conversed with Arrington, and Arrington's "incriminating

statements were the product of [those] conversations." See

Henry, 447 U.S. at 271; cf. United States v. Moore, 178 F.3d

994, 999 (8th Cir. 1999). Also as in Henry, Miller was already

working as a police informant at the time he arranged to record

Arrington's statements. See Henry, 447 U.S. at 270–71. As far

as Arrington knew, however, Miller was "no more than a fellow

inmate," giving Arrington a false sense that he was not talking

to the police. See id. at 270, 272–73. Thus, Arrington's Sixth

Amendment to counsel was violated.

¶99 The majority's opposite conclusion rests on its

misunderstanding of both the U.S. Supreme Court's Sixth

Amendment precedents and the Wisconsin court of appeals decision in State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781

N.W.2d 730. In claiming that Miller is like the informant in

Kuhlmann, the majority ignores the fact that the Kuhlmann Court

limited its holding to an informant who "merely listen[s]" but

does not engage with the defendant. See 477 U.S. at 459. As

explained above, however, Miller "took some action . . . that

was designed deliberately to elicit incriminating remarks" from

Arrington. See id. Indeed, he took far more than some action—— he sought out Arrington for a lengthy conversation about the

13 No. 2019AP2065-CR.rfd

charges against him, the State's case, and strategized with

Arrington about how to obtain an acquittal, including suggesting

that Arrington encourage the only other eyewitness not to

testify. See Moulton, 474 U.S. at 165; Henry, 447 U.S. at 267.

Simply put, this case is not Kuhlmann. The majority likewise

errs in its reliance on Lewis. There, the informant had

gathered information on the defendant prior to any discussion

with the police about the defendant. See Lewis, 324

Wis. 2d 536, ¶¶4–6. Here, however, Miller gathered information

on Arrington only after he told the police that he could get

Arrington to talk and the police outfitted him with a recording

device and told him to record Arrington's statements.

¶100 The majority also focuses on the wrong facts. It

doesn't matter that the police did not tell Miller what

questions to ask or what to record. See majority op., ¶¶66–68.

The Henry Court rejected that distinction 42 years ago,

concluding that what matters is that the police knew that Miller

"had access to [Arrington] and would be able to engage him in

conversations without arousing [Arrington's] suspicions" and without Arrington's counsel present. See 477 U.S. at 270–71 &

n.8. Likewise, it doesn't matter that it was Miller's idea to

record Arrington. See majority op., ¶¶61–65. As the Moulton

Court put it, that position "fundamentally misunderstands the

nature of the right [to counsel]." 474 U.S. at 174–76. The

Court clarified that "the identity of the party who instigated

the meeting at which the Government obtained incriminating

statements [is] not decisive or even important." Id. at 174 (adding that the Court in Beatty v. United States, 389 U.S. 45

14 No. 2019AP2065-CR.rfd

(1967) (per curiam), had summarily reversed a conviction even

though the defendant requested a meeting with an undercover

informant and led the conversation). It then explained that the

Sixth Amendment is violated when the police "knowing[ly]

exploit[] . . . an opportunity to confront the accused without

counsel being present," regardless of who initiates the

confrontation. Id. at 176. Here Miller presented the police

with an opportunity to confront Arrington about his case without

his counsel present and the police knowingly exploited that

opportunity, thus improperly "circumventing" Arrington's Sixth

Amendment right to counsel. See id.

¶101 The U.S. Supreme Court's cases therefore make clear

that Arrington's Sixth Amendment right to counsel was violated

when Miller, acting as an agent of the police, asked Arrington

questions about his case and used the police-provided recording

device to secretly record those conversations.

III

¶102 Because the law is clear that Arrington's Sixth Amendment right to counsel was violated, his trial counsel's

performance was deficient for failing to raise a Sixth Amendment

challenge. For different reasons than the majority, however, I

conclude that counsel's error did not prejudice Arrington.

¶103 An ineffective-assistance-of-counsel claim requires

the defendant to show both prongs of the Strickland test: "that

counsel's performance was deficient" and "that the deficient

performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Savage, 2020 WI 93, ¶27, 395

15 No. 2019AP2065-CR.rfd

Wis. 2d 1, 951 N.W.2d 838. Deficient performance is performance

that falls "below an objective standard of reasonableness."

State v. Jenkins, 2014 WI 59, ¶36, 355 Wis. 2d 180, 848

N.W.2d 786. Generally, the court is "highly deferential to the

reasonableness of counsel's performance," provided there is some

strategic reason for counsel's decisions. Id. But because

there is almost never a strategic reason for "fail[ing] to raise

an issue of settled law," such a failure generally meets

Strickland's first prong. See, e.g., Savage, 395 Wis. 2d 1,

¶37; State v. Breitzman, 2017 WI 100, ¶49, 378 Wis. 2d 431, 904

N.W.2d 93. Prejudice to the defense is established when "there

is a reasonable probability that, but for counsel's professional

errors, the result of the proceeding would have been different."

