State v. Andrew Jason Peterson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP697-CR Cir. Ct. No. 2017CF49

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANDREW JASON PETERSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Bayfield County: JOHN P. ANDERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Andrew Jason Peterson, pro se, appeals from a
judgment, entered following a jury verdict, convicting him of homicide by
No. 2022AP697-CR

intoxicated use of a vehicle while having a prior intoxicant-related conviction.
Peterson also appeals from the circuit court’s order denying his motion for
postconviction relief.

¶2 On appeal, Peterson claims: (1) his motion to suppress his blood test
results should have been granted because he was denied a second blood test under
Wisconsin’s implied consent law; (2) his right to counsel was violated when the
circuit court directed defense counsel not to discuss Peterson’s ongoing testimony
with him during an overnight recess; (3) he was denied his right to a fair and
impartial jury; (4) he is entitled to a new trial in the interest of justice because the
real controversy was not fully tried as a result of the prosecutor’s misstatement of
the affirmative defense to homicide by intoxicated use of a vehicle under WIS.
STAT. § 940.09(2)(a) (2021-22);1 and (5) his defense counsel was constitutionally
ineffective in numerous respects. For the reasons that follow, we deny all of
Peterson’s claims.

BACKGROUND

¶3 On June 10, 2017, at around 7:00 p.m., Peterson crashed his vehicle
into a motorcycle, and the driver of the motorcycle—the victim—was pronounced
dead at the scene. At trial, witnesses Paige Tahnk and John Helbig—both of
whom were on a different motorcycle waiting at the intersection where the crash
occurred—testified that Peterson had turned left in front of the oncoming
motorcycle and hit it. In the aftermath of the accident, Tahnk reported that she
heard Peterson talking on his cell phone, and he stated that he was “cleaning out

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2022AP697-CR

[his] car right now.” She testified that she then saw Peterson “taking empty
bottles of booze and beer cans, or cans of things out of his car and putting them in
his trunk.”

¶4 Deputy Christopher Benton, with the Bayfield County Sheriff’s
Office, reported to the scene of the accident and spoke with Peterson. Benton
asked Peterson if he had been drinking, and Peterson reported having one drink.
According to Benton, he smelled alcohol on Peterson’s breath. After speaking
with Tahnk, Benton also discovered the alcohol bottles in Peterson’s trunk and on
the front passenger’s side floorboard. Benton thereafter administered field
sobriety tests, and Peterson agreed to submit to a preliminary breath test (PBT),
which revealed a 0.22 blood alcohol concentration (BAC). Peterson asked to take
a second PBT, which registered a 0.21 BAC. Peterson was arrested and
transported to the hospital.

¶5 At the hospital, Benton read Peterson the required Informing the
Accused form (hereinafter, the form) and requested a blood sample. Peterson
agreed to the blood test, but he also asked “how he would make his own
arrangements for the other test,” which Benton took to mean the additional test at
Peterson’s own expense referenced on the form and in WIS. STAT. § 343.305(5)(a).
Benton told Peterson that he “didn’t know how to make those arrangements for
him.” Benton testified that Peterson did not mention the additional test again.
Peterson’s blood test revealed a 0.194 BAC.

¶6 The State charged Peterson with homicide by intoxicated use of a
vehicle and homicide by use of a vehicle while having a prohibited alcohol
concentration (PAC), both while having a prior intoxicant-related conviction.
Pretrial, Peterson filed three motions to suppress his blood test results on the

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No. 2022AP697-CR

grounds that there was no probable cause for the PBT and arrest, that he did not
voluntarily consent to a blood draw, and that he was denied an additional blood
test at his own expense. After an evidentiary hearing, the circuit court denied
Peterson’s motions.

