                                                                       2015 WI 75

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2014AP1099-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Maltese Lavele Williams,
                                   Defendant-Appellant.

                            ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:           July 10, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           April 21, 2015.

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                Jeffrey A. Wagner

JUSTICES:
   CONCURRED:            ABRAHAMSON, J., concurs. (Opinion Filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant, there were briefs by John A.
Pray and the Frank J. Remington Center, University of Wisconsin
Law School, and oral argument by John A. Pray.




       For    the       plaintiff-respondent,     the   cause   was   argued   by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
                                                                 2015 WI 75
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.
No.   2014AP1099-CR
(L.C. No.   2013CF30)

STATE OF WISCONSIN                     :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                              FILED
      v.
                                                         JUL 10, 2015
Maltese Lavele Williams,
                                                            Diane M. Fremgen
            Defendant-Appellant.                         Clerk of Supreme Court




      APPEAL from a judgment and order of the Circuit Court for
Milwaukee County, Jeffrey A. Wagner, Judge.       Affirmed.


      ¶1    DAVID T. PROSSER, J.    This case is before the court
on certification by the court of appeals, pursuant to Wis. Stat.
§ 809.61 (2011-12).1     The court of appeals certified the case
asking this court to clarify precedent related to erroneous jury

instructions in criminal trials.




      1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
                                                                             No.         2014AP1099-CR



       ¶2       Maltese Lavele Williams (Williams) and two accomplices
attempted to rob Michael Parker (Parker) in Parker's home on the
evening of January 14, 2013.                    During the robbery, Parker and a
houseguest, Authur Robinson (Robinson), were shot and killed.
At trial, the jury was given an instruction indicating that they
could convict Williams of the felony murder of Robinson if the
defendants           had   attempted      to    rob       Robinson       and       the     attempted
robbery caused Robinson's death.                          However, the State presented
insufficient evidence at trial that the defendants had attempted
to rob Robinson.              Instead, the State relied primarily on the
theory that the men attempted to rob Parker.                             The jury convicted
Williams of felony murder in Robinson's death even though they

found Williams not guilty of the attempted robbery of Robinson.2
       ¶3       The    parties      do   not    dispute          that    a    valid       theory    of
felony murder for the death of Robinson would be that Williams,
as party to a crime, caused the death of Robinson while engaged
in    an    attempted       armed    robbery         of    Parker.           However,       Williams
argues that the jury was obligated to follow the instructions
given to them on felony murder, and that the evidence presented
was    insufficient           for    the       jury       to     convict       him       under     the
instructions given.              The State counters that any error in the
jury instructions only increased the burden on the State, and
that       it   is    clear   that       had    the       jury    been       given       the   proper



       2
       Milwaukee County Circuit Judge Jeffrey A. Wagner presided
at the trial.


                                                 2
                                                                         No.        2014AP1099-CR



instruction, the jury still would have found Williams guilty of
felony murder.
        ¶4       We   are    presented       with          two    seemingly         conflicting
precedents that address the question at issue.                                 The first case
is State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), in
which we held that a defendant cannot be convicted on a theory
of a crime not presented to a jury.                        The second case is State v.
Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, in which we
upheld the conviction of a defendant even though the jury was
given       an   instruction       that    inaccurately           added    an    element——not
required by the statute——to the crime of fleeing or evading a
police officer.

        ¶5       In certifying this case for our review, the court of
appeals noted that "[e]ach of these three cases, Wulff, Beamon,
and now Williams, appears to present a subtle variation of the
same     issue,"       and   observed       that       it        was   "uncertain         whether
Williams is more like Wulff or more like Beamon."                                     State v.
Williams, No. 2014AP1099-CR, unpublished certification (Wis. Ct.
App. Nov. 6, 2014).                The court of appeals also noted that two
other issues on appeal——ineffective assistance of counsel claims
related to trial counsel's decision not to strike a juror and
not    to    object     to   the    admission         of    crime      scene    photographs——
involved the application of settled law.
        ¶6       We   hold   that    a    jury       instruction        may    be   considered
erroneous when it describes a theory of criminal culpability
that was not presented to the jury or it omits a valid theory of
criminal         culpability        that     was           presented       to       the     jury.
                                                 3
                                                                           No.      2014AP1099-CR



Convictions         under    erroneous      jury     instructions            are     subject         to
harmless error review.                When an erroneous instruction has been
given but it is clear beyond a reasonable doubt that the jury
would have convicted the defendant had the proper instruction
been given, the jury verdict can be affirmed.
     ¶7        Here, based on the strength of the evidence presented
and the statutory elements that the jury found, it is clear
beyond     a    reasonable      doubt       that     the        jury       still    would          have
convicted Williams of felony murder had the jury instruction
accurately       reflected      the     State's          theory       of    the     crime.           We
therefore       hold    that   the     defect       in    the     jury      instructions            was
harmless error.            Furthermore, we conclude that Williams was not

prejudiced by his trial counsel's decision not to strike a juror
and not to object to the admission of crime scene photographs.
Accordingly,         we     affirm      the        circuit        court's          judgment          of
conviction.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
     ¶8        In    the    early     morning        hours       of    January          15,    2013,
Milwaukee police responded to a double homicide at a house on
Milwaukee's south side.                The investigators later learned that
the killings occurred during a failed drug heist.                                       The first
homicide       victim,      Michael    Parker,       was      found        dead    in    the       snow
across the street from his home.                          The second victim, Authur
Robinson, was found dead on the floor of Parker's kitchen.                                         Both
victims died from bullet wounds.
     ¶9        Police      recovered    a     cell       phone    at       the    scene       of    the
murders    and      traced     the    phone     to       an   individual           named      Dajuan
                                               4
                                                                   No.         2014AP1099-CR



Collins.     Collins, in turn, led the police to Williams, who was
arrested around 3:00 p.m. on January 21, 2013.
       ¶10   Milwaukee      Police       Detective       Kent    Corbett       interviewed
Williams     the    next    day     at    the       Milwaukee    Police        Department.
Williams first denied knowing Parker or Collins, but eventually
admitted to knowing both.                 Williams also admitted that he had
arranged the drug deal and was at the scene when the homicides
occurred.     He said that Collins had killed Parker.
       ¶11   Williams explained that the events leading up to the
killings began when Collins called Williams seeking an ounce of
marijuana.     Williams knew that Parker sold similar quantities,
so Williams arranged a deal.                  Some time later, Williams met up

with Collins and a third individual, Maurice Dixon.                             The three
of them then walked to Parker's home.
       ¶12   When the trio arrived at Parker's home, Williams and
Collins went inside, while Dixon remained outside.                                Williams
noticed Robinson sleeping in the living room.                            Parker called
Williams     into   the     kitchen,       and     as   Parker    and    Williams      were
discussing     Parker's      marijuana,            Collins    burst     into     the   room
pointing a gun and demanding the marijuana.
       ¶13   Parker    attempted         to     flee    and   Collins     opened       fire.
Collins fired one shot in the kitchen and then followed Parker
into   the   living    room       where       Collins    fired    several      additional
shots.
       ¶14   In spite of being shot three times, Parker managed to
escape   through      the    front       door      of   his   home.      After     getting