Id., ¶32 (quoting Strickland, 466 U.S. at 694).

¶104 Here, Arrington's counsel's performance was deficient

because Arrington's Sixth Amendment right to counsel was

violated when the police provided Miller with a recording device

and Miller then interrogated Arrington and recorded him making

incriminating statements. Arrington's counsel therefore had a clear duty to raise the issue and he did not. Cf. Breitzman,

378 Wis. 2d 431, ¶49. Indeed, counsel testified that he had not

even researched the issue. Such performance is objectively

unreasonable and, therefore, deficient under the first prong of

Strickland. See Jenkins, 355 Wis. 2d 180, ¶47 (concluding that

counsel's performance was deficient because it was not the

result of "any reasonable trial strategy").

¶105 The second prong of Strickland's test is not met, however, because even with counsel's error, there is no

16 No. 2019AP2065-CR.rfd

reasonable probability that the jury would have reached a

different verdict. The question is not whether the jury would

have acquitted Arrington of all charges absent counsel's error,

but rather whether there is a reasonable probability the jury

would have either acquitted Arrington or convicted him of one of

the lesser-included charges. See Strickland, 466 U.S. at 695–

96. The jury was instructed on the lesser-included charges of

second-degree intentional homicide and first- and second-degree

reckless homicide.

¶106 Miller's testimony and jailhouse recording likely had

no effect on the jury's contemplation of first- versus second-

degree homicide. To convict Arrington of second-degree

intentional homicide, the jury would have had to find that

Arrington believed he had to kill Santana-Hermida to save his

own life but that Arrington's belief was unreasonable. Neither

Miller's testimony nor his jailhouse recording, however,

contains evidence related to self-defense. Although Miller

testified that Arrington told him that when Santana-Hermida saw

Arrington at Taylor's house, Santana-Hermida was acting "overly aggressive" and made a "challenging" gesture to Arrington,

Miller also testified that Arrington did not say anything about

Santana-Hermida having a gun or otherwise threatening him.

Thus, nothing in Miller's testimony or jailhouse recording

speaks to the factual predicates for self-defense——whether

Arrington believed he was in imminent danger of death or great

bodily harm and that he needed to fire three shots to repel that

threat. The evidence the jury had on Arrington's self-defense

17 No. 2019AP2065-CR.rfd

claim is therefore the same with or without Miller's testimony

and jailhouse recording.

¶107 Similarly, nothing in Miller's testimony or jailhouse

recording was antithetical to a jury finding Arrington guilty of

the lesser-included offense of reckless homicide. To convict

Arrington of first- or second-degree reckless homicide, the jury

would need to find that Arrington shot Gomez and that he was

aware that shooting at Taylor's house created an unreasonable

and substantial risk of great bodily harm or death. See Wis.

Stat. §§ 940.02 (first-degree reckless homicide also requires a

finding that the circumstances show an "utter disregard for

human life"); 940.06. Arrington told Miller that he "just

started shooting" after he had a "flashback" to Santana-Hermida

stabbing him and that he hit Gomez when he was shooting at the

house. Those statements are consistent with what Arrington said

on the stand when he claimed that he shot at the house to create

a distraction so he could drive away. Miller's testimony and

jailhouse recording are also consistent with the only other

eyewitness's testimony——the woman in the car with Arrington. She told the jury that Arrington "just started shooting," but

did not specify who or what Arrington was shooting at.3

Therefore, the substance of Miller's testimony and jailhouse

recording did not prevent the jury from concluding that

Arrington did not intend to shoot Santana-Hermida or Gomez or

3The woman's testimony also supports a finding that Arrington intended to kill Santana-Hermida and instead killed Gomez. Nothing in her testimony forecloses a finding that Arrington acted recklessly, however.

18 No. 2019AP2065-CR.rfd

that he knowingly created an unreasonable and substantial risk

of their death by firing at the house.

¶108 Ultimately, Miller's testimony and jailhouse recording

neither supported nor foreclosed the possibility that the jury

could convict Arrington of reckless homicide. Accordingly,

there is no reason to suspect that it had an impact on the jury

rejecting the reckless-homicide charge and convicting Arrington

of first-degree intentional homicide. As a result, although

Arrington's counsel's performance was deficient in failing to

challenge Miller's testimony and jailhouse recording on Sixth

Amendment grounds, there is no reasonable probability that,

absent that deficient performance, the jury would have reached a

different conclusion.

IV

¶109 I agree with the majority that the court of appeals'

decision should be reversed, but for different reasons. The

majority wrongly interprets the U.S. Supreme Court's precedents,

which clearly establish that Arrington's Sixth Amendment right to counsel was violated. Arrington's counsel's failure to raise

that obvious violation was objectively unreasonable, but, given

the substance of the statements made by Arrington to Miller,

counsel's error did not prejudice Arrington's defense.

Accordingly, I respectfully concur.

¶110 I am authorized to state that Justices ANN WALSH

BRADLEY and JILL J. KAROFSKY join this opinion.

19 No. 2019AP2065-CR.rfd