¶ 65. (dissenting in part). I write separately because I conclude there was sufficient evidence to convict Miller of first-degree reckless injury. I therefore respectfully dissent from Part II.B. of the majority opinion.
¶ 66. Because I do not agree that Miller is entitled to an acquittal on this charge, I address his request for a new trial on this charge based on ineffective assistance of counsel. I conclude he received effective assistance of counsel. Were I writing for the majority I would reverse the circuit court's order for a new trial on first-degree reckless injury and affirm the judgment of conviction.
I. Sufficiency of Evidence — First-Degree Reckless Injury
¶ 67. I conclude that, if the evidence is viewed in the light most favorable to the verdict, it is sufficient to support a conviction for first-degree reckless injury, and, in particular, is sufficient to find beyond a reasonable doubt that Miller showed utter disregard for human life. In my opinion the majority's recitation of the facts is not a view of the evidence most favorable to the verdict. It relies primarily on Miller's testimony on direct examination and portions of his roommate's and his roommate's cousin's testimony that are consistent with Miller's testimony. The majority does not examine *765inconsistencies in the testimony or inconsistencies between the trial testimony and prior statements, and it does not draw all reasonable inferences from the evidence in favor of the verdict.
¶ 68. I will focus on the events beginning with Miller's first call to 911 because I think a reasonable jury would view those as most important. But I first note examples of evidence not mentioned by the majority opinion that could cause a reasonable jury to believe that at trial Miller, Russell Simonis, and John Simonis were overstating Nakai's aggressiveness and understating their own part in the altercations leading up to the first 911 call. For example, John testified on cross-examination that he was awakened by Miller shaking him awake and yelling his name saying "[o]h, you can just mess with him a little bit," meaning that Miller was telling Nakai that Nakai could mess with John. According to John, that is when Nakai said "I'm going to kick your ass"; but he, John, did not want to play along with it and said "[y]eah, go ahead. Kick my ass. I'm going back to sleep," and Nakai left him alone. A reasonable jury could infer from this and other evidence that Miller knew that Nakai was extremely intoxicated and was egging Nakai on, at least in the beginning.
¶ 69. Another example is that, while Russell testified at trial that Nakai slapped him in the bedroom, a reasonable jury could find this less credible than the statement Russell gave soon after the event in which he did not mention being slapped, but instead said Nakai might have grabbed his wrist and tried "like twisting it," saying "[w]ill you listen to me when I'm talking to you." Although John corroborated Russell's trial testimony, John also testified that his and Kesey's reaction was to laugh at the interaction.
*766¶ 70. Turning to what occurred after Miller called 911 the first time, I note that, based on his statements to an investigating officer soon after the incident, Miller was really angry when he went back to the hallway and he pulled Nakai away from Russell, striking Nakai several times. Miller was surprised to see how easy it was for him to strike and take control of Nakai, and, he stated, that probably had something to do with Nakai's consumption of alcohol. A reasonable jury could credit this statement rather than Miller's trial testimony, which the majority recites, and could decide that Miller, not Nakai, had the upper hand.
¶ 71. Both John and Russell agree that Russell, having taken his shirt off, went to get John and said "[h]ey, get out here. We're going to kick his ass," and both went to the kitchen, where Miller was with Nakai. It was just after John and Russell came into the kitchen that Nakai picked up the screwdriver. According to Miller's statements to the investigating officer, at this point Nakai was on one side of a table and an island in the kitchen and the other three were on the other side. According to Russell's testimony on cross-examination and Miller's testimony, Nakai never said he was going to kill them with the screwdriver. Nakai said, "Do you know what I can do with this?" Miller said, "[y]eah, you could probably kill us," and Nakai answered, "[y]eah, that's right." John, Russell, and Miller all agreed that at no time did Nakai lunge at any of them with the screwdriver or attempt to stab any of them with the screwdriver. John described Nakai's motion with the screwdriver as "moving it from side to side ... with his full arm." Miller described Nakai as moving his wrist from side to side and agreed Nakai made no stabbing or sharp, jerky motions with it. A reasonable inference from this evidence, drawn in favor of the verdict, is that *767Nakai picked up the screwdriver to defend himself against three other people, one of whom had just said they were going to "kick his ass."