                                               5
                                                                     No.         2014AP1099-CR



outside, however, Parker ran across the street, collapsed in the
snow and died.
      ¶15     Williams        explained        to    Detective       Corbett          that     he
remained     in    the     kitchen      until       after    the    initial      fusillade.
Williams then returned to the living room and saw Collins and
Robinson fighting for control of the gun.                         Williams said that he
exited      the    house      through    the       front    door    while    Collins          and
Robinson continued to fight.
      ¶16     In   the     initial      information         filed   February       5,    2013,
after a preliminary examination, Williams was charged with two
counts of felony murder, with an attempt to commit armed robbery
as party to a crime as the underlying offense.3                                  An amended

information, filed March 13, 2013, amended the charges to two
counts of first-degree intentional homicide as party to a crime,
and   two    counts      of    attempted       robbery       as    party    to    a     crime.4
Following some preliminary motions, jury selection for Williams'
trial began April 22, 2013.5
      ¶17     During       jury      selection,         prospective         jurors           were
informed that they might "have to look at photographs from the
scene that have blood on them, that have people deceased, people

      3
       Contrary to Wis. Stat. §§ 940.03, 943.32(2), 939.32, and
939.05.
      4
       Contrary to Wis. Stat. §§ 940.01(1)(a), 943.32(1)(a) and
(2), 939.50(3)(a) and (c), 939.05, and 939.32.
      5
       Throughout the pretrial process,                           Williams       and Dixon
appeared together as co-defendants.                               However,       Dixon was
eventually tried separately.


                                               6
                                                                  No.      2014AP1099-CR



with gunshot wounds, the victims in this case.                      You may have to
look at other photographs."               When asked whether viewing this
type of evidence would cause problems for anyone, several jurors
expressed      reservations      about    their     capacity       to    examine      such
evidence.       Juror No. 21 explained that her children were the
source   of    her    reservations       about    dealing       with    that     type    of
evidence.      In response to a follow-up question, she reiterated
her   doubts,       stating,    "I    don't    know   if    I     can    look    at     the
pictures."      Juror No. 6 expressed similar reservations, stating,
"As far as the pictures, I can't do that."                      Juror No. 12 said:
"It   would    be    totally    gross,    grossed     out    in    that    situation."
Jurors Nos. 8 and 9 said they shared these concerns.

      ¶18     A short time later, the prospective jurors were again
asked whether any of them "would not be able to listen to all
the facts, to hear the testimony and weigh the evidence and make
a decision in this case?             Anyone feel they would not be able to
do    that?"         Despite    their     reservations          about     seeing        the
photographs, none of the jurors raised their hands.
      ¶19     Still, Williams' attorney returned to the photograph
issue.      Juror No. 6 said the photos would make her uncomfortable
and   would    probably    be    something       she'd     think    about       all   day.
Juror No. 6 denied that the photos would anger her, but agreed
that she would find them difficult to view.                       Juror No. 12 said
he felt the same as Juror No. 6.
      ¶20     When     asked     if      the      photographs           might     affect
deliberations, Juror No. 12 answered: "Really hard to say. I
don't know if I would have a bias or not."                        This prompted the
                                          7
                                                                            No.        2014AP1099-CR



court to interject with the comment that "everybody would agree
they're not pleasant pictures to look at . . . .                                      The question
is whether or not it would impair your ability to come to [a]
fair    and     just       result      in    the    matter      after      listening          to   the
testimony."          Juror No. 12 responded that he thought he would be
a    little         biased.            Williams'        attorney          immediately         sought
clarification             of    Juror       No.    12's      comment.            After    a       brief
exchange, Juror No. 12 agreed that what he was trying to convey
was that looking at the pictures would make him feel sympathy
for the victims.
        ¶21     Although         potential         Jurors      6,    8,     9,     and    21,      who
expressed concerns about the photographs, were not selected for

the trial, Juror No. 12 was seated, and defense counsel never
moved to strike the juror for cause or by a peremptory strike.
        ¶22     Williams' trial lasted a total of four days, during
which    the     jury          heard   testimony        from    two       police      officers,      a
lieutenant,          five        detectives,        forensic        investigators,            a    DNA
analyst, Parker's neighbor, and the medical examiner, Dr. Brian
Linert,       who    conducted         autopsies        on   the     victims.          Dr.    Linert
testified that Parker had been struck by three bullets.                                            Dr.
Linert        also    testified          that      Robinson     died       of     a    penetrating
gunshot wound to the chest.                       The State entered several exhibits
into evidence during Dr. Linert's testimony, including a number
of   autopsy         photographs         depicting        Parker's        wounds,        which     the
State     used       to    clarify        the      nature,     extent       and       location      of
Parker's       wounds.           Similar        exhibits      were    entered         relating      to
Robinson,       including          the      autopsy     report,       a    photograph         of   the
                                                    8
                                                                   No.      2014AP1099-CR



bullet    recovered         from   Robinson's    chest,       another    showing      the
entrance wound of the fatal shot, and several depicting blunt
force injuries possibly consistent with an altercation.
      ¶23      On the last day of trial, prior to closing arguments,
the parties and the court discussed jury instructions.                         Although
Williams was charged with first-degree intentional homicide, the
jury instructions also contemplated a number of lesser included
offenses,      including      first-degree      reckless      homicide      and   felony
murder.        Williams' counsel observed, as proposed instructions
were being discussed, that "the way this case has been charged
and      now      in        combination       with      the        lesser      included
offenses, . . . has created a legal Rubik's Cube that I'm not

sure [Judge Learned Hand] could untangle."
      ¶24      Prior   to    closing   arguments,       the    court     reviewed     the
instructions with the jury.               The court explained that if the
jury did not find Williams guilty of first-degree intentional or
reckless homicide, they would need to decide whether Williams
was guilty of felony murder.
      ¶25        The court instructed the jury that "Felony murder
requires the state to prove the defendant caused the death of
the   victim      while      committing   the        crime    of    attempted     armed
robbery, party to a crime."
      ¶26      Later   the     court   again    said    that       felony    murder   is
committed by "one who causes the death of another human being
while attempting to commit the crime of armed robbery, party to
a crime."


                                          9
                                                                   No.      2014AP1099-CR



      ¶27      The    jury   was   told    that    to     find   Williams    guilty       of
felony    murder,      the     State    must     prove    the    following    beyond       a
reasonable doubt "that the defendant attempted to commit the
crime of armed robbery as a party to a crime, that the death of
Michael Parker in Count 1 and Authur Robinson in Count 2 was
caused    by    the    attempt     to     commit   armed     robbery,      party     to    a
crime."
      ¶28      Then the court added: "The first element of felony
murder requires that the defendant attempted to commit the crime
of armed robbery, party to a crime."

           The crime of armed robbery is committed by one
      who with intent to steal and by the use of or threaten
      to use a dangerous weapon, takes property from the
      presence of the owner by using force against the
      person of the owner with intent to overcome physical
      resistance or physical power to resist the taking or
      carrying away of that property.

           The elements of the crime that the state must
      prove are:

           That   Michael  Parker,   Count   1,  and    Authur
      Robinson, Count 2, was the owner of the property.

