State v. Arrington
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The Supreme Court reversed the decision of the court of appeals reversing the decision of the circuit court convicting Defendant on the charge of first-degree intentional homicide with use of a dangerous weapon and being a felon in possession of a firearm, holding that Defendant's Sixth Amendment right to counsel was not violated.
At issue was whether Defendant's constitutional right to counsel was violated when a jail inmate secretly recorded conversations with Defendant and when the State admitted those recordings into evidence. The court of appeals reversed on grounds of ineffective assistance of counsel, concluding that trial counsel's failure to seek suppression of the recording fell below an objective standard of reasonableness. The Supreme Court reversed, holding that Defendant's Sixth Amendment right to counsel was not violated because Defendant was not acting as a State agent when he recorded his conversations with Defendant.
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2022 WI 53 SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2065-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Richard Michael Arrington, Defendant-Appellant. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 398 Wis. 2d 198, 960 N.W.2d459 PDC No:2021 WI App 32 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 1, 2022 March 10, 2022 Circuit Brown Timothy A. Hinkfuss JUSTICES: ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner, there were briefs filed by Sara Lynn Shaeffer, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sara Lynn Shaeffer. For the defendant-appellant, there was a brief by Suzanne L. Hagopian, assistant state public defender. There was an oral argument by Suzanne L. Hagopian. 2022 WI 53 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2065-CR (L.C. No. 2016CF516) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, v. JUL 1, 2022 Richard Michael Arrington, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant. ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REVIEW of a decision of the Court of Appeals. ¶1 PATIENCE DRAKE ROGGENSACK, J. appeals'1 decision reversing the Reversed. We review the court of circuit court's judgment of conviction of Richard Michael Arrington on the charge of firstdegree intentional homicide with use of a dangerous weapon pursuant to Wis. Stat. § 940.01 (2019-20),2 as well as being a State v. Arrington, 2021 WI App 32, 398 Wis. 2d 198, 960 N.W.2d 459. 1 2 All subsequent references to the Wisconsin Statutes are to No. 2019AP2065-CR felon in possession of a firearm under Wis. Stat. § 941.29.3 appeal, the arguing that right to State it asks did counsel us not to reverse violate when a court Arrington's jail conversations with Arrington. the inmate of On appeals, Sixth Amendment secretly recorded The State further argues that defense counsel's failure to object to the admission of the recordings as evidence against Arrington was not deficient performance and did not prejudice him, so as to warrant a new trial for ineffective assistance of counsel. ¶2 We conclude that Arrington's Sixth Amendment right to counsel was not violated because the jail inmate, Jason Miller, was not acting conversations with warranted because deficient and failure to as a State agent when Arrington. Further, Arrington's counsel's Arrington object to was the not a he new use his trial is not was not performance prejudiced State's recorded of by his the counsel's recordings. Accordingly, we reverse the decision of the court of appeals and affirm the circuit court's judgment of the convictions. I. ¶3 Arrington's BACKGROUND convictions stem from a shooting that occurred on April 2, 2016, and resulted in the death of Ricardo Gomez. The shooting itself was described as the culmination of the 2019-20 version unless otherwise noted. The Honorable Timothy A. Hinkfuss of Brown County Circuit Court presided. 3 2 No. a weeks-long feud between Arrington and a 2019AP2065-CR third individual, Rafeal Santana-Hermida, also known as "Shorty." ¶4 The feud began a few weeks before the shooting when a "drug deal [went] bad" and Arrington robbed Shorty at gunpoint, stealing Shorty's machine gun. Shorty responded by attacking Arrington through a car window with a knife, cutting his lip. At trial, witnesses testified that, following Shorty's attack, Arrington threatened to "[expletive] Shorty up" and stated that he was going to "handle his business." Another witness testified that Arrington was "highly upset" and had been seen carrying a machine gun. ¶5 On the day of the shooting, Shorty and his girlfriend were at Craig Taylor's house. Taylor testified that he had seen Arrington in a car near his house and was worried that he wanted to kill Shorty. Arrington was circling the block in his car and looked "like he was hunting." Taylor further testified that Arrington "had that look in his eye like he wanted to kill something." A separate witness, Lawrence Hawkins, came and left Taylor's house prior to the shooting. Hawkins testified that when he left Taylor's house, he saw Arrington parked across the street. Arrington asked him if Shorty was inside and Hawkins responded that he did not know. When he walked away, Hawkins called Taylor and told him that Arrington was outside asking about Shorty. ¶6 In the moments immediately preceding the shooting, Ricardo Gomez arrived at Taylor's house. Gomez walked up to the front standing door and told Shorty, who 3 was in the open No. 2019AP2065-CR doorway, that someone was "outside looking for him." According to Taylor, Arrington began shooting into the doorway as soon as he saw Shorty. Taylor testified that he "was right there when the bullets hit [Gomez]" and that he saw Gomez fall onto Shorty after being hit. Taylor further asserted that he did not see Shorty with a gun and Shorty "never reached for [anything]." ¶7 Two other witnesses, AVT4 and David Landrum, were in the car with Arrington on the day of the shooting. AVT, who was seated car, stated that exchanged words with in Arrington the front rolled passenger down her seat window of and the Shorty. Then Arrington started "shooting a gun right by [her] face." AVT testified that a "shell hit me in my head, and [Arrington] told me to shut up." She also never saw Shorty shooting at the car and explained that if Shorty had returned fire, she likely would have been hit in the process because she "was sitting right there." She asserted that "[t]here was no gun [that] came out [of] that house . . . ." This assertion was confirmed by a thorough police search of Taylor's house, the people in Taylor's house, and the neighborhood that revealed no firearms. ¶8 Following the shooting, AVT said she told Arrington that she wanted to get out of the car, and he responded, "you on a murder case with me now, you ain't going nowhere." She testified that Arrington threatened to kill her and her family Pursuant to Wis. Stat. § (Rule) 809.81(8), pseudonym when referring to the juvenile witnesses. 4 4 we use a No. if she spoke to the police. clothes and shooting. clean the car 2019AP2065-CR He also told her to burn her that they used the day of the AVT stated that Arrington later approached her in a different car and ordered her to get in. He had a gun in his lap and was wearing a mask and latex gloves. He threw her phone out the window of the car and drove her around for the night while threatening to "ice her" if she left. She woke up alone in the car the next morning and ran. ¶9 Eugene and Erica Herrod testified that the night of the shooting, Arrington came to their home and used bleach to clean his hands, face, and hair. He told them that he had "popped" for someone and told Eugene Arrington However, upon later asked Eugene that learning he had that a ride "fanned he had to Milwaukee. Shorty killed the down." wrong person, Arrington told Eugene that he would come back and "get that [expletive] Shorty and finish my job." Arrington testified that after the shooting, he changed his hair and appearance to try to hide from law enforcement. ¶10 After Arrington turned himself in, he was charged and brought to Brown County jail. already made his initial While he was in custody, and had appearance with counsel, Arrington began having conversations with another inmate, Jason Miller. Miller used a recording device given to him by law enforcement, to record recordings, his conversations Arrington made with Arrington. incriminatory statements In these regarding his on-going feud with Shorty and his role in the shooting of Gomez. 5 No. ¶11 2019AP2065-CR Finally, almost a year after the shooting, Arrington requested an interview with Detective Brad Linzmeier. In this interview, Arrington suggested, for the first time, that his shooting was in self-defense. Regarding his earlier feud with Shorty, Arrington claimed to have nothing to do with the machine gun robbery and explained that he was seeking to give Shorty money as repayment for through the car window. the robbery when Shorty stabbed him On the day of the shooting, Arrington claimed that the only reason he began to shoot was because he saw Shorty reaching into his waistband. claimed to have fired only at the porch. Even then, Arrington Arrington said that Shorty, after ducking out of the way of Arrington's bullets, fired a single shot in response to Arrington and hit Gomez. Linzmeier testified that this was the first time that he heard about Shorty having a handgun and shooting Gomez. ¶12 The case proceeded to a jury trial, which lasted six days and saw a total of forty-two witnesses testify. At trial, the State introduced the recorded evidence that it received from Miller in addition to the statements of witnesses relayed above. Defense counsel acknowledged to the court that he had the recordings "for quite some time" and had reviewed them "long before trial." admission. He told the court he had "no objection" to their He did, however, object to providing a transcript to the jury, which objection was sustained. ¶13 Miller testified that, before he and Arrington began speaking, he had been helping law enforcement with an unrelated homicide investigation. Specifically Miller had been gathering 6 No. information explained on a that conversations defendant Arrington by asking named was him to Antwon the one read the 2019AP2065-CR Powell. who Miller began criminal their complaint against him and asking whether "there was enough there." ¶14 Miller testified that, following their initial conversation about the complaint, he and Arrington spoke about the events of the shooting at Taylor's house. Arrington told Miller that, upon seeing Shorty, all he could think about was Shorty stabbing However, him, Arrington and then confessed he that "just "when got he to got shooting." to shooting, Shorty jumped back, and when he jumped back, it hit [Gomez]." Miller also testified that, over the course of their conversations, Arrington never mentioned that he saw Shorty with a gun in his hand or that he saw Shorty shoot Gomez. ¶15 Later, Miller asked Arrington if Shorty was "acting like a beast?" And Arrington replied, "Yeah, that's what added fuel to the fire," and that Shorty was "acting like a gorilla." Miller told Arrington that his aim "ain't shit" because when he shot at Shorty, Arrington "hit the other [expletive]." Arrington replied that he "just dumped the crib down" because he did not know if Shorty would come back and retaliate. ¶16 Later in the trial, denied feuding with Shorty. Arrington took the stand and Arrington testified that he forgave Shorty following the stabbing and, contrary to other witness testimony, was not upset at Shorty. Similarly, Arrington explained that he was at Taylor's house the day of the shooting only because Landrum wanted to get some marijuana. 