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May 26, 1988


Appeal from a judgment of the circuit court for Dane county: James C. Boll, Judge.

Gartzke, P.j., Dykman and Sundby, JJ.

The opinion of the court was delivered by: Gartzke

Rhonda Ambuehl appeals from a judgment convicting her of attempted first-degree murder while armed with a dangerous weapon, secs. 940.01(1), 939.32 and 939.63(1)(a)2., Stats., and injury by conduct regardless of life, secs. 940.23 and 939.63(1)(a)2. Ambuehl makes four claims: (1) that she was deprived of effective assistance of counsel by the manner in which her counsel decided to forego a lesser-included offense and presented her defense; (2) that her rights to due process and to present a defense were denied by the trial court's refusal to instruct the jury that a person is privileged to intentionally threaten force to defend a third person; (3) that her conviction and sentence for attempted murder and injury by conduct regardless of life for firing a single shot violate her right against double jeopardy; and (4) we should grant a new trial because the real controversy has not been fully tried.

We conclude that Ambuehl had effective assistance of counsel, she waived the jury instructions error, and she was not subjected to double jeopardy. We also conclude, however, that the real controversy was not tried, since the trial court failed to instruct the jury that a person is privileged to threaten to use force to defend a third person. We therefore reverse and direct that Ambuehl receive a second trial.

Ambuehl testified that on December 5, 1984 she and Mike Brown went to a bar where Brown got into an argument with Gary Fumuso. Fumuso later came over to where Brown sat at the bar with Ambuehl and yelled at Brown to go outside. Ambuehl put her leg between the two men to stop Fumuso. A man sitting next to her, Tucker, told Fumuso to leave Brown alone, "He's with a classy lady." Fumuso was angry but walked away. Ambuehl testified that she was scared and looked for an exit other than the front door. She wanted to avoid passing Fumuso with Brown since Fumuso wanted to fight with Brown outside.

Ambuehl testified that a second confrontation occurred. She and Brown stayed at the bar. When Brown walked toward a pool table to play a game, Fumuso grabbed him with both hands around the neck. Fumuso was 6' tall and weighed about 185 pounds. Amhuehl, who is 5'5" and weighted 115 pounds tried to pull the men apart but was shoved backwards and fell. The two men were separated, Brown started walking backwards and Fumuso walked toward him. By the time Ambuehl got to her feet, Fumuso had both hands on Brown's throat. Brown asked for help and had his hands on Fumuso's wrists.

Ambuehl testified that she was "really scared, terrified," and thought Brown was being killed. She pulled her .22 caliber revolver out of her purse, intending to try to stop the fight and walked toward Fumuso. *fn1 She wanted to shoot into the ceiling to scare the men and stop the fight but was afraid she might kill somebody on the next floor. Then she thought she might shoot at the floor and cocked the gun, holding it at her side, but she feared the bullet might ricochet off the floor and hit somebody. She was holding the gun hammer back and pressing the trigger. *fn2 The bar owner grabbed her arm but she twisted away, ran toward Fumuso and pointed the gun at him, intending "to threaten him." They were very close. Fumuso punched her forehead and the gun went off. Her finger had probably been on the trigger and she imagines her reflexes tightened. Somebody said somebody was shot. She did not intentionally shoot the gun. It was accidental. She thought she had shot Brown, but in fact she had shot Fumuso in the neck.

The critical part of Brown's testimony is that Fumuso was choking him with both hands, or perhaps squeezing his face with one hand and choking him with the other. He was choked for about a minute, unable to breathe and trying to free himself when he heard the gun go off. The testimony of the bartender and other patrons differed from that of Ambuehl and Brown, for the most part, as to whether Fumuso was choking or fighting with Brown when the gun went off. Fumuso admitted that he had struggled with Brown but claimed that they had separated and the fight was over when Ambuehl shot him. He testified that he turned around, saw the gun pointed at him, had no time to do anything and was shot.