¶7 The case proceeded to a four-day jury trial, where the State
presented evidence that Peterson was at fault for the crash and that it occurred due
to Peterson’s intoxication. Peterson testified in his own defense. He claimed that
the crash occurred as a result of his daughter’s dog. According to Peterson, Tahnk
and Helbig yelled, which caused the dog to leap toward the open driver’s window,
and the dog landed on his arm, causing his car to turn left into the motorcycle.
Peterson admitted that he had not told law enforcement at the scene that the dog
had caused the crash. Peterson’s daughter, who was present in the vehicle, also
testified consistent with her father’s testimony about the dog, but she too admitted
that she did not report the dog’s interference to police.

¶8 Peterson further testified that he had only one drink before the crash.
Outside the presence of the jury, however, the State played a jail call where
Peterson admitted having three or four drinks before the crash. When the jury
returned, Peterson admitted that he made that statement. However, he claimed
that he made that admission only because he had heard the recording and that he
did not actually remember making that statement.

¶9 Peterson’s testimony occurred over the course of two days. After
Peterson’s first day of testimony, the circuit court and the parties discussed the
court’s standing sequestration order—prohibiting all witnesses from speaking to
anyone, including attorneys, while they were testifying—and its application to
Peterson during the overnight recess, while also recognizing Peterson’s right to

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No. 2022AP697-CR

counsel and that the court could not “prohibit [defense counsel] from talking to
[Peterson] in general.” See Geders v. United States, 425 U.S. 80, 91 (1976); Perry
v. Leeke, 488 U.S. 272, 284-85 (1989). In response, defense counsel stated, “I’m
more than happy to not talk about his testimony and not try to prepare him for
cross if that’s the [c]ourt’s concern. I certainly can abide by that.” The court
confirmed that counsel could speak with Peterson “about things as long as [he did
not] talk about his testimony,” which included “[e]ither what [Peterson has] said
or what he’s going to say.”

¶10 The jury found Peterson guilty of both counts as charged. The
circuit court entered judgment for homicide by intoxicated use of a vehicle while
having a prior intoxicant-related conviction and dismissed the PAC charge.
See WIS. STAT. § 346.63(1)(c). The court sentenced Peterson to twelve years of
incarceration, comprised of six years’ initial confinement followed by six years’
extended supervision.

¶11 Peterson moved for postconviction relief, seeking a new trial.2 In his
motion, Peterson alleged four bases for relief: (1) the circuit court erred by
denying his suppression motions; (2) he was denied the right to counsel when the
court ordered defense counsel not to discuss his ongoing testimony during the
overnight break; (3) a juror was biased; and (4) his defense counsel was
constitutionally ineffective. The court held a Machner3 hearing, during which

2
We will refer to the attorney who represented Peterson at trial as “defense counsel” and
the attorney who represented Peterson postconviction as “postconviction counsel.”
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

5
No. 2022AP697-CR

Peterson, defense counsel, the juror, and Deputy Benton testified. The court
denied Peterson’s motion by written order.4 Peterson appeals.

DISCUSSION

I. Motion to Suppress

¶12 First, Peterson argues that the circuit court erroneously denied his
motion to suppress because he was refused an opportunity for an additional test
under the implied consent law. WISCONSIN STAT. § 343.305(2) provides that a
person operating a motor vehicle on a public highway in this state is deemed to
have given “[i]mplied consent” to one or more tests of his or her breath, blood, or
urine “for the purpose of determining the presence or quantity in his or her blood
or breath, of alcohol, controlled substances, controlled substance analogs or other
drugs, or any combination” thereof. At the time law enforcement asks an accused
to submit to a test, the officer must read the form—prescribed by statute and
generally referred to as the “Informing the Accused” form—to the accused.
Sec. 343.305(4).

