State v. Joseph T. Langlois

2018 WI 73

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1409-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Joseph T. Langlois,
Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 302, 901 N.W.2d 768
PDC No: 2017 WI App 44 - Published

OPINION FILED: June 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 17, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: James K. Muehlbauer

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., dissents (opinion filed).
R.G. BRADLEY, J., dissents (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Andrew J. Jarmuz and The Law
Office of Andrew J. Jarmuz, LLC, Edina, Minnesota.

For the plaintiff-respondent, there was a brief filed and
an oral argument by Donald V. Latorraca, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
 2018 WI 73
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1409-CR
(L.C. No. 2014CF43)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. JUN 20, 2018
Joseph T. Langlois, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

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

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a

published decision of the court of appeals, State v. Langlois,

2017 WI App 44, 377 Wis. 2d 302, 901 N.W.2d 768, affirming the
Washington County circuit court's1 judgment of conviction for

Joseph T. Langlois ("Langlois") for homicide by negligent

handling of a dangerous weapon, contrary to Wis. Stat.

§ 940.08(1) (2015-16),2 and its denial of Langlois'

postconviction motions.
1
The Honorable James K. Muehlbauer presided.
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
 No. 2016AP1409-CR

¶2 On February 4, 2014, Langlois and his brother, Jacob,

got into a fight. The fight turned physical and Langlois,

having picked up a fillet knife from a nearby nightstand,

stabbed Jacob, fatally injuring him. The State charged Langlois

with first-degree reckless homicide by use of a dangerous

weapon, contrary to Wis. Stat. § 940.02(1), and, at trial,

sought conviction on any one of three offenses: the offense

charged, or either of two lesser-included offenses, second-

degree reckless homicide by use of a dangerous weapon, contrary

to Wis. Stat. § 940.06(1), or homicide by negligent handling of

a dangerous weapon, contrary to Wis. Stat. § 940.08(1). The

jury found Langlois guilty of homicide by negligent handling of

a dangerous weapon.

¶3 Post-conviction, Langlois filed two motions, both of

which challenged the sufficiency of the evidence and the jury

instructions relating to Langlois' defenses of accident and

self-defense. Langlois argued that omissions in the jury

instructions were reversible error on any one of three grounds:
ineffective assistance of counsel, due process violation, or

interest of justice. The circuit court denied both motions,

concluding that the evidence was sufficient and that the jury

instructions were not erroneous. Langlois appealed.

¶4 The court of appeals affirmed. Langlois, 377

Wis. 2d 302, ¶¶1, 51. It held that the circuit "court's

instructions to the jury, when viewed in their entirety and not

in isolation, were not erroneous." Id., ¶36. It therefore
concluded that trial counsel was not ineffective because failure
2
 No. 2016AP1409-CR

to object to correct instructions is not deficient performance;

that there was no due process violation; and that Langlois was

not entitled to a new trial in the interest of justice. Id.,

¶¶36-37. The court of appeals also concluded that the evidence

was sufficient to support the verdict because a rational jury

could have found that the knife was a dangerous weapon; that the

way Langlois handled the weapon constituted criminal negligence;

and that Langlois had not acted in self-defense where he had had

the opportunity to leave the room without using force. Id.,

¶¶48-49, 51. Langlois petitioned for review.

¶5 On review, we consider two issues. First, we consider

whether the jury instructions were erroneous. We conclude that

they were not, because, taken as a whole, they accurately state

the law. Consequently, we conclude that there is no basis for

Langlois' claim of ineffective assistance of counsel, there is

no due process violation, and reversal in the interest of

justice is not appropriate. Second, we consider whether there

was sufficient evidence to support the jury's verdict. We
conclude that there was, because the evidence, viewed most

favorably to sustaining the conviction, supports a finding of

guilt beyond a reasonable doubt.

¶6 Thus, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

3
 No. 2016AP1409-CR

¶7 The events of February 4, 2014, are not subject to

significant dispute.3 Langlois, then 17 years old, had stayed

home from school that day, and Jacob, then 20 years old, was

home packing some things before leaving for the military.4 When

Karen, their mother, came home from work at about 1:40 p.m.,

they were both in their rooms. She checked on Langlois first,

who told her that Jacob was packing for boot camp and that he

was packing some items that did not belong to him, including

Langlois' Xbox and one of their father's fillet knives.5 This

behavior was not atypical of Jacob, who had a tendency to take

things that did not belong to him.6

¶8 Karen then went to check on Jacob, whose room was

right next to Langlois'. She asked him about taking things that

did not belong to him and Jacob became agitated. Langlois

walked into Jacob's room at that point, picked up the Xbox, and

3
This recitation of the facts is based primarily on the
testimony of Karen Langlois, the mother of both the victim and
the defendant, who was an eyewitness to the altercation between
her sons and testified for both the State and the defense at
trial. Her testimony was largely corroborated by the testimony
of the defendant, the only other eyewitness, and any factual
disputes do not affect our analysis.
4
The record indicates that Jacob was packing both for a
week-long trip up north with friends and for boot camp down
south, which he would be leaving for right after his trip up
north.
5
A fillet knife is a knife used to fillet a fish in the
process of cleaning it.
6
All three remaining family members confirmed this.

4
 No. 2016AP1409-CR

walked out. Karen then asked Jacob to give her the fillet

knife, which he did, and she set it down——in its sheath——on a

nearby nightstand. Langlois was heading back into the room at

that point, but Jacob started pushing the door closed.

Langlois, however, was able to push his way into the room and

demanded to see what else Jacob had of his. Jacob then jumped

on Langlois from behind and put him in a chokehold; after a few

seconds Langlois capitulated and Jacob let go.

¶9 Langlois came up with the fillet knife in his right

hand——now unsheathed——held up near his right shoulder, pointing

out. Jacob and Langlois were yelling at one another and Jacob

kicked Langlois. Langlois fell back and Jacob moved forward;

Langlois caught himself and collided with Jacob, piercing the

upper left side of Jacob's chest with the knife. Jacob stood up

and stepped back, and Karen, seeing some blood on Langlois' leg,

moved forward to check to see if Langlois was injured. Jacob,

now grabbing the side of his chest, said "No, mom, it's me."

Karen turned, saw the wound, and rushed out of the room to call
9-1-1. Jacob walked out to the kitchen, at first standing by

the counter, then sitting in a chair; when he fell unconscious,

Langlois helped Karen lay Jacob on the floor and began CPR.

¶10 Deputy Scott Nauman of the Washington County Sheriff's

Department responded to the 9-1-1 call. He arrived to the house

approximately two minutes after the call, announced his presence

as he entered through the open garage, and moved toward the

kitchen where he saw Langlois administering CPR to Jacob, who
was lying in a large pool of blood. Nauman asked Langlois,
5
 No. 2016AP1409-CR

"[w]ho did this to him," to which Langlois responded "I did."7

Nauman placed Langlois under arrest, directed Karen to take over

administering CPR, and escorted Langlois out to his squad car.

¶11 On February 6, 2014, the State filed its criminal

complaint charging Langlois with one count of first-degree

reckless homicide, use of a dangerous weapon, contrary to Wis.

Stat. § 940.02(1). On July 16, 2014, the State filed an

information alleging the same. On August 27, 2014, Langlois

pled not guilty and the case proceeded to trial.

A. Trial Testimony
¶12 On July 14, 2015, trial began. Over the course of

three days, the jury heard testimony from 18 witnesses.

1. State witnesses
¶13 Deputy Nauman, as noted above, was the first responder

to the scene. Nauman testified that, as he was taking Langlois

out of the house, the second responding officer, Washington

County Sheriff's Deputy Jesse Williams, was coming in with his

medical kit. After securing Langlois in the back seat of the

squad car, Nauman returned to the house and helped Williams

render aid to Jacob. Nauman testified that there was a lot of

blood on the floor, but no more blood was coming out of the

puncture site, and that Jacob was having trouble breathing at

that point.

7
The defense did not challenge the admission of any of
Langlois' statements to the police.

6
 No. 2016AP1409-CR

¶14 Deputy Christopher Killey of the Washington County

Sheriff's Department was the third officer to arrive to the

scene and testified that he took up watching over Langlois, who

was still seated in the back of Nauman's patrol car. Observing

the blood on Langlois' clothing, Killey asked Langlois if he was

injured and Langlois replied that he was not. Killey testified

that he then asked Langlois for his name, to which Langlois

responded: "what does it matter? I stabbed my brother. I

stabbed my brother."

¶15 Detective James Wolf and Investigator David

Klopfenstein, both of the Washington County Sheriff's

Department, were also at the scene. Wolf was tasked with

processing the scene while Klopfenstein interviewed Karen.

Klopfenstein testified that Karen appeared calm,8 that she agreed

to accompany him to the Hartford Police Department to make a

statement, and that she never used the term "accident" or "self-

defense" in either her oral or written statements. Wolf

testified that he did a walk-through of the house, observing "a
large pool of blood" on the kitchen floor and blood drops on the

floor in Jacob's bedroom. Also on the floor in Jacob's bedroom

were the fillet knife and knife sheath, which he collected as

8
On cross-examination, Klopfenstein agreed that there "was
a lot of blood in that house," that Jacob "was hurt pretty
significantly," and that was all "that was known to Karen."

7
 No. 2016AP1409-CR

evidence.9 Wolf testified that the knife had an approximately

six-inch blade, and that the blade had blood on it.

¶16 Dr. Zelda Okia, the medical examiner who conducted the

autopsy on Jacob, testified that, to a reasonable degree of

medical certainty, the cause of death was a puncture wound, six

inches deep, on the left side of his chest between his second

and third ribs. On cross-examination, Dr. Okia acknowledged

that she could not tell from the autopsy whether the knife had

been thrust into Jacob or whether Jacob had fallen onto it.

¶17 Detective Joel Clausing of the Washington County

Sheriff's Department——the State's final witness——conducted the

interview of Langlois. The interview was videotaped10 and

proceeded in essentially three parts: a verbal interview, a

written statement, and a reenactment. Clausing testified that

Langlois said he had grabbed the knife because he wanted to make

Jacob feel "scared so he could back down"; and that Langlois

said he was angry and that he had stabbed Jacob because "he

kicked me and I just reacted. I mean, there's no thinking about
it. It was just reaction." Clausing also testified that during

the reenactment, Langlois demonstrated a forward motion with his

arm, and the State admitted photos showing a frame-by-frame

capture of this part of Langlois' demonstration.

9
The sheath and the knife were admitted into evidence as
Exhibits 28 and 29, respectively.
10
A transcript of the interview was admitted into evidence
as Exhibit 42.