¶ 72. A reasonable jury could also decide that it was evident to Miller that Nakai was having difficulty moving because he was so intoxicated. Evidence supporting this reasonable inference is Miller's statement to the officer, referred to in paragraph 5, and Russell's testimony that in the kitchen Nakai was stumbling, fell down a couple times, and used the table and counter for support.1 Russell told the investigating officer that Nakai was intoxicated "beyond oblivion."
¶ 73. Miller testified that, when Nakai picked up the screwdriver, Miller decided he was going to get his shotgun from his bedroom. Miller, John, and Russell all agreed that Nakai did not stop Miller when he said he was going to the bathroom and left the kitchen. Miller told the investigating officer that no one was being threatened at that time. Miller looked back once when he was going down the hall to his bedroom and could see only Nakai, and only his back, not his whole body. Miller acknowledged that while he was in the bedroom getting his gun and loading it with .12 gauge shells, he could not hear what was being said in the kitchen, just noise. John testified that neither he nor Russell called to Miller for help after Miller left the kitchen.
¶ 74. Miller testified on cross-examination that, as he walked out of the bedroom with the gun loaded, he told Nakai to get the "F" out of his house and then he *768pumped his gun while he was still moving. He stopped while still in the hallway and leveled the gun at Nakai; he could see that Nakai was still in the same general area as when Miller had left the kitchen and that he was not lunging at anyone. He could see only Nakai; he did not know where Russell and John were. The investigating officer testified that from the location in the hallway where the evidence, in his view, showed Miller was standing when he pulled the trigger, Miller could not see whether anyone in the kitchen was in harm's way. According to the investigating officer, Miller was about sixteen or seventeen feet away from Nakai when he pulled the trigger. Miller never told the officer that he shot Nakai because he thought Nakai was going to stab him.
¶ 75. Other than telling Nakai to get out of his house, Miller agreed that he did not give Nakai any warning before pulling the trigger. Miller estimated that he waited three or four seconds after telling Nakai to get out of his house before pulling the trigger. Miller did not tell Nakai he had a firearm. John told the investigating officer that he did not hear Miller tell Nakai to get out of his house before the shot, but at trial John said he did hear Miller say that and "immediately after that, I heard the shot." Russell testified he did not hear any warning before the shot. Immediately before Nakai was shot, Russell testified, Nakai was looking at him and John; he was not looking anywhere else, and he had forgotten about Miller.
¶ 76. Miller told the investigating officer that he "fired towards the bottom midsection, hip area, I think, just kind of... I didn't aim it, just kind of pointed it in the general area." He agreed on cross-examination that he pointed the gun at Nakai's "mid area." Miller testified that he did not intend to kill Nakai, but he agreed that *769he intended to "cause great damage to [him]." Although Miller denied that he intended to shoot Nakai when he entered his bedroom, he also acknowledged that nothing had changed from the time he left the kitchen that caused him to decide to shoot Nakai.
¶ 77. A reasonable jury could conclude from the above evidence, viewing it in favor of the verdict, that Miller knew he was not in any immediate danger when he shot Nakai and neither were John and Russell, and that no reasonable person would have thought otherwise. A reasonable jury could conclude that Miller did not tell Nakai to leave just before the shot and, even if Miller did, it was not intended as a warning and Miller knew it could not have functioned as one because the shot came immediately after, and Miller knew Nakai could not have moved quickly because of his intoxication. Based on Russell's testimony on where Nakai was looking, a reasonable jury could infer either that Miller knew Nakai was not looking at him, or that Miller did not care whether Nakai was looking at him or not, despite Miller's testimony to the contrary. A reasonable jury could determine that Miller was so frustrated and angry with Nakai that he wanted to hurt him badly and this was his primary motivation.