¶13 As relevant to this appeal, WIS. STAT. § 343.305(5)(a) refers to
“additional tests” and an “alternative test”5 and provides in pertinent part:

4
After Peterson filed his notice of appeal, it came to light that “[t]hrough error,
[postconviction] counsel for defendant did not effectuate successful filing of the reply brief”
related to Peterson’s postconviction motion. We remanded the case for “the circuit court to
determine whether a reply brief, had it been filed, would have impacted the court’s decision on
the defendant’s postconviction motion” and to decide postconviction counsel’s motion to
withdraw. The court held a hearing, during which it granted postconviction counsel’s motion to
withdraw, granted Peterson’s request to proceed pro se, and afterward issued an amended order
denying Peterson’s postconviction motion.

6
No. 2022AP697-CR

If the person submits to a test under this section, the officer
shall direct the administering of the test. A blood test is
subject to par. (b). The person who submits to the test is
permitted, upon his or her request, the alternative test
provided by the agency under sub. (2) or, at his or her own
expense, reasonable opportunity to have any qualified
person of his or her own choosing administer a chemical
test for the purpose specified under sub. (2)…. The agency
shall comply with a request made in accordance with this
paragraph.

The form read to Peterson likewise stated:

If you take all the requested tests, you may choose to
take further tests. You may take the alternative test that
this law enforcement agency provides free of charge. You
also may have a test conducted by a qualified person of
your choice at your expense. You, however, will have to
make your own arrangements for that test.

¶14 Thus, pursuant to WIS. STAT. § 343.305(5)(a), law enforcement must
“comply with [the accused’s] request” and provide a “reasonable opportunity” for
the accused to obtain his or her own test within three hours from the time of the
stop. Sec. 343.305(5)(a); WIS. STAT. § 885.235(1g); State v. Vincent, 171 Wis. 2d
124, 129, 490 N.W.2d 761 (Ct. App. 1992). However, “[t]he agency’s
responsibility to provide a ‘reasonable opportunity’ is limited to not frustrating the

5
WISCONSIN STAT. § 343.305(5)(a) imposes three obligations on law
enforcement: “(1) to provide a primary test at no charge to the suspect; (2) to use reasonable
diligence in offering and providing a second alternate test of its choice at no charge to the
suspect; and (3) to afford the suspect a reasonable opportunity to obtain a third test, at the
suspect’s expense.” State v. Stary, 187 Wis. 2d 266, 270, 522 N.W.2d 32 (Ct. App. 1994);
see also State v. Renard, 123 Wis. 2d 458, 460-61, 367 N.W.2d 237 (Ct. App. 1985) (concluding
that where there is a valid request for a second test, an officer must exercise reasonable diligence
in providing it). The second test is, based on the language of the statute, “the alternative test
provided by the agency” and is available only if the person submits to the primary test.
See § 343.305(2), (5)(a). Accordingly, some cases refer to this second, “alternative test” as an
“additional test” because it is in addition to the primary test, rather than instead of that test,
see State v. Schmidt, 2004 WI App 235, ¶11, 277 Wis. 2d 561, 691 N.W.2d 379, but for ease of
reading and for the purpose of this decision, we refer to the third test that the person may request
at his or her own expense as the “additional test.”

7
No. 2022AP697-CR

accused’s request for his or her own test.” Vincent, 171 Wis. 2d at 128. Law
enforcement has no duty to make arrangements for the person or transport him or
her for a test. Id. at 128-29.

¶15 Whether Peterson requested an additional test under WIS. STAT.
§ 343.305(5)(a) is a mixed question of fact and law. See State v. Schmidt, 2004
WI App 235, ¶13, 277 Wis. 2d 561, 691 N.W.2d 379. We accept the circuit
court’s findings of fact and credibility determinations unless they are clearly
erroneous, but “construction of the statute and its application to the facts as found
by the circuit court present a question of law, which we review de novo.” Id.

¶16 At the motion hearing, Deputy Benton testified that he read the form
to Peterson, and Peterson agreed to take the test. He also stated that “after reading
the entire form, [Peterson] asked [Benton] how he would make his own
arrangements for the other test.” Benton understood Peterson to be asking about
“a test conducted by a qualified person of your choice at your expense.” See WIS.
STAT. § 343.305(5)(a). Benton responded by stating that he “didn’t know how to
make those arrangements for [Peterson].” According to Benton, Peterson did not
ask any other questions about the additional test.