8
 No. 2016AP1409-CR

2. Defense witnesses11
¶18 The first witness for the defense was the family

attorney who helped the Langloises in the initial aftermath to

understand the criminal process Langlois was subject to. He

testified that when he met with Karen a few weeks after the

incident to go over the statements she and Langlois had made to

the police, Karen told him that both statements were "really

incomplete," and that the stabbing had been an accident. He

testified that he then arranged a second meeting with the

police, during which Karen told Detective Clausing and

Investigator Klopfenstein that Jacob had had "wild eyes" and

that Langlois had jack-knifed forward after being kicked, which

is what caused the stabbing.12

¶19 Langlois testified next. In addition to testifying to

the facts of the altercation given above, Langlois corroborated

the testimony of Nauman and Killey, confirming that he said "I

did" in response to Deputy Nauman's question "who did this," and

that he told Deputy Killey "I stabbed him." Langlois also
testified that he was aware of what a fillet knife is; that he

knew the knife was sheathed because it was sharp; that he picked

11
At the close of the State's case-in-chief, Langlois moved
to dismiss the charges. The circuit court denied the motion,
concluding that "the case is sufficient to go to the jury and
that there's enough evidence . . . where the jury could decide,
if it so chose, that the State has proven its case beyond a
reasonable doubt."
12
Detective Clausing and Investigator Klopfenstein both
confirmed that they met with Karen a second time during their
testimony.

9
 No. 2016AP1409-CR

the fillet knife up and unsheathed it; and that, when he

collided with Jacob, the knife pierced Jacob's chest. He

testified that afterwards he grabbed two first aid kits and ran

after Jacob to the kitchen where he saw "something that [he]

won't be able to forget ever, the blood just squirting out of

[Jacob] at a really high speed and really fast all in like one

or two seconds." Langlois testified that it was not his intent

to physically hurt Jacob, but rather that he had picked up the

knife "[t]o get him to stop and stop attacking me and my

mom. . . . [Jacob] was really angry and I wanted him to stop

being extremely angry towards me. And I was pretty much just

afraid of being put in another choke hold as well." He said

that what happened was an accident, but admitted on cross-

examination that nowhere in his statement to the police did he

use the word "accident" or "self-defense," and that he could

have walked out of the room but did not because he was

"furious."

¶20 The defense then called seven character witnesses, all
of whom testified that Langlois was an involved and contributing

member of the community. Five also testified that Langlois was

an intelligent individual. The defense closed its case with the

testimony of Karen and Steven Langlois——the parents of the

victim and of the defendant.

¶21 Steven testified that Jacob had an "explosive" temper,

and that Jacob had, in the past, punched through windows and

kicked walls and doors. On one occasion, Jacob had even
physically attacked Steven. Steven testified that he had no
10
 No. 2016AP1409-CR

such problems with Langlois, however; Langlois did his school

work and was in advanced placement classes, had a job, was in

scouts, was taking flying lessons, and generally did everything

that was asked of him. He further testified that, in general,

the brothers had a typical sibling relationship——"Will you stop

touching me, that kind of stuff. . . never [] any violent acts."

Karen, in addition to testifying to the facts of the altercation

given above, verified that Jacob had acted out aggressively——and

in one instance, with Steven, physically——in the home and at

school.

3. Rebuttal witnesses
¶22 In rebuttal, the State called Sergeant Amy Swan,

Jacob's recruiter from the National Guard. She testified that

Jacob had always been respectful in her interactions with him,

but admitted on cross-examination that she had not spoken with

Jacob's parents or reviewed his school disciplinary record in

evaluating his fitness for service.

B. Jury Instructions
¶23 At the close of evidence, the State requested

instruction on the charged offense——first-degree reckless

homicide by use of a dangerous weapon——and on two lesser-

included offenses——second-degree reckless homicide by use of a

11
 No. 2016AP1409-CR

dangerous weapon13 and homicide by negligent handling of a

dangerous weapon.14 It also requested the instruction regarding

retreat.15 The defense requested instruction on both self-

defense16 and the defense of accident.17 The circuit court

granted these requests and instructed the jury, in relevant

part, as follows:

The information in this case . . . charged the
Defendant with first degree reckless homicide use of a
dangerous weapon and you must first consider whether
the Defendant is guilty of that offense.

If you are not satisfied that the Defendant is
guilty of first degree reckless homicide, you must
consider whether or not the Defendant is guilty of
second degree reckless homicide use of a dangerous
weapon, which is a less serious degree of criminal
homicide.

If you are not satisfied that the Defendant is
guilty of first degree reckless homicide or guilty of
second degree reckless homicide, then you must
consider whether or not the Defendant is guilty of
homicide by negligent handling of a dangerous weapon,
which is a less serious offense than either first or
second degree reckless homicide.

13
See Wis JI——Criminal 1022 (2015). This instruction is a
combined instruction for first- and second-degree reckless
homicide by use of a dangerous weapon for cases where, as here,
second-degree reckless homicide is charged as a lesser-included
offense of first-degree reckless homicide.
14
See Wis JI——Criminal 1175 (2011).
15
See Wis JI——Criminal 810 (2001).
16
See Wis JI——Criminal 801 (2014).
17
See Wis JI——Criminal 772 (2005).

12
 No. 2016AP1409-CR

1. First-degree reckless homicide, use of a
dangerous weapon
¶24 After defining first-degree reckless homicide per Wis.

Stat. § 940.02(1), the circuit court discussed self-defense:

Self defense is an issue in this case. In
deciding whether the Defendant's conduct was
criminally reckless conduct which showed utter
disregard for human life or was criminally negligent
conduct, you should also consider whether the
Defendant acted in lawful self defense.

The law of self defense allows the Defendant to
threaten or intentionally use force against another
only if the Defendant believed that there was an
actual or [imminent] unlawful interference with the
Defendant's person and the Defendant believed that the
amount of force the Defendant used or threatened to
use was necessary to prevent or terminate the
interference and the Defendant's beliefs were
reasonable.

The Defendant may intentionally use force, which
is intended or likely to cause death or great bodily
harm, only if the Defendant reasonably believes that
the force used was necessary to prevent [imminent]
death or great bodily harm to himself. A belief may
be reasonable, even though mistaken.

In determining whether the Defendant's beliefs
were reasonable, the standard is what a person of
ordinary intelligence and prudence would have believed
in the Defendant's position under the circumstances
that existed at the time of the alleged offense.

The reasonableness of the Defendant's beliefs
must be determined from the standpoint of the
Defendant at the time of the Defendant's acts and not
from the viewpoint of the jury now.
The court then gave the instruction on retreat:

Let's talk about this issue of retreat. There is
no duty to retreat, however, in determining whether
the Defendant reasonably believed the amount of force
used was necessary to prevent or terminate the
interference, you may consider whether the Defendant
13
 No. 2016AP1409-CR

had an opportunity to retreat with safety and whether
such retreat was feasible and whether the Defendant
knew of the opportunity to retreat.
After reciting the second element of first-degree reckless

homicide——which includes a definition of "criminally reckless

conduct" as "conduct [that] created a risk of death or great

bodily harm to another person and the risk of death or great

bodily harm was unreasonable and substantial"——but before

reciting the third, the court further stated:

You should consider the evidence relating to self
defense in deciding whether the Defendant's conduct
created . . . an unreasonable risk to another. If the
Defendant was acting lawfully in self defense, his
conduct did not create an unreasonable risk to
another.

The burden is on the State to prove beyond a
reasonable doubt that the Defendant did not act
lawfully in self defense. And you must be satisfied
beyond a reasonable doubt from all the evidence in the
case that the risk was unreasonable.

We'll talk about the concept of accident. The
Defendant contends that he did not act with criminally
reckless conduct but rather, that what happened was an
accident. If the Defendant did not act with
criminally reckless conduct required for a crime, the
Defendant is not guilty of that crime.
The court then discussed the third and final element of the

first-degree offense and concluded by instructing the jury to

make every reasonable effort to agree unanimously on
the charge of first degree reckless homicide before
considering second degree reckless homicide. However,
if after full and complete consideration of the
evidence you conclude that further deliberation would
not result in unanimous agreement on the charge of
first degree reckless homicide, you should consider
whether the Defendant is guilty of second degree
reckless homicide.

14
 No. 2016AP1409-CR

2. Second-degree reckless homicide, use of
a dangerous weapon
¶25 After defining second-degree reckless homicide per

Wis. Stat. § 940.06, the court explained the difference between

first-degree and second-degree reckless homicide——that "the

first degree offense requires proof of one additional element;

namely, that the circumstances of the Defendant's conduct showed

utter disregard for human life"——and told the jury:

If you are satisfied beyond a reasonable doubt
that all the elements of first degree reckless
homicide were present except [the additional element],
you should find the Defendant guilty of second degree
reckless homicide.
The circuit court did not repeat the instructions for self-

defense or accident. It then concluded:

However, if after a full and complete
consideration of the evidence you conclude that
further deliberation would not result in unanimous
agreement on the charge of second degree reckless
homicide, then you should consider whether the
Defendant is guilty of homicide by negligent handling
of a dangerous weapon.

3. Homicide by negligent handling of a
dangerous weapon
¶26 After defining homicide by negligent handling of a

dangerous weapon per Wis. Stat. § 940.08(1), the circuit court

again discussed self-defense:

Self defense is an issue in this case that also
applies to the charge of homicide by negligent
handling of a dangerous weapon. In deciding whether
the Defendant's conduct was criminally negligent
conduct, you should also consider whether the
Defendant acted lawfully in self defense.

15
 No. 2016AP1409-CR

As I previously indicated, the law of self
defense allows the Defendant to threaten or
intentionally use force against another only if the
Defendant believed that there was an actual or
[imminent] unlawful interference with the Defendant's
person and the Defendant believed that the amount of
force the Defendant used or threatened to use was
necessary to prevent or terminate the interference and
the Defendant's beliefs were reasonable.

The Defendant may intentionally use force which
is intended or likely to cause death or great bodily
harm only if the Defendant reasonably believed that
the force [] used was necessary to prevent [imminent]
death or great bodily harm to himself.

And as I previously indicated, a belief may be
reasonable even though mistaken. In determining
whether the Defendant's beliefs were reasonable, the
standard is what a person of ordinary intelligence and
prudence would have believed in the Defendant's
position under the circumstances that existed at the
time of the alleged offense.