7 When Shorty No. saw Arrington, Shorty started "going 2019AP2065-CR crazy." Arrington testified that he thought he saw Shorty reach for a gun, but that he actually didn't see a gun. In Arrington fired three shots at the house. response to this, As he drove away, Arrington explained that, what he saw was "Shorty come around the door with the gun in his hand at the same time that [Gomez] . . . was coming into the house, and what it looked like to me was that Gomez had been shot by [Shorty]." ¶17 Following the shooting, Arrington denied doing anything that would incriminate him in Gomez's shooting, and he dismissed significant testimony to the contrary. Arrington denied speaking with Erica bleach after "popping" someone. Herrod For example, and asking for He denied having any contact with AVT following the shooting, let alone kidnapping her. described AVT's testimony as "all lies." He When asked why Eugene Herrod testified that Arrington told him that he "got the wrong guy but I'm going to come back and finish the job and get Shorty," Arrington replied, "I don't know why Eugene told you guys that." Arrington also agreed when the State asked him whether it "sound[ed] like a lot of people are making stuff up." ¶18 The jury convicted Arrington on both the first-degree intentional firearm. homicide After and being obtaining postconviction relief. new a felon counsel, in possession Arrington of moved a for He asserted that the State violated his Sixth Amendment right to counsel when it used Miller to obtain recorded conversations represented by counsel. after he had been charged and was Arrington argued that the introduction 8 No. 2019AP2065-CR of those statements was plain error, entitling him to a new trial. Alternatively, he sought a new trial, asserting that his attorney's failure to object to Miller's recordings at trial constituted ineffective assistance of counsel. ¶19 The circuit court held a Machner5 hearing during which Arrington, his trial counsel, Michael Hughes, Michael J. Wanta and Linzmeier testified. and Detectives Hughes re-affirmed that he had the recordings for "quite some time" before trial and did not consider moving to suppress the recordings. The circuit court also heard testimony from the detectives regarding the origin of Miller's involvement in Arrington's case. ¶20 Wanta testified that Miller was assisting him on the Powell homicide case. meeting, Miller conversations Wanta testified that, in an April 6, 2016 had that expressed he was an having interest with the identified [in regards to the Powell case]. that the detectives would help in "recording parties that we Wanta told Miller "facilitate that. And the information he [gathered] would . . . be used as part of his consideration." This conversation occurred before Arrington had turned himself in on April 8, 2016. relationship investigation to any into investigation Arrington Accordingly, it had zero into existed at Arrington that because time. no Indeed, Wanta explained that he was not "aware of any possibility of See State (Ct. App. 1979). 5 v. Machner, 92 9 Wis. 2d 797, 285 N.W.2d 905 No. Mr. Miller's speaking to Mr. Arrington during 2019AP2065-CR [the] April 6 meeting[.]" ¶21 about Following Arrington's custody, Miller approached Wanta recording request to Arrington. speak with law Wanta became enforcement aware about of Miller's Arrington Miller's attorney contacted the District Attorney's office. when The District Attorney's office passed the request onto Wanta, who met with Miller at the jail. Miller told Wanta that Arrington "was talking with him and he believed that Mr. Arrington would tell him things about the case and he asked if he should record it. I said he could record conversations with Mr. Arrington." The detectives also testified that they told Miller, "if you want to record the conversation you can." Miller was never instructed that he should record Arrington. ¶22 Wanta was aware that Miller was seeking consideration for gathering information on Arrington, but testified that he made it "very clear from the start" that he would "not get involved in specifics regarding consideration" because that "comes from the District Attorney." There was never an offer of consideration to from law gathered on Arrington.6 enforcement Miller for information Wanta also explained that he did not Any indication or inference that the April 6 discussion of consideration for information gathered in the Powell case was tantamount to an offer of consideration for information gathered on Arrington's case is factually incorrect and purposefully misleading. The police did not assure Miller that information he gathered on Arrington "would . . . be used as part of his consideration." Linzmeier and Wanta, as instructed by their standard practice and training, were straightforward and "very clear from the start" that they would not speak to Miller about 6 10 No. 2019AP2065-CR give any direction to Miller regarding the types of information he should record or what type of questions he should ask Arrington. ¶23 Wanta testified that law enforcement provided Miller with the recording device and that there was no way "to monitor it or listen to this particular device. It is a matter of basically flipping a switch on the side of it on and off." They could not listen "in live-time," and only Miller had the ability to turn the recorder on and off. Miller made the recording that was played at trial on April 13. There is no support in the record for any agreement between Wanta and Miller that Miller acted as the State's agent when he made that recording. ¶24 acting The postconviction court concluded that Miller was not as an conversations agent with for the Arrington. State when Therefore, Amendment right to counsel was not violated. he recorded Arrington's his Sixth In the course of its decision, the court made numerous findings of fact. First, the court found that the "State did not put Mr. Miller and Mr. Arrington together in Fox Pod. It was a coincidence." It also found that "[t]he police never approached Mr. Miller about consideration or make promises of consideration to Miller for any information Miller provided on Arrington. No conversation regarding consideration for Miller's work on the Arrington case occurred. In the postconviction motion hearing, Wanta was asked whether "Mr. Miller ask[ed him] specifically for consideration in this case?" Wanta replied, "Not any specific consideration." Later Linzmeier was also asked if "[he] ever [spoke] to Mr. Miller about any consideration?" Linzmeier replied, "No, not specifics of anything." 11 No. recording Mr. Arrington." 2019AP2065-CR Rather, it was Miller's attorney that spoke to the District Attorney's office "about him voluntarily contributing information to the police" and that this was what prompted the police to "have a discussion with him" in the Arrington investigation. ¶25 Furthermore, "before making any recordings, Mr. Miller voluntarily asked the police if he should record any information from Mr. Arrington, and the detective informed him that he could record such conversations." And although the police were aware that Miller was seeking consideration for gathering information on Arrington from the District Attorney's office, "they made no promises to Mr. Miller that the fact that he was giving information would lead to a reduced sentence." ¶26 It was Miller who was "wearing a wire that he could turn on and off on his own initiative." to Miller about his case "without Arrington began talking Mr. Miller prompting the conversation" and law enforcement "could not listen in on any conversation, and had not told what questions Mr. Miller should ask Mr. Arrington." Law enforcement personnel have "no affirmative duty to keep Mr. Miller away from Mr. Arrington when they knew Mr. Miller was assisting with another case" and it is not their responsibility "to protect defendants from their own 'loose talk.'" The postconviction court closed by explaining that, each although insufficient to of disprove the facts agency, on "all its the own points certainly show that Mr. Miller was not an agent." 12 is likely together No. ¶27 2019AP2065-CR The postconviction court also concluded that there was no ineffective assistance of counsel based on its decision about the Sixth Amendment. It further found that the conversation between Arrington and Miller was not prejudicial or ineffective but "consistent with the defendant's version of events. The statements bolster[ed] defendant's self-defense claim." ¶28 The court of appeals reversed the circuit court and granted Arrington a new trial. The court concluded that the conduct of the detectives in equipping Miller with a recording device was prohibited by the United States Supreme Court and Wisconsin case law and that the State "violated Arrington's Sixth Amendment right to counsel when Miller made the recordings of conversations with Arrington while acting as an agent of the State." State v. Arrington, 2021 WI App 32, ¶2, 398 Wis. 2d 198, 960 N.W.2d 459. ¶29 To support this conclusion, the court of appeals noted that the detectives' decision to equip Miller with a recording device and expressly authorize him to surreptitiously record his conversations relationship. with Id., Arrington ¶36. clearly Further, the showed an agency detectives' actions "violated the Sixth Amendment because they created a situation likely to induce Arrington to make without his counsel's assistance." incriminating statements Id. (citing United States v. Henry, 447 U.S. 264, 274 (1980)). ¶30 After Arrington's appeals concluding Sixth also Amendment concluded that that right the to detectives counsel, Arrington's 13 trial the violated court counsel of was No. ineffective. 2019AP2065-CR It concluded that trial counsel's "failure to seek suppression of the recording, or to object to Miller's testimony at trial, for no strategic reason, fell far below an objective standard of reasonableness." Arrington, 398 Wis. 2d 198, ¶44. It also concluded that, had the tapes not been admitted into evidence, "there would have been sufficient questions regarding whether Arrington was acting in self-defense so as to raise a reasonable charge." ¶31 remanded doubt about Arrington's guilt on the homicide Id., ¶48. Accordingly, the matter the for a court new of trial appeals on the reversed homicide and charge without the use of the recordings and Miller's testimony about his jailhouse conversations with Arrington.7 State's petition for review, and now reverse We granted the the court of appeals. II. A. ¶32 DISCUSSION Standard of Review Arrington asks us to review the State's admission of Miller's recordings at trial under the plain error doctrine or, alternatively, for a determination that he received ineffective assistance of counsel. Under the doctrine of plain error, an appellate court may review error that was otherwise waived by a party's failure to object properly or preserve the error for Arrington conceded that, regardless of the violation of his Sixth Amendment rights or his counsel's deficient performance, reversal of his felon in possession of a firearm charge was not warranted. Arrington, 398 Wis. 2d 198, ¶48. 