           Owner means a person who has possession of the
      property. The defendant or a person with whom the
      defendant was acting as party to a crime, took
      property from the person of Michael Parker, Count 1,
      and Authur Robinson, Count 2, the defendant or person
      with whom the defendant was acting as a party to a
      crime took the property with intent to steal.
(Emphasis added.)
      ¶29      Both sides then gave their closing arguments.                       During
the   State's        closing    argument,        the     prosecutor      discussed    the
felony murder charge:


                                            10
                                                      No.   2014AP1099-CR


          That the defendant is involved in an attempted
     armed robbery.     And that in the course of that
     attempted armed robbery, a death is caused.     And
     that's felony murder.

          So as to Mr. Parker, it's clearly felony murder.
     It's his home.     He's [nicknamed] Old School.   The
     defendant knows him. He's going to rob him.

          As to the attempted armed robbery to Mr.
     Robinson, he is a member of that household with Mr.
     Parker, as the law indicates.    He is in control of
     that property, the marijuana as well. And he attempts
     to prevent the taking of that marijuana from the
     premises.   So he is a victim of the attempted armed
     robbery as well.

          But more importantly, whether he's the victim or
     Parker's the victim, he is killed in the course of the
     armed robbery. So he is a victim of the felony murder
     as well.
(Emphasis added.)
     ¶30   During   Williams'   closing   argument,    defense   counsel
emphasized the lack of evidence as to an attempted armed robbery
of Robinson, and the effect that had on the homicide analysis:

          Now, the analysis for Mr. Robinson is nearly
     identical except for the fact there's an added lack of
     evidence when it comes to Robinson.

          There was no evidence that he was the owner of
     any of the property in that house.     There was no
     evidence that he was an employee of Parker; in other
     words, like the store clerk.

          There was no evidence that any demand was made of
     Mr. Robinson for anything. And there was no evidence
     that any force was used or attempted to be used to get
     him to give up his property.

          So in addition to there being no evidence that
     Williams knew a robbery was going to take place, there
     isn't even evidence that an attempted armed robbery
     occurred as to Robinson.


                                  11
                                                             No.   2014AP1099-CR


          So when you get to that, the answer is no and
     your work is done.    You find Mr. Williams not guilty
     of attempted armed robbery of Robinson and not guilty
     of any level of the homicides we've discussed.
(Emphasis added.)
     ¶31   During   the    State's      rebuttal,     the    prosecutor      again
returned to felony murder:

          The last thing [defense counsel] said to you was
     that you have to find that, in this case, the
     defendant attempted, as a party to a crime, to rob
     Authur Robinson in order to find him guilty of the
     death of Authur Robinson under a felony murder. That
     is not true. That is simply a blatant misstatement of
     the law.

          Felony murder is a special type of murder under
     the law. And it's typically used in just this type of
     situation.

          Someone goes into a bank, for instance, a store.
     In this case, a drug house. The intent is to rob the
     bank, or the store, or the drug house. And the state
     has to show that there was a robbery or an attempted
     armed robbery in this case taking place.

          But doesn't have to show that Authur Robinson was
     a victim.    Because if in the course of this armed
     robbery anyone is killed, whether it be the bank
     clerk, the bank's security guard, an accomplice, a kid
     walking down the street, if anybody, whether it's
     Authur Robinson, or anyone else was killed while an
     armed robbery of [Michael] Parker is taking place,
     that is felony murder.
     ¶32   Following      deliberations,     the      jury     found    Williams
guilty of two counts of felony murder.               The jury also returned
verdicts for the two counts of attempted armed robbery, despite
having   been   instructed   not   to    return     those    verdicts   if    they
found Williams guilty of felony murder.             The jury found Williams




                                     12
                                                                  No.             2014AP1099-CR



guilty of the attempted armed robbery of Parker, and not guilty
of the attempted armed robbery of Robinson.
      ¶33    Williams appealed, arguing that there was insufficient
evidence for a finding of guilt as to the felony murder of
Robinson and that his trial counsel was ineffective.                               The court
of appeals certified the case for our review, and we granted
review on December 18, 2014.
                               II. STANDARD OF REVIEW
      ¶34    We first address whether there was sufficient evidence
to    convict        Williams    of     the     felony       murder      of         Robinson.
Generally, we give significant deference to jury verdicts in
criminal     cases.       However,      "[w]here      jury    instructions            do    not

accurately      state     the    controlling         law,    we   will       examine        the
erroneous instructions under the standard for harmless error,
which presents a question of law for our independent review."
Beamon, 347 Wis. 2d 559, ¶19 (citing State v. Harvey, 2002 WI
93,   ¶18,    254     Wis. 2d 442,      647     N.W.2d 189).            In    determining
whether an error was harmless, we will not overturn the jury
verdict      "unless      the     evidence,      viewed       most       favorably           to
sustaining      the    conviction,      'is     so    insufficient           in     probative
value and force that it can be said as a matter of law that no
trier of fact, acting reasonably, could have found guilt beyond
a reasonable doubt.'"             Id., ¶21 (quoting State v. Poellinger,
153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990)).
      ¶35    We also address whether Williams received ineffective
assistance      from     his    trial    counsel.           Claims     of     ineffective
assistance      of    counsel    are    mixed    questions        of    fact        and    law.
                                          13
                                                                       No.         2014AP1099-CR



State     v.    Thiel,    2003       WI     111,        ¶21,   264     Wis. 2d 571,           665
N.W.2d 305.        We uphold the circuit court's findings of fact——
including findings about trial counsel's conduct and strategy——
unless those findings are clearly erroneous.                         Id.      Whether trial
counsel's performance unconstitutionally deprived the defendant
of the right to counsel is a question of law we review de novo.
Id.
                                     III. DISCUSSION
        ¶36    Our discussion proceeds in two main parts.                            First, we
address the jury instructions and the question of whether the
evidence presented was sufficient to sustain a conviction for
the   felony     murder       of    Authur       Robinson.        Second,          we   address

Williams'        claims       that        his        trial     counsel's           performance
unconstitutionally deprived him of the right to counsel.
                          A. Sufficiency of Evidence
        ¶37    We begin by considering whether the evidence presented
to the jury was sufficient to sustain conviction for the second
count of felony murder.                This involves an examination of the
jury instructions and their relationship to the crime charged.
We start with Wulff and Beamon, the controlling cases.
                                   i. Wulff and Beamon
        ¶38    This   court    decided          Wulff    in    1997.         The   defendant,
Brian C. Wulff, was charged with attempted second-degree sexual
assault following an incident that occurred in La Crosse in the
early    morning      hours    of     September         17,    1993.         Wulff      and   the
victim, C.D., had encountered each other at a bar that evening.


