                                                                    2015 WI 64

                   SUPREME COURT            OF    WISCONSIN
CASE NO.:               2013AP557-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Corey R. Kucharski,
                                  Defendant-Appellant.




                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 354 Wis. 2d 622, 848 N.W.2d 903)
                                   (Ct. App. 2014 – Unpublished)

OPINION FILED:          July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 10, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Jean A. DiMotto

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, J., joined by ABRAHAMSON, J. dissent
                        (Opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiff-respondent-petitioner,      the   cause   was
argued       by    Marguerite   M.   Moeller,   assistant   attorney   general,
with whom on the briefs was Brad D. Schimel, attorney general.


       For the defendant-appellant, there was a brief by Matthew
S. Pinix, Milwaukee, and oral argument by Matthew S. Pinix.


       An amicus curiae brief was filed by Melinda A. Swartz,
Milwaukee, on behalf of the Wisconsin Association of Criminal
Defense Lawyers.
                                                                     2015 WI 64
                                                                     NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No. 2013AP557-CR
(L.C. No.   2010CF652)

STATE OF WISCONSIN                               :              IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent-Petitioner,
                                                                          FILED
      v.                                                              JUL 7, 2015

Corey R. Kucharski,                                                     Diane M. Fremgen
                                                                     Clerk of Supreme Court

             Defendant-Appellant.




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


      ¶1     N. PATRICK CROOKS, J.           This is a double-murder case

that centers on the evidence presented on the question of the
defendant's mental responsibility.            The circuit court1 found the
defendant    responsible.         The    court       of    appeals,       in    a   split
decision,2      granted    the    defendant      a        new   trial       under      its
discretionary authority to reverse convictions in cases where
"it   appears    from     the   record   that . . . it          is     probable       that

      1
       The Milwaukee County Circuit Court, the Honorable Jean
DiMotto presiding.
      2
       State v. Kucharski, No. 2013AP557-CR, unpublished slip op.
(Wis. Ct. App. May 6, 2014).



                                         1
                                                        No. 2013AP557-CR

justice has for any reason miscarried[.]"3        We now reverse the
grant of a new trial because we conclude that the court of
appeals erroneously exercised its discretion, and we remand to
the court of appeals for the resolution of the remainder of the
claims raised on appeal.
     ¶2     Corey   Kucharski   was   charged   with   two   counts   of
intentional homicide for the murders of his parents, which he
later said he committed in obedience to voices he heard.              He
pleaded not guilty by reason of mental disease or defect (an NGI
plea).    He pleaded no contest to the guilt phase of the trial,
and waived a jury trial on the responsibility phase.4


     3
         Wisconsin Stat. § 752.35 (2013-14) states

     In an appeal to the court of appeals, 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, the court may reverse the
     judgment or order appealed from, regardless of whether
     the proper motion or objection appears in the record
     and may direct the entry of the proper judgment or
     remit the case to the trial court for entry of the
     proper judgment or for a new trial, and direct the
     making of such amendments in the pleadings and the
     adoption of such procedure in that court, not
     inconsistent with statutes or rules, as are necessary
     to accomplish the ends of justice.

All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
     4
       State v. Magett, 2014 WI 67, ¶¶33-34, 39, 355 Wis. 2d 617,
850 N.W.2d 42, states

     A bifurcated criminal trial consists of two phases:
     (1) the guilt phase; and (2) the responsibility phase.
     When a criminal defendant pleads not guilty and not
     guilty by reason of mental disease or defect, the jury
     hears evidence relating to the defendant's guilt in
     the first phase of the trial, and if the jury finds
                                2
                                                                            No. 2013AP557-CR

       ¶3         During the trial, one doctor, Dr. Rawski, testified as
the sole witness for the defense; his and other doctors' reports
and materials were entered into evidence.                           Dr. Rawski testified
that    it    was     his     opinion      to    a    reasonable      degree     of    medical
certainty         that    Kucharski's       symptoms         of    schizophrenia       were    so
severe       on    the    night     he   killed        his    parents     that    he    lacked
substantial          capacity       to   appreciate          the    wrongfulness       of     his
conduct or conform his conduct to the law.                           A second doctor who
examined him for the defense, Dr. Pankiewicz, was also of the
opinion       that       at   the   time    of       the   crime,     Kucharski        was    not
mentally responsible.               A third expert who examined Kucharski at
the State's request, Dr. Jurek, did not come to any different
conclusion.          At trial, the State presented no witnesses; it did
not    dispute       that     Kucharski     was      mentally       ill   but    argued      that


       the defendant guilty, the trial proceeds to the second
       phase. Wis. Stat. § 971.165(1)(a). In the second
       phase, the jury considers whether the defendant had a
       mental disease or defect at the time of the crime and
       whether, "as a result of mental disease or defect the
       person   lacked   substantial   capacity   either   to
       appreciate the wrongfulness of his or her conduct or
       conform his or her conduct to the requirements of
       law." Wis. Stat. § 971.15(1).

       The responsibility phase described above has evolved
       over time and has now become close to a civil trial.


       . . . [T]he defendant has the burden of proof to show
       mental disease or defect by the greater weight of the
       credible evidence, the same burden imposed for most
       issues in civil trials.

If the NGI plea were tried to a jury, the verdict would
have to be agreed to by at least five sixths of the jurors.
See Wis. Stat. § 971.165(2).

                                                 3
                                                                       No. 2013AP557-CR

undisputed evidence of Kucharski's actions showed that he did
have substantial capacity to appreciate the wrongfulness of what
he did and to conform his conduct to the law.
      ¶4      The    circuit      court    agreed        with    the   State,    citing
evidence      such     as     Kucharski's         statements        about      expecting
punishment for the crime and his decision not to commit suicide
or engage in a shootout with police despite reporting that he
had   heard    voices    telling     him     to     do   so.      In   light    of   that
evidence, the circuit court found that Kucharski had not met his
burden on the issue of responsibility.5                         He was convicted and
sentenced to consecutive life sentences.
      ¶5      Though Kucharski raised several claims on appeal, the
court of appeals' analysis focused solely on granting his motion
for a new trial under Wis. Stat. § 752.35, the discretionary
reversal   statute.         For   purposes     of    interpreting      that     statute,
justice has miscarried if "there is a substantial probability

that a new trial would produce a different result."6                            We have
held that "only in exceptional cases" is it appropriate for a
reviewing court to exercise its discretion to grant a new trial
in the interest of justice.7
      5
       Wisconsin Stat. § 971.15(3) (stating that the burden on
defendant in NGI trial is to prove "to a reasonable certainty by
the greater weight of the credible evidence" that he is not
responsible).
      6
       State v. Murdock, 2000 WI App 170, ¶31, 238 Wis. 2d 301,
617 N.W.2d 175.
      7
       State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639,
700 N.W.2d 98, State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407,
826 N.W.2d 60, Morden v. Cont'l AG, 2000 WI 51, ¶87, 235 Wis. 2d
325, 611 N.W.2d 659.

