Submitted on Briefs: Oral Argument: March 26, 2019
OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d
832, 917 N.W.2d 233
Circuit Court Milwaukee county L.C. No. 2015CF3109 Jeffrey A.
the defendant-appellant-petitioner, there were briefs filed
by Urszula Tempska and Law Office of U. Tempska, Shorewood.
There was an oral argument by Urszula Tempska.
the plaintiff-respondent, there was a brief filed by Tiffany
M. Winter, assistant attorney general, with whom on the brief
is Joshua L. Kaul, attorney general. There was an oral
argument by Tiffany M. Winter.
amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Ellen Henak and
Henak Law Office, S.C., Milwaukee.
amicus curiae brief was filed on behalf of Wisconsin State
Public Defender by Jefren E. Olsen, assistant state public
defender, with whom on the brief was Kelli S. Thompson, state
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an unpublished, per curiam decision of
the court of appeals, State v. Trammell, No.
2017AP1206-CR, unpublished slip op. (Wis. Ct. App. May 8,
2018), affirming a jury verdict convicting Emmanuel Earl
Trammell ("Trammell") on one count of armed robbery
and one count of operating a vehicle without the owner's
consent, and affirming the Milwaukee County circuit
court's order denying Trammell's motion for
postconviction relief. Though he failed to object at the jury
instruction and verdict conference as required by Wis.Stat.
§ 805.13(3) (2015-16),  Trammell claims that Wis
JI-Criminal 140 (2017) unconstitutionally reduced the State's
burden of proof, and confused and misled the jury such that
he should be entitled to a new trial. Lastly, Trammell
alternatively claims that discretionary reversal is warranted
under Wis.Stat. § 751.06.
We conclude that Trammell waived his right to object to the
use of Wis JI-Criminal 140 by failing to object to its use at
the jury instruction and verdict conference, pursuant to
Wis.Stat. § 805.13(3) . On that basis, the court of
appeals properly denied Trammell's appeal and correctly
concluded that it could not consider whether Wis JI-Criminal
140 misstates the law, confuses the jury, and reduces the
State's burden. However, unlike the court of appeals,
this court may nonetheless consider the instruction under its
discretionary power of review. State v. Schumacher,
144 Wis.2d 388, 409-10, 424 N.W.2d 672 (1988) . We exercise
that power here. The constitutional question with which we
are presented is whether there is a reasonable likelihood
that the jury understood the instructions to allow a
conviction based upon insufficient proof. We conclude that
Wis JI-Criminal 140 does not unconstitutionally reduce the
State's burden of proof below the reasonable doubt
standard. Lastly, we conclude that discretionary reversal
under Wis.Stat. § 751.06 is not warranted. We therefore
affirm the court of appeals.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
Trammell was arrested on July 8, 2015, after stealing a car
from a convenience store parking lot while armed. On July 10,
2015, the State charged Trammell with one count of armed
robbery and one count of operating a motor vehicle without
the owner's consent. Trammell entered a plea of not
Prior to trial, Trammell submitted a list of proposed jury
instructions pursuant to the circuit court's scheduling
order. Included in the list of proposed jury instructions was
Wis JI-Criminal 140 titled, "Burden of Proof and the
Presumption of Innocence."
A two-day jury trial commenced on April 4, 2016. During
testimony, the victim identified Trammell in court and
testified that on July 8, 2015, the victim and his girlfriend
drove to a convenience store in his mother's Buick Regal.
The victim testified that he went into the store while his
girlfriend waited in the Buick. He testified that while he
was in the store, Trammell approached him and patted him
down, telling the victim that he was looking for a gun. The
victim stated that after not finding a gun, Trammell snatched
money from the victim and asked him whose car he came in. The
victim testified that he told Trammell the Buick belonged to
his mother. The victim tried to stop Trammell but Trammell
brandished a gun, got in the driver's seat of the Buick,
and drove away. The other two individuals with Trammell drove
away in another car. The victim's girlfriend's
testimony corroborated the victim's recollection of
The State also called Officer Steven Strasser of the
Milwaukee Police Department ("Officer Strasser") to
testify. Officer Strasser testified that he heard a dispatch
that OnStarhad located the Buick and that police were
pursuing it. Officer Strasser stated that he joined the
pursuit, and that the Buick was ultimately stopped when
police requested OnStar to cut off the ignition in the
vehicle. He testified that three individuals exited and were
arrested. He stated that police identified the driver as
Gabarie Silas ("Silas"), and that Trammell was
nowhere to be found.