The reasonableness of the Defendant's beliefs
must be determined from the standpoint of the
Defendant at the time of the Defendant's acts and not
from the viewpoint of the jury now.
The court then reiterated its prior instruction on retreat:

And as I previously indicated, there's no duty to
retreat. However, in determining . . . whether the
Defendant reasonably believed that the amount of force
used was necessary to prevent or terminate the
interference, you may consider whether the Defendant
had the opportunity to retreat with safety, whether
such retreat was feasible and whether the Defendant
knew of the opportunity to retreat.
And, after reciting the definition of "criminal negligence"——

that "Defendant's operation or handling of a dangerous weapon

created a risk of death or great bodily harm and the risk of

death or great bodily harm was unreasonable and substantial [of

16
 No. 2016AP1409-CR

which] the Defendant should have been aware"——the court again

discussed the defense of accident:

Once again, the Defendant contends that he was
not aware of the risk of death or great bodily harm
required for a crime but rather that what happened was
an accident.

If the Defendant was not aware of the risk of
death or great bodily harm required for a crime, the
Defendant is not guilty of that crime. Before you may
find the Defendant guilty of homicide by negligent
operation of a dangerous weapon . . . the State must
prove by evidence that satisfies you beyond a
reasonable doubt that the Defendant should have been
aware of the risk of death or great bodily harm.

4. General instructions
¶27 In addition to these charge-specific instructions, the

circuit court generally instructed the jury, in relevant part,

as follows:

Defendants are not required to prove their
innocence. The law presumes every person charged with
the commission of an offense to be innocent. This
presumption requires a finding of not guilty unless in
your deliberations you find it is overcome by evidence
which satisfies you beyond a reasonable doubt that the
Defendant is guilty.

The burden of establishing every fact necessary
to constitute guilt is upon the State. Before you can
return a verdict of guilty, the evidence must satisfy
you beyond a reasonable doubt that the Defendant is
guilty.
¶28 Defense counsel did not object to either the charge-

specific instructions or the general instructions.

C. Postconviction Motions
¶29 On July 17, 2015, the jury returned its verdict: "We,
the jury, find the defendant, Joseph Langlois, guilty of

17
 No. 2016AP1409-CR

Homicide by Negligent Handling of a Dangerous Weapon." Langlois

moved for a judgment notwithstanding the verdict, which the

circuit court denied. On September 28, 2015, the circuit court

entered judgment of conviction18 and sentenced Langlois to five

years probation.

¶30 Langlois filed his first postconviction motion on

September 9, 2015, pursuant to Wis. Stat. § 974.02, moving for

reconsideration of the denial of his motion for judgment

notwithstanding the verdict. He argued that there was

insufficient evidence to support the verdict because the State

failed to prove beyond a reasonable doubt that "a normally

prudent person under the same circumstances" "should have been

aware that his operation or handling of a dangerous weapon

created the unreasonable and substantial risk of death or great

bodily harm."19 Relatedly, Langlois challenged the jury

instructions, focusing on the accident instruction:

18
The original judgment of conviction was entered on
September 28, 2015. On November 24, 2015, an amended judgment
of conviction was entered. This amended judgment reflected
changes only to the conditions of probation to accommodate
Langlois' employment.
19
In support of this motion, Langlois attached a screen
shot of a text message received after the verdict by one of the
jurors: "Hi Karen! I was one of the jurors on your son's case.
He only received the guilty verdict because of a technicality in
the law. It was the phrase 'should have known' 'could cause
severe bodily harm or death'. That charge was one the da
added." We agree with the circuit court that this "juror text
message does not indicate any jury concern regarding sufficiency
of the evidence." Rather,

(continued)
18
 No. 2016AP1409-CR

The instructions on accident should have directed the
jury to consider whether the State proved by evidence
beyond a reasonable doubt that the defendant should
have been aware of the "unreasonable and substantial"
risk of death or great bodily harm; not merely the
"risk" of death or great bodily harm. This omitted
language created a lower standard for the State to
meet in order for the jury to find the defendant
guilty of Homicide by Negligent Handling of a
Dangerous Weapon.
On October 7, 2015, the State responded that the only element in

dispute was whether Langlois acted with criminal negligence, and

there was sufficient evidence to support the verdict because

both his written statement and videotaped confession "show that

a jury could have drawn the appropriate inferences." The State

also pointed out that Langlois' argument regarding the jury

instructions was waived by defense counsel's failure to object,20

but argued that, in any event, "the jury instructions as a whole

did not mislead the jury." The circuit court denied Langlois'

motion by decision and order dated October 29, 2015, concluding

that "[t]he undisputed evidence . . . was more than sufficient

[the juror's] statement that a "technicality in the
law" required the jury to find [] Langlois guilty
because he "should have known" that his handling of
the knife created an unreasonable and substantial risk
of death or great bodily harm clearly indicates that
despite sympathy for [Karen], the jury understood and
performed its sworn obligations correctly.
20
Langlois argued that, to the contrary, defense counsel
had objected to instruction on lesser-included offenses in
general——which is confirmed by the record——and that even where
an argument is not preserved by objection, a court may "grant a
new trial in the interest of justice when it is of the opinion
that justice has been miscarried or a verdict is returned based
upon erroneous instructions of law."

19
 No. 2016AP1409-CR

to allow the jury to conclude beyond a reasonable doubt that

Langlois was criminally negligent," and that "there is not even

a hint of any possible error in the instructions."

¶31 Langlois filed his second postconviction motion on

May 2, 2016, pursuant to Wis. Stat. § 809.30(2)(h), renewing his

arguments regarding the sufficiency of the evidence and the jury

instruction on accident, but now also challenging the jury

instruction on self-defense and raising a claim of ineffective

assistance of counsel. He argued that the circuit court's

failure to reiterate the State's burden to disprove self-defense

when it instructed on homicide by negligent handling of a

dangerous weapon had the effect of shifting the burden to him.

The State's response, filed June 1, 2016, repeated its arguments

in response to Langlois' first postconviction motion: the jury

instructions as a whole were complete and did not mislead the

jury; therefore, failure to object was not ineffective

assistance of counsel, there was no due process violation, and

the real controversy was tried. Similarly, the State again
pointed to Langlois' written statement and verbal interview as

providing sufficient evidence to support the only disputed

element——criminally negligent operation of a dangerous weapon.

The circuit court denied this second motion by decision and

order dated June 28, 2016, for the same reasons it denied

20
 No. 2016AP1409-CR

Langlois' first motion: it concluded that the jury instructions

were not erroneous21 and that the evidence was sufficient.

¶32 On July 14, 2016, Langlois noticed appeal. The court

of appeals affirmed. Langlois, 377 Wis. 2d 302, ¶¶1, 51. It

concluded that the circuit "court's instructions to the jury,

when viewed in their entirety and not in isolation, were not

erroneous." Id., ¶36. With regard to the self-defense

instruction, the court of appeals held that the jury had no

reason to infer that Langlois bore any burden because the

circuit court gave an accurate self-defense instruction, told

the jury that self-defense applied to all of the counts, and

specifically referenced the self-defense instruction when

instructing the jury on negligent homicide by handling of a

dangerous weapon. Id., ¶¶30, 32. With regard to the accident

instruction, the court of appeals held that the instructions

were clear as to the requisite mental state because they

referred the jury back to the immediately preceding definition

of criminal negligence. Id., ¶35. The court of appeals
therefore concluded that trial counsel was not ineffective

because failure to object to correct jury instructions is not

deficient performance, and that Langlois was not entitled to a

new trial in the interest of justice because there is no denial

of due process where correct jury instructions are given. Id.,

21
The circuit court did additionally find that, in
retrospect, "there was no basis in the first instance for the
court to have given a self-defense jury instruction."

21
 No. 2016AP1409-CR

¶¶36-37. The court of appeals further concluded that the

evidence was sufficient to support the verdict because a

rational jury could have found that the knife was a dangerous

weapon; that the way Langlois handled the weapon constituted

criminal negligence; and that Langlois had not acted in self-

defense because he had had the opportunity to leave the room

without using force.22 Id., ¶¶48-49, 51.

¶33 On August 11, 2017, Langlois petitioned for review.

On December 13, 2017, we granted Langlois' petition for review.

II. STANDARD OF REVIEW
¶34 We consider first whether the jury instructions were

erroneous. "A circuit court . . . has broad discretion in

instructing a jury. A circuit court appropriately exercises its

discretion in administering a jury instruction so long as the

instructions as a whole correctly stat[e] the law and compor[t]

with the facts of the case." Weborg v. Jenny, 2012 WI 67, ¶42,

341 Wis. 2d 668, 816 N.W.2d 191 (citation omitted). Whether a

22
Presiding Judge Reilly dissented. In his view, counsel
was deficient for failing to object to the jury instructions for
homicide by negligent handling of a dangerous weapon because
they were incomplete, and this error was "clearly
prejudic[ial]." State v. Langlois, 2017 WI App 44, ¶61, 377
Wis. 2d 302, 901 N.W.2d 768 (Reilly, P.J., dissenting). He
would have held that, although the self-defense and accident
instructions for first- and second-degree reckless homicide were
complete and correct, the instructions for negligent homicide
were incomplete, and the jury cannot rely on the instructions
given for crimes that are not under consideration when reaching
a verdict. Id., ¶¶52, 57, 60.

22
 No. 2016AP1409-CR

jury instruction correctly states the law is a question of law

that we review de novo. Id.

¶35 We consider second whether there is sufficient

evidence to sustain the conviction. This too is a question of

law that we review de novo, and we will "not overturn a jury's

verdict unless the evidence, viewed most favorably to sustaining

the conviction, 'is so insufficient in probative value and force

that it can be said as a matter of law that no trier of fact,

acting reasonably, could have found guilt beyond a reasonable

doubt.'" State v. Beamon, 2013 WI 47, ¶21, 347 Wis. 2d 559, 830

N.W.2d 681 (quoting State v. Poellinger, 153 Wis. 2d 493, 501,

451 N.W.2d 752 (1990)).

III. ANALYSIS
¶36 On review, we consider two issues. First, we consider

whether the jury instructions were erroneous. We conclude that

they were not, because, taken as a whole, they accurately state

the law. Consequently, we conclude that there is no basis for

Langlois' claim of ineffective assistance of counsel, there is
no due process violation, and reversal in the interest of

justice is not appropriate. Second, we consider whether there

was sufficient evidence to support the jury's verdict. We

conclude that there was, because the evidence, viewed most

favorably to sustaining the conviction, supports a finding of

guilt beyond a reasonable doubt.