                                                14
                                                                 No.            2014AP1099-CR



After C.D. became separated from her friends, Wulff agreed to
walk her home.       Wulff, 207 Wis. 2d at 145-46.
     ¶39     According to C.D., she agreed to let Wulff stay at her
apartment for the night if Wulff slept on the couch.                                      C.D.
testified that she fell asleep in her bedroom fully clothed.
However, at some point in the night, she awoke completely naked
with Wulff on top of her attempting to force his erect penis
into her mouth.       C.D. screamed, and Wulff collected his clothing
and left.     C.D. discovered that her tampon had been removed but
she had no memory of how.            Id. at 146.
     ¶40     C.D. was examined at the hospital.                      Cervical, oral,
and anal swabs revealed that no semen was present, and no semen

was found on the tampon that had been removed.                         Combings taken
from C.D. did not include any of Wulff's hair, and combings
taken from Wulff did not include any of C.D.'s hair.                                 Id. at
146-47.
     ¶41     Wulff was charged with attempted second-degree sexual
assault in an information that used the precise language of the
statute.       The    information       stated     that      Wulff        had     attempted
"sexual    contact    or    sexual    intercourse      with      a   person        who     the
defendant knows is unconscious."                 Id. at 148.               The relevant
statute    defined     "sexual       intercourse"       as    including            "[vulvar
penetration]     as    well     as . . . fellatio,            or . . . any               other
intrusion,     however       slight,     of      any      part       of     a      person's
body . . . into       the    genital     or   anal     opening        either        by     the
defendant or upon the defendant's instruction."                            Id. (quoting
Wis. Stat. § 940.225(5)(c) (1993-94)).                 In its closing argument,
                                         15
                                                                  No.     2014AP1099-CR



the   State    presented     theories          of     attempted    sexual    contact,
attempted sexual intercourse by fellatio, and attempted sexual
intercourse by vulvar penetration.                   However, when the jury was
instructed     on    the   charge,     the          court's    instruction    omitted
fellatio as a possible avenue for finding criminal liability.6
Despite this omission, the jury found Wulff guilty.                       Id. at 148-
49.
      ¶42    Wulff appealed, contending that there was no evidence
that he had attempted sexual intercourse with C.D. as defined in
the jury instructions.          This court observed that in Chiarella v.
United     States,   445   U.S.    222,    236       (1980),    the     Supreme    Court


      6
          Specifically, the jury instruction given was as follows:

           Take the law as it is given in the jury's
      instructions and apply the law to the facts in the
      case which are properly proven by the evidence.
      Consider only the evidence received during this trial
      and the law as given to you by these instructions and
      from these alone, guided by your soundest judgment,
      reach your verdict.

           The crime       of     second   degree        sexual    assault    is
      committed by:

           A person who has sexual intercourse with a person
      the defendant knows is unconscious.

           The first element requires that the defendant had
      sexual intercourse with [C.D.]

           "Sexual intercourse" means any intrusion, however
      slight, by any part of a person's body or of any
      object, into the genital or anal opening of another.
      Emission of semen is not required.

State v. Wulff, 207 Wis. 2d 143, 148, 557 N.W.2d 813 (1997).


                                          16
                                                             No.       2014AP1099-CR



stated "we cannot affirm a criminal conviction on the basis of a
theory not presented to the jury."              Thus, although the State had
provided sufficient evidence to sustain a jury verdict on the
theory of attempted fellatio, this court reversed the conviction
because the theory of attempted fellatio had not been given as a
part of the jury instructions.           Wulff, 207 Wis. 2d at 154.
       ¶43    In 2013 this court revisited the issue of faulty jury
instructions in Beamon.          In the early morning hours of November
19, 2007, Racine police officers were involved in the pursuit of
a vehicle driven by Courtney C. Beamon.                Id., ¶¶5-6, 11.        While
being pursued by a police car with its emergency lights and
siren activated, Beamon's vehicle reached speeds of 45-50 miles

per hour on city streets without the headlights activated.                     Id.,
¶7.    Shortly after driving through an intersection controlled by
a four-way stop sign without stopping or slowing down, Beamon
rolled out of the vehicle with the vehicle still in motion.
Id., ¶¶8-9.       The vehicle ran over Beamon's legs and collided
with   a     parked    car;   but    Beamon     fled   on   foot   before    being
apprehended after a lengthy chase.              Id., ¶¶9-10.
       ¶44    Beamon   was    charged   with     multiple    counts,     including
"Vehicle Operator Flee/Elude Officer, in violation of Wis. Stat.
§ 346.04(3)" (2007-08).             Id., ¶11.     The information stated in
relation to the charge:

            On or about 11–19–2007 . . . [defendant Beamon
       did] unlawfully and feloniously, as the operator of a
       vehicle, after having received a visual or audible
       signal from a traffic officer, or marked police
       vehicle, knowingly flee or attempt to elude any
       traffic officer by willful or wanton disregard of such

                                        17
                                                                       No.      2014AP1099-CR


       signal so as to interfere with or endanger the
       operation of the police vehicle, or the traffic
       officer or other vehicles or pedestrians, or did
       increase the speed of the vehicle or extinguish the
       lights of the vehicle in an attempt to elude or
       flee . . . .
Id. (alterations in original).                   This information closely tracked

the language of the statute.                    See Wis. Stat. § 346.04(3) (2007-
08).
       ¶45   However,          the    jury     instructions      did     not    follow      the

information        or    the    statute.         Instead,      the   jury      instructions
stated that a person violates the statute "by willful disregard
of   [a    police       emergency]       signal      so   as   to    interfere       with    or
endanger     the    traffic          officer    by   increasing      the     speed    of    the

vehicle to flee."          Id., ¶15 (emphasis added).
       ¶46   Missing from the jury instruction was the key word
"or" before the clause "by increasing the speed of the vehicle."7
See Wis. Stat. § 346.04(3) (2007-08).                          As a result, the jury

instruction appeared to require that the defendant be found to
have interfered with or endangered the officer by increasing the
speed of the vehicle.                The State never presented evidence to the

jury that Beamon accelerated his vehicle.                            Nevertheless, the
jury convicted him of the charge.
       ¶47   This       court        affirmed    the      conviction.          Beamon,      347
Wis. 2d 559, ¶4.           First, we noted that it is inappropriate to

       7
       A person could also violate the law by extinguishing the
lights on the vehicle in an attempt to flee; however, that seems
not to have been an issue in the case because Beamon apparently
never turned the vehicle's lights on. See State v. Beamon, 2013
WI 47, ¶6, 347 Wis. 2d 559, 830 N.W.2d 681.


                                                18
                                                                        No.         2014AP1099-CR



measure the sufficiency of evidence against a jury instruction
that provides an erroneous statement of the law, as "doing so
would, in effect, allow the parties and the circuit court in
that case to define an ad hoc, common law crime."                                    Id., ¶23.
Such a possibility would violate the principle of Wisconsin law
that crimes are defined only by the legislature.                                Id. (citing
Wis. Stat. §§ 939.10, 939.12).
        ¶48    Second, we acknowledged that faulty jury instructions
are subject to harmless error review.                         Id., ¶24 (citing Hedgpeth
v. Pulido, 555 U.S. 57, 61 (2008); Neder v. United States, 527
U.S. 1, 11 (1999)).              Harmless error review applies both to jury
instructions that have omissions and to jury instructions that

place     an    additional            burden    on     the    State.          Id.,     ¶¶24-25.
"Therefore,         where    a    jury     instruction         erroneously          states    the
applicable       statute,         we     must    determine          whether,        under     the
totality       of     the    circumstances,             the        erroneous        instruction
constituted         harmless      error."            Id.,    ¶27    (citing     Harvey,       254
Wis. 2d 442, ¶46).
        ¶49    Applying these principles, the court determined that
the jury instruction given on fleeing or evading an officer was
erroneous      in     that       it    "combined       two     alternative          methods    of
proving the second requirement of the offense," but that the
error was harmless.              Id., ¶¶35, 37.             We concluded that the error
was harmless because it was "clear beyond a reasonable doubt
that     the    jury    would          have    convicted       Beamon"        had     the     jury
instruction been correct.                Id., ¶37.