The State also called Silas, who had entered into a plea
agreement, to testify. Silas testified that on July 8, 2015,
he rode to the convenience store in a Dodge Stratus with
Trammell and another individual. Silas also corroborated the
victim's testimony regarding what transpired at the
convenience store. He stated that once the victim's
girlfriend was out of the car, Trammell threw Silas the keys
to the Dodge. Silas drove away in the Dodge as Trammell took
the Buick. Silas testified that he and Trammell later
switched cars. He further testified that he understood the
incident involved a gun that Trammell provided to the victim
but for which the victim never paid Trammell. Silas said that
Trammell intended to return the car to the victim once
Trammell and the victim settled the outstanding debt.
Officer Eric Draeger of the Milwaukee Police Department
("Officer Draeger") also testified for the State.
Officer Draeger stated that he monitors all jail telephone
calls, and that on January 6, 2016, he listened to a call
Trammell made to a friend, during which Trammell asked her to
offer false testimony at Trammell's trial.
Moreover, pursuant to a stipulation with Trammell's trial
counsel, the State informed the jury that a forensic examiner
identified two fingerprints lifted from the Buick as
Trammell's left index finger and Silas's left middle
finger. Trammell chose not to testify at trial.
At the close of evidence, the parties and the circuit court
conducted a jury instruction and verdict conference as
required by Wis.Stat. § 805.13(3). The circuit court
indicated that it intended to give the standard
burden-of-proof instruction, Wis JI-Criminal 140, which
Trammell had specifically requested. Trammell did not object
to the instruction, nor did he request that the instruction
be modified in any way. Prior to closing arguments, the
circuit court instructed the jury on the burden of proof
using Wis JI-Criminal 140.
The jury convicted Trammell of both armed robbery, party to a
crime, and operating a motor vehicle without the owner's
consent, party to a crime. On May 17, 2016, Trammell was
sentenced to 12 years in prison and 8 years of extended
supervision on count one. He was further sentenced to 15
months in prison and 15 months of extended supervision on
count two, running concurrently with the sentence on count
On April 10, 2017, Trammell filed a motion for postconviction
relief in the circuit court. Trammell claimed that Wis
JI-Criminal 140 "misstated the law, confused the jurors,
and caused Trammell to be convicted based on a burden of
proof lower than the constitutionally-required
'beyond reasonable doubt' standard." In support
of his position, Trammell cited two law review articles
written by the same two authors-one which was released
shortly after Trammell's conviction, and one which was,
at the time, set to be released in 2017. Each law review
article was based on separate but similar studies which the
authors conducted. The authors opined that when jurors are
instructed to "search for truth," significantly
higher conviction rates result. Trammell acknowledged that
"[t]he jury instructions given in this case were subject
to a jury instructions conference and were given with both
parties' agreement and no objections." While this
would seemingly constitute waiver under Wis.Stat. §
805.13(3), Trammell nevertheless sought a new trial both in
the interest of justice and due to plain error. The State
argued that Trammell waived his right to object to the jury
instruction by operation of § 805.13(3), and that the
jury instruction did not mislead or confuse the jury or
reduce the State's burden of proof.
On April 14, 2017, the circuit court issued a written order
denying Trammell's motion for postconviction relief. The
circuit court noted that Wis JI-Criminal 140 "was
formulated and approved by Wisconsin's Jury Instruction
Committee," and stated that "[a]lthough the studies
performed by Cicchini and White make for interesting reading,
the court is bound by the standard jury instruction
implemented by the Jury Instruction Committee which has been
accepted for years by Wisconsin's appellate courts."