¶ 78. The evidence of Miller's conduct immediately after he shot Nakai, viewed most favorably to the verdict, supports this determination. According to Russell's trial testimony, Nakai fell to the floor a couple of seconds after being shot. Russell told the investigating officer that when Nakai was shot, Miller came running down the hall with the shotgun and screamed "[g]et the fuck out of my house," and "I'm sick of this shit," and "[w]ill you open the door," although at trial Russell said he did not remember that. Russell did remember that Nakai said "I'm getting out" and was *770trying to move as he lay on the floor, hut he could move only very slowly Russell acknowledged that Miller grabbed Nakai and tried to get him out the door and roll him down the steps. According to the investigating officer, Miller said that, after he shot Nakai, he went over to him and kicked him and tried to push or drag him out of the house, although at trial Miller denied this. Miller did admit that he stood over Nakai yelling at him to get out, with his gun still pointed at Nakai, because he was afraid Nakai could still harm them.
¶ 79. A reasonable jury could resolve the inconsistencies between Miller's and Russell's accounts to the investigating officer, on the one hand, and their trial testimony, on the other hand, by choosing to believe the former. Given the amount of blood described by other witnesses and given Russell's and other witnesses' descriptions of Nakai after he was shot, a reasonable jury could believe that it was evident to Miller that Nakai was seriously injured and was not a threat. A reasonable jury could decide that Miller's kicking and dragging Nakai out of the house was not done out of fear, as Miller testified, but out of anger and without regard to the fact that such treatment of Nakai at that time could exacerbate the threat to Nakai's life already posed by the injury Miller had just inflicted. A reasonable jury could have found this evidence of how Miller treated Nakai directly after the shooting more revealing of Miller's true motivation than the second call to 911, which Miller made after he kicked and dragged Nakai, and more revealing than Miller's subsequent inquiry whether Nakai was going to be all right.
¶ 80. Because I conclude that the evidence, if correctly evaluated, is sufficient to prove beyond a reasonable doubt that Miller showed utter disregard for *771human life, I do not agree that Miller is entitled to a judgment of acquittal on the first-degree reckless injury-charge.
II. Ineffective Assistance of Counsel — First-Degree Reckless Injury
¶ 81. Because I conclude that Miller is not entitled to an acquittal on the first-degree reckless injury charge, I address his claim that he is entitled to a new trial on this charge because he received ineffective assistance of counsel. Specifically, he contends, and the trial court agreed, that counsel was ineffective with respect to a lesser-included offense instruction and with respect to the instruction given on self-defense. Miller also asserts that the circuit court erred in concluding that, although counsel performed deficiently in not conveying to him the offer of pleading to second-degree reckless injury, Miller was not prejudiced because he testified he would not have accepted the offer. I conclude trial counsel was not ineffective on any of these grounds.
A. Lesser-included Offense
¶ 82. The lesser-included offense at issue is second-degree reckless injury.2 At the Machner hearing there was no dispute that Miller felt he had been justified in shooting Nakai as he did in order to defend *772himself and others, that he conveyed this to trial counsel, and that they discussed and agreed on the self-defense and defense of others theory. Trial counsel testified that he thought Miller had a very strong defense based on the undisputed facts, on how Miller would come across to the jury, and on the persuasiveness of the testimony of John and Russell, with whom tried counsel had met. Trial counsel knew Miller planned post-graduate studies and did not want a felony conviction. Trial counsel believed that this was not "a prison case" even if Miller were convicted of the two crimes with which he was charged, and trial counsel felt the small risk of prison was worth trying to avoid conviction for a felony. Miller testified that his trial counsel was generally available to him and went over the defense with him. Miller also acknowledged that trial counsel would have reasonably had the impression that he, Miller, was not going to accept anything that would convict him of a felony.