7 14 No. review as a matter of right. State v. Mayo, 2007 WI 78, ¶29, 301 Wis. 2d 642, 734 N.W.2d 115. the plain error 2019AP2065-CR doctrine We do not remedy errors under unless they are "obvious and substantial[,]" and "so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time." State v. Bell, 2018 WI 28, ¶8, 380 Wis. 2d 616, 909 N.W.2d 750 (quoting State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77). ¶33 The "plain violation of his "involves the historical facts." error" Sixth that Amendment application State of v. Arrington asserts is right counsel, which to constitutional Forbush, 2011 principles WI 25, ¶10, a to 332 Wis. 2d 620, 796 N.W.2d 741 (quoting State v. Hoppe, 2003 WI 43, ¶34, 261 Wis. 2d 294, 661 N.W.2d 407). We have adopted a two- part standard of review for questions of constitutional fact. Forbush, 332 Wis. 2d 620, ¶10. findings of historical clearly erroneous. 358, 752 N.W.2d application of or We uphold the circuit court's evidentiary fact unless they are State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 748. We then constitutional independently principles to the review facts the found. State v. Ward, 2009 WI 60, ¶17, 318 Wis. 2d 301, 767 N.W.2d 236. In addition, we independently review as a question of law whether the undisputed facts establish an agency relationship. Lang v. Lions Club of Cudahy Wis., Inc., 2020 WI 25, ¶20, 390 Wis. 2d 627, 939 N.W.2d 582. ¶34 Furthermore, a claim of ineffective assistance counsel presents a mixed question of law and fact. 15 of State v. No. 2019AP2065-CR Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. We will uphold the circuit court's findings of fact unless they are clearly erroneous. Id. Findings of fact include the circumstances of the case and counsel's conduct and strategy. Id. (citing State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305). Whether counsel's performance satisfies the constitutional standard for effective assistance of counsel is a question of law, which we independently review. Carter, 324 Wis. 2d 640, ¶19. B. ¶35 Sixth Amendment The Sixth Amendment of the United States Constitution guarantees that "the accused shall enjoy . . . the Assistance of Counsel for his defense."8 Constitution similarly In full, the Constitution reads: 8 Article I, Section 7 of the Wisconsin guarantees Sixth that Amendment of "[i]n the all United criminal States In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. U.S. Const. amend. VI. The Supreme Court applied the Sixth Amendment right to counsel to the states through incorporation by the Due Process Clause of the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335 (1963). 16 No. 2019AP2065-CR prosecutions the accused shall enjoy the right to be heard by himself and counsel."9 the Sixth Amendment Generally, "the right to counsel under [of the United States Constitution] and Article I, Section 7 [of the Wisconsin Constitution] 'attaches only at or after the time that adversary judicial proceedings have been initiated against [a defendant].'" Forbush, 332 Wis. 2d 620, ¶15 (quoting United States v. Gouveia, 467 U.S. 180, 187 (1984)); see also State v. Sanchez, 201 Wis. 2d 219, 226, 548 N.W.2d 69 (1996) (concluding that the Article I, Section 7 of the Wisconsin Constitution right to counsel does not create a right different from the Sixth Amendment right to counsel). 1. ¶36 In government Historical facts concluding agent postconviction at court that the made Miller time several of was the relevant In full, Article I, Section 7 Constitution, "Rights of accused," reads: 9 not acting as recordings, findings of the of 17 the fact. Wisconsin In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law. Wis. Const. art. I, § 7. a No. 2019AP2065-CR Initially, it found that Arrington was not the target of law enforcement's initial investigation and that it was a coincidence that Miller and Arrington ended up being in the same facility. It also found that Arrington was the person who prompted the initial conversation between him and Miller. It was after that initial conversation that Miller, through his attorney, approached law enforcement about contributing information by recording Arrington. what prompted law enforcement to consider voluntarily This offer was using Miller in Arrington's investigation. ¶37 Furthermore, the court found that Miller was under no obligation to record the conversations. Miller that "he could record such The detectives told conversations." The detectives did not tell Miller what questions to ask Arrington and the detectives could not listen in on any conversations. Miller wore a recording device "that he could turn on and off on his own initiative." ¶38 seeking And although the detectives were aware that Miller was consideration for gathering information on Arrington from the District Attorney's office, "they made no promises to Mr. Miller that the fact that he was giving information would lead to a reduced sentence." The circuit court found that "Miller was acting with the hope that the prosecutors in his case would give him a more lenient sentence[.]" ¶39 The postconviction court held a hearing during which it heard testimony from the detectives and Arrington regarding both parties' dealings and interactions 18 with Miller. Upon No. 2019AP2065-CR review of the record, we conclude that the factual findings of the postconviction court are supported by the record and are, therefore, not clearly erroneous. 2. ¶40 Once the Constitutional principles right to counsel asserted, the State must honor it. 159, 170 (1985). has attached and been Maine v. Moulton, 474 U.S. In a seminal Sixth Amendment case, Massiah v. United States, the United States Supreme Court established that the Sixth Amendment prohibits the government from deliberately eliciting absence incriminating of counsel, statements after the from a defendant defendant, has been in the indicted. Massiah v. United States, 377 U.S. 201, 206 (1964). ¶41 In United States v. Henry, the FBI sought information on a suspected bank robber, Henry, and reached an agreement with Henry's cellmate, Nichols, to be a paid informant. U.S. at 266. The FBI told Nichols to "be Henry, 447 alert to any statements" made by Henry, but not to initiate any conversation with or question Henry regarding the bank robbery. Id. The arrangement between Nichols and the FBI was on a "contingent-fee basis; Nichols information." was to be paid Id. at 270. only if he produced useful Nichols was later released from prison and was paid for the information he provided. Id. at 266. ¶42 In determining whether Nichols "deliberately elicited" incriminating concluded First, statements, that "Nichols three was the United factors were acting under 19 States Supreme important. instructions Court Id. at 270. as a paid No. 2019AP2065-CR informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment conversation by Nichols." at Id. the time he was engaged in These factors, when combined, "intentionally creat[ed] a situation likely to induce Henry to make incriminating statements without the assistance of counsel, [and therefore,] counsel." ¶43 violated Henry's Sixth Amendment right to Id. at 274. In Moulton, the United States Supreme Court concluded that law enforcement violated the defendant's rights when it arranged to record conversations between the defendant and its informant, Colson. Moulton, 474 U.S. at 176. As part of his arrangement with police, Colson agreed that, in exchange for "no further "testify charges [being] against Moulton brought and against otherwise him[,]" cooperate prosecution of Moulton on the pending charges." ¶44 he would in the Id. at 163. The police had Colson record his phone conversations with the defendant, and then after learning from these phone recordings that Colson planned to meet with the defendant inperson, told Colson to wear a recording device to the meeting. Id. at 164-66. At the meeting, Colson actively questioned the defendant about facts and dates of the crime, in response to which the defendant made incriminating statements. 66. Id. at 165- These statements then were used at the defendant's trial that resulted in a conviction. Id. at 177. The Court held that the State had deliberately elicited the statements by "knowingly circumventing the accused's right to have counsel present in a 20 No. 2019AP2065-CR confrontation between the accused and a state agent." Id. at 176. ¶45 In Kuhlmann v. Wilson, 477 U.S. 436, 439 (1986), detectives reached an agreement with the defendant's cellmate to be an informant. The detectives told the cellmate not to ask questions, but rather to simply "keep his ears open" to what the defendant said. Id. The defendant made incriminating statements which the informant reported to police. Id. The United States Supreme Court held that the Sixth Amendment does not forbid "admission in evidence of an accused's statements to a jailhouse informant who was 'placed in close proximity but [made] no effort charged.'" The Court to stimulate conversations about the crime Id. at 456 (quoting Henry, 447 U.S. at 271 n.9). concluded "demonstrate that that the the police defendant and their in Kuhlmann informant did took not some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." ¶46 Kuhlmann, 477 U.S. at 459. From these cases, courts have determined that in order to find a Sixth Amendment violation, "the statements in question must have agent." Here, been (1) deliberately elicited (2) by a government United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995). there is no dispute information from Arrington.10 that Miller deliberately elicited Therefore, we turn next to the second prong of the Sixth Amendment analysis, whether Miller was Miller had conversations with Arrington about his case, recorded those conversations, and gave the recordings to law enforcement for use in Arrington's trial. 10 21 No. 2019AP2065-CR acting as a government agent when he recorded his conversations with Arrington. ¶47 We conclude that he was not. Initially, a brief review of general agency principles will be helpful to our discussion.11 We note that "a person or business acting on behalf of another, and subject to control of another, is an agent and the person or business they are acting on behalf of, a principal." ¶48 An between the elements: agency Lang, 390 Wis. 2d 627, ¶25. relationship principal and is based agent that on an agreement expresses three "(1) the conduct of the principal showing that the agent is to act for him or her; (2) the conduct of the agent showing that he or she accepts the undertaking; and (3) the understanding of the parties that the principal is to control the undertaking." City of Milwaukee v. NL Indus., 2008 WI App 181, 315 Wis. 2d 443, 485, 762 N.W.2d 757 (quoting Wis JI——Civil 4000). question At times, the existence of an agency relationship "is a of fact because the determination turns on understanding between the alleged principal and agent.'" 