                                           4
                                                                      No. 2013AP557-CR

     ¶6         The court of appeals held that there was a substantial
probability       of    a    different    outcome     at   a   new   trial       "because
[Kucharski] met his burden"8 of proving by the greater weight of

the credible evidence that he was not mentally responsible for
the murders.          It found that the evidence in his favor "certainly
comprised 'the greater weight of the credible evidence.'"9                            The
dissent would have affirmed the circuit court, citing the well-
established proposition that "the credibility of witnesses, the
weight    of     the   evidence     and   the   determination        of   whether     the
defendant       has    met    his   burden"     are   questions      that    "are     the
province of the trial court alone."10

     ¶7         The State argues that the trial court appropriately
weighed the evidence in a way that is consistent with prior case
law such as State v. Sarinske,11 which holds that a trier of fact
is not required to accept the opinion of an expert, even if
uncontradicted.             The   State   argues    that   the   court      of    appeals

"wholly ignore[d] this requirement and instead substitute[d] its




     8
       State v. Kucharski, No. 2013AP557-CR,                     ¶35,     unpublished
slip op. (Wis. Ct. App. May 6, 2014).
     9
          Id.
     10
          Id., ¶45.
     11
          State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725
(1979).

                                            5
                                                      No. 2013AP557-CR

judgment for that of the fact-finder . . . ."12    Kucharski argues
that "[t]he very nature of the test for miscarriage of justice
necessitates substitution of the appellate court's judgment for
that of the factfinder" and that in fact an appellate court
should have "unfettered discretion to review the record without
deference to the factfinder's conclusions."
     ¶8   We   uphold   discretionary   rulings   unless   they   are
reached under an incorrect view of the facts or the law. In
State v. D'Acquisto13 we stated,

     The appropriate standard of review for assessing the
     propriety of the court of appeals' [discretionary
     ruling] is that this court will uphold the court's
     discretion if its decision is made on appropriate
     facts and the correct law and thus is one which a
     court reasonably could have reached. If it is
     demonstrated that the court of appeals made a
     discretionary order, . . . based upon a mistaken view
     of the law, we will ordinarily reverse that order.
In this case, that is what happened.14     The reason given by the
court of appeals in this case for invoking the rarely used power
of discretionary reversal was that the defendant had "met his

     12
       The State also argues that this court should "tighten the
requirements for granting a new trial on mental responsibility
under the miscarriage-of-justice prong of § 752.35" by adding a
requirement that "error, counsel's misfeasance, or some form of
unfairness infected the defendant's trial."     We are confident
that the existing rules are adequate and decline the invitation
to write additional requirements into the statute.
     13
       State v. D'Acquisto, 124 Wis. 2d 758, 762, 370 N.W.2d 781
(1985) (citations omitted).
     14
       Even under this deferential standard, it is not incorrect
for this court to reverse a ruling based on mistake of law. It
would not be proper to leave undisturbed, under the guise of a
deferential standard of review, a mistaken application of the
law. See Dissent, ¶3.

                                   6
                                                                           No. 2013AP557-CR

burden," which is going too far for a reviewing court on a
question           of   fact.      Further,     the       sole    reason   given   for       the
discretionary reversal was that improperly reached conclusion.
The     framework            for    reviewing        evidentiary       challenges        must
recognize           "established      rules         of    jurisprudence      designed         to
protect the sanctity of findings of fact . . . ."15                            It is thus
error        for    a    reviewing    court     to       set   aside   findings    of    fact
without evaluating them under the proper standard of review.
        ¶9         The proper standard of review for appellate review of
whether a party has met his burden on the matter of mental
responsibility is uncontroversial and well established in both
Wisconsin law and federal law: whether a person has met his or
her     burden          on   the   question     of       mental    responsibility       is     a
question of fact, subject to a clearly erroneous standard of
review.16



        15
             State v. Hintz, 200 Wis. 636, 642, 229 N.W. 54 (1930).
        16
       Wisconsin cases that support this proposition include
State v. Leach, 124 Wis. 2d 648, 660, 370 N.W.2d 240 (1985);
State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725, (1979);
Pautz v. State, 64 Wis. 2d 469, 476, 219 N.W.2d 327 (1974); Kemp
v. State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973); State v.
Bergenthal, 47 Wis. 2d 668, 685, 178 N.W.2d 16 (1970);; State v.
Ryan, 2000 WI App 47, ¶16, 233 Wis. 2d 273, 610 N.W.2d 229; and
State v. Murdock, 2000 WI App 170, ¶3, 238 Wis.2d 301, 617
N.W.2d 175..

     Federal cases that have stated this standard include United
States v. Waagner, 319 F.3d 962, 964 (7th Cir. 2003); United
States v. Barton, 992 F.2d 66, 68 (5th Cir. 1993); and United
States v. Smeaton, 762 F.2d 796, 798-99 (9th Cir. 1985). A law
review   article  summarizing    the development  of   appellate
standards for review of federal insanity defense cases described
two of the key cases as follows:

                                                7
                                                                      No. 2013AP557-CR

      ¶10    The court of appeals' holding reveals its error: it
simply performs a new weighing of the evidence and then states
outright that Kucharski "met his burden" and that the evidence
"certainly       comprised"      the        required       burden       of     proof--
determinations that are unquestionably issues of fact, not law.
By   way    of   illustration,     in       State     v.   Hintz,17    a     case   that
considered       a   sufficiency       of       the    evidence       challenge      and
discretionary reversal, we acknowledged, as we remanded for a
new trial, that the ultimate question of whether the evidentiary
burden was met would be one for the trier of fact and not for
the reviewing court: Noting that "it is the function of the
[trier of fact] to resolve this doubt," we remanded so that "the

      In United States v. Barton in 1993, the Fifth Circuit
      addressed whether the Jackson sufficiency of the
      evidence standard applied in situations when insanity
      is an affirmative defense, and the defendant, rather
      than the prosecution, has the burden of proof.
       . . . After recognizing the implications of shifting
      the burden of proof to the defendant, the court noted
      that slight modification to the sufficiency of the
      evidence standard was necessary. Accordingly, the
      Barton court stated that it "should reject the jury
      verdict only if no reasonable trier of fact could have
      failed to find that the defendant's criminal insanity
      at the time of the offense was established by clear
      and convincing evidence." . . .

      As in Jackson, the       Barton court noted that appellate
      courts are not to       supplant the role of the jury as
      fact finders when       reviewing the sufficiency of the
      evidence supporting     a conviction.

Kevin Thompson, Criminal Appellate Procedure——Insanity Defense——
the Proper Standard of Appellate Review When Reviewing A Jury
Decision on Sanity, State v. Flake, 88 S.W.3d 540 (Tenn. 2002),
70 Tenn. L. Rev. 1213, 1224-25 (2003).
      17
           Hintz, 200 Wis. at 642.

                                            8
                                                                 No. 2013AP557-CR

question of defendant's guilt should be passed upon by another
jury . . . ."18

     ¶11    Applying    the   proper         standard   of   review      and   not
disturbing the factual findings of the circuit court concerning
the burden of proof because they are not clearly erroneous, we
conclude that the court of appeals erroneously exercised its
discretion.     In this case the only reason given by the court of
appeals for the new trial in the interest of justice was that
court's improper de novo weighing of the evidence.                       When the
evidence is reviewed under the proper standard, there is not a
probability of a different result on retrial such that a new
trial in the interest of justice is warranted.
     ¶12    We therefore reverse the grant of a new trial under
Wis. Stat. § 752.35 and remand to the court of appeals for the
resolution of Kucharski's remaining unaddressed claims.19

                              I.    BACKGROUND

     ¶13    Kucharski   called     911       after   midnight   on   a   February
night in 2010 to request a coroner. He told the 911 operator
that his parents were dead, named the gun he had used to kill
them, and was clear in communicating that there was no need to
send medical assistance.           When police arrived, he surrendered


     18
          Id.
     19
       Kucharski argued at the court of appeals that the trial
court erred in its application of Wis. Stat. § 971.15, that the
trial court’s conclusions regarding mental responsibility lack
support in the record, and that he was entitled to a new trial
due to ineffective assistance of counsel.        See State v.
Kucharski, No. 2013AP557-CR, unpublished slip op., ¶31, n.2
(Wis. App., May 6, 2014).