¶ 83. The testimony of Miller and his trial counsel did conflict on the extent of discussions between them on a lesser-included offense. The circuit court found that, if trial counsel ever discussed lesser-included offenses with Miller, it was done in a general manner, Miller did not understand the concept, and Miller did not engage in a meaningful discussion on the merits of an all-or-nothing verdict versus lesser-included offenses. The circuit court also found that any discussion regarding an all-or-nothing verdict versus a compromised verdict was general and without a full understanding by Miller. Further, the court found that, had Miller been given the choice at the time, he would have requested submission of an instruction on the lesser-included offense of second-degree reckless injury. The court concluded that trial counsel was deficient because *773he failed to specifically discuss and obtain Miller's rejection of requesting a lesser-included offense instruction in a situation in which a lesser-included offense is not inconsistent with the defense — here, self-defense and the defense of others. The court also concluded that "it appears that Miller was prejudiced" by this deficient performance because one conviction on second-degree reckless injury would have been far less serious than a conviction on the two more serious felonies.3
¶ 84. The State contends that trial counsel did not perform deficiently either in failing to adequately discuss the option of requesting an instruction for second-degree reckless injury or in failing to make that request because it was a reasonable trial strategy not to request it. Miller responds that trial counsel had a duty to discuss the option with him and that this is a ground for a determination of deficient performance separate and distinct from counsel's failure to request an instruction on the lesser-included offense, which, Miller contends, was also deficient performance.
¶ 85. I do not agree with Miller or the circuit court that failure to discuss the option of a lesser-included offense instruction with a defendant is a basis for a determination of deficient performance without regard to whether or not requesting an instruction was a reasonable trial strategy. More specifically, I do not agree with Miller's and the circuit court's reading of State v. Ambuehl, 145 Wis. 2d 343, 355-56, 425 N.W.2d *774649 (Ct. App. 1988), and State v. Eckert, 203 Wis. 2d 497, 509, 553 N.W.2d 539 (Ct. App. 1996).
¶ 86. In Ambuehl we rejected the defendant's claim that trial counsel performed deficiently in failing to request a lesser-included offense instruction or at least to discuss the matter with her at the close of evidence. Ambuehl, 145 Wis. 2d at 354-55. Trial counsel discussed the instruction with her before trial and she rejected it; counsel did not again discuss it with her. Id. at 354. We stated that we "refuse to hold that, as a matter of law, it is always unreasonable for counsel to presume that the client's pre-trial decision not to request a lesser-included instruction will be the same after all the evidence is in." Id. at 357. We rejected each of the defendant's reasons for contending it was unreasonable for counsel to make that presumption in her case. Id. at 355-58.
¶ 87. There is language in Ambuehl that arguably may be read as an adoption by this court of the commentary to the ABA Standards for Criminal Justice, § 4-5.2(a)(i) to the effect that counsel has a duty to initially confer with the client regarding a lesser-included offense and that the decision should belong to the client. See Ambuehl, 145 Wis. 2d at 355. Miller relies on this language. However, in Eckert, 203 Wis. 2d at 508-09, we expressly rejected this reading of Ambuehl.
¶ 88. In Eckert the defendant contended that trial counsel performed deficiently because he failed to discuss a lesser-included offense with him and failed to request the instruction. Id. at 507. After rejecting the argument based on Ambuehl and the ABA Standard, we referred to the well-established principle that there is neither a constitutional nor a fundamental right to request a lesser-included offense instruction. Id. at 509. *775We also stated that "the decision of whether to request a lesser-included offense instruction is a complicated one involving legal expertise and trial strategy." Id. For these reasons, we explained
[w]e are unwilling to conclude that trial counsel's failure to specifically discuss with Eckert the possible lesser-included offense of robbery and counsel's failure to request a lesser-included offense instruction constituted deficient performance.
Rather, we conclude that a defendant does not receive ineffective assistance where defense counsel has discussed with the client the general theory of defense, and when based on that general theory, trial counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with, or harmful to, the general theory of defense.
Id. at 509-10.