'the Lang, 390 Wis. 2d 627, ¶20 (citing Soczka v. Rechner, 73 Wis. 2d 157, 163, 242 N.W.2d 910 (1976)). ¶49 "The agent's duty is to act solely for the benefit of the principal in all matters connected with the agency, even at the expense of the agent's own interests." Losee v. Marine Although we acknowledge that, in prior Sixth Amendment "state agent" precedents, the United States Supreme Court has used a more specific, nuanced analysis to determine agency status, we include this discussion of common law agency principles for a fuller understanding of the concept as a whole. 11 22 No. 2019AP2065-CR Bank, 2005 WI App 184, ¶16, 286 Wis. 2d 438, 703 N.W.2d 751. Generally, an agent has the duty to obey all reasonable directions as to its manner of performing the service it has agreed to perform. (1958). See Restatement (Second) of Agency § 385 "What matters in forming an agency relationship is that the principal has the right to control that conduct." Lang, 390 Wis. 2d 627, ¶30. ¶50 In the specific context of examining the work of a government informant for purposes of an alleged Sixth Amendment violation, [Sixth federal Amendment] courts have infringement determined unless that the "there informant is no was a government agent, and there is no agency absent the government's agreement to reward the informant for his services." United States v. York, 933 F.2d 1343, 1357 (7th Cir. 1991), overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999); see also Henry, 447 U.S. 26 at 270. In York, an inmate, Beaman, reported to FBI that his cellmate, York, had confessed to murdering his wife. York, 933 F.2d at 1355. Beaman had been acting as a prison informant for the FBI for years prior, but the FBI did not purposefully place him in the same cell as York to gather information. Id. at 1356. The FBI learned of York only when Beaman came to them with York's confessions. ¶51 Id. After Beaman reported the confessions, the FBI told him that they wanted him to gather more information on specific crimes: murder, official corruption, and drug offenses. Id. The FBI also conceded that there was an agreement with Beaman to assist his parole application by detailing the extent of his 23 No. 2019AP2065-CR cooperation with the government on York's case. Id. at 1358. The Court concluded that, as a matter of law, Beaman had acted as an agent on behalf of the government. the relevant question was whether Id. the It concluded that FBI "told Beaman to collect information" and specifically noted that FBI agent Stoll "told Beaman the type of information he was interested in receiving; that statement was tantamount to an invitation to Beaman to go out and look for that type of information." ¶52 The Court further explained that, in Id. deciphering whether an agreement between law enforcement and an inmate is formed, "[w]e must not confuse speculation about [an informant's] motives for assisting the police for evidence that the police promised [the informant] consideration for his help or, otherwise, bargained for his active assistance." Id. at 1357 (quoting Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th Cir. 1987), cert. denied, 488 U.S. 934, 109 S. Ct. 329 (1988)). Undoubtedly, "most inmates who provide information to law enforcement officials harbor the hope that their service will not go unrewarded[;]" however, just because "inmates realize there is a market for information about crime does not make each inmate who enters the market a government agent." Id. "[T]here is no agency absent the government's agreement to reward the informant for his services." ¶53 Id. Furthermore, federal courts have also concluded that agency status is particularized to specific defendants. "[A]n informant becomes a government agent for purposes of [Massiah] only when the informant has been instructed by the police to get 24 No. information about the particular defendant." 2019AP2065-CR Moore v. United States, 178 F.3d 994, 999 (8th Cir. 1999) (quoting United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997)). In Moore, the defendant, Moore, had been arrested for bank robbery and placed in jail awaiting trial. Moore, 178 F.3d at 997. At trial, Hartwig, a prisoner housed in the same cellblock with Moore, testified for the government as to conversations he overheard while in jail, in which Moore admitted his crimes. ¶54 Id. Importantly, during the same timeframe that Moore was admitting to his crimes in jail, Hartwig had received and signed a letter from the United States Attorney Office agreeing to "provide an informal proffer of information knowledge of drug-related criminal activity." concerning Id. at 999. his "The stated purpose of the meeting was to assist the government 'in determining what, if any, consideration should be afforded [Hartwig] in exchange for [his] agreement to provide information or other cooperation[.]'" regarding Moore's Id. admissions Hartwig revealed his information in his next statement enforcement, as required under the proffer agreement.12 to law Moore argued that Hartwig was a government agent and, therefore, his "A proffer agreement is an agreement between a defendant and the government in a criminal case that sets forth the terms under which the defendant will provide information to the government during an interview, commonly referred to as a 'proffer session.'" Robert I. Smith, III, Fair Play and Criminal Justice: Drafting Proffer Agreements in Light of Total Waiver of Rule 410, 66 S.C. L. Rev. 809, 812 (2015) (quoting 1 Stephen E. Arthur & Robert S. Hunter, Federal Trial Handbook: Criminal § 31:3 (4th ed. 2014)). 12 25 No. 2019AP2065-CR testimony regarding the jailhouse admissions ran afoul of his Sixth Amendment rights. ¶55 The Court disagreed and reaffirmed that an informant becomes a government agent only when law enforcement instructs the informant to gather information on a particular defendant. Id. "To the extent there was agreement between Hartwig and the government, there is no evidence to suggest it had anything to do with Moore." Id. Rather, the proffer served as evidence that Hartwig was willing to disclose pertinent criminal activity in hopes of receiving a more favorable plea agreement. rejecting that Moore's "the link Sixth Amendment between claim, Hartwig's the In concluded with the was insufficient to be considered a Massiah violation against Moore. ¶56 court relationship government and his conduct at issue" Id. Id. at 999–1000. The Eighth Circuit doubled down on this particularized agency analysis in United States v. Johnson, 338 F.3d 918, 921 (8th Cir. 2003) ("There is nothing obscure about this language. . . . we said that an informant becomes a government agent for Massiah purposes only when the informant has been instructed by the police to get information about a particular defendant.") (emphasis in original). The district court in Johnson concluded that agency was established, even in the "absence of express instructions particular arising from the defendant[,] from a government 'by to proof longstanding relationship"' with the government." 26 get of an information implicit about a agreement informant's . . . "symbiotic Id. at 922. No. ¶57 The instead, Eighth described informant has Circuit Moore not been rejected as a this analysis "bright-line instructed by 2019AP2065-CR rule[:] the police and, If to an get information about the particular defendant, that informant is not a government agent for Massiah purposes." Id. The Court concluded that Moore's language could not be "explained away." Id. ¶58 Likewise, the Wisconsin Court of Appeals concluded that both (1) proof of an agreement between law enforcement and the informant and (2) law enforcement control over the investigation are necessary to a conclusion that the informant was a state agent. Wis. 2d 536, 781 State v. Lewis, 2010 WI App 52, ¶¶21-25, 324 N.W.2d 730. In Lewis, an inmate, Gray, approached police with information on his cellmate, Lewis, who was awaiting trial on robbery charges. Id., ¶4. Law enforcement had not placed Gray in the cell with Lewis and had no knowledge of Gray until he approached them with information. Id., ¶8. without Gray testified that Lewis volunteered the information prompting, id., ¶10, and "admitted that no law enforcement agency or officer ever promised anything to him in exchange for him providing information." Id., ¶9. He said he came forward "in the hope that the government would take his willingness to inform into account." Id. The circuit court found that it was a "unilateral decision by Gray to volunteer this information." ¶59 motion Id., ¶15. After being convicted, Lewis filed a postconviction arguing that Gray's testimony 27 violated his Sixth No. Amendment right to counsel. as a government creates agent, circumstances Id., ¶7. Lewis argued "whereby a 2019AP2065-CR Regarding Gray's status that person if the government predisposed toward giving information in the hope of a possible reward is in a jailhouse when setting, . . . that information control or no is predisposed retrieved, control." Id., person agreement ¶21. The or is no court an agent agreement, of appeals disagreed and concluded that there was no agreement between law enforcement and Gray. Id., ¶23. The court explained that "the key issue is the extent of government involvement. government pays the informant, it is evidence When the (although not conclusive) that a prior agreement between the government and the informant existed, whether that agreement was explicit or implicit." Id., ¶22 (quoting United States v. Surridge, 687 F.2d 250, 254 (8th Cir. 1982)). "The fact that the government might know an informant 'hopes' to receive a benefit as a result of providing information does not translate into an implicit agreement[.]" ¶60 Lewis, 324 Wis. 2d 536, ¶23. The court refused to "extend the rule of Massiah and Henry to situations where an individual, acting on his [or her] own initiative, deliberately elicits incriminating information." Id. (quoting United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982)). It held that "[a]s long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the . . . [S]ixth Amendment[]." 536, ¶25 (quoting Surridge, 687 F.2d at 255). 28 Lewis, 324 Wis. 2d No. ¶61 2019AP2065-CR Here, the circuit court found that Miller voluntarily came to law enforcement and asked whether he could record his conversations with Arrington. Rather than directing Miller to speak with Arrington, the detectives simply told Miller, "if you want to record the conversation you can." Lewis, Miller information made to a law unilateral Like the informant in decision enforcement. Miller to volunteer acted on his his own initiative. ¶62 by the Additionally, Miller was not paid or promised payment detectives for gathering information on Arrington. Although not conclusive, payment is evidence of an agreement between law enforcement and an informant. In Henry, one of the Supreme Court's factors for determining that an inmate was a government agent was that he was a paid informant. See Henry, 447 U.S. at 270 ("First, Nichols was acting under instructions as a paid informant for the Government[.]"). 