23
 No. 2016AP1409-CR

A. Whether The Jury Instructions Were Erroneous
¶37 We consider first whether the jury instructions were

erroneous. Langlois argues that the accident and self-defense

instructions given for homicide by negligent handling of a

dangerous weapon were erroneous. He argues that the instruction

for accident was erroneous because it misstated the State's

burden to prove his mental state when it omitted "unreasonable

and substantial" before "risk." Similarly, Langlois argues that

the instruction for self-defense was erroneous because it

omitted the State's burden to disprove self-defense, thereby

shifting the burden to him. The State argues that the jury

instructions were not erroneous. It argues that the instruction

for accident was not erroneous because, when viewed as a whole,

the jury instructions established that the State had to prove

Langlois was aware of a risk that was unreasonable and

substantial. Moreover, because accident is a negative defense,

the State disproves accident if it proves all of the elements of

the crime——which Langlois does not dispute were properly
recited——beyond a reasonable doubt. Similarly, the instruction

for self-defense was not erroneous because, when viewed as a

whole, the jury instructions informed the jury that the State

had the burden of disproving self-defense. Moreover, a review

of the record reveals that Langlois was not entitled to

instruction on self-defense. We conclude that the jury

instructions were not erroneous because, taken as a whole, they

accurately state the law.

24
 No. 2016AP1409-CR

1. Error
¶38 In determining whether a jury instruction correctly

states the law, "[w]e review the jury instructions as a whole to

determine whether the overall meaning communicated by the

instructions was a correct statement of the law." Dakter v.

Cavallino, 2015 WI 67, ¶32, 363 Wis. 2d 738, 866 N.W.2d 656; see

also State v. Hubbard, 2008 WI 92, ¶27, 313 Wis. 2d 1, 752

N.W.2d 839 ("Jury instructions are not to be judged in

artificial isolation, but must be viewed in the context of the

overall charge.").

a. Accident
¶39 The jury instruction for accident was not erroneous.

The circuit court gave the accident instruction for homicide by

negligent handling of a dangerous weapon immediately after

defining "criminal negligence":

Criminal negligence means the Defendant's
operation of handling of a dangerous weapon created a
risk of death or great bodily harm and the risk of
death or great bodily harm was unreasonable and
substantial and the Defendant should have been aware
that this operation or handling of a dangerous weapon
created an unreasonable and substantial risk of death
or great bodily harm.

Once again, the Defendant contends that he was
not aware of the risk of death or great bodily harm
required for a crime but rather that what happened was
an accident.
¶40 Langlois argues that it was error for the circuit

court to omit "unreasonable and substantial" before "risk" in

the second paragraph——the accident instruction——because it had
the effect of lowering the State's burden to prove Langlois'

25
 No. 2016AP1409-CR

mental state from "awareness of an unreasonable and substantial

risk" to simply "awareness of a risk." This argument fails.

"'The' is a definite article used as a function word to indicate

that a following noun or noun equivalent refers to someone or

something that is unique." State v. Arberry, 2018 WI 7, ¶19,

379 Wis. 2d 254, 905 N.W.2d 832. Thus, the use of "the" before

"risk" means that the instruction "contemplates only one unique,

specified [risk]." Id.

¶41 Common sense compels the conclusion that the "one

unique, specified risk" is the "unreasonable and substantial

risk" discussed in the immediately preceding sentence. Accord

Antonin Scalia & Bryan Garner, Reading Law: The Interpretation

of Legal Texts 144 (2012) (noting that "legalistic pronoun[s]"

such as "the risk" should be understood as referring to the

nearest clarifying antecedent). This understanding is confirmed

by the explanatory phrase that immediately follows this

legalistic pronoun: "the risk of death or great bodily harm

required for a crime." (Emphasis added.)
¶42 In sum, although the type of risk at issue might be

less clear if the challenged accident instruction is read in

isolation, the context provided by the immediately preceding

sentence and the explanatory phrase that immediately follows

clearly convey that "the risk" referenced in the accident

instruction is "an unreasonable and substantial risk." Thus,

the jury instruction given for accident on the charge of

homicide by negligent handling of a dangerous weapon is not

26
 No. 2016AP1409-CR

erroneous because, viewed in context, it communicates a correct

statement of law.23

b. Self-defense
¶43 The jury instruction for self-defense was not

erroneous. Although the initial self-defense instruction was

given after the statutory definition for first-degree reckless

homicide, the first paragraph made it clear that the instruction

applied generally to the case and specifically to criminally

negligent conduct:

Self defense is an issue in this case. In
deciding whether the Defendant's conduct was
criminally reckless conduct which showed utter
disregard for human life or was criminally negligent
conduct, you should also consider whether the
Defendant acted in lawful self defense.
(Emphases added.) Therefore, the jury was aware that the

initial instruction it was receiving applied to the case

generally and to criminally negligent conduct specifically.

Langlois does not dispute that this initial instruction was an

accurate statement of the law; thus, the jury was properly

instructed on self-defense.

23
We recognize that the circuit court was reasonably
concerned about the length of the jury instructions in this
case. Although we conclude that the abbreviated jury
instructions given in this case were not erroneous, it is best
practice to read the pattern instructions for each charge,
except, of course, where the pattern instructions themselves are
abbreviated. See supra note 13. In fact, had the circuit court
taken the time at trial and not abbreviated the instructions as
it did, this issue would not have existed to appeal.

27
 No. 2016AP1409-CR

¶44 Additionally, however, the circuit court reiterated

the self-defense instruction after it gave the statutory

definition of homicide by negligent handling of a weapon.

Although it did not re-recite the State's burden of proof, it

twice incorporated by reference its initial instruction on self-

defense when it said, "As I previously indicated." Thus, the

jury was reminded that the initial instruction, recited in the

context of reckless homicide, applied equally to the context of

negligent homicide.

¶45 Moreover, the circuit court gave the jury a general

instruction on the State's burden to establish guilt beyond a

reasonable doubt: "The burden of establishing every fact

necessary to constitute guilt is upon the State. Before you can

return a verdict of guilty, the evidence must satisfy you beyond

a reasonable doubt that the Defendant is guilty." Because self-

defense is a negative defense, the State disproves self-defense

beyond a reasonable doubt if it proves the elements of the crime

beyond a reasonable doubt, specifically criminal negligence.
Therefore, the jury was aware that the State had to prove

criminal negligence——the element that self-defense would

negate——beyond a reasonable doubt.

¶46 Langlois argues, however, that the error is evident

because the jury found him not guilty on the two counts where

the self-defense instruction included the State's burden——first-

and second-degree reckless homicide——but guilty on the count

where the State's burden was not reiterated——negligent homicide;
he concludes, therefore, that the lack of reiteration of the
28
 No. 2016AP1409-CR

State's burden is the reason that the jury found him guilty.

This argument fails. As an initial matter, the circuit court

did not repeat the accident or self-defense instructions for

second-degree reckless homicide, but the jury still found

Langlois not guilty of that offense. Additionally, inferring

error from a verdict of guilt assumes that the evidence was

otherwise insufficient to sustain the State's burden; but, as

explained below, see infra ¶¶58-62, we conclude that the

evidence was sufficient to find him guilty of negligent homicide

by handling of a dangerous weapon beyond a reasonable doubt.

¶47 In sum, although the State's burden might be less

clear if the challenged self-defense instruction is read in

isolation, the context provided by the prior instruction and the

general instructions clearly convey that the State bore the

burden to disprove self-defense. Thus, the jury instruction

given for self-defense on the charge of homicide by negligent

handling of a dangerous weapon is not erroneous because, viewed

in context, it communicates a correct statement of law.24

24
In so concluding, we agree with the court of appeals that
Langlois' reliance on State v. Austin, 2013 WI App 96, 349
Wis. 2d 744, 836 N.W.2d 833, is misplaced because, in Austin,
the circuit court made no mention at all of the State's burden
to disprove self-defense. See Langlois, 377 Wis. 2d 302, ¶¶31-
32.

29
 No. 2016AP1409-CR

2. Prejudice25
¶48 An erroneous jury instruction warrants reversal only

when the error is prejudicial. Dakter, 363 Wis. 2d 738, ¶33.

Langlois argues that the omissions in the jury instructions on

accident and self-defense are reversible error on any one of

three grounds: ineffective assistance of counsel, due process,

or interest of justice. The State argues that, because the jury

instructions were not erroneous, trial counsel did not render

ineffective assistance by failing to object; there was no

violation of Langlois' due process rights; and Langlois is not

entitled to a new trial in the interest of justice. Because we

conclude that the jury instructions were not erroneous, we also

conclude that there is no basis for Langlois' claim of

ineffective assistance of counsel, there is no due process

violation, and reversal in the interest of justice is not

appropriate.

a. Ineffective assistance of counsel
¶49 Whether trial counsel's failure to object to an error

in the jury instructions constitutes ineffective assistance of
counsel is a mixed question of law and fact. See State v.

Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93.

The factual circumstances of the case and trial
counsel's conduct and strategy are findings of fact,
which will not be overturned unless clearly erroneous;

25
Although we recognize that we need not address prejudice
because we conclude that the jury instructions are not
erroneous, we choose to fully address the prejudice argument
raised for the sake of completeness.

30
 No. 2016AP1409-CR

whether counsel's conduct constitutes ineffective
assistance is a question of law, which we review de
novo. To demonstrate that counsel's assistance was
ineffective, the defendant must establish that
counsel's performance was deficient and that the
deficient performance was prejudicial. If the
defendant fails to satisfy either prong, we need not
consider the other.
Id. (citations omitted). Whether trial counsel performed

deficiently and whether any deficient performance was

prejudicial are questions of law we review de novo. Id., ¶¶38-

39.

¶50 "[A] claim predicated on a failure to challenge a

correct [jury instruction] cannot establish either" deficient

performance or prejudice. State v. Ziebart, 2003 WI App 258,

¶14, 268 Wis. 2d 468, 673 N.W.2d 369; see also State v. Neumann,

2013 WI 58, ¶141, 348 Wis. 2d 455, 832 N.W.2d 560. Thus,

because we conclude above that the jury instructions correctly

stated the law, see supra ¶¶42, 47, we also conclude that there

is no basis for Langlois' claim of ineffective assistance of

counsel.

b. Due process violation
¶51 Whether an error in the jury instructions constitutes

a violation of a party's due process rights is a question of law

that we review de novo. See, e.g., State v. Badzinski,

2014 WI 6, ¶27, 352 Wis. 2d 329, 843 N.W.2d 29. "There are two

types of jury instruction challenges: those challenging the

legal accuracy of the instructions, and those alleging that a

legally accurate instruction unconstitutionally misled the
jury." State v. Burris, 2011 WI 32, ¶44, 333 Wis. 2d 87, 797

31
 No. 2016AP1409-CR

N.W.2d 430. Langlois appears to raise a challenge that

incorporates both types because he claims that the omission of

certain language (i.e., a legally inaccurate instruction) has

misled the jury.