                                                19
                                                                  No.      2014AP1099-CR



       ¶50    The court also took care to distinguish Wulff.                             We
identified      two     significant       ways    in    which   Beamon's       case     was
different.         We   noted     that    in   Wulff,    the    jury    was    given     an
accurate instruction that merely omitted a possible avenue for
finding the defendant guilty——and all of the evidence presented
related to that omitted avenue.                   Id., ¶44.       We also explained
that Wulff predated the court's adoption of the harmless error
test in Harvey, and thus did not consider harmless error.                              Id.,
¶46.
                          ii. Clarification of the Rule
       ¶51    With this background in mind, we turn to the rule to
be gleaned from our prior case law on the subject of sufficiency

of     evidence     and    erroneous       jury      instructions.            First,     we
reiterate that errant jury instructions are subject to harmless
error analysis.           See Hedgpeth, 555 U.S. at 61; Neder, 527 U.S.
at     11;    Beamon,       347        Wis. 2d 559,      ¶¶24-25;        Harvey,       254
Wis. 2d 442, ¶47.          See also Wis. Stat. § 805.18.                This includes
errors that omit an element, cf. State v. Smith, 2012 WI 91,
¶¶60-63, 342 Wis. 2d 710, 817 N.W.2d 410, as well as errors that
create       requirements         beyond       the     statute.          Beamon,       347
Wis. 2d 559, ¶25.           See also State v. Zelenka, 130 Wis. 2d 34,
48-49, 387 N.W.2d 55 (1986); State v. Courtney, 74 Wis. 2d 705,
715-16, 247 N.W.2d 714 (1976).
       ¶52    In    addition      to     having      precedential       support,       this
holding represents sound policy.                  As this court noted in Wulff,
a    criminal      defendant      whose    conviction      is   overturned       due    to
insufficient evidence cannot be retried for that crime.                            Wulff,
                                            20
                                                                       No.         2014AP1099-CR



207 Wis. 2d at 153.               This all-or-nothing proposition would yield
extraordinary results if appellate courts could not review even
simple scriveners' errors in jury instructions for harmlessness.
We   do     not      think        that    the        United    States        and     Wisconsin
Constitutions require that criminals go free simply because of
typos.      A more reasonable approach is available.
      ¶53     The    application          of    harmless      error    analysis       to       jury
instructions        in     sufficiency-of-evidence             cases       asks     two       basic
questions.         First, was the jury instruction erroneous?                             Second,
is it clear beyond a reasonable doubt that the jury still would
have convicted the defendant had the correct instruction been
provided?

      ¶54     In    Beamon,        we    identified      one    way    in    which        a   jury
instruction can be erroneous: "a jury instruction that does not
accurately         state    the     statutory          requirements         for     the       crime
charged constitutes an erroneous statement of the law."                                   Beamon,
347 Wis. 2d 559, ¶24.              However, it would oversimplify the law to
hold that a jury instruction for a crime is erroneous only if
the instruction omits an element or includes an extra element.
      ¶55     The statutory elements of some crimes may be highly
context-specific.             See        id.,    ¶55     (Bradley,         J.,     dissenting)
("[C]ourts          throughout           this     state        regularly           give       jury
instructions        that     contain      factual       theories      of    prosecution.").
If the State pursues charges on one theory for a crime, it
cannot be said that a jury instruction is erroneous if it omits
theories of the crime that were not presented to the jury.                                    This
is   particularly          true    with    crimes      such    as   felony        murder,       for
                                                21
                                                                    No.      2014AP1099-CR



which there are a number of possible underlying crimes.8                                 For
example, a jury instruction in a felony murder case involving an
armed       robbery     does    not   need   to     inform    the   jury   that    felony
murder can occur during the course of a sexual assault.
        ¶56    On the other hand, we think it is apparent that jury
instructions can be considered erroneous if they instruct the
jury on a theory of the crime that was not presented to the
jury.
        ¶57    In     much     the    same   way,     jury      instructions      may    be
erroneous if they fail to instruct the jury on the theory of the
crime that was presented to the jury during trial.                           See Manning
v. Kentucky, 23 S.W.3d 610, 614 (Ky. 2000) ("A trial court is

required      to    instruct     on    every    theory     of   the   case    reasonably
deducible from the evidence.").                   The jury instructions in Wulff
are an example of this type of error.                        In a sense, these jury
instructions are erroneous because they do not "accurately state
the statutory requirements for the crime charged" as applicable
to the facts presented.                 Beamon, 347 Wis. 2d 559, ¶24.                   This
concept       is    a    mere    variant       of    the     established      principles
discussed above.



        8
       "Whoever causes the death of another human being while
committing or attempting to commit a crime specified in s.
940.19, 940.195, 940.20, 940.201, 940.203, 940.225 (1) or (2)
(a), 940.30, 940.31, 943.02, 943.10 (2), 943.23 (1g), or 943.32
(2)" is guilty of felony murder.     Wis. Stat. § 940.03.  This
list of crimes includes battery (§ 940.19), sexual assault
(§ 940.225), arson (§ 943.02), and robbery (§ 943.32).


                                             22
                                                                    No.       2014AP1099-CR



      ¶58     In    concluding      that       erroneous     jury      instructions      are
subject to harmless error analysis, we do not mean to discount
the       vital      importance         of     correct       instructions        to     the
administration          of   justice.          The    State      has    the   burden      of
developing and presenting a theory of the crime to the jury.
State v. Velez, 224 Wis. 2d 1, 15-16, 589 N.W.2d 9 (1999).                               The
State cannot second-guess its theory or theories after trial,
Chiarella,        445   U.S.   at       236,   and    jury      instructions     must     be
expected to control jurors' deliberations.
      ¶59     In any event, not every erroneous jury instruction is
harmless, so we turn now to how some erroneous instructions may
be considered harmless.                 To affirm a conviction based on an

erroneous         instruction,      a    court      must   be    convinced      beyond     a
reasonable doubt that the jury still would have convicted the
defendant of the charge had the correct jury instruction been
provided.         See Beamon, 347 Wis. 2d 559, ¶4.
      ¶60     Simplifying Wulff and Beamon provides illustrations of
how this concept works in practice.                   In Wulff, the defendant was
charged with a crime that had as its elements A or B or C.9                             The

      9
          Under the relevant statute:

           "Sexual   intercourse"    includes  the   meaning
      assigned under sec. 939.22(36) ["A"] as well as
      cunnilingus, fellatio, or anal intercourse between
      persons ["B"] or any other intrusion, however slight,
      of any part of a person's body or of any object into
      the genital or anal opening either by the defendant or
      upon the defendant's instruction ["C"].

Wis. Stat. § 940.225(5)(c) (1993-94).