474 U.S. against at 163 defendant exchange for no (describing and cooperate further (describing agreement application by Colson's charges); with detailing in FBI his agreement police York, to See also Moulton, to testify investigation 933 assist F.2d at Beaman's cooperation in York in 1359 parole case). Conversely, in Lewis, the court of appeals concluded that an informant's "hope" that his services would be rewarded was not enough to form the basis of an implicit agency agreement. Something more is needed. ¶63 promises Here, to the Miller detectives regarding 29 were very clear consideration to for make no gathering No. information on Arrington. 2019AP2065-CR They told Miller that any payment or consideration would come from the District Attorney's office. On this basis, the circuit court found that "Miller was acting with the hope that the prosecutors in his case would give him a more lenient sentence[.]" As with the court's conclusion in Lewis, we similarly refuse to extend the application of Sixth Amendment to instances where an individual is acting on his own initiative to deliberately elicit information in the hope of receiving consideration. Miller's decision to entrepreneurially enter the information marketplace did not transform him into a government agent. For Miller to be a government agent, there must have been a prior agreement with the government. there was a promise of consideration whether there was a prior agreement. is strong Whether evidence of No consideration was ever promised to Miller for gathering information on Arrington. ¶64 Moreover, to the extent that Miller had an agreement regarding Powell consideration case, there for is no information evidence anything to do with Arrington. to he gathered suggest that on the it had Moore, 178 F.3d at 999 (setting out particularized agency determination); Johnson, 338 F.3d at 922 (describing Moore's "bright-line rule"). particularized agency analysis as a The alleged agreement and the statement that the information he gathered "would . . . be used as part of his consideration" Powell case. Arrington was was particularized Furthermore, in police the custody; and concerned statement and only occurred therefore, it before Miller had the opportunity to talk with Arrington. 30 the before occurred No. ¶65 As timeframe the is information court not in enough gathered on Moore to one explained, impute case an as an information gathered on a separate case. 2019AP2065-CR even the close agreement regarding agreement regarding See Moore, 178 F.3d at 999 (explaining that Moore was arrested and taken to jail on February 20, 1998, and Hartwig had signed his proffer agreement with law enforcement February 25, 1998"). "[s]ometime between February 17 and Miller's readiness to gather information on Powell in exchange for consideration showed nothing more than his willingness to enter the informational market. Accordingly, we conclude that there was no agency agreement between Miller and the State for gathering information on Arrington. ¶66 The Lewis court similarly concluded that an element of the agency analysis is whether law enforcement have control of the questioning. It is a bedrock principle of agency law in Wisconsin that "the principal has the right to control [the agent's] conduct." Lang, 390 Wis. 2d 627, ¶30. Applying this principle in a Sixth Amendment context, the court in Lewis held that "[a]s long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, the . . . [S]ixth such questioning Amendment[]." Lewis, (quoting Surridge, 687 F.2d at 255). does 324 not Wis. 2d violate 536, ¶25 Law enforcement personnel have no duty to protect defendants from their own "loose talk." Lewis, 324 Wis. 2d 536, ¶24 (citing Malik, 680 F.2d at 1165). ¶67 Likewise, the United States Supreme Court has concluded that the level of government involvement and control 31 No. 2019AP2065-CR of questioning are relevant to whether an agency relationship exists. Compare Moulton, 474 U.S. at 176-77 (finding Sixth Amendment violation when a wired informant actively questioned defendant on details of a crime at request of police) with Kuhlmann, 477 U.S. at 439 (finding no Sixth Amendment violation when informant was told by police to just "keep his ears open" to what the defendant said). ¶68 Here, the detectives did not Miller's questioning of Arrington. direct or control Unlike the FBI agent in York, who told Beaman which crimes to question York on, the detectives never Arrington, question questions. The gave Miller any Arrington, circuit court direction or ask found to speak Arrington that they with follow-up did not tell Miller which questions to ask Arrington or what information to gather. Miller conversations choose to was with record, under "no Arrington. he was obligation" Furthermore, in control of to record his when Miller did what was recorded. Miller wore a recording device "that he could turn on and off on his own initiative." conversations in The detectives could not listen into the real-time. They did not control Miller's recording or questioning. ¶69 The detectives also had no affirmative duty to protect Arrington from Miller. If a defendant prompts conversations with another inmate, he puts himself at risk. Law enforcement has no duty to protect him from his own decisions regarding with whom he providing chooses Miller to converse. with a Similarly, recording 32 device the is mere not act of enough to No. constitute control of his questioning. 2019AP2065-CR The recording device in this case was nothing more than an avenue for the police to place a "listening ear" into Arrington's cell. 477 U.S. at 461 (Burger, C.J., concurring). See Kuhlmann, By itself, this act did not elicit information from Arrington and did not violate his Sixth Amendment rights. ¶70 Accordingly, because the detectives did not have an agreement with Miller or control his questioning, we conclude that there was no agency relationship between Miller and law enforcement and no right to counsel. violation of Arrington's Sixth Amendment Consequently, having determined that there was no Sixth Amendment violation, Arrington has not identified an error to which we may apply the plain error doctrine. necessarily means This that we need not consider whether, if the recordings had been improper, the impropriety "would have been so obvious, substantial, necessitate a new trial[.]" C. ¶71 "Under and fundamental that it would Bell, 380 Wis. 2d 616, ¶59. Ineffective Assistance of Counsel the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant is guaranteed the right to effective assistance of counsel." State v. Lemberger, 2017 WI 39, ¶16, 374 Wis. 2d 617, 893 N.W.2d 232 (quoting State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334). The right to effective assistance of counsel also is provided under Article I, Section 7 of the Wisconsin Constitution. Lemberger, 374 Wis. 2d 617, ¶16. That counsel's assistance was ineffective, may be demonstrated by establishing 33 No. 2019AP2065-CR that counsel's performance was deficient and that the deficient performance was prejudicial. ¶37, 378 Wis. 2d 431, State v. Breitzman, 2017 WI 100, 904 N.W.2d 93 Washington, 466 U.S. 668, 687 (1984)). both deficient performance and (citing Strickland v. Courts need not address prejudice if the ineffective assistance of counsel claim can be resolved either way. See id. at 697. ¶72 To establish that an attorney's performance was deficient, the defendant must prove that "counsel's performance fell below an objective standard of reasonableness." State v. Maday, 2017 WI 28, ¶54, 374 Wis. 2d 164, 892 N.W.2d 611. Courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. See also State v. Maloney, 2005 WI 74, ¶25, 281 Wis. 2d 595, 698 N.W.2d 583 ("Judicial scrutiny of an attorney's performance is highly deferential."). "A fair assessment of attorney performance requires that every effort be made 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." Strickland, 466 U.S. at 689. ¶73 Because we conclude that there was no Sixth Amendment violation, it is necessarily true that Arrington's counsel was not deficient recordings. in failing to object to the admission of the See State v. Johnson, 2004 WI 94, ¶24, 273 Wis. 2d 626, 681 N.W.2d 901. Moreover, even if the law on this area were it unsettled, which is not, 34 "ineffective assistance of No. 2019AP2065-CR counsel cases [are] limited to situations where the law or duty is clear such that reasonable counsel should raise the issue." know enough to Maloney, 281 Wis. 2d 595, ¶29 (quoting State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994)). "[I]t is axiomatic that '[c]ounsel is not required to object and argue a point of law that is unsettled.'" 164, ¶55. was not Maday, 374 Wis. 2d Consequently, we conclude that counsel's performance deficient and, therefore, Arrington was not denied effective assistance of counsel. ¶74 Although we need not address prejudice to conclude that Arrington was not denied effective assistance of counsel, see Strickland, 466 U.S. at 689, we choose to do so in this case. there To establish prejudice, "[t]he defendant must show that is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a sufficient to undermine confidence in the outcome." probability State v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364 (citing Strickland, 466 U.S. at 694). conviction, the question is "When a defendant challenges a whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." 268, ¶54. Domke, 337 Wis. 2d "It is not sufficient for the defendant to show that his counsel's errors 'had some conceivable effect on the outcome of the proceeding.'" ¶37). Id. (quoting Carter, 324 Wis. 2d 640, We examine the totality of the circumstances to determine whether counsel's errors, in the context of the entire case, 35 No. deprived the defendant a fair trial. 2019AP2065-CR Domke, 337 Wis. 2d 268, ¶54 (citing Thiel, 264 Wis. 2d 571, ¶¶62-63). ¶75 Arrington recordings defense.13 argues because they that he was "eviscerated" prejudiced his claim by of the self- In the tapes, Arrington did not discuss Shorty having a gun or that it was actually Shorty who shot Gomez, both of which were crucial to his theory of the case. Conversely, the State argues that Miller's recordings were cumulative evidence piled on top of an already substantial amount of evidence of guilt. The State presented numerous witnesses who testified to Arrington's Each of actions these before, witnesses regarding the shooting. during, undermined and after the shooting. Arrington's own testimony Based on our review of the totality of the evidence, we agree with the State and conclude that there is not a reasonable probability that, but for the introduction of the recordings, the result of the proceeding would have been different. ¶76 A total of forty-two witnesses testified at trial. The jury heard testimony concerning the existing, violent feud between Shorty and Arrington, as well as Arrington's pledge to "[expletive] Shorty up" and "handle his business" prior to the shooting. Arrington, would shoot This testimony supported the State's case against specifically at Shorty. supplying The a jury motive also for heard why Arrington testimony that Arrington had the opportunity to commit this shooting, notably 13 Def. Appellant's Br. at 35. 