¶17 Peterson’s version of the conversation was that he told Benton that
he wanted an additional test. Peterson testified at the Machner hearing that he
“specifically asked [Benton] about the alternate test [provided by the agency],
which [Benton] indicated … would be a breathalyzer test.” Peterson stated that he
“was not interested in that,” presumably because he had already taken two PBTs.
According to Peterson, he then asked Benton “about the additional test, and let
[Benton] know that [he] wanted an additional test, the test of your own choosing
it’s called in the form, and [Benton] told [him], essentially, that [Benton] didn’t

8
No. 2022AP697-CR

know anything about that.” Peterson testified that after Benton responded,
Peterson “continued to rephrase [his] request to” Benton, asking him “how do I
obtain my own test, and how do I make arrangements for it.” According to
Peterson, he was “essentially … looking for [Benton’s] prompt and his permission
to pursue that additional test and be given that opportunity.”

¶18 The circuit court found that Peterson “asked a reasonable question
and the officer gave a reasonable answer[:] I don’t know how to facilitate that for
you or help you with that.” The court recognized, in alignment with the case law,
that “under the circumstances, that would be probably a normal response by an
officer because it’s not the State’s obligation at that point to facilitate that type of
test.” The court also found that there was “no indication in the record that [there
was] any more comment or question by the defendant about this third test” and
“no indication that any more conversation came up.”

¶19 On appeal, Peterson claims that Benton understood—or at least
should have understood—that Peterson was seeking an additional test. According
to Peterson, “[t]he Informing the Accused form does not suggest that any specific
wording is required to invoke the right to a private test; it states only that ‘you may
choose’ and ‘you also may have,’ and makes no demand for a ‘request’ at all.”
(Formatting altered.) He asserts that Benton’s testimony showed “he knew that
Peterson wanted the private test” and that Benton “admitted that Peterson made
multiple requests.”

¶20 Contrary to Peterson’s assertion, we conclude that he has not
demonstrated that he requested, or made clear that he was requesting, the
additional test, nor has he established that Benton somehow failed to make him
available for an additional test that Peterson attempted to arrange. First, the circuit

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No. 2022AP697-CR

court found that Peterson asked how he would get an additional test, that Benton
stated that he did not know, that Benton’s response was reasonable given the law,
and that Peterson never raised the issue again. Peterson has not demonstrated that
these findings are clearly erroneous.

¶21 Second, we disagree with Peterson that “[a]sking how [to take an
additional test] is the appropriate query.” The plain language of WIS. STAT.
§ 343.305(5)(a) states that the additional test must be “upon his or her request.” A
request is defined as “the act or an instance of asking for something.” Request,
MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/request (last visited Mar. 15, 2024).
As to Peterson’s argument that the form “does not require a ‘request’” and
“therefore accepts a stated choice as a request,” we also disagree that Peterson’s
question to Benton was “equal to ‘stating a choice.’” See Schmidt, 277 Wis. 2d
561, ¶25. Peterson asked for more information, but he did not ask for, request, or
choose an additional test.

¶22 Nevertheless, Peterson claims that “[i]t is impossible that the
legislature intended to construct a secret grammatical obstacle that a common
individual must clear to invoke one’s right to a test of one’s own choosing.”
However, it is not unusual in the legal realm to require an individual to clearly
express his or her intent to invoke his or her rights, whether statutory or
constitutional. Cf. State v. Abbott, 2020 WI App 25, ¶32, 392 Wis. 2d 232, 944
N.W.2d 8 (noting that an invocation of the right to remain silent or the right to
counsel must be made “unambiguously” and that “[t]o invoke the right to counsel,
a suspect must make an ‘unambiguous [and] unequivocal request for counsel’”
(second alteration in original; citations omitted)). Peterson’s citation to case law
outside of our jurisdiction is unavailing.