                                               23
                                                               No.      2014AP1099-CR



State presented evidence that Wulff had done B.                       The jury was
instructed that they could convict Wulff if he had done C, and
the jury convicted him.        The conviction was reversed because the
jury's    verdict    that   Wulff    had    done   C   was    not    sufficient    to
demonstrate, beyond a reasonable doubt, that the jury would have
concluded that Wulff had done B.
     ¶61    In Beamon, the defendant also was charged with a crime
that had as its elements A or B or C.10                The jury was presented
only with evidence that Beamon had done A.                    However, unlike in
Wulff, the jury in Beamon was instructed that they could convict
Beamon if he had done both A and B.                The jury convicted Beamon,
and the conviction was affirmed because the jury's verdict that

Beamon had done both A and B was sufficient for this court to be
certain that the jury would have concluded that Beamon had done
A.
     ¶62    Thus, when an erroneous jury instruction raises the
State's     burden    by    adding     an     element        not     necessary    for


     10
          Under the relevant statute:

     No operator of a vehicle, after having received a
     visual or audible signal from a traffic officer, or
     marked police vehicle, shall knowingly flee or attempt
     to elude any traffic officer by willful or wanton
     disregard of such signal so as to interfere with or
     endanger the operation of the police vehicle, or the
     traffic officer or other vehicles or pedestrians
     ["A"], nor shall the operator increase the speed of
     the operator's vehicle ["B"] or extinguish the lights
     of the vehicle ["C"] in an attempt to elude or flee.

Wis. Stat. § 346.04(3) (2007-08).


                                       24
                                                               No.         2014AP1099-CR



conviction, and the jury convicts, the jury verdict will often
sufficiently     show    that     the    jury      would     have     convicted       if
instructed on the proper elements.                   However, if an erroneous
jury instruction omits an element or instructs on a different
theory, it will often be difficult to surmise what the jury
would have done if confronted with a proper instruction, even if
the jury convicted under the erroneous instruction.                          In other
words, in the latter situation it will be more difficult to
demonstrate that the error in the jury instruction was harmless.
     ¶63    In    sum,     what    constitutes          an    "erroneous"           jury
instruction      goes    beyond    simple         misstatements       of     statutory
elements.     Even instructions that provide a correct statement of

the statutory elements of one way to commit a crime may be
erroneous in the context of a given case, as, for example, under
facts similar to those in Wulff.11                These erroneous instructions
are subject to harmless error review, and a conviction based on
an   erroneous     instruction     can       be    upheld    if      the    court    is
convinced, beyond a reasonable doubt, that the jury would have
convicted the defendant if a proper instruction——an instruction




     11
       Wulff was not analyzed under the harmless error framework
because it predated this court's adoption of the harmless error
analysis in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647
N.W.2d 189. If this court were to decide Wulff today, it would
do so under Harvey's harmless error framework.


                                        25
                                                                     No.      2014AP1099-CR



that    is    consistent        with      both   the     relevant     statute    and      the
factual theory presented——had been provided to the jury.12
                                     iii. Application
       ¶64    Having clarified the legal standard for sufficiency-
of-evidence            claims       in     cases       involving       erroneous        jury
instructions, we now examine the case at hand.
       ¶65    The evidence relevant to this appeal that the State
presented         at   trial    focused     on       establishing    three     facts:     (1)
Williams participated in an attempted armed robbery of Parker,
(2) the attempted armed robbery caused the death of Parker, and
(3) the attempted armed robbery caused the death of Robinson.
Williams does not contend that the evidence presented at trial

is   insufficient         to    sustain     a    finding     of   these      three   facts.
Williams      also      does    not      dispute      that   these    three    facts      are
sufficient for a finding of guilt for the felony murder of both
Parker      and    Robinson.13           Instead,      Williams     argues    that   he   is
entitled to acquittal on the felony murder charge related to
Robinson's death because the jury instruction stated that the
predicate offense for that charge was the attempted robbery of




       12
       To be clear, this is not a new harmless error test.
Instead, we merely describe how the harmless error test adopted
in Harvey applies in the context of erroneous jury instructions.
       13
       See State               v.   Rivera,      184     Wis. 2d 485,        487-90,      516
N.W.2d 391 (1994).


                                                26
                                                              No.      2014AP1099-CR



Robinson    himself       and   the   State     did   not    present    sufficient
evidence of such an attempt.14
     ¶66    Williams contends that this case is similar to Wulff
because    the     jury    instruction        described     one     possible    way,
consistent with the statute, that the crime of felony murder
could be committed.             The jury instruction in question, which
defined    armed    robbery      as   the     predicate     offense    for     felony
murder, is worth quoting at length:

          That      Michael Parker, Count 1,  and Authur
     Robinson,      Count 2, was [sic] the owner of the
     property.

          The defendant or a person with whom the defendant
     was acting as party to a crime, took property from the
     person of Michael Parker, Count 1, and Authur
     Robinson, Count 2, the defendant or person with whom
     the defendant was acting as a party to a crime took
     the property with intent to steal.

             . . . .

          Forcibly means that the person or persons with
     whom the defendant was acting as a party to a crime
     used force against Michael Parker, Count 1, and Authur
     Robinson, Count 2, with the intent to overcome or
     prevent the physical resistance or physical power of
     resistance to taking and carrying away the property.



     14
       One of the many charges submitted to the jury was for the
attempted robbery of Robinson. Despite being instructed not to
complete the verdict form for this charge if they found Williams
guilty of felony murder, the jury did complete the form——and
found Williams not guilty of the attempted robbery of Robinson.
In light of this, the State does not argue that there was
sufficient evidence to sustain a jury verdict of felony murder
for the death of Robinson if the predicate offense was the
attempted robbery of Robinson.


                                        27
                                                           No.    2014AP1099-CR



      ¶67   The   jury   instruction    suggests    that   finding   Williams
guilty of Count 2 (i.e., felony murder of Robinson) required
theft of Robinson's property.           However, the parties agree that
the felony murder statute does not require such proof, and the
State clearly did not limit itself to that theory at trial.                 In
his   closing     argument,   the   prosecutor     emphasized    exactly   the
opposite:

           The last thing [defense counsel] said to you was
      that   you  have  to  find   that . . . the  defendant
      attempted, as a party to a crime, to rob Authur
      Robinson in order to find him guilty of the death of
      Authur Robinson under a [sic] felony murder. That is
      not true.   That is simply a blatant misstatement of
      the law.

             . . . .