The circuit court therefore declined to grant Trammell a new
trial due to any purported plain error and rejected
Trammell's argument that Wis JI-Criminal 140
"prevented the true controversy from being fully
Trammell appealed. On May 8, 2018, the court of appeals
issued a per curiam opinion affirming the circuit court. The
court of appeals first concluded that Trammell waived his
right to object to the jury instruction pursuant to Wis.Stat.
§ 805.13(3) by failing to object at the jury instruction
and verdict conference, and that the court of appeals lacked
authority to disregard waiver of a jury instruction
objection. Trammell, No. 2017AP1206-CR, unpublished
slip op., ¶¶11-13. Second, the court of appeals
concluded that even if it could overlook Trammell's
failure to object, the outcome was controlled by this
court's holding that Wis JI-Criminal 140 was
constitutional in State v. Avila, 192 Wis.2d 870,
532 N.W.2d 423 (1995) overruled on other grounds by State
v. Gordon, 2003 WI 69, 262 Wis.2d 380, 663 N.W.2d 765.
Trammell, No. 2017AP1206-CR, unpublished slip op.,
¶¶14-17. Third, the court of appeals rejected
Trammell's arguments that a new trial was warranted in
the interest of justice or due to plain error. Id.,
STANDARD OF REVIEW
We will address four issues: (1) whether Trammell waived his
challenge to the use of Wis JI-Criminal 140; (2) whether Wis
JI-Criminal 140 misstates the law so to confuse and mislead
the jury thus requiring us to overrule Avila; (3)
whether Wis JI-Criminal 140 is otherwise constitutionally
infirm; and (4) whether discretionary reversal is warranted
under Wis.Stat. § 751.06.
This court reviews questions of waiver de novo. State v.
Kelty, 2006 WI 101, ¶13, 294 Wis.2d 62, 716 N.W.2d
886. Additionally, "[w]nether a jury instruction from
the circuit court deprives a defendant of his right to due
process is a question of law, which we review de novo."
State v. Tomlinson, 2002 WI 91, ¶53, 254 Wis.2d
502, 648 N.W.2d 367 (citing State v. Kuntz, 160
Wis.2d 722, 735, 467 N.W.2d 531 (1991)). Lastly,
"[u]nder Wis.Stat. § 751.06, we have independent
discretionary authority to reverse a conviction and order a
new trial where' it appears from the record that the real
controversy has not been fully tried, or that it is probable
that justice has for any reason miscarried.'"
State v. Langlois, 2018 WI 73, ¶55, 382 Wis.2d
414, 913 N.W.2d 812 (quoting § 751.06). "The
interpretation and application of a statute present questions
of law that we review de novo." Id. (citing
Estate of Miller v. Storey, 2017 WI 99, ¶25,
378 Wis.2d 358, 903 N.W.2d 759).
Waiver Under Wis.Stat. § 805.13(3)
We first address whether Trammell waived his objection to the
use of Wis JI-Criminal 140 by failing to object to it at the
jury instruction and verdict conference, as required by
Wis.Stat. § 805.13(3) . We begin with the language of
§ 805.13. State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681
N.W.2d 110. Section 805.13 provides, in pertinent part, as
At the close of the evidence and before arguments to the
jury, the court shall conduct a conference with counsel
outside the presence of the jury. At the conference, or at
such earlier time as the court reasonably directs, counsel
may file written motions that the court instruct the jury on
the law, and submit verdict questions, as set forth in the
motions. The court shall inform counsel on the record of its
proposed action on the motions and of the instructions and
verdict it proposes to submit. Counsel may object to the
proposed instructions or verdict on the grounds of
incompleteness or other error, stating the grounds for
objection with particularity on the record. Failure to object
at the conference constitutes a waiver of any error in the
proposed instructions or verdict.
§ 805.13(3). Section 805.13(3) provides no exceptions to
the requirement that any objection be made at the jury
Here, it is undisputed that Trammell's trial counsel
listed Wis JI-Criminal 140 as one of Trammell's proposed
jury instructions submitted to the circuit court prior to
trial. It is further undisputed that the circuit court
properly held the jury instruction and verdict conference at
the close of evidence and prior to closing arguments.