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No. 2022AP697-CR

¶23 Further, even if simply asking how to arrange a test was sufficient to
indicate to the officer that Peterson had chosen to take an additional test, the law
“merely requires the [officer] to make the accused available to obtain his or her
own test.” See Vincent, 171 Wis. 2d at 129. “To require the [officer] to take an
active part in obtaining a test of the accused’s choosing could open the door for
other responsibilities to be imposed upon the agency …. We do not believe the
statute extends the responsibility of the agency this far.” Id. at 128. Nothing in
the statute requires the officer to take any affirmative steps, reach an agreement
with the accused, or actively participate in the process, aside from making the
accused available for the test he or she requests and arranges.

¶24 Thus, even if Peterson properly requested to take an additional test,
he failed to make arrangements to take the test—which, as the circuit court
identified, could have been as simple as requesting an additional test from medical
personnel at the hospital. Benton did not mislead Peterson or impede Peterson
from taking an additional test; thus, Benton fulfilled his duty under the statute.6
Peterson is not entitled to the relief he requests.

II. Right to Counsel

¶25 Peterson next argues that he was denied his Sixth Amendment right
to counsel when, as noted above, the circuit court ordered defense counsel not to
discuss Peterson’s ongoing testimony with him during the overnight recess.

6
Peterson claims that State v. McCrossen, 129 Wis. 2d 277, 385 N.W.2d 161 (1986), is
the “most relevant binding case law.” However, McCrossen does not support Peterson’s
position. First, unlike in McCrossen, we have determined that Peterson did not ask for an
additional test. See id. at 281. Further, Peterson was not misled or misinformed about the
procedure for an additional test. See id. Thus, at the very least, this case is entirely
distinguishable from McCrossen on its facts. Consequently, we will not address that case further.

11
No. 2022AP697-CR

Initially, we recognize that defense counsel did not object to the application of the
court’s sequestration order to Peterson. Counsel agreed to abide by the court’s
order, and he did not suggest that he was objecting to any portion of the order.
Because defense counsel did not object to the court’s order, Peterson has forfeited
his right to directly challenge the order on appeal. See State v. Erickson, 227
Wis. 2d 758, 765-66, 596 N.W.2d 749 (1999). Peterson does not argue any other
basis by which we may review his claim. Thus, Peterson’s challenge to the court’s
sequestration order falls under the ineffective assistance of counsel rubric, see id.
at 766, which we will address in further detail below, see infra ¶¶61-65.

III. Juror Bias

¶26 Peterson’s next claim is that he is entitled to a new trial on the
ground that a juror was biased. See State v. Funk, 2011 WI 62, ¶32, 335 Wis. 2d
369, 799 N.W.2d 421. “There are three disqualifying forms of juror
bias: (1) statutory; (2) subjective; and (3) objective.” State v. Gutierrez, 2020 WI
52, ¶39, 391 Wis. 2d 799, 943 N.W.2d 870. On appeal, Peterson claims that the
juror in question was statutorily and objectively biased. “Prospective jurors are
presumed impartial,” and Peterson carries the burden to rebut this presumption.
See State v. Lepsch, 2017 WI 27, ¶22, 374 Wis. 2d 98, 892 N.W.2d 682 (citation
omitted).

¶27 During voir dire, the juror informed the circuit court and the parties
that he is Deputy Benton’s “second or third cousin[]” and that they graduated from
high school together but do not see each other often. The juror also stated that he
was a neighbor of Peterson, who lived “a couple miles” away, and that he would
see Peterson “out in public in various places of business sometimes.” When asked
how he heard about the accident, the juror admitted that he was close to the

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No. 2022AP697-CR

accident after it happened, stating that he was a “few blocks away and [saw] an
ambulance” and that he felt “very, very sad” “for whoever was involved” in the
accident. The juror was not removed for cause by either party, and he sat on
Peterson’s jury.