1. Effective Assistance of Counsel

a. Scope of Review

A person charged with a state crime has a right to effective assistance of counsel under the sixth amendment to the United States Constitution, Strickland v. Washington, 466 U.S. 668, 685-86 (1984), and under Wis. Const. art. I, sec. 7. State v. Marty, 137 Wis. 2d 352, 356, 404 N.W.2d 120, 122 (Ct. App. 1987).

To demonstrate ineffective assistance of counsel, a defendant must establish (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. Both the performance and the prejudice components are mixed questions of fact and law. Id. at 698. We must accept the trial court's factual findings if they are not clearly erroneous. Marty, 137 Wis. 2d at 356, 404 N.W.2d at 122. If the facts are established, whether counsel's performance was deficient, and whether a deficient performance was prejudicial, are questions of law which we determine without deference to the views of the trial court. Id. at 356-57, 404 N.W.2d at 122.

The test for deficient representation is whether "counsel's representation fell below an objective standard of reasonableness." Strickland at 688. Nevertheless, our "scrutiny of counsel's performance must be highly deferential." Id. at 689. We must attempt

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation omitted.]

Id. at 689.

With these principles in mind, we turn to Ambuehl's specific contentions regarding her trial counsel's performance.

b. Failure to Request Accident Instruction

Ambuehl first argues that counsel's failure to request a jury instruction on accident was deficient performance. She testified that the shooting was an accident and she contends that the jury should have been instructed that if they found that the gun discharged accidentally, they should acquit her of the attempted murder charge because she lacked an intent to kill. We reject her argument.

Intent to kill is the crux of attempted first-degree murder. All reasonable persons know that intent is the antithesis of accident. As Holmes put it, "ven a dog distinguishes between being stumbled over and being kicked." O.W. Holmes, The Common Law 3 (1881). For that reason, we reject the view that the trial court must explain to the jury that accident is the opposite of intent. *fn3

Because Ambuehl was not entitled to an accident instruction, her counsel's failure to request the instruction was not deficient performance.

c. Failure to Argue Accident

Ambuehl asserts that her counsel's failure to argue the defense of accident to the jury was deficient performance. We disagree.

The accident theory was argued to the jury. The prosecutor told the jury that Ambuehl's defense was that the gun was discharged accidentally and referred to it as a "very clever defense." The prosecutor said that Ambuehl contended that during the scuffle, "the gun went off accidentally, a gun with a fifteen-and-one-quarter-pound-trigger-pull, went off accidentally. If she cocked it before she went up there, it had a four-and-a-half-pound trigger-load, and now she wants you to believe that she was exercising that right [to kill Fumuso], and that it went off accidentally; that's what they want you to believe."

We accept the trial court's view that although Ambuehl's counsel did not use the term "accident" in his closing argument, he argued in such a way as to allow the jurors to infer that her conduct was accidental. He emphasized Ambuehl's testimony that she wanted to shoot upward, not wanting to hurt anyone, wanted to shoot down but feared that a ricochet would hit someone, and then pointed the gun at Fumuso but was punched. He implied that the gun went off when she was punched. To emphasize the point, counsel displayed to the jury a photograph showing that Ambuehl had a bruise on her head, and argued that the photograph spoke more words than all the witnesses combined. We agree with the trial court's Conclusion that counsel's argument employed tactics which we should be loathe to criticize after trial.

d. Decision to Forego Lesser-Included Offense Instruction

Trial counsel did not request a lesser-included instruction on endangering safety by conduct regardless of life, sec. 941.30, Stats. Nor did counsel discuss with Ambuehl the lesser-included instruction at the close of the evidence. Section 941.30 makes it a felony to endanger "another's safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life . . . ."

The trial court found that before the trial, counsel had spoken to Ambuehl about a lesser-included offense instruction and that she rejected the proposition. The court found that the decision not to request a sec. 941.30 instruction was tactical and in keeping with Ambuehl's contention that she had done nothing wrong but was simply attempting to protect the life of another. It is undisputed that after that pretrial ...

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