36 No. that Arrington was seen circling the block the 2019AP2065-CR day of the shooting and "had that look in his eye like he wanted to kill something." Additional witnesses testified that Arrington opened fire on Taylor's house and that Shorty did not return fire or have a gun. This testimony was further corroborated by the results of the police search that found no firearms at the scene or in Taylor's house. ¶77 Finally, there was also testimony that Arrington tried to silence witnesses and evade capture in the aftermath of the shooting. AVT, who was in the car with Arrington during the shooting, testified that Arrington found her at a gas station in Milwaukee, threatened her with a gun, kidnapped her, and then stranded her in a car the next morning. Erica Herrod testified that, after the shooting, Arrington asked her for bleach to clean his gun and his body after "popp[ing] someone." Eugene Herrod testified that Arrington admitted that he "fanned Shorty down" and learning vowed that he to had "finish shot the the job wrong and get person. Shorty" The after defendant himself admitted to changing his hair and appearance following the shooting to hide from law enforcement. ¶78 Arrington's evidence in response to this testimony is comparatively weak. Regarding his on-going feud with Shorty, Arrington testified that he had forgiven Shorty for stabbing him and that he had not been the one to rob Shorty. Arrington explained that he was only at Taylor's house to get drugs and that he shot at Shorty only when he saw Shorty reaching for something. In addition, Arrington said he aimed only at the 37 No. 2019AP2065-CR bottom of the porch, rather than shooting to injure or kill. Linzmeier testified that Arrington had not raised self-defense until almost a year after the shooting of Gomez. heard nothing about Shorty having a gun Linzmeier had until Arrington's interview with him in the jail. ¶79 Arrington further denied all testimony that implied that he tried to cover up evidence. For example, Arrington described AVT's testimony as "all lies." Eugene Herrod's testimony, that When questioned about Arrington told him he would "finish the job and get Shorty," Arrington replied, "I don't know why Eugene told you guys that." ¶80 in this As both parties acknowledge, the scientific evidence case did side's theory.14 not definitively confirm or refute either Instead, this case turned on the credibility of each side's witnesses. The State had detailed testimony from numerous witnesses who testified to Arrington's actions before, during, and after the shooting. Arrington countered that the State's lies Even witnesses without sufficiently were Miller's spreading recordings, discredited by the and making Arrington's multiple provided additional discrediting up. testimony was witnesses corroborated the State's theory of the case. merely things who all The recordings support. Upon our examination of the totality of the evidence, we conclude that Arrington, 398 Wis. 2d 198, ¶47 ("The prosecutor conceded in the State's closing argument that '[s]cience in this case hasn't been able to prove anything really for sure.'"); Def. Appellant Br. at 40-43. 14 38 No. 2019AP2065-CR the result of the trial would not have been different without the introduction of Miller's recordings. Accordingly, we further conclude that the admission of Miller's recordings at trial did not prejudice Arrington. Therefore, a new trial is not warranted. III. ¶81 CONCLUSION We conclude that Arrington's Sixth Amendment right to counsel was not violated because Miller was not acting as a State agent when he recorded his conversations with Arrington. Further, a new trial is not warranted because Arrington's counsel's performance was not deficient and Arrington was not prejudiced by his counsel's failure to object to the State's use of the recordings. Accordingly, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction. By the Court.—The decision reversed. 39 of the court of appeals is No. 2019AP2065-CR.rfd ¶82 REBECCA FRANK DALLET, J. (concurring). This case involves a textbook example of a Sixth Amendment violation. In a series of cases culminating nearly 40 years ago, the U.S. Supreme Court held that the police violate a defendant's Sixth Amendment right to counsel when they use a jailhouse informant to secretly gather incriminating statements from the defendant. The majority misapplies that law, concluding that Arrington's right to counsel informant, using was a somehow recording violated device provided by jailhouse the That said, there is no reasonable probability the recorded reached statements or a different the making police, statements. have him a Arrington would recorded when interrogated jury and not outcome informant's incriminating if testimony Arrington's had been suppressed, because neither was inconsistent with Arrington's defense theory. And so, although Arrington's trial counsel's performance was deficient for failing to move to suppress those statements, it did not prejudice Arrington's defense. I therefore agree with the majority opinion's conclusion reversing the court of appeals' decision. I ¶83 While he was incarcerated in the Brown County Jail, Jason Miller "agree[d] to cooperate with law enforcement and wear a . . . recording device" in exchange for "consideration" in his case. Initially, Miller was gathering information regarding an unrelated homicide case (the "Powell case") that Green Bay Detectives Wanta and 1 Linzmeier were investigating. No. 2019AP2065-CR.rfd The detectives device to had provided "help Miller facilitate" with his a digital recording information-gathering activities, and they instructed him on how to use it. Wanta would pick up the recordings each day and provide Miller with a "fresh" recording device. Wanta assured Miller that "the information [Miller] would gather would . . . be used as part of his consideration" in his case. He explained that, although the final consideration decisions are made by the district attorney, generally the more information an informant produces, the more he gets in return. ¶84 Several days after Miller began working with the detectives, Arrington was arrested and placed in Miller's cell block and started speaking to Miller about his case. Miller then asked the detectives if he should record his conversations with Arrington in addition to those related to the Powell case. Linzmeier, who was investigating Arrington's not), told Miller that he should. case (Wanta was Miller's first recording in both cases occurred on April 11. Wanta collected the recording device each day, and reviewed the recordings and passed along to Detective Linzmeier any information related to Arrington's case. Linzmeier then prepared reports detailing the information he received from Miller. ¶85 Miller initiated conversations with Arrington between April 11 and 13 and he recorded each one. On April 11, Miller went to Arrington's cell and asked him if he wanted to read a magazine. Arrington testified at the post-conviction hearing that, although he wasn't sure, he believed that Miller asked to see Arrington's criminal complaint. 2 The next day, Miller called No. 2019AP2065-CR.rfd Arrington over to Miller's cell so they could talk. The third day, April 13, is the when the conversation occurred that was played at Arrington's trial. ¶86 During that conversation, Miller interrogated Arrington about his case, including asking him how he "handled" what Miller thought was problematic evidence against him. instance, asked regarding Arrington possible if everything down." he gunshot-residue "g[o]t rid of evidence, it"; if he For Miller "wipe[d] Miller testified that, at the time, neither he nor Arrington knew whether the police had, in fact, collected or tested any gunshot-residue evidence. Miller also questioned Arrington about his version of the shooting. Arrington told him that he was sitting in his car with a woman when he saw two people, Gomez talking to and each Santana-Hermida other outside of (also known Taylor's Hermida and Arrington had a violent history: as "Shorty"), house. Santana- three days before the shooting, Santana-Hermida had stabbed Arrington. Arrington told Miller that seeing Santana-Hermida in the driveway gave him a "flashback" to Santana-Hermida stabbing him, which Arrington claimed caused him to "just [start] shooting." Arrington if he "hit the wrong person." Miller asked Arrington responded that he "hit Ricky [Gomez]" because "[Santana-Hermida] jumped out of the way." After Arrington told Miller that Santana- Hermida was unlikely to testify at trial, Miller commented that the woman who was in the car with him was the only witness Arrington had to "worry about," 3 as she was the only other No. 2019AP2065-CR.rfd eyewitness.1 Miller then suggested that Arrington should arrange for the woman's friends to convince the woman not to come to court. ¶87 At trial, Arrington took the stand and testified that he had started shooting in self-defense. He testified that Santana-Hermida had previously "made an attempt [on his] life" and that, before he started shooting, he saw Santana-Hermida "reach for what [he] thought was a gun." Arrington described firing three shots toward the bottom of the porch to "create a diversion" allowing him to drive away. He asserted that he "purposely" shot at the porch and not any person because he "didn't want to hit anybody." According to Arrington's testimony, as he started to drive away, he saw Santana-Hermida "come around the door with the gun in his hand at the same time . . . Gomez was coming into the Santana-Hermida fired and Gomez fell. house," at which point Arrington claimed that Gomez had "tried to move out of the way, but he was too late." The jury ultimately rejected Arrington's self-defense theory, convicting him of first-degree intentional homicide. ¶88 Arrington sought post-conviction relief on the grounds that his trial counsel was ineffective for failing to move to suppress Miller's testimony and jailhouse recording. post-conviction know that hearing, Miller was a Arrington police explained informant or that that he At his did not Miller was wearing a recording device when they talked in jail, and that he Taylor, whose house the shooting occurred at, also testified, but he said he did not see the shooting. SantanaHermida was on the State's pre-trial witness list, but he did not testify at trial. 1 4 No. 2019AP2065-CR.rfd would not have recording talked their to Miller had conversations. he known Arrington's Miller trial was counsel, Hughes, testified that he knew the prosecution had recordings of Arrington's conversations with Miller and that he had received those recordings "quite some time" before trial. recordings and police reports the State Based on those turned over before trial, Hughes said that he was "aware that Jason Miller [was] working as a confidential informant" while he was in the Brown County jail. conversations counsel. Miller's Yet He with also Arrington Hughes recordings knew said after that violated that he Miller recorded Arrington did Arrington's not had indeed, he had never even researched the issue. obtained consider right to his whether counsel—— Finally, Hughes admitted that if he hadn't "missed" the issue, he "likely would have" filed a pretrial motion to suppress Miller's testimony and jailhouse recording. II ¶89 Once a defendant's Sixth Amendment right to counsel attaches, the State has an "affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking th[at] right." (1985). Maine v. Moulton, 474 U.S. 159, 176 That obligation bars the police not only from directly questioning the defendant without his counsel present but also from using an informant to "deliberately elicit[]" incriminating information from the defendant. 