¶52 A jury instruction that incorrectly states the law

violates due process if it has "the effect of relieving the

State of its burden of proving beyond a reasonable doubt every

element of the offense charged." State v. Harvey, 2002 WI 93,

¶23, 254 Wis. 2d 442, 647 N.W.2d 189. A jury instruction

misleads the jury in a way that violates due process if "there

is a reasonable likelihood that the instruction was applied in a

manner that denied the defendant 'a meaningful opportunity for

consideration by the jury of his defense.'" Burris, 333

Wis. 2d 87, ¶50 (quoting State v. Lohmeier, 205 Wis. 2d 183,

191, 556 N.W.2d 90 (1996)).

¶53 Because we conclude above that the jury instructions

correctly state the law, see supra ¶¶42, 47, we also conclude

that there is no due process violation on the basis that legally
inaccurate instructions effectively relieved the State of its

burden of proof. Similarly, because we conclude below that

there is sufficient evidence to sustain the conviction, see

infra ¶¶58-62, we also conclude that there is no due process

violation because there is no reasonable likelihood that the

legally accurate instructions were applied in a manner that

denied the defendant a meaningful opportunity for consideration

by the jury of his defense. See State v. Ferguson, 2009 WI 50,
¶¶9, 45, 317 Wis. 2d 586, 767 N.W.2d 187 (citing Harvey, 254
32
 No. 2016AP1409-CR

Wis. 2d 442, ¶46) (noting that an instructional error is

harmless if "it is clear beyond a reasonable doubt that a

rational jury would have [nonetheless] found the defendant

guilty").

c. Interest of justice
¶54 Whether an error in the jury instructions entitles a

defendant to a new trial in the interest of justice requires us

to consider Wis. Stat. §§ 752.35 and 751.06. Under Wis. Stat.

§ 752.35, the court of appeals has discretion to reverse a

conviction and order a new trial where "it appears from the

record that the real controversy has not been fully tried, or

that it is probable that justice has for any reason miscarried."

§ 752.35. "We review a discretionary determination for an

erroneous exercise of discretion. The court [of appeals]

erroneously exercises its discretion when it applies the wrong

legal standard or makes a decision not reasonably supported by

the facts of record." State v. Avery, 2013 WI 13, ¶23, 345

Wis. 2d 407, 826 N.W.2d 60 (citation omitted). Because we
conclude above that the jury instructions correctly state the

law, see supra ¶¶42, 47, and we conclude below that there is

sufficient evidence to sustain the verdict, see infra ¶¶58-62,

we also conclude that the court of appeals did not erroneously

exercise its discretion in declining to reverse Langlois'

conviction and order a new trial in the interest of justice.

¶55 Under Wis. Stat. § 751.06, we have independent
discretionary authority to reverse a conviction and order a new

33
 No. 2016AP1409-CR

trial where "it appears from the record that the real

controversy has not been fully tried, or that it is probable

that justice has for any reason miscarried." The interpretation

and application of a statute present questions of law that we

review de novo. Estate of Miller v. Storey, 2017 WI 99, ¶25,

378 Wis. 2d 358, 903 N.W.2d 759. In applying § 751.06, we

exercise our discretion infrequently, judiciously, and only in

exceptional cases. Avery, 345 Wis. 2d 407, ¶38. Because we

conclude above that the jury instructions correctly state the

law, see supra ¶¶42, 47, and we conclude below that there is

sufficient evidence to sustain the verdict, see infra ¶¶58-62,

we also conclude that this is not an exceptional case warranting

an exercise of our discretion to reverse Langlois' conviction

and order a new trial in the interest of justice.

B. Whether There Was Sufficient Evidence
¶56 We consider second whether there was sufficient

evidence to support the jury's verdict. Langlois argues that

there is insufficient evidence to sustain the conviction because
the record establishes that he was acting in self-defense; thus,

although his conduct created a risk, it was not an unreasonable

one, and a properly instructed jury could not have found beyond

a reasonable doubt that Langlois operated or handled a dangerous

weapon in a manner constituting criminal negligence. The State

argues that there is sufficient evidence to sustain the

conviction because the record establishes that a rational jury
could have found that the State proved each element of homicide

34
 No. 2016AP1409-CR

by negligent handling of a dangerous weapon beyond a reasonable

doubt. We conclude that there was sufficient evidence to

sustain the conviction because the evidence, viewed most

favorably to sustaining the conviction, supports a finding of

guilt beyond a reasonable doubt.

¶57 The jury found Langlois guilty of homicide by

negligent handling of a dangerous weapon, contrary to Wis. Stat.

§ 940.08(1). Section 940.08(1) provides, in relevant part, that

"whoever causes the death of another human being by the

negligent operation or handling of a dangerous weapon . . . is

guilty of a Class G felony." In order to establish that

Langlois was guilty of the crime of homicide by negligent

handling of a dangerous weapon, the State had to prove three

elements beyond a reasonable doubt:

1. The defendant operated or handled a dangerous
weapon.

2. The defendant operated or handled a dangerous
weapon in a manner constituting criminal
negligence.

3. The defendant's operation or handling of a
dangerous weapon in a manner constituting criminal
negligence caused the death of [Jacob].
Wis JI——Criminal 1175, at 1 (2011).

¶58 As applicable here, "dangerous weapon" means "any

device or instrumentality which, in the manner it is used or

intended to be used, is likely to produce death or great bodily

harm." Wis JI——Criminal 1175, at 1-2 (2011). At trial,
Detective Wolf testified that the fillet knife had a six-inch

35
 No. 2016AP1409-CR

long blade and Langlois testified that he knew the knife was

sharp and that he held it with the point outward toward Jacob.

This evidence is sufficient to establish beyond a reasonable

doubt that the fillet knife was a "dangerous weapon."

¶59 "Criminal negligence" means that (a) the defendant's

operation or handling of a dangerous weapon created a risk of

death or great bodily harm; (b) the risk of death or great

bodily harm was unreasonable and substantial; and (c) the

defendant should have been aware that his operation of a

dangerous weapon created the unreasonable and substantial risk

of death or great bodily harm. Wis JI——Criminal 1175, at 2

(2011). At trial, Langlois testified that he picked up the

fillet knife, removed it from its sheath, and held it at his

shoulder with the blade pointing outward. Langlois also

testified that he had the opportunity to retreat but did not

because he was "furious." Detective Clausing additionally

testified that Langlois never used the word "accident" or "self-

defense" in his statements and that he demonstrated a forward
stabbing motion during his reenactment of what happened. This

evidence is sufficient to establish beyond a reasonable doubt

that Langlois' handling of the fillet knife created a risk of

death or great bodily harm that was unreasonable and

substantial.

¶60 Furthermore, at trial, five of the seven character

witnesses for the defense testified to Langlois' intelligence,

describing him as a "smart, very smart, smart kid," "very
intelligent," a "smart young man," "very smart," and "extremely
36
 No. 2016AP1409-CR

smart." This evidence is sufficient to establish beyond a

reasonable doubt that Langlois should have known that holding a

six-inch fillet knife so that it was pointed outward toward

another created an unreasonable and substantial risk of death or

great bodily harm.

¶61 "Cause" means that "the defendant's act was a

substantial factor in producing the death." Wis JI——Criminal

1175, at 1 (2011). At trial, Deputy Nauman, Investigator

Klopfenstein, Detective Wolf, and Langlois all testified that

there was a large amount of blood on the kitchen floor.

Langlois further testified that he saw "the blood just squirting

out of [Jacob] at a really high speed and really fast all in

like one or two seconds." In addition, Dr. Okia testified that,

to a reasonable degree of medical certainty, the cause of death

was a puncture wound, six inches deep, on the left side of

Jacob's chest between his second and third ribs. This evidence

is sufficient to prove beyond a reasonable doubt that Langlois'

act was a substantial factor in producing Jacob's death.
¶62 In sum, the evidence, viewed most favorably to

sustaining the conviction, supports a finding of guilt beyond a

reasonable doubt.

IV. CONCLUSION
¶63 On review, we consider two issues. First, we consider

whether the jury instructions were erroneous. We conclude that

they were not, because, taken as a whole, they accurately state
the law and did not mislead the jury. As a result, we also

37
 No. 2016AP1409-CR

conclude that Langlois' counsel was not ineffective for failing

to object to the jury instructions because it is not deficient

performance to fail to object to jury instructions which are

correct. We further conclude that there is no violation of

Langlois' due process rights and that Langlois is not entitled

to a new trial in the interest of justice because the jury

instructions were not erroneous. Second, we consider whether

there was sufficient evidence to support the jury's verdict. We

conclude that there was, because a reasonable jury could have

found guilt beyond a reasonable doubt.

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

affirmed.

38
 No. 2016AP1409-CR.ssa

¶64 SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree

with Presiding Judge Paul Reilly, who correctly emphasized the

illogic of "believ[ing] that a jury may utilize instructions for

crimes not under consideration to fix erroneous instructions for

the crime under consideration."1

¶65 The majority incorrectly "fixes" the circuit court's

self-defense instructions by irrationally assuming that the

phrase "As I previously indicated" means "apply the self-defense

instruction I gave for crimes of which you have found the

defendant not guilty despite any differences the previous

instruction might have when compared with the self-defense

instruction I am giving now."

¶66 In my view, the court of appeals decision in State v.

Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, is on

all fours with the facts of the instant case. Austin rejected

the very same illogic that the majority relies upon to fix the

circuit court's erroneous instructions in the instant case.

¶67 Moreover, following Austin, I conclude that the
defendant is entitled to a new trial in the interest of justice

regardless of whether he was prejudiced as a result of trial

counsel's failure to object to the circuit court's erroneous

jury instructions. A Machner hearing is not necessary.

¶68 Accordingly, I dissent.

I

1
State v. Langlois, 2017 WI App 44, ¶52, 377 Wis. 2d 302,
901 N.W.2d 768 (Reilly, P.J., dissenting).

1
 No. 2016AP1409-CR.ssa

¶69 The majority correctly states that jury instructions

must be viewed as a whole,2 but the majority misapprehends what

the "whole" is.

¶70 The circuit court instructed the jury to consider each

of three charges seriatim. That is, the circuit court required

the jury to first follow the instructions applicable to the

charge of first-degree reckless homicide and determine whether

the defendant was guilty of that charge. If the jury found the

defendant not guilty of first-degree reckless homicide, the

circuit court instructed the jury to follow the instructions

applicable to the charge of second-degree reckless homicide and

determine whether the defendant was guilty of that charge.