¶28 We again observe that it does not appear, based on our review of the
record, that defense counsel objected to the juror at any point during voir dire.
“[A] defendant [forfeits] an objection to a juror’s bias if no motion is made to the
[circuit] court to remove the juror for cause.”7 State v. Brunette, 220 Wis. 2d 431,
442, 583 N.W.2d 174 (Ct. App. 1998). Nevertheless, “[a] failure to object or to
further question a juror may be raised as a claim of ineffective assistance of
counsel.” State v. Carter, 2002 WI App 55, ¶14, 250 Wis. 2d 851, 641 N.W.2d
517. Thus, as with the right to counsel issue, we will address the juror bias issue
in further detail below. See infra ¶¶46-60.

IV. Reversal in the Interest of Justice

¶29 Peterson next argues that he is entitled to a new trial in the interest of
justice because, during closing arguments, the State misstated the law regarding
the affirmative defense to homicide by intoxicated use of a vehicle under WIS.
STAT. § 940.09(2)(a). According to Peterson, his affirmative defense—although
he suggests on appeal that it was undeveloped at trial—was that his daughter’s
“large dog vaulted from the passenger floor of the vehicle toward a disturbance
outside the driver window, striking the steering wheel and his arms, [and] turning

7
While State v. Brunette, 220 Wis. 2d 431, 442, 583 N.W.2d 174 (Ct. App. 1998),
refers to “waiver,” the more accurate term is “forfeiture.” See State v. Ndina, 2009 WI 21, ¶29,
315 Wis. 2d 653, 761 N.W.2d 612 (explaining the difference between “forfeiture” and “waiver”).

13
No. 2022AP697-CR

the car.” He claims that as a result of the State’s error, the real controversy—the
presence and the action of the dog in the car relative to the collision—has not been
fully tried.

¶30 At the close of evidence, the circuit court instructed the jury on the
affirmative defense to homicide by intoxicated use of a vehicle (and while having
a PAC) pursuant to WIS. STAT. § 940.09(2)(a). Based upon that statutory
affirmative defense, the jury was instructed, in part, that

Wisconsin law provides that it is a defense to the crime
charged in count one if the death would have occurred even
if the defendant had been exercising due care and had not
been under the influence of an intoxicant.

Wisconsin law further provides that it is a defense to the
crime charged in count two if the death would have
occurred even if the defendant had been exercising due care
and … had not had a [PAC].

The burden is on the defendant to prove by evidence
which satisfies you to a reasonable certainty by the greater
weight of the credible evidence that this defense is
established as to each count.

See also WIS JI—CRIMINAL 1189 (2020).

¶31 During its closing argument, the State argued that the accident
occurred as a result of Peterson being intoxicated and identified some “excuses”—
independent of alcohol—that Peterson gave for why the accident occurred: the
victim was speeding, the victim was “probably intoxicated,” the sun was in
Peterson’s eyes, Peterson’s windshield was dirty so he could not see clearly, there
was a mirage due to a dip in the road, the witnesses on the other motorcycle
distracted him, and his daughter’s dog caused the car to turn into the victim’s
motorcycle. The State asked the jury to reject those excuses.

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No. 2022AP697-CR

¶32 In response, Peterson’s defense counsel argued that the accident was
the result of “a lot of causes here and a lot of factors.” Counsel then also
referenced the sunlight, the dog, and the dirty windshield, as well as the fact that
no one tested the victim’s blood sugar to see if that played a role in the accident,
that Peterson was more sensitive to light “at that point due to his medical issues,”
and that the victim’s motorcycle’s headlight was out. According to defense
counsel, it was “a combination of all these things coming together that created this
accident,” and it was “clear to [counsel] that there’s no role that alcohol played in
that crash.”