377 U.S. 201, 206 (1964). See Massiah v. United States, The Sixth Amendment's protections extend to information deliberately obtained by the State through 5 No. 2019AP2065-CR.rfd an agent, such as a jailhouse informant, preventing the police from circumventing a defendant's right to counsel via an indirect source: An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then "arms' length" adversaries. When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment "is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse." The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent. United States v. Henry, 447 U.S. 264, 273 (1980). The U.S. Supreme Court has explained that even when the police do not purposely place an informant in jail with the defendant, their "knowing exploitation" of such "an opportunity to confront the accused without counsel being present is as much a [Sixth Amendment violation] as is the intentional creation of such an opportunity." Moulton, 474 U.S. at 176. Determining whether the police's use of an informant violates a defendant's Sixth Amendment right informant is an to counsel agent of turns the on three police; (2) factors: the (1) informant the is "ostensibly no more than a fellow inmate" of the defendant's; and (3) the informant takes "some action" to "deliberately . . . elicit" incriminating information after the defendant has been indicted and placed in custody. 6 See Henry, No. 2019AP2065-CR.rfd 447 U.S. (1986). here. at 270; Kuhlmann v. Wilson, 477 U.S. 436, 459–60 There is no dispute that the second factor is present The issues before the court are whether Miller was an agent of the police and whether he took some action to deliberately elicit incriminating information from Arrington. A ¶90 police, Regarding the whether majority principles. That an informant wrongly novel looks approach is an agent to state no support has of the law agency in either Wisconsin or federal case law——unsurprising, given that no state law can deprive a person of a federal constitutional right. See, e.g., Kansas Accordingly, the v. Garcia, correct 140 place S. to Ct. look 791, for 801 (2020). to analyze how whether someone is an agent of the police for Sixth Amendment purposes is the U.S. Supreme Court's Sixth Amendment jurisprudence. ¶91 certain The Court's jurisprudence reveals that an agent is a kind of informant; not every person who information to the police is an agent of the police. reports Rather, a person is an agent if she obtains information from the defendant pursuant to an agreement with the police. at 270. See Henry, 447 U.S. Evidence of such an agreement includes a promise by the police to compensate the informant for information, either with money or by reducing the informant's sentence or the charges against him. See id. at 270 & n.7. Such agreements don't have to be formal or written; all that is needed is some "evidence that the parties behaved as though 7 there were an agreement No. 2019AP2065-CR.rfd between them." (7th Cir. See United States v. York, 933 F.2d 1343, 1357 1991), Williams, 182 overruled F.3d 562 on (7th other Cir. grounds 1999). by And Wilson the v. agreement doesn't have to specify exactly what consideration the informant will receive, so long as there is some evidence that the reason the informant government gave "assured unrewarded." See the police [him] that information his id. at 1358. good is because deeds would the not go Fundamentally, the question turns on whether there was some "prearrangement" between the informant and defendant, as the police opposed to to collect the informant information acting initiative prior to any contact with the police. on on the his own See Henry, 447 U.S. at 270–71; United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982). ¶92 Just because an informant is an agent of the police, however, does not mean that everything the agent does amounts to a violation of a defendant's right to counsel. The Sixth Amendment is not violated when the State obtains incriminating information by "luck or happenstance," Moulton, 474 U.S. at 176, because the State is not obligated to protect defendants from their own "loose talk," see Malik, 680 F.2d at 1165. Thus, there is no Sixth Amendment violation when an agent who "only listen[s]" to a defendant's "spontaneous and unsolicited statements" and "at no time ask[s] any questions" reports those statements to the police. Kuhlmann, 477 U.S. at 460. For an agent of the police to violate the Sixth Amendment, the agent must take "some action, beyond 8 merely listening, that was No. 2019AP2065-CR.rfd designed deliberately to elicit incriminating remarks." Id. at 459. B ¶93 Here, the record clearly demonstrates that Miller was an agent of the police and that his actions violated Arrington's right to counsel. 1 ¶94 Regarding Miller being an agent of the police, Miller approached police about recording his conversations with Arrington "while he was still working as an informant" in the Powell case. device and The police had already given Miller a recording assured him that information he gathered in the Powell case "would . . . be used as part of his consideration." Detective Linzmeier then gave Miller the go-ahead to record his conversations with Arrington. Armed with both the understanding that he would receive consideration in exchange for information and a police-issued Arrington about According to his Wanta, recording device, case the and "first Miller questioned recorded those exchanges. day [Miller] that made a recording for . . . [the Powell case] was on the 11th"——the same day that Miller made his first recording of Arrington. Miller questioned and recorded Arrington for two more days, with Wanta collecting the recording device and replacing it with a "fresh" one each day. the police Under these circumstances, Miller was an agent of when he questioned and recorded Arrington. See Henry, 447 U.S. at 273 (explaining that a jailhouse informant is an agent of the police when he is "acting by prearrangement" 9 No. 2019AP2065-CR.rfd with the police to "stimulate[]" conversation with the defendant). ¶95 The majority floats two explanations for why Miller wasn't an agent of the police, neither of which is supported by case law or the record. First, it claims that Miller's consideration agreement was only for the unrelated homicide case and that without the police instructing him to target Arrington specifically, he was not acting as an agent of the police when he questioned Arrington. That approach, however has been rejected by many other courts, both federal and state and it has never been adopted by the U.S. Supreme Court. See, e.g., Henry, 447 U.S. at 271; Ayers v. Hudson, 623 F.3d 301, 311 (6th Cir. 2010) (explaining that "direct" instructions to target the defendant "would be sufficient to demonstrate agency," but they were not necessary (emphasis added)); York, 933 F.2d at 1357 ("Whether the principal targeting specific exercises individuals, its or control casually, strictly, by loosing by an informant on the prison population at large, is irrelevant."); State v. Marshall, 882 N.W.2d 68, 94 (Iowa 2016) ("The invasion of an incarcerated prisoner's Sixth Amendment rights is not affected by whether the informant is operating at large or with a specific target."). majority's State to overtly." simplistic, accomplish There are good reasons why not: bright-line 'with a wink approach a See Ayers, 623 F.3d at 312. nod' "would what it allow cannot the the do That is why determining whether an informant is an agent of the police turns on "the facts and circumstances of a particular case," id. at 311, which 10 No. 2019AP2065-CR.rfd here demonstrate that Miller was such an agent when he questioned Arrington. ¶96 Second, the majority asserts that Miller was not an agent because the police made him no specific promise about the consideration Arrington. he would receive for gathering information on That may be true, but it doesn't mean Miller wasn't a government agent. As both Wanta and Linzmeier testified, they do not promise specific consideration in advance. Instead, the district attorney negotiates the specifics after the fact, based on the usefulness of the information the informant gathers. Thus, if the majority were right that the absence of a specific promise in Arrington's case meant that Miller wasn't an agent of the police, then it's unclear how anyone could ever be. ¶97 But that is not the law. What matters for determining whether someone is a government agent isn't whether they have a promise of specific consideration in hand before gathering information, but whether there was a "prearrangement" with the police to gather the information, Henry 447 U.S. at 270-71, and whether the police and the informant "behaved as though" there was an agreement between them, York, 933 F.2d at 1357-58. of these conditions are met here. police told Miller that the Both There is no question that the information "would . . . be used as part of his consideration." he gathered To be sure, they made that arrangement with Miller regarding the Powell case and before Arrington arrived at the jail. But it was mere days later that Miller approached the police about also recording his conversations with Arrington. And the police never told Miller that the information-for-consideration deal applied only to the 11 No. 2019AP2065-CR.rfd Powell case. In fact, they gave Miller the green light to record Arrington. Thus, when Miller questioned and recorded Arrington——using the same police-issued device, on the same day he recorded Powell, and after "prearrang[ing]" with the police to do so, see Henry, 447 U.S. at 273——both Miller and the police were "behav[ing] as though" the general consideration arrangement in the Powell case applied equally to Arrington's case.2 See York, 933 F.2d at 1357–58 (holding that the police promising some reward for information and evidence the parties behaved consistent with that understanding is sufficient to establish an agreement between the informant and the police); Massiah, 377 U.S. at 206. Accordingly, Miller was an agent of the police. 2 ¶98 Miller also took "some action" to deliberately elicit information from Arrington, and therefore violated Arrington's Sixth Amendment right to counsel. 459. See Kuhlmann, 477 U.S. at In fact, Miller acted exactly as the police agents did in Moulton and Henry. Miller wore a recording device given to him by the police and engaged Arrington in "prolonged discussion of the pending occurred." 271, 274. charges," asking Arrington "what actually had See Moulton, 474 U.S. at 165; Henry, 447 U.S. at He asked Arrington "what the State's evidence would The district attorney's eventual offer of specific consideration confirms that understanding, as it states that the "offer contemplates consideration" for Miller's information and testimony regarding both "Powell and Arrington" (emphasis added). 