      [The State] doesn't have to show that Authur Robinson
      was a victim [of attempted robbery].    Because if in
      the course of this armed robbery anyone is killed,
      whether it be the bank clerk, the security guard, an
      accomplice, a kid walking down the street, if anybody,
      whether it's Authur Robinson, or anyone else was
      killed while an armed robbery of [Michael] Parker is
      taking place, that is felony murder.
      ¶68   The prosecutor's contradiction of the jury instruction
describes a different legal theory under which the jury could




                                       28
                                                                No.    2014AP1099-CR



convict Williams of felony murder.15              Given that it is the role
of the prosecutor to decide what charges to bring, see State v.
Karpinski, 92 Wis. 2d 599, 285 N.W.2d 729 (1979), we conclude
that the jury instruction——which did not accurately reflect the
State's     predominant    theory   of    the   case     (as    evidenced   by    the
State's closing argument)——was erroneous.
      ¶69    Williams' argument that this case is more like Wulff
than Beamon largely misses the point, as Wulff and Beamon are
not   that    dissimilar.       Both      cases       involved    erroneous      jury
instructions.     The approach in each case was different because,
as we pointed out in Beamon, Wulff predated Wisconsin's modern
formulation     of   the     harmless         error     test.         Beamon,    347

Wis. 2d 559, ¶46.     The real difference between Wulff and Beamon—
—under modern harmless error analysis——is the way in which the
nature of each erroneous jury instruction affected the court's
ability to conclude whether the jury still would have convicted
if given a proper instruction.


      15
       The State contends that Williams' failure to object to
the prosecutor's statement during closing arguments means that
the argument is now forfeited, and Williams can pursue only an
ineffective assistance of counsel claim for his trial counsel's
failure to object at that time.        However, Williams is not
challenging the prosecutor's statement in this appeal; Williams
is challenging the sufficiency of the evidence to sustain the
jury's verdict. The State provides no authority to support its
argument that a defendant's failure to object to a portion of a
closing argument somehow changes the relationship between jury
instructions and sufficiency of evidence.        Accordingly, we
proceed with our analysis using the framework described above
rather than an ineffective assistance of counsel framework.


                                         29
                                                                       No.     2014AP1099-CR



     ¶70       This brings us to the question of whether it is clear
beyond     a    reasonable       doubt     that    the     jury    still       would       have
convicted Williams of felony murder for the death of Robinson
had the proper jury instruction been given.
     ¶71       The    erroneous     jury    instruction         essentially         required
four elements for two counts of felony murder: (1) the attempted
robbery of Parker, (2) the death of Parker, (3) the attempted
robbery    of     Robinson,      and     (4)    the     death     of     Robinson.          The
appropriate          jury   instruction,        which    would     comport          with    the
prosecutor's theory, would have required only 1, 2, and 4 to
convict on both counts.
     ¶72       We are convinced that the jury's guilty verdict on all

four elements provides certainty beyond a reasonable doubt that
the jury would have returned a guilty verdict if the instruction
had required three of those four elements.                        The strength of the
State's evidence supports this conclusion.                       Accordingly, we hold
that the erroneous jury instruction in this case was harmless
error,     and       that   there   was        sufficient       evidence       to    convict
Williams of felony murder in connection with Robinson's death.
                      B. Ineffective Assistance of Counsel
     ¶73       Having resolved the issue presented for certification,
this court has two procedural alternatives for resolving the
remaining        issue      of   whether        Williams        received       ineffective
assistance of counsel: We can remand the case to the court of
appeals or decide the issue here and now.                         In the interests of
providing      the     defendant    a    timely    resolution          of    his    case   and


                                            30
                                                                             No.        2014AP1099-CR



preserving         judicial       resources,          we    have    chosen         to   decide      the
remaining issue now.
     ¶74       Wisconsin          has       adopted        the     United      States         Supreme
Court's     two-pronged               Strickland       test        to   analyze           claims     of
ineffective assistance of counsel.                            Strickland v. Washington,
466 U.S. 668 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449
N.W.2d 845 (1990).                    To prevail under Strickland, a defendant
must prove that counsel's representation was both deficient and
prejudicial.              State       v.    Erickson,       227     Wis. 2d 758,           768,     596
N.W.2d 749 (1999).               Deficient performance means that defendant's
counsel's conduct "so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having

produced       a        just     result."            Strickland,        466        U.S.     at     686.
Prejudice means that, but for counsel's unprofessional errors,
there is a reasonable probability that the trial's outcome would
have been different.                   Id. at 694.          A reasonable probability is
"a   probability               sufficient       to     undermine        confidence            in    the
outcome."          Id.        Courts may apply the deficient performance and
prejudice tests in either order, and may forgo the deficient
performance analysis altogether if the defendant has not shown
prejudice.         Johnson, 153 Wis. 2d at 128.
     ¶75       Williams          presents       two    arguments        in     support        of    his
contention that he was afforded ineffective assistance of trial
counsel.           We    do     not    review    the       arguments     in        isolation,       but
instead make our determination based on whether the cumulative
effect    is       sufficient          to   undermine       the    outcome         of   the      trial.
Thiel, 264 Wis. 2d 571, ¶63.                          Williams first argues that his
                                                 31
                                                                          No.      2014AP1099-CR



counsel was ineffective because counsel did not move to strike a
juror who——during voir dire——expressed an aversion to viewing
crime scene photographs.                 Williams' second argument is that his
attorney's assistance was ineffective because the attorney did
not    object       when    the    State    offered          photographs         depicting      the
crime scene and the victims' bodies.
       ¶76   We disagree with both of Williams' arguments and hold
that    Williams           was    not    prejudiced          by     his      counsel's     trial
performance.          Because Williams was not prejudiced, there is no
need    to   determine            whether        his     attorney's          performance        was
deficient.          See Johnson, 153 Wis. 2d at 128.                         We address each
argument in turn.

                                         i. Voir Dire
       ¶77   Williams argues that his right to a fair trial was
compromised because his attorney did not move to strike a juror
who expressed an aversion to viewing photographs depicting the
crime scene and the bodies of the victims.                                    We reject this
argument     and      hold       that    Williams        was      not   prejudiced        by    his
counsel's decision not to strike the juror.
       ¶78   The       United           States        and      Wisconsin         Constitutions
guarantee       a    criminal      defendant           the   right      to   a    trial    by    an
impartial jury.             See U.S. Const. amend. VI; Wis. Const. art. I,
§ 7; State v. Oswald, 2000 WI App 2, ¶16, 232 Wis. 2d 62, 606
N.W.2d 207.          A juror who "has expressed or formed any opinion,
or is aware of any bias or prejudice in the case" should be
removed from the panel.                 Oswald, 232 Wis. 2d 62, ¶16.                  See also
Wis. Stat. § 805.08(1).
                                                 32
                                                                      No.      2014AP1099-CR



       ¶79    Here     we      must       ask     whether     the     prospective        juror
demonstrated subjective bias.                     "[S]ubjective bias refers to the
bias that is revealed by the prospective juror on voir dire: it
refers to the prospective juror's state of mind."                                  State v.
Faucher,      227    Wis. 2d 700,              717,    596   N.W.2d 770      (1999).        "A
prospective juror is subjectively biased if the record reflects
that    the    juror      is    not   a        reasonable    person   who    is    sincerely
willing to set aside any opinion or prior knowledge that the
prospective juror might have."                         Oswald, 232 Wis. 2d 62, ¶19.
The circuit court is in the best position to determine whether
subjective bias exists, so "we will uphold the circuit court's
factual       finding       that      a        prospective    juror     is    or    is     not

subjectively biased unless it is clearly erroneous."                               State v.
Lindell, 2001 WI 108, ¶36, 245 Wis. 2d 689, 629 N.W.2d 223.
       ¶80    Excusing jurors for bias is proper if the juror is
unreasonable and unwilling to set aside preconceived opinions or
prior knowledge.               Oswald, 232 Wis. 2d 62, ¶19.                  Williams has
failed to demonstrate that any juror was biased.                                  It is not
unreasonable        for     jurors        to    experience    consternation        over    the
prospect      of     having      to       view     the   often      disturbing     evidence
presented in criminal cases.                     To the contrary, it is a perfectly
reasonable and normal human response.                        In addition to Juror No.
12, four other prospective jurors asserted that they would have
difficulty viewing crime scene photos.16                      Both the prosecutor and
Williams' attorney questioned the jurors on the issue.
       16
            Juror 6, Juror 8, Juror 9, and Juror 21.