Although circuit courts can and do modify jury instructions,
Trammell concedes that at no point did his trial counsel
object to the use of Wis JI-Criminal 140 as part of the
instructions the circuit court would read to the jury.
Trammell also concedes that his trial counsel did not request
that Wis JI-Criminal 140 be altered in any way. The circuit
court instructed the jury using the pattern instruction.
Trammell's objection to the use of Wis JI-Criminal 140
did not arise until over a year after his conviction, when he
filed his motion for postconviction relief on April 10, 2017.
Applying Wis.Stat. § 805.13(3), the circuit court
properly followed the requisite procedure, and Trammell's
trial counsel did not timely object as required by §
805.13(3) . A straightforward application of §
805.13(3) thus leads to the conclusion that Trammell failed
to properly object to Wis JI- Criminal 140.
Trammell attempts to avoid the plain language of Wis.Stat.
§ 805.13(3) by asserting that his objection was
"unknowable" at the time of the jury instruction
and verdict conference. Specifically, Trammell asserts that
the two law review articles by Cicchini and White, on which
Trammell's objection is based, were not published until
after Trammell's conviction. Citing State v.
Howard, 211 Wis.2d 269, 287-88, 564 N.W.2d 753 (1997),
overruled on other grounds by Gordon, 262 Wis.2d
380, Trammell claims that since he could not have known about
the articles until after his conviction, he could not
possibly have made any objection during the jury instruction
and verdict conference.
We are not persuaded. In Howard the defendant was
charged with, "inter alia, aiding and abetting the
unlawful delivery of a controlled substance (cocaine) while
possessing a dangerous weapon, in violation of Wis.Stat.
§§ 161.41(1) (c)2, 939.05, 939.63(1) (a) 3 and 2
(1987-88)." Howard, 211 Wis.2d at 272. Howard
failed to object to the use of two jury instructions during
the jury instruction and verdict conference. Id. at
273. Howard was convicted and sentenced on March 23, 1990.
Id. at 274. On June 22, 1994, this court issued its
decision in State v. Peete, 185 Wis.2d 4, 18-19, 517
N.W.2d 149 (1994), in which this court interpreted Wis.Stat.
§ 939.63(1)(a) (1989-90) differently than it had
previously been interpreted by incorporating a new element.
Because this court's interpretation of §
939.63(1)(a) (1989-90) incorporated a new element that was
not part of the jury instructions read to the jury in
Howard, unlike Trammell, Howard did not waive his
objection because he could not have known about the
Peete holding at the time the jury instruction and
verdict conference occurred. Howard, 211 Wis.2d at
This court concluded that Howard did not waive his objection
to the two jury instructions, holding that he could only
waive objections "which he knew or should have
known" at the time of the jury instruction and verdict
conference. Id. at 289. Citing Wis.Stat. §
805.13(3) (1989-90), this court stated as follows:
Here, Howard and his counsel in 1990 had no way to know how
this court would construe Wis.Stat. § 939.63 [1989-90]
by the time it decided Peete in 1994. We agree that
Howard's counsel had an obligation to object at the
instructions conference based on incompleteness or other
error about which he knew or should have known. We cannot
agree that Howard's counsel could have stated grounds for
an objection "with particularity," based on the
absence of a nexus element and corresponding instruction.
Howard has not waived this issue.
Id. (citation omitted).
Howard is distinguishable from this case. Here, we
are not confronted with a subsequent case which changed the
elements of the crime with which Trammell was charged.
Instead, Trammell's argument is based purely on law
review articles which incorporate the authors'
non-peer-reviewed "scientific" studies. In fact,
the arguments Trammell makes are indeed known as they are
referenced in the jury instruction comments to Wis JI-
Criminal 140. The circuit court has the authority to modify
the language, and the comment to the jury instruction even
provides optional language. State v. Burris, 2011 WI
32, ¶24, 333 Wis.2d 87, 797 N.W.2d 430 (citing
Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112,
¶50, 246 Wis.2d 132, 629 N.W.2d 301; State v.