¶ 89. In Eckert the theory of defense, based on counsel's conversations with Eckert, was that Eckert was not present at and did not participate in the armed robbery, and counsel testified that it would he inconsistent with this theory to ask for the robbery instruction because that "would be telling the jury that Eckert was not there, but even if he was there, he did not know about the gun." Id. at 508, 510. "Under these circumstances," we stated, "we cannot hold that trial counsel was required to specifically discuss with Eckert a lesser-included offense instruction that would conflict with the defense theory. To require counsel to do so under these circumstances would unnecessarily intrude upon trial counsel's ability to strategically manage the client's defense." Id. at 510-11.
¶ 90. Miller reads Eckert as carving out a "limited exception to the rule that counsel must consult with the *776client on [lesser-included offenses]." In other words, according to Miller, Eckert holds that it is acceptable to not consult only when the instruction would be "inconsistent with, or harmful to, the general theory of defense." See id. at 510. I disagree. In Eckert we make clear that there is no general rule; we do not carve out an exception but instead identify the circumstances in that case that led us to conclude that counsel did not perform deficiently either in failing to discuss a lesser-included offense or failing to request an instruction on one. It does not follow that, if the circumstances differ in another case, there is deficient performance in failing to consult with a client on a lesser-included offense instruction.
¶ 91. It is true that in Eckert we did not directly address the more fundamental question of whether an ineffective assistance of counsel claim could rest solely on the failure to discuss a lesser-included offense instruction with a defendant without regard to whether it was a reasonable strategy not to request an instruction. We merged the discussion of the two and, in effect, the reasons why we concluded there was no duty to discuss such an instruction — defense counsel had discussed the general theory of defense and a lesser-included offense would have been inconsistent with or harmful to that defense — is the same reason it was a reasonable trial strategy.
¶ 92. To the extent that Eckert leaves open the question of when, if ever, there can be deficient performance for failure to discuss a lesser-included offense instruction with a defendant independent of an assessment of whether it is a reasonable trial strategy not to request one, I am not persuaded by Miller's argument that we should do so. Because a defendant does not have a constitutional or fundamental right to an in*777struction and because in Wisconsin we treat the decision as one of trial strategy, the critical issue is whether requesting, or not requesting, a lesser-included offense instruction is a reasonable trial strategy in the circumstances of the particular case. While it may often be advisable for counsel to discuss the options on this point with the defendant, even if counsel does not — if counsel's decision not to request a lesser-included offense instruction is a reasonable trial strategy in the circumstances of the particular case — the defendant has received effective assistance of counsel. Miller provides no authority for the proposition that trial counsel performs deficiently in not discussing the possibility of a lesser-included offense instruction with a defendant when it is a reasonable trial strategy not to request one, and I see no logic supporting that proposition.4
¶ 93. I think the flaw in basing a determination of deficient performance on trial counsel's failure to discuss a lesser-included offense instruction with the defendant is illustrated by the lack of coherence in Miller's prejudice discussion. Miller asserts he was prejudiced because the circuit court found that he would have insisted on requesting this instruction had he known it was an option and that the court would have given it and because there is a reasonable probability he would have been convicted on the lesser offense rather than *778the greater offense. However, this overlooks the fact that Miller's trial counsel had a different view of the appropriate strategy and that the decision was not Miller's to make. See Eckert, 203 Wis. 2d at 509-10. At a later point in his discussion Miller recognizes that it is ultimately trial counsel's decision whether to request a lesser-included offense instruction, in that he argues that, if there is a discussion and the defendant disagrees with trial counsel's decision, the defendant can fire his attorney. But this suggests an entirely different prejudice analysis because it would require Miller to prove that he would have fired his attorney if his attorney disagreed and either would have been able to hire an attorney who would have requested the instruction or would have represented himself. There is no evidence that any of this would have happened (beyond Miller's testimony that he would have insisted on the instruction) and the speculative nature of this inquiry is problematic in itself. But, more importantly, this line of inquiry seems to have little to do with whether Miller received effective assistance of counsel at his trial.