¶33 In rebuttal, the State explained that the applicability of the
affirmative defense is not just based on whether the accident “would … have
occurred even if the defendant had not been under the influence of an intoxicant.”
Instead, the question is whether the “death [would] have occurred even if the
defendant had been exercising due care and had not been under the influence of an
intoxicant.” The State reiterated Peterson’s excuses, claiming that they
demonstrated that Peterson did not exercise due care because he was taking
medication he knew causes vision problems, drank alcohol while on the
medication, knew about his dirty windshield and the sun, allowed himself to get
distracted by the witnesses on the motorcycle, and had the dog in the car.
According to the State, “[T]hat cannot be due care. That’s not due care,” and “this
crash would’ve happened anyway, there’s more to it. You have to find that
[Peterson] was also exercising due care and he wasn’t. So … this defense doesn’t
apply.”

¶34 As with Peterson’s previous two arguments on appeal, defense
counsel did not object to the State’s affirmative defense discussion during closing
arguments; thus, Peterson has also forfeited this claim. See State v. Guzman,

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No. 2022AP697-CR

2001 WI App 54, ¶25, 241 Wis. 2d 310, 624 N.W.2d 717. On this issue, however,
Peterson appears to concede that he has forfeited this claim, given that he argues
he is entitled to reversal under WIS. STAT. § 752.35 because the real controversy
was not fully tried.8 See Vollmer v. Luety, 156 Wis. 2d 1, 19-20, 456 N.W.2d 797
(1990). “We exercise our authority to reverse in the interest of justice
under … § 752.35 sparingly and only in the most exceptional cases.” State v.
Schutte, 2006 WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469. Under the
circumstances here, we are not persuaded this is such an exceptional case.

¶35 Postconviction, the circuit court rejected Peterson’s argument that
the State misstated the WIS. STAT. § 940.09(2)(a) affirmative defense during its
closing argument, determining that the State’s rebuttal comments were not
contrary to the statute. According to the court, defense counsel’s “argument at
closing was a far more problematic use of the [affirmative] defense than the
State’s rebuttal,” and “[t]he State’s rebuttal was well within the four corners of the
instruction given to the jury by the [c]ourt and is not per se objectionable.” As the
court explained, “[t]he defense is not: ‘even if I am under the influence and not
exercising due care this accident would have happened anyway.’” Instead, “[t]he
defense under § 940.[09](2)(a) is: ‘even if I was not under the influence and
exercising due care, this accident would have happened anyway.’” We agree with
the court that the State did not clearly misstate the law during closing arguments;
therefore, Peterson has not shown that the real controversy in this case was not
fully tried. Peterson’s arguments to the contrary are unavailing.

8
Peterson also asserts that his defense counsel was constitutionally ineffective based on
this issue, which we address further below. See infra ¶¶73-77.

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No. 2022AP697-CR

¶36 Peterson first cites State v. Raczka, 2018 WI App 3, 379 Wis. 2d
720, 906 N.W.2d 722 (2017). In that case, Raczka crashed his car into a tree,
killing his passenger. Id., ¶1. The circuit court excluded evidence relating to
Raczka’s defense, under WIS. STAT. § 940.09(2)(a), that the accident was caused
by his seizure because it concluded that “Raczka’s failure to take his medication
was negligent as a matter of law and a total bar to a defense under” the statute.
Id., ¶¶1, 6. We reversed, concluding that “whether Raczka’s failure to take his
medication was a failure to exercise due care is a question of fact; it cannot be
presumed as a matter of law” and that “[m]any factors could impact Raczka’s duty
of care and the foreseeability of harm.” Id., ¶15.

¶37 According to Peterson, Raczka “exemplifies the nuanced approach
required to balance due care factors with causality using the ‘even-if’ statutory
analysis of [WIS. STAT. §] 940.09(2).” Peterson claims that “[t]he State argued,
‘You have to find that [Peterson] was also exercising due care and he wasn’t, so
this defense does not apply’” and that “[t]his argument was contrary to Raczka”
because “the mere presence of a lack of due care by a defendant in any regard does
not make the affirmative defense inapplicable unless the specific lack of due care
caused the accident.”