Lohmeier, 205 Wis.2d 183, 194, 556 N.W.2d 90 (1996))
("We examine the challenged jury instructions in light
of the proceedings as a whole, keeping in mind that circuit
courts have broad discretion in deciding which instructions
to give."); Wis JI-Criminal 140, cmt. at 5. But no one
requested any such modification and the circuit court was not
required to modify the instruction.
Unlike Howard, Trammel's post-conviction challenge to the
reasonable doubt jury instruction could have been made at
trial. While the two law review articles Trammell claims
support his position were published after his conviction,
that fact alone does not render his objection
"unknowable" at the time of the conference. The
language now in question has been used, in its current form,
for decades and has been the subject of constitutional
challenges in the past. See Wis JI-Criminal 140,
cmt. at 2-5. We therefore conclude that Trammell waived his
objection to the use of Wis JI-Criminal 140 by failing to
object at the jury instruction and verdict conference, as
required by Wis.Stat. § 805.13(3).
While the court of appeals correctly concluded that its
analysis ended with Trammell's waiver of his objection to
Wis JI-Criminal 140, we choose to continue our analysis. As
this court has stated, the court of appeals has no power to
reach an unobjected-to jury instruction because the court of
appeals lacks a discretionary power of review.
Schumacher, 144 Wis.2d at 409-10. However, this
court possesses a discretionary power of review that it may
exercise when a matter is properly before this court.
Id. at 410 (citing State v. Strege, 116
Wis.2d 477, 492, 343 N.W.2d 100 (1984)). While we only
exercise our discretionary power of review in rare
circumstances, there is no dispute that this matter is
properly before us, and as this court exercised its
discretionary power of review in Schumacher to
examine the constitutionality of an unobjected-to jury
instruction, see id. at 409-10, we do so here.
Wisconsin JI-Criminal 140
We address Trammell's arguments regarding Wis JI-
Criminal 140. We begin by discussing the history of the
instruction. We then examine whether this court should
overrule Avila, and finally address Trammell's
contention that various parts of Wis JI-Criminal 140
unconstitutionally reduced the State's burden of proof
below the beyond-a-reasonable-doubt standard. We decline to
overrule Avila and conclude that Wis JI-Criminal 140
does not unconstitutionally reduce the State's burden of
proof so to deprive Trammell of Due Process.
History of Wis JI-Criminal 140
Wisconsin JI-Criminal 140 was originally published by the
Wisconsin Judicial Conference Criminal Jury Instructions
Committee (the "Committee") in 1962. The
original version was similar in all material respects to the
current version, and the instruction has undergone only minor
revisions in 1983, 1986, 1987, 1991, and 1994. Wis
JI-Criminal 140, cmt. at 2. It was republished in 2000
without any substantive change. Id. In light of
numerous United States Supreme Court and Wisconsin cases
addressing the substance of reasonable doubt jury
instructions, the Committee "has carefully reviewed Wis
JI- Criminal 140 several times." Id. It has
also reviewed other pattern jury instructions such as those
published by the Federal Judicial Center, and has concluded
that Wis JI-Criminal 140, as it has appeared for decades,
correctly states the law. Id. at 3-4. The Committee
noted that "several parts of the instruction have been
approved by the appellate courts," and that
"[r]ather than risk creating appellate issues by
significantly changing the instruction, the Committee decided
it was better to retain the original version."
Id. at 2-3.
In addition, the Committee has considered the two law review
articles by Cicchini and White that Trammell relies on in
this case. Id. at 5. The Committee stated that it
"received several inquiries about the phrase 'you
are to search for the truth, '" based on the law
review articles, and that "[a]fter careful
consideration, the Committee decided not to change the text
of the instruction." Id. In deciding not to
alter Wis JI- Criminal 140, the Committee relied in large
part on this court's holding in Avila, noting
that "[c]hallenges to including 'search for the
truth' in the reasonable doubt instruction have been