                                         9
                                                                   No. 2013AP557-CR

without incident.         Police found Kucharski's father and mother in
the home, dead of multiple gunshot wounds.
     ¶14     Once in police custody, Kucharski invoked his right to
counsel when asked specifics about the shootings.                    When he was
questioned     by       detectives,    after   he      received     his     Miranda

warnings, Kucharski stated, "[A]s far as the statement about
most of what happened that evening and I'd rather have a lawyer
here for that."          When the detective reiterated his right to do
that, Kucharski stated, "If you want to ask me any questions
about my background or any, any other questions, fine. . . . I
know you want to talk about the evening but I still rather have
somebody    here    before    I   start    answering    questions     about    that
night."20

     ¶15     He willingly talked to investigators without counsel
present about his history, prior drug use, alcohol use, and his
experience of hearing voices, which he said began five years

earlier     after   a    period   of   extensive    drug    use.     He     said   he


     20
       Dr. Rawski, the doctor who testified at                        the    trial,
acknowledged on direct examination that Kucharski

     clearly . . . recognized the illegality of homicide
     and recognized that there would be, in his term,
     quote, repercussions, unquote, that he did not expect
     to have to deal with when planning his – the
     executions because he expected to have been killed by
     police afterwards and – and engaging in a shootout
     with them. His – His decision to invoke his right [to
     counsel] is based on his knowledge that he would be in
     legal trouble, that he was arrested by police and that
     he was criminally charged. He was not so out of touch
     with reality that he didn't know he was in jail or
     that he didn't know he was arrested or that he didn't
     know what he had actually done.

                                          10
                                                                          No. 2013AP557-CR

continued hearing the voices after he stopped using drugs. The
voices he heard told him to do specific things and berated him
for certain mistakes. He also disclosed that he had experienced
other        auditory       distortions      such    as   hearing   another        person's
voice while a person was speaking to him. He drank heavily,
which he said was an effort to quiet the voices.21 He had held

jobs in prior years both in Wisconsin and in other states.                                 In
2005 he had returned to his parents' Milwaukee home, where he
spent        his     time     increasingly       isolated,       drinking     daily       and
amassing a gun collection. He sought disability benefits for a
medical condition but gave no indication at that time that he
was experiencing mental health problems.                         He was never treated
for   mental         health    issues     and   never     told   anyone     that    he    was
experiencing them.
        ¶16     At    trial,     Dr.      Rawski     testified      that     Kucharski's
account       of     the    evening    was    that   he   had    been   present      at    an

argument between his parents in the early evening.                            Afterward,
he recalled, he had heard voices saying, "[J]ust [expletive]

kill them, give them what they want . . . ."                        At that point, he

        21
       Dr. Rawski's written report, which is in the record, also
contained Kucharski's account of the evening of the murders. He
stated that he had been drinking beginning in the afternoon but
did not specify the number of drinks he had.         He did not
consider himself intoxicated after he awoke from a nap.       In
testimony, Dr. Rawski noted that Kucharski "was not assessed to
be intoxicated by alcohol by the police afterwards." It was Dr.
Rawski's conclusion that "[t]his is a planned – executed set of
executions in a[n] organized fashion driven by motive, driven by
– by delusion and hallucinations, in my opinion, not by
disinhibition and behavior by alcohol dependence."   The circuit
court made no contrary findings regarding the role of alcohol or
drug use in Kucharski's health or in the homicides.

                                                11
                                                                No. 2013AP557-CR

had gone to his bedroom to sleep.             He had awakened a couple of
hours later and had heard a clear voice telling him to "end it"
—— to kill his parents and die while engaging in a shootout with
police when they arrived.        At that point, he had gone downstairs
and confronted his father in the kitchen and shot him.                   He had
stepped into another room and shot his mother, apparently as she
was coming toward him.          Kucharski's father was shot 10 times;
his mother was shot four times.            He had waited a couple of hours
before placing the 911 call.           He stated that in the past his
father had stated that if he had a medical emergency, he wished
for Kucharski to delay an hour before calling 911 so that there
would be no possibility of resuscitation.              He stated he did so
in this instance in keeping with his father's wishes.
     ¶17     Kucharski was charged with two counts of first-degree
intentional    homicide    while     using    a   dangerous    weapon.22       He
entered an NGI plea under Wis. Stat. § 971.15.

     ¶18     Kucharski waived his right to trial on the issue of
guilt,     instead   pleading   no    contest.        The   issue   of     mental
responsibility was tried to the court after he waived his right
to a jury.     The three doctors who examined him all concluded in
their reports that, as a result of his schizophrenia, Kucharski
"lacked      substantial    capacity         either    to     appreciate     the
wrongfulness of his . . . conduct or conform his . . . conduct




     22
       The statutes defining first degree intentional homicide
by use of a dangerous weapon are Wis. Stat. §§ 940.01(1)(a),
939.50(3)(a), and 939.63(1)(b).

                                      12
                                                                         No. 2013AP557-CR

to the requirements of law," that he satisfied both requirements
of the test, and that he was therefore not mentally responsible.
     ¶19   The circuit court found that Kucharski had failed to
meet his burden of proving that he was not responsible.                               The
circuit    court        concluded       that       Kucharski     did      suffer     from
schizophrenia;      however,       it   also       concluded     that    the   experts'
opinions that he was not mentally responsible were speculative
and insufficient to overcome other evidence from which it could
be inferred that he appreciated the wrongfulness of his conduct
and had the capacity to conform his conduct to the requirements
of the law.
     ¶20   As      to     the     question         concerning     his      ability    to
appreciate the wrongfulness of his conduct, the circuit court
stated, "[T]here are indications, very near the point in time
that the Defendant committed these crimes, that he understood
they were wrongful, illegal."                For example, the court said, he

had expressed the knowledge that he needed a lawyer and would be
"rotting in jail" for the killings.
     ¶21   As   to      the     issue   of        whether   he   could     conform   his
conduct to the requirements of the law, the circuit court stated
that Kucharski had heard

     command voices about killing himself, and he did not
     follow through with that before or after he killed his
     parents. . . . [Y]et he doesn't respond to the command
     voice, especially the derogatory one that he was the
     cause of the fight, and he should kill himself and so
     on, whether directly, or through a shootout with the
     police.




                                             13
                                                                                     No. 2013AP557-CR

The    court          subsequently         stated,        "I'm      finding            him     legally

responsible           because      I'm    not     persuaded       beyond         a     level    scale.

 . . . It's            not    tipping,          even      slightly,             that     he     lacked

substantial capacity to conform his conduct to the law."                                            The

circuit          court   observed          that    "the        basis       of     [the       experts']

opinions . . . is that they're speculating about what happened.

       ¶22       The     court       of        appeals     reversed,             and     the     State

petitioned for review, which we granted.