2 12 No. 2019AP2065-CR.rfd show," including possible gunshot residue. See Moulton, 474 U.S. at 165; Henry, 447 U.S. at 271, 274. And he suggested "what [Arrington] should do to obtain a verdict of acquittal"—— namely, that Arrington should convince the woman who was with him in the car at the shooting not to testify. U.S. at 165. See Moulton, 474 Miller was no "passive listener"; he actively conversed with statements were Arrington, the and product of Arrington's [those] "incriminating conversations." See Henry, 447 U.S. at 271; cf. United States v. Moore, 178 F.3d 994, 999 (8th Cir. 1999). Also as in Henry, Miller was already working as a police informant at the time he arranged to record Arrington's statements. See Henry, 447 U.S. at 270–71. As far as Arrington knew, however, Miller was "no more than a fellow inmate," giving Arrington a false sense that he was not talking to the police. See id. at 270, 272–73. Thus, Arrington's Sixth Amendment to counsel was violated. ¶99 The majority's misunderstanding of both opposite the conclusion U.S. Supreme rests Court's on its Sixth Amendment precedents and the Wisconsin court of appeals decision in State v. N.W.2d 730. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 In claiming that Miller is like the informant in Kuhlmann, the majority ignores the fact that the Kuhlmann Court limited its holding to an informant who "merely listen[s]" but does not engage with the defendant. See 477 U.S. at 459. As explained above, however, Miller "took some action . . . that was designed deliberately to elicit incriminating remarks" from Arrington. See id. Indeed, he took far more than some action—— he sought out Arrington for a lengthy conversation about the 13 No. 2019AP2065-CR.rfd charges against him, the State's case, and strategized with Arrington about how to obtain an acquittal, including suggesting that Arrington testify. encourage the only other not to See Moulton, 474 U.S. at 165; Henry, 447 U.S. at 267. Simply put, this case is not Kuhlmann. errs eyewitness in its reliance on Lewis. The majority likewise There, the informant had gathered information on the defendant prior to any discussion with the police about Wis. 2d 536, ¶¶4–6. the defendant. See Lewis, 324 Here, however, Miller gathered information on Arrington only after he told the police that he could get Arrington to talk and the police outfitted him with a recording device and told him to record Arrington's statements. ¶100 The majority also focuses on the wrong facts. doesn't matter that the police did questions to ask or what to record. The Henry Court rejected that not tell Miller It what See majority op., ¶¶66–68. distinction 42 years ago, concluding that what matters is that the police knew that Miller "had access to [Arrington] and would be able to engage him in conversations without arousing [Arrington's] without Arrington's counsel present. n.8. suspicions" and See 477 U.S. at 270–71 & Likewise, it doesn't matter that it was Miller's idea to record Arrington. See majority op., ¶¶61–65. As the Moulton Court put it, that position "fundamentally misunderstands the nature of the right [to counsel]." 474 U.S. at 174–76. The Court clarified that "the identity of the party who instigated the meeting at which the Government obtained statements [is] not decisive or even important." incriminating Id. at 174 (adding that the Court in Beatty v. United States, 389 U.S. 45 14 No. 2019AP2065-CR.rfd (1967) (per curiam), had summarily reversed a conviction even though the defendant requested a meeting informant and led the conversation). Sixth Amendment is violated when with an undercover It then explained that the the police "knowing[ly] exploit[] . . . an opportunity to confront the accused without counsel being confrontation. present," regardless Id. at 176. of who initiates the Here Miller presented the police with an opportunity to confront Arrington about his case without his counsel present and the police knowingly exploited that opportunity, thus improperly "circumventing" Arrington's Sixth Amendment right to counsel. See id. ¶101 The U.S. Supreme Court's cases therefore make clear that Arrington's Sixth Amendment right to counsel was violated when Miller, acting as an agent of the police, asked Arrington questions about his case and used the police-provided recording device to secretly record those conversations. III ¶102 Because the law is clear that Arrington's Sixth Amendment right to counsel was violated, his trial counsel's performance was deficient for failing to raise a Sixth Amendment challenge. For different reasons than the majority, however, I conclude that counsel's error did not prejudice Arrington. ¶103 An ineffective-assistance-of-counsel claim requires the defendant to show both prongs of the Strickland test: counsel's performance was deficient" performance prejudiced the defense." and "that the "that deficient Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Savage, 2020 WI 93, ¶27, 395 15 No. 2019AP2065-CR.rfd Wis. 2d 1, 951 N.W.2d 838. that falls "below State v. Jenkins, N.W.2d 786. an Deficient performance is performance objective 2014 WI standard 59, ¶36, of 355 reasonableness." Wis. 2d 180, 848 Generally, the court is "highly deferential to the reasonableness of counsel's performance," provided there is some strategic reason for counsel's decisions. Id. But because there is almost never a strategic reason for "fail[ing] to raise an issue of settled law," Strickland's first prong. such a failure generally meets See, e.g., Savage, 395 Wis. 2d 1, ¶37; State v. Breitzman, 2017 WI 100, ¶49, 378 Wis. 2d 431, 904 N.W.2d 93. Prejudice to the defense is established when "there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different." Id., ¶32 (quoting Strickland, 466 U.S. at 694). ¶104 Here, Arrington's counsel's performance was deficient because Arrington's Sixth Amendment right to counsel was violated when the police provided Miller with a recording device and Miller then interrogated Arrington and recorded him making incriminating statements. Arrington's counsel therefore had a clear duty to raise the issue and he did not. 378 Wis. 2d 431, ¶49. even researched the Cf. Breitzman, Indeed, counsel testified that he had not issue. Such performance is objectively unreasonable and, therefore, deficient under the first prong of Strickland. counsel's See Jenkins, 355 Wis. 2d 180, ¶47 (concluding that performance was deficient because it was not the result of "any reasonable trial strategy"). ¶105 The however, second because prong even of with Strickland's counsel's 16 test error, is not there is met, no No. 2019AP2065-CR.rfd reasonable probability different verdict. that the jury would have reached a The question is not whether the jury would have acquitted Arrington of all charges absent counsel's error, but rather whether there is a reasonable probability the jury would have either acquitted Arrington or convicted him of one of the lesser-included charges. 96. See Strickland, 466 U.S. at 695– The jury was instructed on the lesser-included charges of second-degree intentional homicide and first- and second-degree reckless homicide. ¶106 Miller's testimony and jailhouse recording likely had no effect on the jury's contemplation of first- versus seconddegree homicide. intentional To homicide, convict the jury Arrington would have of had second-degree to find that Arrington believed he had to kill Santana-Hermida to save his own life but that Arrington's belief was unreasonable. Miller's contains testimony evidence nor his related to jailhouse recording, self-defense. Neither however, Although Miller testified that Arrington told him that when Santana-Hermida saw Arrington at Taylor's house, Santana-Hermida was acting "overly aggressive" and made a "challenging" gesture to Arrington, Miller also testified that Arrington did not say anything about Santana-Hermida Thus, nothing speaks to the having in a gun Miller's factual or otherwise testimony predicates or for threatening jailhouse him. recording self-defense——whether Arrington believed he was in imminent danger of death or great bodily harm and that he needed to fire three shots to repel that threat. The evidence the jury had on Arrington's self-defense 17 No. 2019AP2065-CR.rfd claim is therefore the same with or without Miller's testimony and jailhouse recording. ¶107 Similarly, nothing in Miller's testimony or jailhouse recording was antithetical to a jury finding Arrington guilty of the lesser-included offense of reckless homicide. To convict Arrington of first- or second-degree reckless homicide, the jury would need to find that Arrington shot Gomez and that he was aware that shooting at Taylor's house created an unreasonable and substantial risk of great bodily harm or death. See Wis. Stat. §§ 940.02 (first-degree reckless homicide also requires a finding human that the life"); circumstances 940.06. show Arrington an told "utter disregard Miller that he for "just started shooting" after he had a "flashback" to Santana-Hermida stabbing him and that he hit Gomez when he was shooting at the house. Those statements are consistent with what Arrington said on the stand when he claimed that he shot at the house to create a distraction so he could drive away. jailhouse recording eyewitness's are also testimony——the Miller's testimony and consistent woman in with the car with the only other Arrington. She told the jury that Arrington "just started shooting," but did not specify who or Therefore, the substance recording did not what of prevent Arrington Miller's the jury was testimony from shooting and at.3 jailhouse concluding that Arrington did not intend to shoot Santana-Hermida or Gomez or The woman's testimony also supports a finding that Arrington intended to kill Santana-Hermida and instead killed Gomez. Nothing in her testimony forecloses a finding that Arrington acted recklessly, however. 3 18 No. 2019AP2065-CR.rfd that he knowingly created an unreasonable and substantial risk of their death by firing at the house. ¶108 Ultimately, Miller's testimony and jailhouse recording neither supported nor foreclosed the possibility that the jury could convict Arrington of reckless homicide. Accordingly, there is no reason to suspect that it had an impact on the jury rejecting the reckless-homicide charge and convicting Arrington of first-degree intentional homicide. As a result, although Arrington's counsel's performance was deficient in failing to challenge Miller's testimony and jailhouse recording on Sixth Amendment grounds, there is no reasonable probability that, absent that deficient performance, the jury would have reached a different conclusion. IV ¶109 I agree with the majority that the court of appeals' decision should be reversed, but for different reasons. The majority wrongly interprets the U.S. Supreme Court's precedents, which clearly establish that Arrington's Sixth Amendment right to counsel was violated. Arrington's counsel's failure to raise that obvious violation was objectively unreasonable, but, given the substance of the statements made by Arrington to Miller, counsel's error did not prejudice Arrington's defense. Accordingly, I respectfully concur. ¶110 I am authorized to state that Justices BRADLEY and JILL J. KAROFSKY join this opinion. 19 ANN WALSH No. 2019AP2065-CR.rfd 1
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