State v. Kucharski

• Decision Date: 07 July 2015
• Docket Number: No. 2013AP557–CR.,2013AP557–CR.
• Citation: 363 Wis.2d 658,866 N.W.2d 697
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Corey R. KUCHARSKI, Defendant–Appellant.
• Court: Wisconsin Supreme Court

363 Wis.2d 658

866 N.W.2d 697

STATE of Wisconsin, Plaintiff–Respondent–Petitioner

v.Corey R. KUCHARSKI, Defendant–Appellant.

No. 2013AP557–CR.

Supreme Court of Wisconsin.

Argued March 10, 2015.

Decided July 7, 2015.

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

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

An amicus curiae brief was filed by Melinda A. Swartz, Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.

Opinion

N. PATRICK CROOKS, J.

¶ 1 This is a double-murder case that centers on the evidence presented on the question of the defendant's mental responsibility.

The circuit court¹ found the defendant responsible. The court of appeals, in a split decision,² granted the defendant a new trial under its discretionary authority to reverse convictions in cases where “it appears from the record that ... it is probable that justice has for any reason miscarried [.]”³ We now reverse the grant of a new trial because we conclude that the court of appeals erroneously exercised its discretion, and we remand to the court of appeals for the resolution of the remainder of the claims raised on appeal.

¶ 2 Corey Kucharski was charged with two counts of intentional homicide for the murders of his parents, which he later said he committed in obedience to voices he heard. He pleaded not guilty by reason of mental disease or defect (an NGI plea). He pleaded no contest to the guilt phase of the trial, and waived a jury trial on the responsibility phase.⁴

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

¶ 4 The circuit court agreed with the State, citing evidence such as Kucharski's statements about expecting punishment for the crime and his decision not to commit suicide or engage in a shootout with police despite reporting that he had heard voices telling him to do so. In light of that evidence, the circuit court found that Kucharski had not met his burden on the issue of responsibility.⁵ He was convicted and sentenced to consecutive life sentences.

¶ 5 Though Kucharski raised several claims on appeal, the court of appeals' analysis focused solely on granting his motion for a new trial under Wis. Stat. § 752.35, the discretionary reversal statute. For purposes of interpreting that statute, justice has miscarried if “there is a substantial probability that a new trial would produce a different result.”⁶ We have held that “only in exceptional cases” is it appropriate for a reviewing court to exercise its discretion to grant a new trial in the interest of justice.⁷

¶ 6 The court of appeals held that there was a substantial probability of a different outcome at a new trial “because [Kucharski] met his burden”⁸ of proving by the greater weight of the credible evidence that he was not mentally responsible for the murders. It found that the evidence in his favor “certainly comprised ‘the greater weight of the credible evidence.’ ”⁹ The dissent would have affirmed the circuit court, citing the well-established proposition that “the credibility of witnesses, the weight of the evidence and the determination of whether the defendant has met his burden” are questions that “are the province of the trial court alone.”¹⁰

¶ 7 The State argues that the trial court appropriately weighed the evidence in a way that is consistent with prior case law such as State v. Sarinske,¹¹ which holds that a trier of fact is not required to accept the opinion of an expert, even if uncontradicted. The State argues that the court of appeals “wholly ignore[d] this requirement and instead substitute[d] its judgment for that of the fact-finder....”¹² Kucharski argues that “[t]he very nature of the test for miscarriage of justice necessitates substitution of the appellate court's judgment for that of the factfinder” and that in fact an appellate court should have “unfettered discretion to review the record without deference to the factfinder's conclusions.”

¶ 8 We uphold discretionary rulings unless they are reached under an incorrect view of the facts or the law. In State v. D'Acquisto¹³ we stated,

The appropriate standard of review for assessing the propriety of the court of appeals' [discretionary ruling] is that this court will uphold the court's discretion if its decision is made on appropriate facts and the correct law and thus is one which a court reasonably could have reached. If it is demonstrated that the court of appeals made a discretionary order, ... based upon a mistaken view of the law, we will ordinarily reverse that order.

In this case, that is what happened.¹⁴ The reason given by the court of appeals in this case for invoking the rarely used power of discretionary reversal was that the defendant had “met his burden,” which is going too far for a reviewing court on a question of fact. Further, the sole reason given for the discretionary reversal was that improperly reached conclusion. The framework for reviewing evidentiary challenges must recognize “established rules of jurisprudence designed to protect the sanctity of findings of fact....”¹⁵ It is thus error for a reviewing court to set aside findings of fact without evaluating them under the proper standard of review.

¶ 9 The proper standard of review for appellate review of whether a party has met his burden on the matter of mental responsibility is uncontroversial and well established in both Wisconsin law and federal law: whether a person has met his or her burden on the question of mental responsibility is a question of fact, subject to a clearly erroneous standard of review.¹⁶

¶ 10 The court of appeals' holding reveals its error: it simply performs a new weighing of the evidence and then states outright that Kucharski “met his burden” and that the evidence “certainly comprised” the required burden of proof—determinations that are unquestionably issues of fact, not law. By way of illustration, in State v. Hintz,¹⁷ a case that considered a sufficiency of the evidence challenge and discretionary reversal, we acknowledged, as we remanded for a new trial, that the ultimate question of whether the evidentiary burden was met would be one for the trier of fact and not for the reviewing court: Noting that “it is the function of the [trier of fact] to resolve this doubt,” we remanded so that “the question of defendant's guilt should be passed upon by another jury....”¹⁸

¶ 11 Applying the proper standard of review and not disturbing the factual findings of the circuit court concerning the burden of proof because they are not clearly erroneous, we conclude that the court of appeals erroneously exercised its discretion. In this case the only reason given by the court of appeals for the new trial in the interest of justice was that court's improper de novo weighing of the evidence. When the evidence is reviewed under the proper standard, there is not a probability of a different result on retrial such that a new trial in the interest of justice is warranted.

¶ 12 We therefore reverse the grant of a new trial under Wis. Stat. § 752.35 and remand to the court of appeals for the resolution of Kucharski's remaining unaddressed claims.¹⁹

I. BACKGROUND

¶ 13 Kucharski called 911 after midnight on a February night in 2010 to request a coroner. He told the 911 operator that his parents were dead, named the gun he had used to kill them, and was clear in communicating that there was no need to send medical assistance. When police arrived, he surrendered without incident. Police found Kucharski's father and mother in the home, dead of multiple gunshot wounds.

¶ 14 Once in police custody, Kucharski invoked his right to counsel when asked specifics about the shootings. When he was questioned by detectives, after he received his Miranda warnings, Kucharski stated, “[A]s far as the statement about most of what happened that evening and I'd rather have a lawyer here for that.” When the detective reiterated his right to do that, Kucharski stated, “If you want to ask me any questions about my background or any, any other questions, fine.... I know you want to talk about the evening but I still rather have somebody here before I start answering questions about that night.”²⁰

¶ 15 He willingly talked to investigators without counsel present about his history, prior drug use, alcohol use, and his experience of hearing voices, which he said began five years earlier after a period of extensive drug use. He said he continued hearing the voices after he stopped using drugs. The voices he heard told him to do specific things and berated him for certain mistakes. He also disclosed that he had experienced other auditory distortions such as hearing another person's voice while a person was speaking to him. He drank heavily, which he said was an effort to quiet the voices.²¹ He had held jobs in prior years both in Wisconsin and in other states. In 2005 he had ...