Third, and finally, if the jury found defendant not guilty of

second-degree reckless homicide, the circuit court instructed

the jury to follow the instructions applicable to the charge of

homicide by negligent handling of a dangerous weapon.

¶71 Thus, in the context of the instant case, viewing the

jury instructions as a whole means viewing all of the
instructions applicable to a particular charge together to

determine if the instructions for that charge correctly state

the law.3

¶72 The circuit court "could have given one complete,

proper instruction on self-defense and told the jury that it

2
Majority op., ¶34.
3
Part of the "whole" would also include any generally
applicable instructions that the circuit court told the jury
apply to all three charges.

2
 No. 2016AP1409-CR.ssa

applied to all three crimes, but it did not do so. Instead, the

court gave an instruction on self-defense for first- and second-

degree reckless homicide and gave a distinctly different

instruction for self-defense applicable to homicide by negligent

handling of a dangerous weapon."4

¶73 The court of appeals decision in State v. Austin

directly supports the defendant's position that the self-defense

instruction applicable to the charge of homicide by negligent

handling of a dangerous weapon was erroneous.

¶74 In Austin, the court of appeals dealt with a claim of

erroneous jury instructions that was very similar to the

defendant's claim in the instant case. Austin was charged with

first-degree recklessly endangering safety with a dangerous

weapon. At trial, but before the case was submitted to the

jury, the State asked the circuit court to instruct the jury on

the lesser-included charge of second-degree recklessly

endangering safety with a dangerous weapon. The circuit court

granted that request and instructed the jury on charges of
first- and second-degree recklessly endangering safety with a

dangerous weapon.5

¶75 Austin had presented sufficient evidence on the

defenses of self-defense and defense-of-others. When

instructing the jury on the first-degree charge, the circuit

4
Langlois, 377 Wis. 2d 302, ¶56 (Reilly, P.J., dissenting).
5
State v. Austin, 2013 WI App 96, ¶2-3, 349 Wis. 2d 744,
836 N.W.2d 833.

3
 No. 2016AP1409-CR.ssa

court provided instructions on the substantive law of self-

defense, the substantive law of defense-of-others, and the

substantive law of the first-degree charge. Although the

circuit court instructed the jury that "[t]he state must provide

[sic] by evidence which satisfies you beyond a reasonable doubt

that the defendant did not act lawfully in defense of others[,]"

the circuit court never instructed the jury on the burden of

proof applicable to self-defense.6

¶76 When instructing the jury on the second-degree charge,

the circuit court noted that self-defense was an issue but did

not repeat the self-defense instruction. The defense-of-others

instruction was also not repeated when the circuit court

instructed the jury on the second-degree charge.7 Instead, the

only mention of defense-of-others was that the jury "should

consider the evidence relating to self-defense, as well as

defense of others, in deciding whether the defendant's conduct

created an unreasonable risk to another. If the defendant was

acting lawfully in self-defense or in defense of others, his
conduct did not create an unreasonable risk to another."8

¶77 Importantly, the circuit court did not mention the

State's burden of proof as to either defense when it instructed

the jury on the second-degree charge.

6
Id., ¶¶7-8.
7
Id., ¶¶9-10.
8
Id., ¶10.

4
 No. 2016AP1409-CR.ssa

¶78 Austin was acquitted of the first-degree charge, but

convicted of the second-degree charge.

¶79 Austin argued that he was entitled to a new trial

based upon errors in the circuit court's jury instructions:

Austin claims the instructions were erroneous because
the self-defense instructions failed to tell the jury
that the State had to disprove self-defense beyond a
reasonable doubt. Further, he contends that this
error was compounded by the juxtaposition of the first
defense-of-others instruction, which did instruct the
jury that the State had to disprove the defense. That
is, Austin suggests that the omission of the burden of
proof for self-defense, contrasted with the inclusion
of the burden of proof for defense-of-others, may have
suggested to the jury that the State did not have the
burden of proof on the self-defense claim. Austin
also claims that it was error for the circuit court to
omit the instruction on defense of others from the
second-degree instructions.
Austin, 349 Wis. 2d 744, ¶11.

¶80 As to the second-degree charge of which Austin was

convicted, the court of appeals held that the jury instructions

for both self-defense and defense-of-others were erroneous.

¶81 Regarding the self-defense instruction, the court of
appeals concluded that the instruction of the substantive law of

self-defense, standing alone, without an instruction on the

burden of proof, "implies that the defendant must satisfy the

jury that he was acting in self-defense. In doing so, the

instruction removes the burden of proof from the State to show

that the defendant was engaged in criminally reckless conduct."9

9
Id., ¶17.

5
 No. 2016AP1409-CR.ssa

¶82 Regarding the defense-of-others instruction, the court

of appeals concluded as follows:

With regard to the lack of defense-of-other
instructions in the second-degree instructions, the
State claims that the circuit court's instruction,
though not identical to the defense-of-others
instruction given for the first degree charges, was
nevertheless proper. However, the circuit court
merely told the jury to "consider the evidence
relating to . . . defense of others, in deciding
whether defendant's conduct created an unreasonable
risk. . . . If the defendant was acting
lawfully . . . in defense of others, his conduct did
not create an unreasonable risk to another." We do
not agree that this was adequate: the instruction on
the State's burden of proof is wholly omitted. Thus,
the instructions are erroneous.
Austin, 349 Wis. 2d 744, ¶19.

¶83 The majority asserts that Austin is distinguishable

from the instant case because in Austin, there was no burden of

proof instruction on self-defense at all.10 The majority's

reasoning pays too little attention to how the court of appeals

dealt with the defense-of-others instruction at issue in Austin

and how the logic of that reasoning applies in the instant case.
¶84 In Austin, with regard to the first-degree charge, the

circuit court properly instructed the jury on both the

substantive law applicable to the defense-of-others defense and

the applicable burden of proof (i.e., the State bears the burden

of proving beyond a reasonable doubt that Austin was not acting

lawfully in the defense of others). However, when instructing

the jury on the second-degree charge, the circuit court did not

10
Majority op., ¶47 n.24.

6
 No. 2016AP1409-CR.ssa

repeat the instruction. The court of appeals held that the

defense-of-others instruction for the second-degree charge was

inadequate because "the instruction on the State's burden of

proof [was] wholly omitted."11 The court of appeals reached this

conclusion despite the fact that the State's burden of proof

related to defense-of-others was properly explained by the

circuit court in its instructions on the first-degree charge.

¶85 The similarities between Austin and the instant case

are striking.

¶86 In Austin, the jury was instructed to consider the

second-degree charge only if it found Austin not guilty of the

first-degree charge, and both charges had their own sets of

applicable instructions. In the instant case, the jury was

instructed to consider the charge of homicide by negligent

handling of a dangerous weapon only if it found the defendant

not guilty of both first- and second-degree reckless homicide,

and all three charges had their own sets of applicable

instructions.
¶87 In Austin, while instructing the jury on the first-

degree charge, the circuit court properly explained the State's

burden of proof related to the defense-of-others defense, but it

did not repeat the burden of proof applicable to that defense

when instructing the jury on second-degree charge. In the

instant case, while instructing the jury on the charges of

first- and second-degree reckless homicide, the circuit court

11
Austin, 349 Wis. 2d 744, ¶19.

7
 No. 2016AP1409-CR.ssa

properly explained the State's burden of proof related to self-

defense, but it did not repeat the burden of proof applicable to

that defense when instructing the jury on the charge of homicide

by negligent handling of a dangerous weapon.

¶88 As was the case in Austin, the error in not repeating

the burden of proof instruction when instructing the jury on the

charge of homicide by negligent handling of a dangerous weapon

was compounded by the fact that the correct instruction was

given when the circuit court instructed the jury on the first-

and second-degree reckless homicide charges. It is the

juxtaposition between those instructions coupled with the fact

that the jury was to consider each charge individually, moving

to a lesser-included charge only if it found the defendant not

guilty of the more serious charge, that creates confusion and

results in erroneous instructions.

II

¶89 The majority asserts that because the circuit court

stated "As I previously indicated" while repeating parts of the
self-defense instruction applicable to the charge of homicide by

negligent handling of a dangerous weapon, the circuit court

"incorporated by reference its initial instruction on self-

defense," thereby "remind[ing]" the jury "that the initial

instruction, recited in the context of reckless homicide,

applied equally to the context of negligent homicide."12

12
Majority op., ¶44.

8
 No. 2016AP1409-CR.ssa

¶90 How could the majority have reached this conclusion?

Simply reading the circuit court's statements in context reveals

the absurdity of the majority's reasoning. Ask yourself: To

what specifically is the circuit court referring when it says,

"As I previously indicated"?

¶91 The circuit court stated "As I previously indicated"

on two occasions when instructing the jury on self-defense

applicable to the charge of homicide by negligent handling of a

dangerous weapon.

¶92 The circuit court first stated, "As I previously

indicated, the law of self defense allows the Defendant to

threaten or intentionally use force against another only if the

Defendant believed that there was an actual or [imminent]

unlawful interference with the Defendant's person and the

Defendant believed that the amount of force the Defendant used

or threatened to use was necessary to prevent or terminate the

interference and the Defendant's beliefs were reasonable."13 The

underlined portion of the circuit court's statement is what was
"previously indicated." Nowhere does the circuit court mention

the burden of proof. The circuit court said nothing to indicate

"that the initial instruction, recited in the context of

reckless homicide, applied equally to the context of negligent

homicide."14

13
Majority op., ¶26 (emphasis added).
14
Majority op., ¶44.

9
 No. 2016AP1409-CR.ssa

¶93 The circuit court again stated, "And as I previously

indicated, a belief may be reasonable even though mistaken. In

determining whether the Defendant's beliefs were reasonable, the

standard is what a person of ordinary intelligence and prudence

would have believed in the Defendant's position under the

circumstances that existed at the time of the alleged offense."15

Again, the underlined portion of the circuit court's statement

is what was "previously indicated." Again, nowhere does the

circuit court mention the burden of proof or inform the jury

that the previous self-defense instructions that applied to the

charges of first- and second-degree reckless homicide "applied

equally to the context of negligent homicide."16

¶94 I agree with Presiding Judge Reilly that "[t]he

majority's suggestion that the court's use of the phrase '[a]s I

previously indicated' incorporated the court's instruction on

the law of self-defense applicable to first- and second-degree

reckless homicide is an erroneous invitation that juries may

search out laws applicable to other crimes so as to convict on a
crime under deliberation." State v. Langlois, 2017 WI App 44,

¶56, 377 Wis. 2d 302, 901 N.W.2d 768 (Reilly, P.J., dissenting).