                                   II.    STANDARD OF REVIEW

       ¶23       "This court does not normally review a discretionary
decision of the court of appeals.                              However, when [it] do[es]
review       a    discretionary           act     of     the     Court      of       Appeals,       [it]
review[s]         the    decision         as    [it]     would    any       other      exercise       of
discretion."23           "[A] court erroneously exercises its discretion
when it fails to set forth its reasoning and the facts of record
do    not    support         its    decision.          Further,        a    court        erroneously
exercises its discretion when it proceeds under a mistaken view
of the law."24               "This court has held that it is an erroneous
exercise         of    discretion         for    the     court    of       appeals        . . .       to
shortcut          [established]           procedures . . .               when        there     is     no




       23
       Raz v. Brown, 2003 WI 29, ¶14, 260 Wis. 2d 614, 660
N.W.2d 647.
       24
       State v. Evans, 2004 WI 84, ¶20, 273 Wis. 2d 192, 682
N.W.2d 784, abrogated on other grounds by State ex rel. Coleman
v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900
(citations omitted).
                                                  14
                                                                       No. 2013AP557-CR

apparent reason for doing so."25                 Reversals in the interest of
justice should be granted only in exceptional cases.26
     ¶24    "The   credibility       of    the    witnesses       is   properly    the
function of the jury or the trier of fact, in [cases where the
right to a jury is waived,] the trial judge. It is only when the
evidence that the trier of fact has relied upon is inherently or
patently incredible that the appellate court will substitute its
judgment    for    that   of   the    fact       finder,    who    has     the    great
advantage of being present at the trial."27
                               III. DISCUSSION

        A. REVERSAL UNDER WIS. STAT. 752.35 WAS ERROR BECAUSE
      REVERSAL WAS BASED ON AN IMPROPER WEIGHING OF THE EVIDENCE
                 WITHOUT APPLYING THE CORRECT STANDARD
     ¶25    Two of the remedies that can be sought by a defendant
following conviction are an outright reversal of a conviction
and a reversal and remand.           An outright reversal can be based on
various grounds, including a conclusion that the evidence is
insufficient as a matter of law; this results in no retrial.28                        A
reversal and remand for a new trial may be granted for various

reasons,    including     when   it       is     probable     that      justice     has



     25
          Id.
     26
        State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639,
700 N.W.2d 98, State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407,
826 N.W.2d 60.
     27
          Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101
(1965).
     28
       State v. Hayes, 2004 WI 80, ¶40, 273 Wis. 2d 1, 681
N.W.2d 203.

                                          15
                                                           No. 2013AP557-CR

miscarried and justice requires that the evidence be presented
to a new trier of fact for a verdict.29

     ¶26   We focus on the reason given by the court of appeals
that it was probable that there would be a different outcome on
retrial.    It was clearly a reweighing of the evidence.               The
court of appeals stated:

     We agree with Kucharski that there is a substantial
     probability that a new trial would produce a different
     result because he met his burden under Wis. Stat.
     § 971.15(3). See Murdock, 238 Wis. 2d 301, ¶31.    The
     evidence showing that Kucharski lacked substantial
     capacity either to appreciate the wrongfulness of his
     conduct or to conform his conduct to the requirements
     of the law was, as we will discuss more fully below,
     very strong, and certainly comprised "the greater
     weight of the credible evidence."30


     ¶27   It   is   well   established   that   factual   findings    are
upheld unless they are clearly erroneous.31           It is also well
established that "[t]he question of whether an accused has or
has not met this burden [of proving that the accused was not
mentally responsible for a crime] is one of fact, not one of law




     29
       Hintz, 200 Wis. at 642 ("Whatever doubts we may entertain
concerning the justice of this verdict, our power to disturb it
is limited by established rules of jurisprudence designed to
protect the sanctity of findings of fact, a function which
constituted society has committed to the jury.")
     30
       State v. Kucharski, No. 2013AP557-CR, unpublished slip
op., ¶35 (Wis. Ct. App. May 6, 2014) (emphasis added).
     31
       State v. Novy, 2013 WI 23, ¶22, 346 Wis. 2d 289,    827
N.W.2d 610 ("We will uphold a circuit court's findings of fact
unless they are clearly erroneous.")

                                   16
                                                                      No. 2013AP557-CR

for   this    court    on    appeal."32         When   the   proper   framework     is
applied to an evaluation of the factual findings, the findings
here must be upheld because there is no basis for saying that
the findings are clearly erroneous.
      ¶28    There are four points the court of appeals identified
as the basis for its conclusion.
      ¶29    The first point was that "there is no dispute that
Kucharski     was     in    fact    suffering     from   schizophrenia       when   he
killed his parents."33         The circuit court found that to be proved
and identified the real focus of the case, stating,

      I don't think there's even a doubt, much less a
      reasonable doubt, that Mr. Kucharski suffered from a
      mental illness at the time that he committed these
      crimes, and the name of that mental illness is
      schizophrenia.   The close call is whether he lacked
      substantial capacity to conform his conduct to the law
      or to understand the wrongfulness of his conduct.
The court later repeated, "There's no question that he suffered
from schizophrenia at the time that he engaged in that planned,

purposeful, intentional behavior to shoot his parents to death."
While this fact is listed as a reason for the court of appeals'

reversal, the issue of an existing mental illness was not the
basis of the circuit court's original finding of fact in support

of conviction, and the conclusion that Kucharski suffered from
mental     illness     was    not    an   obstacle     to    the   circuit   court's
decision.


      32
       State v. Sarinske, 91 Wis. 2d 14, 47-48, 280 N.W.2d 725
(1979) (emphasis added).
      33
           Id., ¶36.

                                           17
                                                                              No. 2013AP557-CR

       ¶30     The second point was that "the expert testimony was
uncontroverted."34           It is certainly accurate to state that the
doctors       who   examined    Kucharski        came    to   the       opinion    that   the
schizophrenia rendered him unable to appreciate the wrongfulness
of his conduct and to conform his conduct to the law.                                But the
opinions of experts are not dispositive.                            The trier of fact
retains       the   sole     responsibility       for     determining           whether   the
defendant       has    met   his   burden.         Further,        we    have     explicitly
stated that an expert's opinion, "even if uncontradicted need
not be accepted by the [trier of fact]."35                          This is especially
true        where     "the   defense   doctors           relied         substantially      on
information provided by [the defendant]."36                         That is precisely
the    situation        in    Kucharski's        case.        As        Dr.    Rawski,    the
testifying doctor, acknowledged, he had conducted a three-and-a-
half-hour meeting with Kucharski, but he was missing much of the
context he normally relies on for an NGI opinion:

       In my NGI evaluation we have some glaring absences of
       information that we typically rely upon[,] one of
       which is the statements of the victim or witnesses and
       there are none in this particular situation. Secondly
       – I mean there are – there are victims but there are
       no statements from them about the incident.

       Secondly we do not have a – a history of psychiatric
       evaluations over the course of time indicating the
       presence of mental illness and the supporting details
       that we look for to examine comparable contexts for
       similar behavior and symptoms as well, so that's
       absent as well, and so the evaluation and the NGI

       34
            Id., ¶37.
       35
            Sarinske, 91 Wis. 2d at 47-48.
       36
            Id. at 49.

                                            18
                                                             No. 2013AP557-CR

     opinion, one way or another, is going to be primarily
     based largely upon the evidence such as the jail
     observations   afterwards,   the  police   observations
     afterwards, the random statements by neighbors who did
     not know Mr. Kucharski very well because of his very
     isolated   lifestyle   and  based   upon  the   limited
     information from that disability report.
     ¶31    Sarinske also involved a mental responsibility trial.