¶ 94. Because I conclude that neither Eckert nor Ambuehl, as clarified by Eckert, supports the proposition that trial counsel here is deficient for inadequately discussing the option of a lesser-included offense instruction with Miller, I turn to trial counsel's decision not to request a lesser-included instruction for second-degree reckless injury. I conclude the decision was a reasonable trial strategy in the circumstances of this case. The difference between first-degree and second-degree reckless injury is that the former requires the additional element of "under circumstances which show utter disregard for human life." Compare Wis. Stat. § 940.23(l)(a) with para. (2)(a) (1997-1998). Although I have concluded in the preceding section that, viewing *779the evidence in the light most favorable to the verdict, there was sufficient evidence of this element, I think it is a very close question. Two of my colleagues and the circuit court have concluded the evidence is not sufficient. I conclude it was reasonable for trial counsel to consider it unlikely that the jury would find this element satisfied beyond a reasonable doubt, and, therefore, to consider it likely that Miller would be acquitted on this charge. A jury could reject Miller's defenses of self-defense and defense of others and still decide that the State had not proved the utter disregard element beyond a reasonable doubt. On the other hand, if the jury had been given an instruction on second-degree reckless injury, it would very likely have found that the elements of recklessly causing great bodily harm were proved beyond a reasonable doubt, and Miller would then have been acquitted on this lesser charge only if the jury found he had acted in self-defense or defense of others.
¶ 95. Therefore, it was reasonable to think there was a lesser risk of a conviction on a felony (either first-degree reckless injury or second-degree reckless injury) if the jury did not have the option of the lesser offense.5 This was in keeping with Miller's desire not to have a felony conviction at all. And, although there was a substantial difference in the maximum sentences for *780each — ten years for first-degree reckless injury, a Class C felony, and five years for second-degree reckless injury, a Class D felony6 — the significance of that difference in this case was much diminished. The circuit court agreed with trial counsel that this was not a prison case, meaning that the difference in sentences would be limited to months up to a year in jail and to the length of probation.
B. Jury Instructions on Self-Defense
¶ 96. The circuit court instructed the jury on self-defense using Wis JI — Criminal 805, "Privilege: Self-Defense: Force Intended or Likely to Cause Death or Great Bodily Harm ..." rather than Wis JI — Criminal 801, "Privilege: Self-Defense: Force Less Than That Likely to Cause Death or Great Bodily Harm: Crimes Involving Recklessness or Negligence ...." The circuit court concluded that trial counsel was deficient in failing to object to Wis JI — Criminal 805 and failing to request Wis JI — Criminal 801 and that this deficient performance may have prejudiced Miller. The State challenges this ruling on the ground of the absence of prejudice.
¶ 97. Assuming without deciding that defense counsel performed deficiently in not requesting Wis JI — Criminal 801 and not objecting to Wis JI — Criminal 805, I am not persuaded that there is a reasonable probability that, had the former instruction been given instead of the latter, the outcome on this charge would have been different. See Strickland v. Washington, 466 U.S. 668, 696 (1984).
*781¶ 98. The jury was instructed on the first-degree reckless injury charge and advised that in
[d]etermining whether the conduct showed utter disregard for human life, you should consider all the factors relating to the conduct. These include the following: what the defendant was doing; why he was doing it; how dangerous the conduct was; how obvious the danger was; and whether the conduct showed any regard for human life.
Wis JI — Criminal 1250. Immediately following this instruction the jury was advised that "[s] elf-defense is an issue in the case," self-defense was explained, and the jury was advised the State had to prove beyond a reasonable doubt that Miller was not acting lawfully in self-defense. Parallel instructions on the defense of others followed, preceded by "[djefense of others is an issue in this case."
¶ 99. The only difference Miller points to between the instruction given and Wis JI — Criminal 801 is that, after the latter states that "[sjelf-defense is an issue in this case," it advises the jury that "[i]n deciding whether the defendant's conduct was criminally reckless conduct which showed utter disregard for human life, you should consider whether the defendant acted lawfully in self-defense." Presumably similar language would also be included concerning the defense of others.
¶ 100. Although the jury was not expressly told it should consider the evidence relating to self-defense and defense of others in determining if Miller acted in utter disregard of human life, I conclude a reasonable jury would understand from the instruction given that it was to consider this evidence as part of its consideration of "what the defendant was doing [and] why he was doing it." Wis JI — Criminal 1250.