III

¶95 The majority's erroneous conclusion hangs by one final

thread. The majority asserts that the general instruction on

the State's burden to establish guilt beyond a reasonable doubt

15
Majority op., ¶26 (emphasis added).
16
Majority op., ¶44.

10
 No. 2016AP1409-CR.ssa

corrected any possible confusion regarding the burden of proof

applicable to self-defense on the charge of homicide by

negligent handling of a dangerous weapon.17 The majority states:

Because self-defense is a negative defense, the State
disproves self-defense beyond a reasonable doubt if it
proves the elements of the crime beyond a reasonable
doubt, specifically criminal negligence. Therefore,
the jury was aware that the State had to prove
criminal negligence——the element that self-defense
would negate——beyond a reasonable doubt
Majority op., ¶45.

¶96 The majority's reasoning is flawed for at least two

reasons.

¶97 First, if the majority's "negative defense" theory is

correct, then it appears to follow necessarily that the circuit

court did not need to instruct the jury on the burden of proof

applicable to self-defense at all because the applicable burden

of proof would be discernable from the circuit court's general

burden-of-proof instruction and the instructions regarding the

elements of the charged crimes, specifically the elements of

recklessness or criminal negligence.
¶98 But the fact remains that the circuit court did

instruct the jury on the burden of proof for self-defense for

the first- and second-degree reckless homicide charges, but not

for the homicide by negligent handling of a dangerous weapon

charge. Because each charge was to be considered independently

from the other charges and each charge bore its own separate set

17
Majority op., ¶45.

11
 No. 2016AP1409-CR.ssa

of instructions, the juxtaposition of those different self-

defense instructions creates confusion.

¶99 To avoid confusion (and assuming the majority's

"negative defense" theory is correct), the circuit court should

either have not instructed on the burden of proof for self-

defense applicable to any of the three charges, or it should

have provided one complete and accurate instruction for self-

defense while telling the jury that the instruction applied to

all three charges. By inconsistently repeating certain elements

of the self-defense instruction but not others, the circuit

court created confusing and erroneous jury instructions.

¶100 Second, the argument advanced by the majority was made

and rejected by the court of appeals in Austin. The circuit

court in Austin also gave the general burden of proof

instruction,18 and the State argued that because self-defense

negated the "recklessness" element of the charges at issue, the

fact that the circuit court wholly omitted an instruction on the

burden of proof applicable to self-defense was not erroneous.19
¶101 The Austin court of appeals, unpersuaded by the

State's argument, held that "when a defendant successfully makes

self-defense an issue, the jury must be instructed as to the

18
Brief and Appendix of Defendant-Appellant at 14, State v.
Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833 (No.
2012AP11-CR), 2012 WL 2420866, at *14 (Wis. Ct. App. June 6,
2012).
19
See Brief of Plaintiff-Respondent at 8-9, State v.
Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833 (No.
2012AP11-CR), 2012 WL 4121196, *8-9 (Wis. Ct. App. Sept. 6,
2012).

12
 No. 2016AP1409-CR.ssa

State's burden of proof regarding the nature of the crime, even

if the defense is a negative defense." Austin, 349 Wis. 2d 744,

¶16 (citing State v. Schulz, 102 Wis. 2d 423, 429-30, 307

N.W.2d 151 (1981), and State v. Pettit, 171 Wis. 2d 627, 640,

492 N.W.2d 633 (Ct. App. 1992)); see also Austin, 349

Wis. 2d 744, ¶17 (explaining that, by itself, Wis JI——Criminal

801 "implies that the defendant must satisfy the jury that he

was acting in self-defense").

¶102 The majority does not overrule Austin or even

acknowledge that its reasoning conflicts with Austin. Can the

majority square its reasoning in paragraph 45 with the court of

appeals decision in Austin? I do not think that it can, and

Austin provides the more persuasive resolution of the issue.

IV

¶103 Finally, following Austin, I conclude that the

defendant is entitled to a new trial in the interest of justice

regardless of whether he was prejudiced as a result of trial

counsel's failure to object to the circuit court's erroneous
jury instructions.20 In my view, a Machner hearing is not

necessary.

¶104 Similar to the instant case, the jury instruction

issue in Austin was addressed in the context of Austin's

ineffective assistance of counsel claim. However, instead of

20
Wisconsin Stat. § 751.06 permits the court to order a new
trial "if it appears from the record that the real controversy
has not been fully tried, or that it is probable that justice
has for any reason miscarried . . . ."

13
 No. 2016AP1409-CR.ssa

remanding the case to the circuit court for a Machner hearing or

determining whether Austin had shown prejudice, the court of

appeals instead ordered a new trial in the interest of justice.

¶105 In reaching its conclusion that a new trial in the

interest of justice was appropriate, the court of appeals

discussed the differing bases upon which the jury might have

relied in reaching its conclusion to acquit Austin of the first-

degree charge, but convict him of the second-degree charge. The

court of appeals stated that it "[did] not know what difference,

if any, a proper instruction on self-defense would have made[,]"

and "[g]iven these uncertainties regarding the verdict, [the

court of appeals was] not confident that counsel's lack of

objection [to the erroneous jury instructions] did not result in

prejudice."21

¶106 Under these circumstances, the court of appeals found

it unnecessary to remand the case for a Machner hearing. The

court explained its reasoning as follows:

It is undisputed that Austin stabbed both victims.
The only real issue was whether Austin was properly
acting in his or his cousin's defense. By not
properly instructing the jury, the circuit court
failed to provide it with the proper framework for
analyzing that question. Thus, regardless of whether
trial counsel's performance was prejudicial, we
conclude this is one of those very limited instances
in which we must reverse and remand for a new trial in
the interests of justice.
Austin, 349 Wis. 2d 744, ¶23.

21
Austin, 349 Wis. 2d 744, ¶22.

14
 No. 2016AP1409-CR.ssa

¶107 The logic and reasoning of the court of appeals in

Austin applies with equal persuasive force in the instant case.

¶108 As in Austin, it is not clear in the instant case how

the jury reached its conclusion that the defendant should be

acquitted of the first- and second-degree reckless homicide

charges, but convicted of the charge of homicide by negligent

handling of a dangerous weapon. Indeed, it seems nigh

impossible to know whether or not the jury would have reached a

different result if it had been instructed properly. Moreover,

as in Austin, it is undisputed that the defendant stabbed his

brother. The only real issue is whether the defendant was

acting properly in self-defense or whether the stabbing was an

accident.

¶109 By not properly instructing the jury, the circuit

court failed to provide the jury with the proper framework for

deciding the only disputed issues in the instant case. Thus, I

conclude that regardless of whether trial counsel's performance

was prejudicial to the defendant, the instant case presents "one
of those very limited instances" in which a new trial in the

interest of justice is appropriate.

V

¶110 It is unwise to conclude "that a jury may utilize

instructions for crimes not under consideration to fix erroneous

instructions for the crime under consideration."22 This

reasoning was correctly rejected by the court of appeals in

22
Langlois, 377 Wis. 2d 302, ¶52 (Reilly, P.J.,
dissenting).

15
 No. 2016AP1409-CR.ssa

Austin, and Austin should be followed in the instant case.

Consistent with the court of appeals decision in Austin, I would

grant the defendant a new trial in the interest of justice

because the nature of the circuit court's error is such that the

error's prejudicial effect is effectively unknowable.

¶111 For the foregoing reasons, I dissent.

16
 No. 2016AP1409-CR.rgb

¶112 REBECCA GRASSL BRADLEY, J. (dissenting). The State

charged Jacob Langlois with first-degree reckless homicide while

using a dangerous weapon, but at trial, the State asked the

circuit court to also instruct the jury on two lesser-included

offenses: (1) second-degree reckless homicide while using a

dangerous weapon; and (2) homicide by negligent handling of a

dangerous weapon. Langlois claimed he killed his brother by

accident or in self-defense. The circuit court chose to give

separate self-defense instructions for first-degree reckless

homicide and negligent homicide. The self-defense instruction

given for first-degree reckless homicide accurately stated the

law, advising the jury that the State had the burden "to prove

beyond a reasonable doubt that the defendant did not act

lawfully in self defense."

¶113 The self-defense instruction given for negligent

homicide, however, completely omitted the State's burden. The

instructions on negligent homicide left out the following
paragraph:

You should consider the evidence relating to self-
defense in deciding whether the defendant's conduct
created an unreasonable risk to another. If the
defendant was acting lawfully in self-defense, his
conduct did not create an unreasonable risk to
another. The burden is on the state to prove beyond a
reasonable doubt that the defendant did not act
lawfully in self defense. And, you must be satisfied
beyond a reasonable doubt from all the evidence in the
case that the risk was unreasonable.
(Emphasis added.) The omission of this part of the instructions
for negligent homicide means the court failed to inform the jury

1
 No. 2016AP1409-CR.rgb

that the State bore the burden of proving that Langlois was not

acting in self-defense. The majority holds that because this

language appeared earlier in the instructions regarding first-

degree reckless homicide, the jury must have gone back to those

earlier instructions, plucked the missing language out, and

applied the proper burden when it convicted Langlois of

negligent homicide. I disagree. Experienced lawyers may be

capable of sifting and winnowing through erroneous instructions

in order to assemble the correct ones when considering the third

level of charges, but lay jurors certainly are not.

I

¶114 Here, the instructions were divided into three parts——

one part for each of the crimes for which Langlois could be

convicted. As Court of Appeals Judge Paul Reilly noted in his

dissenting opinion, the circuit court could have chosen to give

a single self-defense instruction and advised the jurors it must

be considered when evaluating each of the three crimes. See

State v. Langlois, 2017 WI App 44, ¶56, 377 Wis. 2d 302, 901
N.W.2d 768 (Reilly, P.J. dissenting) ("The court could have

given one complete, proper instruction on self-defense and told

the jury that it applied to all three crimes, but it did not do

so."). This court is left to evaluate what the circuit court

did do.

¶115 Part I of the jury instructions, which addressed

first-degree reckless homicide, correctly stated the law and the

burden of proof on self-defense. The last two paragraphs within

2
 No. 2016AP1409-CR.rgb

the first-degree reckless homicide instructions directed the

jurors as follows:

If you are not satisfied beyond a reasonable doubt
that the defendant caused the death of Jacob Langlois
by criminally reckless conduct and that the
circumstances of the conduct showed utter disregard
for human life, you must not find the defendant guilty
of First Degree Reckless Homicide and you should then
consider whether the defendant is guilty of Second
Degree Reckless Homicide in violation of § 940.06 of
the Criminal Code of Wisconsin, which is a lesser
included offense of First Degree Reckless Homicide.