Although the State in that case did put on an expert witness who
contradicted the defense witnesses, Sarinske stated that a trier
of fact may reject the opinions of an expert, even when there is

no testimony to the contrary, when the basis of the expert's
opinion is information substantially derived from the defendant.
As Sarinske stated:

     [T]he jury is free to disbelieve the defense witnesses
     entirely, and even if the State declines . . . to
     present any experts in rebuttal, the accused may fail
     to satisfy his burden of affirmatively proving that he
     was suffering from mental disease.        Because the
     defense doctors relied substantially on information
     provided by [the defendant], the basis of their
     opinion and their diagnoses could be questioned by the
     jury on this ground alone.37


     ¶32    The   source   of   virtually   all   of   the    reports    and

interviews came down to Kucharski's own version of events and
perspective.      The evidence of mental health issues that preceded
the murders included the defendant's own account that he had
begun hearing voices about five years earlier and several pages
of handwritten notes found in his room that he said were his
attempts over a period of a year to document the comments the
voices made.      Dr. Rawski described the notes as "very bizarre


     37
          Id. at 48-49 (citations omitted) (emphasis added).

                                    19
                                                            No. 2013AP557-CR

and inexplicable."     Therefore, under Sarinske, the fact that the

expert    reports   were   uncontroverted   is    not   dispositive.    The
circuit court had no obligation in its role as the trier of fact
to accept the conclusion of the experts who relied on Kucharski
for their reports.
     ¶33    The third point was that "there was a complete lack of
evidence of alternative explanations for Kucharski's behavior."38
The court of appeals cited to State v. Murdock, apparently for
the implied proposition that absent         a rational explanation for
behavior, it may be inferred that the explanation is that the
person lacked capacity to appreciate the wrongfulness of his
conduct or conform it to the law.39              However, it cites to no
     38
       State v. Kucharski, No. 2013AP557-CR, unpublished slip
op. ¶40 (Wis. Ct. App. May 6, 2014).
     39
        Murdock, 238 Wis. 2d 301, ¶44, made its statement in the
context of setting forth the facts in that case:

     The   evidence   presented    at   trial  presents    no
     explanation    for    why Murdock would    stab    Grams
     approximately twenty times in order to steal his car,
     but then park the car in front of the Smiths' house,
     drag Grams out of the back of the car and leave him in
     the Smiths' front yard. Although Murdock demanded
     money from the Smiths, tried to prevent Shirley Smith
     from calling the police, and fled to the basement when
     the police came in the house after him, viewed as a
     whole, his behavior does not appear as purposeful as
     the State contends. After demanding money from the
     Smiths, Murdock "went berserk stabbing" them. When the
     first police officer arrived, Murdock was sitting on
     the   Smiths'    front    steps   near   Grams's    dead
     body. Murdock did not try to flee, but instead stood
     up and sat back down on the steps, and went in and out
     of the house several times. He even opened the door to
     the Smiths' house so that the police could come
     inside.

 (emphasis added).
                                    20
                                                                        No. 2013AP557-CR

authority for the proposition that a rational explanation must
be offered for a criminal act.                      Indeed, that approach would
appear to shift the burden of proof on an NGI plea to the State.
As the circuit court noted,

      I think both Dr. Pankiewicz and Dr. Rawski opined that
      they   could  not   find   evidence  of   a  rational,
      alternative motive for the Defendant's behavior. I
      don't disagree with that. I think shooting your
      parents to death with a gun, is conduct that we might
      not find quote unquote rational.
      ¶34   The    fourth      point    was        that   the     court    of   appeals

"conclude[d] that evidence that Kucharski appeared to understand
the legality of his actions and did not commit suicide as the
voices directed does not mean that he was generally able to
control his behavior or appreciate its wrongfulness at the time
of the shooting."40         This is the crux of the court of appeals'
reasoning, and it is a bare reweighing of what the evidence
means, which is not permitted by a reviewing court.
      ¶35   Kucharski argues that "[t]he very nature of a test for
a    miscarriage    of    justice       necessitates           substitution     of   the

appellate court's judgment for that of the factfinder." That is
not correct.
      ¶36   To agree would allow any sufficiency of the evidence
claim to be converted to an interest of justice claim, thereby
evading the stringent standard for reviewing findings by the
trier of fact.      That is contrary to the law.                   It would also be
an   inappropriate       use    of     the        power   to    grant     discretionary


      40
       State v. Kucharski, No. 2013AP557-CR, unpublished slip
op. ¶41 (Wis. Ct. App. May 6, 2014).

                                             21
                                                              No. 2013AP557-CR

reversals. Put a different way, a reversal in the interest of
justice is not intended to put the reviewing court in the shoes
of the trier of fact in a way that is otherwise not permitted.
It is not permitted to review factual findings without employing
the correct standard of review.41        The reviewing court in such a
case may go only so far as to say that it is "probable" that
justice has miscarried and that it concludes that "the question
of   defendant's   guilt   should   be   passed   upon   by   another    jury
. . . . "42




      41
       The approach Kucharski argues for, that an appellate
court should have "unfettered discretion to review the record
without deference to the factfinder's conclusions," is in
conflict with the proper standard of review; it would turn
appellate courts into simple do-overs.        However, it is
inaccurate to say that appellate courts are precluded by that
standard of review from evaluating the evidence.     It is, in
fact, the kind of evaluating of evidence that appellate courts
routinely do when they are reviewing questions of fact.
Contrary to the dissent's assertions, we apply settled law on
questions of fact and appellate standards of review here and
make no new law.
      42
       Hintz, 200 Wis. 636, 637.         The court of appeals
imprecisely characterized the conclusion of this court in regard
to the Kemp case when it stated, "The supreme court reversed
Kemp's conviction, concluding that he lacked the capacity to
appreciate the wrongfulness of his conduct or conform his
conduct to the requirements of the law."     State v. Kucharski,
2014 WI App 71, ¶42, 354 Wis. 2d 622, 848 N.W.2d 903 (emphasis
added). That is not correct. In Kemp v. State, 61 Wis. 2d 125,
137, 211 N.W.2d 793 (1973), this court stopped short of making
that factual finding and merely remanded for a finding on that
question to be made by a second trier of fact. Kemp, 61 Wis. 2d
at 137 ("We believe the weight of the testimony is such that
justice has probably miscarried and that it is probable a new
trial will result in a contrary finding.")

                                    22
                                                                        No. 2013AP557-CR

      ¶37    The court of appeals considered the facts of this case
comparable to those of Kemp v. State,43 in which the defendant, a

Vietnam veteran who had been treated extensively for war-related
mental     health      problems,     was    granted    a    new    trial   after      being
convicted        of    shooting    and     killing    his   wife.       The     court    of
appeals     said       that   "Kemp      supports     our    decision      to    reverse
. . . . "         We disagree.        In that case, there was evidence of
pervasive and debilitating mental illness that had resulted in
inpatient        and    outpatient       treatment    of    the     defendant    over     a
period of years prior to the shooting.44                          There was testimony
from neighbors about the absence of any indication that Kemp
would have intentionally killed her.45                 The court of appeals also
noted that in this case, unlike in Kemp, there were no experts
who   concluded         Kucharski        was    mentally     responsible        for     the
killings; therefore, it concluded that reversal in this case was
even more justified than in Kemp, where the experts consulted

had come to varying conclusions.
      ¶38    Where a defendant seeks to mitigate punishment for a
crime on the basis of mental disease or defect, it is highly
relevant to consider the kind of external corroborating evidence
that existed prior to the charged offense.                         In Kemp this court
recognized this when it noted, "The record clearly reveals that
this is not a case where the question of the defendant's mental


      43
           Kemp, 61 Wis. 2d at 137.
      44
           Id. at 134.
      45
           Id.

                                               23
                                                                             No. 2013AP557-CR

condition was asserted for the first time after the act or the
commencement of a criminal prosecution under circumstances that
might        suggest    the    defense     is    a    self-serving      afterthought        to
avoid legal responsibility."46

        ¶39     Kucharski's,        in   contrast,        is    exactly      that   type    of
case.        The expert reports dismissed concerns that Kucharski was
malingering, but, contrary to the court of appeals' implication,
those opinions are not dispositive.                       The trier of fact was not
bound to accept those conclusions in light of evidence such as
Kucharski's            extraordinarily           careful         statements         to     law
enforcement, from which contrary inferences could be drawn.
        ¶40     It   is     clear   from   Kemp       that     the   court    placed     great

weight on the evidence of the prior corroborated mental health
problems.        This single distinguishing fact is enough to make it
unreasonable to view Kemp as supportive of a reversal on these
facts.