*782C. Failure to Convey the State's Plea to Miller
¶ 101. The circuit court found that the State made a plea offer that would involve Miller pleading to second-degree reckless injury, but trial counsel did not convey the offer to Miller because he believed Miller was not interested in pleading to any charge. Although the circuit court determined this was deficient performance, it concluded there was no prejudice because Miller testified that he probably would not have pleaded guilty or no contest to that charge.
¶ 102. Miller asks that we either make a different factual finding on whether Miller would have accepted the plea offer or remand for more fact finding on this point. I would decline to do either.7
¶ 103. The circuit court's finding that Miller would probably not have accepted the plea offer is not clearly erroneous: that is what Miller testified. We must therefore accept it. Wis. Stat. § 805.17(2).
¶ 104. Miller's argument for a remand is that he did not raise the issue of the plea offer in his motion because he first learned about the offer from his trial counsel's testimony at the Machner hearing. Therefore, he asserts, the testimony on the circumstances of the plea offer was incomplete and his response would have been different if he knew all the circumstances. According to Miller, the circuit court addressed the issue sua sponte. I conclude these circumstances do not warrant *783a remand. There were several options open to Miller, represented by counsel, once trial counsel testified about the plea offer. During the hearing Miller could have examined trial counsel about it or asked for a continuance of the hearing to explore the issue further. If Miller's point is that he did not know the court was going to address the issue until the court issued its written decision, there is still no reason Miller could not then have brought a motion in the circuit court to ask that further evidence be taken on the issue.
Russell was describing how Nakai was moving immediately after Miller left the kitchen, and, thus, Miller would not have seen these precise movements. However, a reasonable jury could infer that Nakai was having the same difficulty walking steadily and maintaining his balance before Miller left the kitchen and that Miller saw this.
There is no dispute that second-degree reckless injury is a lesser-included offense of first-degree reckless injury. Both require proof of reckless conduct causing great bodily harm, but first-degree reckless injury requires in addition proof of "circumstances which show utter disregard for human life ... ." Cf. Wis. Stat. § 940.23(l)(a) with para. (2)(a) (1997-1998).
The trial court was apparently referring to Miller's testimony that, had the jury convicted him of both lesser-included offenses — both being second-degree reckless injury — there could only be one conviction for second-degree reckless injury. However, the majority opinion in Section III, in which I join, has concluded that Miller was not entitled to a lesser-included offense instruction on the aggravated battery charge.
I am not suggesting that the discussion an attorney does have with his or her client on the possibility of requesting a lesser-included offense instruction is irrelevant to an evaluation of whether the attorney's decision not to request one is a reasonable trial strategy. For example, if there is a discussion and the defendant insists he or she does not want one, that may be a factor in assessing the reasonableness of the attorney's decision not to request one. See, e.g., State v. Ambuehl, 145 Wis. 2d 343, 357, 425 N.W.2d 649 (Ct. App. 1988).
In my view this analysis is consistent with what defense counsel articulated at the Machner hearing. To the extent it differs somewhat and to the extent counsel offered other reasons for his decision that are less persuasive, I note that the proper inquiry is whether counsel's performance is objectively reasonable in the circumstances of this case and that counsel's testimony on his or her thinking is not dispositive. State v. Kimbrough, 2001 WI App 138, ¶¶ 31-35, 246 Wis. 2d 648, 630 N.W.2d 752.
Compare Wis. Stat. §§ 940.23(l)(a) and 939.50(3)(c) (1997-1998) with §§ 940.23(2)(a) and 939.50(3)(d) (1997-1998).
Apparently the plea offer was that Miller would plead to one count of second-degree reckless injury and the State would dismiss both the first-degree reckless injury charge and the aggravated battery charge. In Section W ¶ 56 of the majority opinion, we reject Miller's claim of ineffective assistance of counsel on this ground with respect to the aggravated battery charge.