                                                  33
                                                                    No.      2014AP1099-CR



       ¶81       Williams' focus on Juror No. 12's statements is based
on his use of the term "bias" while attempting to articulate the
juror's      feelings       about      having    to   view     photographs         of    the
victims.          Juror    No.   12,     however,     did    not    use     the   term    to
describe the type of subjective bias that would preclude him
from   serving       on    the   jury.      Rather,     Juror       No.   12,     like   the
others, was attempting to articulate his preference not to view
victim photographs, and explained that viewing the photographs
might make him feel sympathy for the victims.                         Moreover, after
being advised that photographic evidence of the victims would be
presented, the jurors were specifically asked whether any of
them would be unable to render an impartial decision, and Juror

No. 12 did not come forward.
       ¶82       The unfortunate reality of our justice system is that
jurors are often called upon to examine evidence of heinous acts
committed against other human beings.                       While most jurors would
prefer    never      to    see   such    evidence,     that    preference         does   not
render them biased or incapable of impartiality as a matter of
law.
       ¶83       In sum, we do not believe that Juror No. 12's comments
reflect      a    "bias"    against      the    defendant      as    that    concept      is
understood in the law, but merely reservations about having to
view disturbing photographs.                Without a showing that Juror No.
12 was biased, Williams cannot prove that he was prejudiced by
his trial counsel's decision not to strike Juror No. 12.
                            ii. Crime Scene Photographs


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        ¶84   "Whether photographs are to be admitted is a matter
within the trial court's discretion."                         State v. Pfaff, 2004 WI
App   31,     ¶34,    269    Wis. 2d 786,          676   N.W.2d 562.              An    appellate
court     "will      not    disturb        the     court's     discretionary             decision
unless it is wholly unreasonable or the only purpose of the
photographs is to inflame and prejudice the jury."                                       Id.     In
State v. Sage, 87 Wis. 2d 783, 788, 275 N.W.2d 705 (1979), we
held that:

        Photographs should be admitted if they will help the
        jury gain a better understanding of material facts;
        they should be excluded if they are not "substantially
        necessary" to show material facts and will tend to
        create sympathy or indignation or direct the jury's
        attention to improper considerations.
        ¶85   Here,        Williams       argues      that    his        trial    counsel       was
ineffective for not objecting to the admission of photographs
depicting the crime scene and the victims' fatal wounds.                                   Having

reviewed each of the photographs used as exhibits at Williams'
trial, we conclude that they were neither overly gruesome nor
unfairly prejudicial.                   The purpose of the photographs was to
prove    an    element       of    the     crimes     charged        (the       deaths    of    the
victims),      not    to     inflame       the     jury.           Put    another       way,    the
probative      value        of     the    photographs         was        not     "substantially
outweighed by the danger of unfair prejudice."                                  See Wis. Stat.
§ 904.03.       In addition, the photographs likely were useful in
helping the jury garner a more thorough understanding of the
events on the night of the killings.

        ¶86   Because        the        State     used       the     photographs          for     a
legitimate      purpose,          the    photographs       could         have    been    properly

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                                                                    No.        2014AP1099-CR



admitted into evidence regardless of whether or not Williams'
attorney had raised an objection.                     See Sage, 87 Wis. 2d at 788.
Thus, Williams was not prejudiced by the lack of objection, and
without      prejudice,      Williams         cannot    prevail     on    his       claim   of
ineffective assistance of counsel.
       ¶87    Williams briefly raises the argument that the evidence
was cumulative because Williams was willing to stipulate to the
manner of death.           However, in State v. Lindvig, 205 Wis. 2d 100,
108,   555    N.W.2d 197       (Ct.      App.       1996),   the    court      of    appeals
rejected      the     argument         that     a     defendant's        willingness        to
stipulate to an element could render photographs inadmissible.
Instead, the court ruled that even if the defendant is willing

to stipulate to an element, "[e]vidence is always admissible to
prove an element of the charged crime even if the defendant does
not dispute it at trial."              Id.
                                   IV. CONCLUSION
       ¶88    We    hold    that   a    jury        instruction    may    be    considered
erroneous when it describes a theory of criminal culpability
that was not presented to the jury or omits a valid theory of
criminal      culpability          that       was      presented      to       the     jury.
Convictions        under    erroneous        jury     instructions       are    subject     to
harmless error review.             When an erroneous instruction has been
given but it is clear beyond a reasonable doubt that the jury
would have convicted the defendant had the proper instruction
been given, the jury verdict can be affirmed.
       ¶89    Here, based on the strength of the evidence presented
and the statutory elements that the jury found, it is clear
                                              36
                                                                  No.      2014AP1099-CR



beyond   a    reasonable    doubt   that      the        jury     still    would     have
convicted Williams of felony murder had the jury instruction
accurately    reflected    the    State's         theory    of     the    crime.       We
therefore    hold   that   the   defect      in    the     jury    instructions      was
harmless error.       Furthermore, we conclude that Williams was not
prejudiced by his trial counsel's decision not to strike a juror
and not to object to the admission of crime scene photographs.
Accordingly,     we    affirm     the     circuit          court's        judgment    of
conviction.


     By the Court.—The judgment and order of the circuit court
are affirmed.




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                                                                 No.   2014AP1099-CR.ssa


       ¶90    SHIRLEY S. ABRAHAMSON, J.                 (concurring).      Although I
agree that the judgment and order should be affirmed, I do not
join the majority opinion.
       ¶91    The court took the instant case to clarify precedent
related to erroneous jury instructions in criminal trials.                            I am
not sure it successfully accomplishes this goal.
       ¶92    The   majority         opinion      is     unclear       regarding       the
relationship between harmless error review and review of the
sufficiency of evidence.             This confusion seems to stem from the

confusion in State v. Beamon, 2013 WI 47, ¶¶19, 20, 46, 50, 51,

347 Wis. 2d 559, 830 N.W.2d 706, on which the majority opinion
relies.        As   I   see    it,     harmless        error   analysis    renders       a
sufficiency of the evidence analysis redundant.                          The majority
opinion's statement of its approach in ¶53 ("First, was the jury
instruction erroneous?           Second, is it clear beyond a reasonable
doubt that the jury still would have convicted the defendant had
the correct instruction been provided?") seems to incorporate

only   a     harmless    error       analysis,     not     a   sufficiency       of    the
evidence analysis.            But Beamon sets forth and applies the two
analyses      separately.        The    majority       opinion   cites     and    quotes
Beamon,      masking    the   majority    opinion's        rejection      of   Beamon's
two-step analysis.
       ¶93    For the reasons set forth, I write separately.




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