        ¶41     Kemp is instructive in that it also illustrates the
principle that other claims of error must be addressed before
moving to a consideration of whether a case is so exceptional it
warrants reversal in the interest of justice.47                         Before beginning
its     analysis       of     the   interest         of   justice     claim,     the     court
addressed one claimed evidentiary error and then noted, "The
defendant has asserted other procedural errors. We have reviewed


        46
             Id. at 137.
        47
       Where there is no identified error in the circuit court,
a defendant will have a more difficult time showing reversal is
warranted in the interest of justice.

                                                24
                                                                                 No. 2013AP557-CR

them and find no error."48 As noted above, reversals under Wis.

Stat. § 752.35 are rare and reserved for exceptional cases.49
        ¶42       In        Avery,        this     court        further       noted        that     a
determination               that     a    case     was        the    exceptional      case        that
warranted          such      a     reversal      must    be     supported      by    an    analysis
setting forth the reasons for the determination.50
        ¶43       We have similarly held that taking "shortcuts" where a
particular analysis is prescribed will be deemed error: "This
court has held that it is an erroneous exercise of discretion
for   the         court      of     appeals        . . .        to   shortcut       [established]
procedures          . . . when           there    is     no    apparent      reason       for   doing
so."51        In       an    exceptional         case,       after    all    other    claims      are
weighed and determined to be unsuccessful, a reviewing court may
determine that reversal is nevertheless appropriate under Wis.
Stat. § 752.35.

         B. THE FACT-FINDING OF THE TRIER OF FACT THAT KUCHARSKI DID
              NOT MEET HIS BURDEN IS NOT CLEARLY ERRONEOUS
        ¶44       A reviewing court upholds the findings of fact by a
trier        of    fact          unless     they       are     clearly       erroneous.           The
determination of whether a party has met his or her burden is a


        48
             Kemp, 61 Wis. 2d at 136.
        49
         Armstrong, 283 Wis. 2d 639, ¶114;                                  Avery, 345 Wis. 2d
407, ¶38; Morden, 235 Wis. 2d 325, ¶87.
        50
        Avery, 345 Wis. 2d 407, ¶59 (holding that "the court of
appeals erroneously exercised its discretion when it failed to
properly analyze whether this was an exceptional case that
entitled Avery to a new trial in the interest of justice.")
        51
             Id.

                                                    25
                                                                            No. 2013AP557-CR

matter       of    fact,     not   law.52        Therefore,        unless   it   is    clearly
erroneous,         the     court     of    appeals        is   obligated    to   uphold     the
finding that Kucharski did not meet his burden of showing by the
greater weight of the credible evidence that he was not mentally
responsible for the crimes.
        ¶45       We agree with the court of appeals' dissent in this
case:

        The trial court gave reasoned explanations for its
        findings on the second prong of mental responsibility.
        It found that Kucharski was able to appreciate the
        wrongfulness of his conduct, quoting the experts that
        Kucharski thought killing his parents was the right
        thing to do and quoting Dr. Rawski as saying Kucharski
        knew right after the shooting that he needed a lawyer.
        And the trial court found that Kucharski failed to
        meet his burden of showing that he lacked the
        substantial capacity to conform his conduct to the
        rules of law because he obeyed part of what the voices
        commanded and chose not to obey other parts . . . .

        The trial court drew proper inferences from the
        evidence and found those inferences more reliable than
        the doctors' opinions as to the second prong of mental
        responsibility. The trial court explained that it
        distrusted the self-report basis for the doctors'
        opinions. . . .

        In questioning the basis for the experts' opinion, the
        trial court was engaging in the same evidence weighing
        process that the Wisconsin Supreme Court approved in
        Sarinske.53
                                           IV.      CONCLUSION
        ¶46       Applying     the        proper        standard    of   review       and   not
disturbing the factual findings of the circuit court concerning

        52
             Sarinske, 91 Wis. 2d at 48.
        53
       State v. Kucharski, No. 2013AP557-CR, unpublished slip
op. ¶¶47-49 (Wis. Ct. App. May 6, 2014).

                                                   26
                                                   No. 2013AP557-CR

the burden of proof because they are not clearly erroneous, we
conclude that the court of appeals erroneously exercised its
discretion.   In this case the only reason offered by the court
of appeals for the new trial in the interest of justice was that
court's improper de novo weighing of the evidence concerning the
burden of proof on the NGI plea of the defendant.         When the
evidence is reviewed under the proper standard, there is not a
probability of a different result on retrial such that a new
trial in the interest of justice is warranted.
     ¶47   We therefore reverse the grant of a new trial under
Wis. Stat. § 752.35 and remand to the court of appeals for the
resolution of Kucharski's remaining unaddressed claims.
     By the Court.—Reversed and remanded.




                               27
      ¶48     ANN WALSH BRADLEY, J.                     (dissenting).              I agree with the
majority      that        a    reviewing         court's         discretionary              power    of
reversal should be sparingly exercised.                              Majority op., ¶¶5, 42.
I part ways with the majority's analysis, however, because it
formulates a new rule that arbitrarily limits our powers.                                           The
majority declares that a reviewing court cannot base a decision
to reverse in the interest of justice on a reassessment of the
evidence.         Id., ¶¶10, 26.
      ¶49     Its        decision         to            limit       a        reviewing        court's
discretionary           powers      in    this          manner      is       extraordinary.           It
conflicts         with    the      expressed            purpose         of    the     discretionary
reversal statute and contradicts decades of precedent.                                        Because
this court's discretionary powers of reversal are coterminous
with the powers of the court of appeals, the majority inexorably
limits the discretionary powers of both.

       ¶50 The           exercise        of    discretion               is     a    core     judicial
function.          The court of appeals' decision to reverse in the
interest of justice is an exercise of discretion entitled to a
deferential standard of review.                             Even if we may disagree with
the result, this court "will uphold the discretion of a court
[it is] reviewing if the decision made on appropriate facts and
the   correct       law       is   one   which          a   court       reasonably         could    have
reached."          McConnohie, 113 Wis. 2d 362, 370, 334 N.W.2d 903
(1983).
      ¶51     I    conclude        that       the       court    of      appeals       decision      to

reverse in the interest of justice should be upheld.                                          Because
the   court        of    appeals'        discretionary              decision         was    based     on



                                                    1
                                                              No.   2013AP557-CR.awb


appropriate facts and the correct law, and was a decision that a
court could reasonably reach, I respectfully dissent.
                                          I
        ¶52    The majority errs by creating a new rule that limits
the discretion of reviewing courts: a reviewing court's decision
to reverse in the interest of justice cannot be based on a
reassessment of the evidence.                 See Majority op., ¶34.            This
arbitrary limit on a reviewing court's discretion conflicts with
the expressed purpose of the discretionary reversal statute.