You should make every reasonable effort to agree
unanimously on the charge of First Degree Reckless
Homicide before considering the offense of Second
Degree Reckless Homicide. However, if after full and
complete consideration of the evidence, you conclude
that further deliberation would not result in
unanimous agreement on the charge of First Degree
Reckless Homicide, you should consider whether the
defendant is guilty of Second Degree Reckless
Homicide.
¶116 In other words, the jurors were instructed that if

they could not unanimously agree that Langlois committed first-

degree reckless homicide, they were to set that offense and its

instructions aside and move on to the lesser-included offense of
second-degree reckless homicide.

¶117 Part II of the instructions addressed second-degree

reckless homicide with substantively the same two paragraphs at

the end of this part as well:

If you are not satisfied beyond a reasonable
doubt that the defendant caused the death of Jacob
Langlois by criminally reckless conduct, you must not
find the defendant guilty of Second Degree Reckless
Homicide and you should then consider whether the
defendant is guilty of Homicide by Negligent Handling
of a Dangerous Weapon in violation of § 940.08 of the
Criminal Code of Wisconsin, which is a lesser included

3
 No. 2016AP1409-CR.rgb

offense of both First and Second Degree Reckless
Homicide.

You should make every reasonable effort to agree
unanimously on the charge of Second Degree Reckless
Homicide before considering the offense of Homicide by
Negligent Handling of a Dangerous Weapon. However, if
after full and complete consideration of the evidence,
you conclude that further deliberation would not
result in unanimous agreement on the charge of Second
Degree Reckless Homicide, you should consider whether
the defendant is guilty of Homicide by Negligent
Handling of a Dangerous Weapon.
¶118 Thus, the jurors were directed to move on to the next

lesser-included offense if they could not unanimously agree that

Langlois was guilty of second-degree reckless homicide. As

Judge Reilly points out in his dissent: "The jury found

Langlois not guilty of both first- and second-degree reckless

homicide, and therefore the instructions (the law) on those two

charges were no longer before the jury." Langlois, 377

Wis. 2d 302, ¶53 (Reilly, P.J., dissenting).

¶119 This left the jury to consider the instructions (the

law) contained under the umbrella of the negligent homicide

instruction, which was missing the paragraph setting out the
burden of proof regarding self-defense. Therein lies the

problem.

II

¶120 It is important to note that Langlois' trial lawyer

failed to object to this blatant error in the jury instructions,

which places this case under an ineffective assistance of

counsel framework of review. See State v. Carprue, 2004 WI 111,

¶¶36-47, 274 Wis. 2d 656, 683 N.W.2d 31 ("The absence of any
objection warrants that we follow 'the normal procedure in

4
 No. 2016AP1409-CR.rgb

criminal cases,'" which is to address the alleged error "within

the rubric of the ineffective assistance of counsel." (quoted

and cited sources omitted)); see also Kimmelman v. Morrison, 477

U.S. 365, 374-75 (1986) (holding that in absence of objection,

error should be analyzed under ineffective-assistance-of-counsel

standards, even when error is of constitutional dimension

(citing Strickland v. Washington, 466 U.S. at 688 (1984)).

¶121 Generally, when a defendant's trial lawyer fails to

object to an erroneous jury instruction, this court applies the

harmless error test. See State v. Gordon, 2003 WI 69, ¶5, 262

Wis. 2d 380, 663 N.W.2d 765 (holding that the omission of

element of crime from jury instruction subject to harmless error

test (citing Neder v. United States, 527 U.S. 1 (1999))); see

also State v. Harvey, 2002 WI 93, ¶¶47–49, 254 Wis. 2d 442, 647

N.W.2d 189.

¶122 Neder explained that while a "limited class" of errors

is deemed "structural," requiring "automatic reversal,"1 most

errors, including constitutional ones, are reviewed for
harmlessness. Neder, 527 U.S. at 8. Most jury instruction

errors are "trial errors," which will not be presumed

prejudicial. See Scarpa v. Dubois, 38 F.3d 1, 14 (1st Cir.

1994). For example, the First Circuit Court of Appeals in

1
Neder gave the following examples of errors resulting in
automatic prejudice: complete denial of counsel; a biased
circuit court; racial discrimination in the selection of a grand
jury; denial of self-representation at trial; denial of public
trial; or a defective reasonable doubt instruction. Neder v.
United States, 527 U.S. 1, 8 (1999).

5
 No. 2016AP1409-CR.rgb

Scarpa lists instances of jury instruction errors falling into

the "trial error" category, including: "overbroad jury

instructions used during the sentencing stage of a capital case

[and] jury instructions containing an erroneous (but rebuttable)

presumption . . . ." Id. at 14 (first citing Clemons v.

Mississippi, 494 U.S. 738, 752 (1990); then citing Carella v.

California, 491 U.S. 263, 266–67 (1989)).

¶123 Jury instruction errors falling into the "structural

error" category and requiring automatic reversal are rare. I

located only one——failure to give a constitutionally sufficient

"reasonable doubt" instruction. See Sullivan v. Louisiana, 508

U.S. 275, 281-82 (1993). Sullivan held that when there is a

reasonable likelihood a jury does not believe it needs proof

beyond a reasonable doubt to find the defendant guilty, the

erroneous instruction is a "structural error" that may not be

cured through a harmless error analysis. Id.

¶124 The jury instruction error here falls into the same

category as the error in Sullivan——the jury was not told with
respect to negligent homicide that the State must prove beyond a

reasonable doubt that the defendant did not act lawfully in

self-defense.

¶125 This case, therefore, presents a jury instruction

error distinguishable from those in Neder, Gordon, and Harvey,

and one that requires automatic reversal. This error

"infect[ed] the entire trial process" and "necessarily render[ed

the] trial fundamentally unfair." Harvey, 254 Wis. 2d 442, ¶37
(quoting Neder, 527 U.S. at 8). Stated otherwise, this error

6
 No. 2016AP1409-CR.rgb

deprived Langlois of his "'basic protections' without which 'a

criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence . . . .'" Id. When the

jury instruction error is structural, its harmfulness "can be

conclusively presumed." Scarpa, 38 F.3d at 14.

¶126 It is a fundamental tenet of our criminal justice

system that a defendant is innocent until proven guilty. The

State and the State alone bears the burden of proving a

defendant guilty beyond a reasonable doubt. As Justice Antonin

Scalia explained in Sullivan, writing for a unanimous court:

What the factfinder must determine to return a verdict
of guilty is prescribed by the Due Process Clause. The
prosecution bears the burden of proving all elements
of the offense charged, see, e.g., Patterson v. New
York, 432 U.S. 197, 210 (1977); Leland v. Oregon, 343
U.S. 790, 795 (1952), and must persuade the factfinder
"beyond a reasonable doubt" of the facts necessary to
establish each of those elements, see, e.g., In re
Winship, 397 U.S. 358, 364 (1970); Cool v. United
States, 409 U.S. 100, 104 (1972) (per curiam). This
beyond-a-reasonable-doubt requirement, which was
adhered to by virtually all common-law jurisdictions,
applies in state as well as federal proceedings.
Winship, supra.
508 U.S. at 277-78.
¶127 The United States Supreme Court concluded in Sullivan

that an erroneous beyond-a-reasonable-doubt instruction

constitutes a structural error requiring automatic reversal

because "a misdescription of the burden of proof . . . vitiates

all the jury's findings." Id. at 281. The Court explained that

this type of instructional error cannot be evaluated under the

harmless error test because, unlike a trial error, which can "be
quantitatively assessed in the context of other evidence

7
 No. 2016AP1409-CR.rgb

presented," the "precise effects" of the "[d]enial of the right

to a jury verdict of guilt beyond a reasonable doubt" are

"unmeasurable." Id. "The deprivation of that right, with

consequences that are necessarily unquantifiable and

indeterminate" renders the jury instruction error a structural

one. Id. at 281-82.

¶128 The instructional error involved in Langlois' case is

similar, if not more grievous, than in Sullivan. The circuit

court instructed the jury that the State had the requisite

burden with respect to first-degree reckless homicide, but the

jury was not told that the State had that burden with respect to

negligent homicide. The jury found Langlois not guilty on

first- and second-degree reckless homicide, but convicted him of

negligent homicide. It is a juror's job to follow the law as

instructed by the circuit court. The circuit court here,

however, failed to properly instruct this jury. It told the

jurors that the State had the burden of proving beyond a

reasonable doubt that Langlois did not act in self-defense with
respect to first-degree reckless homicide, but it did not give

the basic, but critically important instruction on the burden of

proof with respect to negligent homicide. Perhaps those trained

in the law could parse out these jury instructions, jump back

through five pages of law, and import the missing part into the

negligent homicide analysis, but the average juror could not and

would not. I agree with Judge Reilly that it is "disingenuous

and illogical that the majority believes that a jury may utilize
instructions for crimes not under consideration to fix erroneous

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instructions for the crime under consideration." Langlois, 377

Wis. 2d 302, ¶52 (Reilly, P.J., dissenting).

¶129 The jurors are told to follow the instructions, and we

presume they do so. See State v. Truax, 151 Wis. 2d 354, 362,

444 N.W.2d 432 (Ct. App. 1989). The instructions to the jurors

in this case told them to move on to the next lesser-included

offense if they could not agree as to guilt on the charged crime

under consideration. When the jury moved on to negligent

homicide, it found a constitutionally deficient self-defense

instruction. Because the instruction wholly omitted the beyond-

a-reasonable-doubt standard, the jury could not properly assess

whether the State proved beyond a reasonable doubt that Langlois

did not act in self-defense. Or, worse yet, the jury could have

believed the State did not have any burden at all for disproving

self-defense with respect to the negligent homicide charge.

¶130 Although jury instructions rarely rise to the level of

structural error, automatic reversal is warranted when the error

was wholesale omission of the State's burden of proof as to
self-defense for the lesser-included charge on which the jury

convicted Langlois. See State v. Austin, 2013 WI App 96, ¶¶12,

23, 349 Wis. 2d 744, 836 N.W.2d 833 (ordering a new trial

despite defense lawyer's failure to object to erroneous jury

instruction because "[b]y not properly instructing the jury"

that "the burden is on the State to disprove the [defendant's

claim of self-]defense beyond a reasonable doubt" "the circuit

court failed to provide it with the proper framework for
analyzing that question").

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¶131 Because the trial court's faulty instructions to the

jury constitute structural error requiring automatic reversal, I

would reverse the court of appeals and remand for a new trial.

I respectfully dissent.2

2
The accident instruction also was erroneous, but I need
not address that error based on my conclusion that the erroneous
burden of proof instruction warrants automatic reversal.

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