        ¶53    For over a century, appellate courts in Wisconsin have
had the power to reverse judgments in the interest of justice.
Since    its    initial    codification       in   1913,   this   power   has   been
broadly stated:

        In any action or proceeding brought to the supreme
        court by appeal or writ of error, if it shall appear
        to that court 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 supreme court may in its discretion reverse the
        judgment or order appealed from, regardless of the
        question   whether  proper   motions, objections,  or
        exceptions appear in the record or not, and may also,
        in the case of reversal, direct the entry of the
        proper judgment or remit the case to the trial court
        for a new trial, and direct the making of such
        amendments in the pleadings and the adoption of such
        procedure . . . as shall be deemed necessary to
        accomplish the ends of justice.
Wis. Stat. § 2405m (1913).          The statute's enactment was part of
a movement to simplify the law so that technicalities would not
be permitted to thwart justice.                See Marvin B. Rosenberry, J.,
Recent    Progress    in    Judicial   Administration         and   Procedure     in
Wisconsin, 5 Marq. L. Rev. 3, 4-5, 9 (1920).

                                          2
                                                          No.   2013AP557-CR.awb


     ¶54    The     statute     has   subsequently    gone   through     slight
revisions and has been renumbered as Wis. Stat. § 751.06.                   The
substance, however, is substantially the same:

     In an appeal in the supreme court, 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, the court may reverse the
     judgment or order appealed from, regardless of whether
     the proper motion or objection appears in the record,
     and may direct the entry of the proper judgment or
     remit the case to the trial court for the entry of the
     proper judgment or for a new trial, and direct the
     making of such amendments in the pleadings and the
     adoption of such procedure in that court, not
     inconsistent with statutes or rules, as are necessary
     to accomplish the ends of justice.
Wis. Stat. § 751.06.
     ¶55    When the court of appeals was created in 1978, the
legislature       enacted   a   nearly   identical     statute,   Wis.    Stat.
§ 752.35, granting the same power of discretionary reversal to
the court of appeals.1           State v. Schumacher, 144 Wis. 2d 388,
399-400, 424 N.W.2d 672 (1988).              Because Wis. Stat. § 751.06 and


     1
         Wisconsin Stat. § 752.35        provides:

          Discretionary reversal. In an appeal to the court
     of appeals, 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, the court may reverse the judgment or
     order appealed from, regardless of whether the proper
     motion or objection appears in the record and may
     direct the entry of the proper judgment or remit the
     case to the trial court for entry of the proper
     judgment or for a new trial, and direct the making of
     such amendments in the pleadings and the adoption of
     such procedure in that court, not inconsistent with
     statutes or rules, as are necessary to accomplish the
     ends of justice.

                                         3
                                                                               No.    2013AP557-CR.awb


Wis.    Stat.       § 752.35       share       the       same    language,       this       court    has
determined that "the power of reversal under these statutes is
identical."          Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797
(1990); see also State v. Avery, 2013 WI 13, ¶38 n.17, 345 Wis.
2d 407, 826 N.W.2d 60 ("The discretionary reversal power of this
court and the court of appeals is coterminous.").
        ¶56    The language used in Wis. Stat. §§ 752.35 and 751.06
indicates          that     the     legislature                intended    the        discretionary
reversal power of reviewing courts to cover a broad range of

situations.           For example, they both permit reversal when "it is
probable      that        justice    has       for       any    reason     miscarried."             Wis.

Stat. §§ 751.06, 752.35 (emphasis added).                                  Further, under the
statutes, neither court's ability to reverse in the interest of
justice is limited to proper motions or objections appearing in
the record.          Id.     "[The statutes'] very breadth, as a matter of
statutory          interpretation,         indicates             that     they       are    meant     to
provide courts with the opportunity to exercise their discretion

without constraint."                 Monica Mark, A Fearless Search for the
Truth No Longer: State v. Henley and Its Destructive Impact on
New Trials in the Interest of Justice, 2012 Wis. L. Rev. 1367,
1386.
        ¶57        This     court        has     explained              that         "[t]his    broad
discretion enables [the court of appeals] to achieve justice in
individual cases."                Vollmer, 156 Wis. 2d at 21; see also State
v. Mathis, 39 Wis. 2d 453, 458, 159 N.W.2d 729 (1968) ("The
statute       is    intended        as   an     emergency           exit    for       the    probably
innocent.").          Considering that "[t]he function of the judiciary

                                                     4
                                                                      No.    2013AP557-CR.awb


is the administration of justice," In re Kading, 70 Wis. 2d 508,
518, 235 N.W.2d 409 (1975), the breadth of the discretionary
reversal statute is appropriate.
       ¶58     By       determining     that        appellate   discretion         does     not
extend       to     a     reassessment       of      the    evidence,        the    majority
erroneously          constricts       the    discretionary         power     of    reviewing
courts.        It removes a swath of cases from review, opening the
door     for      the     potential     of     an    unaddressed      and     unreviewable
miscarriage of justice.                The majority's determination to limit

reviewing courts' discretion runs counter to the broad language
of the statute and its expressed purpose "to accomplish the ends
of justice."            Wis. Stat. § 752.35.
       ¶59     The      majority   opinion          is   further    flawed        because    it
contradicts decades of Wisconsin precedent permitting reviewing
courts to reverse in the interest of justice when the evidence
raises great doubts about whether the state has met its burden,
suggesting that justice has miscarried.                         See State v. Fricke,

215 Wis. 661, 667, 255 N.W. 724 (1934) ("Occasionally when such
grave doubts exist in our minds regarding guilt of a defendant
as to make us conscientiously believe that justice probably has
miscarried, we exercise the authority specifically given to us
by     section       251.09    [subsequently             renumbered     as     Wis.    Stat.
§ 751.06], and reverse the judgment for a new trial.").
       ¶60     This court has oft recognized that reviewing courts
may reassess the evidence when considering whether justice has
miscarried.          For example, in Hintz, 200 Wis. 636, 229 N.W.2d 54
(1930)    the       court's    decision        to     reverse   in    the     interest       of

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justice was based on an assessment of the evidence.                              In that
case, the court reviewed a conviction for obtaining money under
false pretense.            It observed that an essential element of the
charge    was    the       intent    to     defraud.       The    court    recited      the
evidence     relating          to    intent,       which   strongly        favored      the
defendant, and acknowledged that weighing this sort of evidence
is typically a jury function.                 Id. at 641.        However, the court's
analysis did not stop there.                  After stating that the "evidence
leaves   the     question       of    defendant's      intent     to   defraud    in    the

greatest of doubt," the court concluded that "[w]hile it is the
function of the jury to resolve this doubt, it seems probable to
us that justice has miscarried by the verdict rendered.                              Under
such circumstances it is within our power to order a new trial."
Id. at 642.          Accordingly, the court reversed the conviction and

remanded the cause for a new trial.                  Id.
       ¶61   Similarly, in Hughes v. State, 219 Wis. 9, 261 N.W.
670   (1935),        the   court's        determination    that    justice     had     been

miscarried was based on its review of the evidence.                               There,
although the court observed that sufficient evidence had been
presented       to     raise    a     jury     question,     it    expressed      doubts
regarding the witness's version of events:                        "the story of the
complaining witness is inherently improbable."                           Id. at 11-12.
It    further    described          the    story   presented      as     "doubtful"     and
indicated that the circumstances added to its "misgivings."                             Id.
Due to its uneasiness with the evidence presented, the court
ordered a new trial in the interest of justice:

       While   none of  the  evidence heretofore  reviewed
       destroys as a matter of law the credibility of the
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       state's witness, we are satisfied that there are so
       many circumstances casting doubt upon the story of
       complaining witnesses, and that the evidence so
       strongly preponderates against her story, that there
       is good ground to conclude that justice has probably
       miscarried.   In view of this conclusion, we deem it
       proper, in the exercise of authority conferred by sec.
       251.09 Stats. [subsequently renumbered as Wis. Stat.
       § 751.06], to order a new trial.
Id. at 13.

       ¶62    The cases described above are but a sample of the many
decisions granting reversal in the interest of justice based
solely on a reassessment of the evidence.                     See, e.g., Kemp v.
State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973) (granting new
trial in the interest of justice because evidence as a whole
predominated on Kemp's side); Combs v. Peters, 23 Wis. 2d 629,
129 N.W.2d 174 (1964) (given the evidence of record tending to

show     that    the   defendant      was       the   offending         driver,    court
determined that the jury finding to the contrary was probably a
miscarriage of justice, reversed the judgment, and remanded for
a new trial); Schuh v. State, 221 Wis. 180, 183, 266 N.W. 234
(1936)       (reversing    in   the    interest        of     justice      where    the
circumstances      under    which     the       alleged     act   took     place    were
"inherently improbable"); Jacobson v. State, 205 Wis. 304, 309-
10, 237 N.W. 142 (1931) (determining that "it is probable that
justice has been miscarried" when the evidence in a bastardy
case "indicate[d] very strongly" that the defendant was not the
child's father);       Paladino v. State, 187 Wis. 605, 606, 205 N.W.
320 (1925) (determining that despite the lack of errors, the
case against defendant was very "doubtful" and defendant should
have the opportunity to present the case to another jury); State

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v. Murdock, 2000 WI App 170, ¶¶40, 45, 238 Wis. 2d 301, 617
N.W.2d    175    (ordering        new    trial           in    the    interest         of   justice
because, considering the evidence presented at trial, there was
a    substantial      probability        that        a    new       trial    would      produce   a
different result).
        ¶63     Although       the    majority            does       acknowledge        Kemp   and
attempts to distinguish it on the facts, it misses that Kemp did
the very thing that the majority now states is prohibited: it
reversed in the interest of justice based on a reassessment of

the evidence.         The failure to address this aspect of Kemp, as

well as numerous other cases taking the approach that it now
disavows, greatly undermines the majority opinion.
                                               II
        ¶64    In contrast to the majority, I conclude that the court
of    appeals'    decision       to     reverse          in    the    interest         of   justice
should be upheld.              Its decision to reverse in the interest of
justice is an exercise of discretion entitled to a deferential

standard of review.            This court "will uphold the discretion of a
court    [it    is]   reviewing         if    the    decision         made        on   appropriate
facts and the correct law is one which a court reasonably could
have reached."          McConnohie, 113 Wis. 2d at 370.                       Here, the court
of    appeals'    discretionary          decision             was    based        on   appropriate
facts and the correct law, and was a decision that a court could
reasonably reach.
        ¶65    The court of appeals' decision accurately recited the
following       facts     of     this        case.            State    v.     Kucharski,       No.
2013AP557-CR, unpublished slip op. (Wis. Ct. App. May 6, 2014).

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Kucharski, charged with two counts of first degree intentional
homicide, pled not guilty by reason of mental defect.                               Id., ¶3.
He    asserted     that     he   began       having      hallucinations       and    hearing
voices in 2005.           Id., ¶6.       Shortly thereafter, he moved in with
his parents and became very isolated.                        Id., ¶¶6-7.          The voices
continued, making derogatory remarks and commanding Kucharski to
do things.        Id., ¶8.         In 2009, he began keeping a journal to
help him sort out what the voices meant.                            Id., ¶11.       By 2010,
this journal consisted of 40-50 pages of notes and diagrams.

Id.

       ¶66   On    the    day    he    killed      his    parents,     the    voices    told
Kucharski to "simply end it."                  Id., ¶12.       He intended to follow
their directives by killing his parents and then killing himself
in a shoot-out with the police.                    Id., ¶13.        However, by the time
the police arrived, he forgot to have the shootout.                           Id., ¶14.
       ¶67   Kucharski presented the reports of two psychiatrists
to support his defense.               Both opined that he was suffering from

schizophrenia at the time he killed his parents.                            Id., ¶15.     One
determined        that      Kucharski        lacked       substantial        capacity      to
appreciate the wrongfulness of his actions.                         Id.     Similarly, the
other determined that he lacked the capacity to appreciate the
wrongfulness of his actions and to conform his behavior to the
requirements of the law.              Id.
       ¶68   The psychiatrists based their opinions on interviews
with    Kucharski,        his      actions     on     the     day    of     the    incident,
recordings       of   his    911      call    shortly       after    the    incident,     his
responses on the SIRS-II test (which is used to detect feigning

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                                                           No.   2013AP557-CR.awb


or     exaggeration   of    mental    illness),      his   journal,    clinical
observations    by    a    psychologist,    and   information      from   police
reports.     Id., ¶¶17-25.      Kucharski also presented the report of
a psychologist, who indicated that he would not have a different
conclusion    regarding     Kucharski's     mental   responsibility.         Id.,
¶15.
       ¶69   After reciting the above facts, the court of appeals
correctly described the governing law for this case, Wis. Stat.
§ 752.35, which permits the court of appeals to reverse in the

interest of justice when "it is probable that justice has for
any reason miscarried."         Id., ¶32.     It acknowledged that it may

conclude that justice has miscarried if there is a substantial
probability of a different result on retrial.                    Id., ¶33.     It
also acknowledged that it may exercise its discretion only in
exceptional cases.        Id.
       ¶70   Reasonably applying this law to the facts of the case,
the court of appeals determined that the evidence "'predominates

quite heavily on the side of the defendant on the issue of his
mental    responsibility,'      and   that,   consequently,       'justice    has
miscarried and . . . a new trial will probably bring a different
result.'"      Id., ¶44 (quoting Kemp, 61 Wis. 2d at 138).                     It
observed that Kucharski was suffering from schizophrenia when he
killed his parents; the expert evidence supporting his defense
was uncontroverted; and there was a complete lack of evidence of
alternative explanations for Kucharski's behavior.                  Id., ¶¶36-
41.



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     ¶71        The court of appeals' analysis is consistent with a
long line of cases permitting courts to reverse in the interest
of justice based on a reassessment of the evidence.                        See supra,
¶¶12-15.         This     court   should       be   hesitant     to     cabin       that
discretion.
     ¶72    Rather than creating a new rule of law that limits the
discretionary powers of reviewing courts, I would apply well
established existing precedent and give deference to the court
of   appeals      discretionary      decision.        Because        the    court    of

appeals' exercise of its discretion was based on appropriate
facts and the correct law, and was a decision that a reasonable
court could make, it was not erroneously exercised and should be
upheld.    Accordingly, I respectfully dissent.
     ¶73    I    am     authorized   to    state    that   Justice         SHIRLEY   S.
ABRAHAMSON joins this dissent.




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