¶38 As noted above, we do not conclude that the State misstated the
affirmative defense under WIS. STAT. § 940.09(2)(a), nor were the State’s closing
arguments contrary to Raczka. The law is clear that Peterson’s “own negligence is
not a defense.” See Raczka, 379 Wis. 2d 720, ¶11. Therefore, for the jury to find
that the affirmative defense applied, it had to find that Peterson was not acting
negligently—in other words, that he was exercising due care. Unlike in Raczka,
where the defendant argued only that his seizure caused the accident, id., ¶3,
defense counsel here very clearly argued before the jury that there were “a lot of

17
No. 2022AP697-CR

causes here and a lot of factors” that caused the accident. Thus, as Peterson
argued, to the extent that the State’s discussion during closing arguments
suggested that “the mere presence of a lack of due care by a defendant in any
regard” makes the affirmative defense inapplicable, that was simply in response to
Peterson’s arguments that there may have been many other causes. (Emphasis
added.) See State v. Mayo, 2007 WI 78, ¶43, 301 Wis. 2d 642, 734 N.W.2d 115
(“Even if there are improper statements by a prosecutor, the statements alone will
not be cause to overturn a conviction. Rather, the statements must be looked at in
context of the entire trial.”).

¶39 No matter what Peterson argued caused the accident (i.e., the dog,
the sunlight, the dirty windshield)—such “that the death would have occurred even
if he … had not been under the influence of an intoxicant”—WIS. STAT.
§ 940.09(2)(a) still required Peterson to prove that he also exercised due care as to
those other causes. See Raczka, 379 Wis. 2d 720, ¶14 (“As the circuit court
correctly recognized, if failing to take the [seizure] medication was negligent and
this negligence caused the seizure and the crash, then the statute offers no
defense.”); State v. Jacobs, 2012 WI App 104, ¶33, 344 Wis. 2d 142, 822 N.W.2d
885 (“Jacobs’ argument that he was not impaired and did exercise due care misses
the mark. He simply did not exercise due care. He blew the stop sign…. But for
running the stop sign, the accident would never have occurred.”). As the State
argued, “[f]or the jury to find that the affirmative defense applied because the
crash was caused by something Peterson could not control, it had to find that
Peterson was exercising due care in regard to the thing that caused the crash.” It
was the jury’s responsibility to determine whether Peterson met his burden to
prove that his negligence did not factor into the other purported causes of the
accident. The jury was not misled as to its role.

18
No. 2022AP697-CR

¶40 Next, Peterson claims that this case is similar to State v. McAdory,
2021 WI App 89, 400 Wis. 2d 215, 968 N.W.2d 770. There, the defendant was
charged with two drug-related driving offenses. Id., ¶1. As relevant to this case,
the defendant claimed that the prosecution misled the jury in its opening statement
and closing argument about what the State had to show to prove that he was
“under the influence” and that the circuit court modified the pattern jury
instruction in a manner that created ambiguity regarding the “under the influence”
element. Id., ¶¶1-2. This court agreed that the prosecutor’s statements misled the
jury and explained that “[p]utting together the ambiguous aspects of the
instruction with the deeply problematic trial events” related to the sufficiency of
the evidence, “we conclude that this created a reasonable likelihood that the jury
did not understand the burden that the State had in proving the ‘under the
influence’ element of the [operating a motor vehicle while intoxicated] offense.”
Id., ¶64.

¶41 McAdory is materially distinguishable. Here, Peterson does not
allege that the pattern jury instructions given to the jury were ambiguous or
incorrect in any manner. Therefore, the jury received instructions that correctly
stated the affirmative defense, and, thus, any possible ambiguity created by the
State’s closing arguments was not compounded by the jury instructions. Further,
during the State’s closing arguments, it specifically advised the jury to “make
sure” to “only look at the jury instruction” rather than follow the State’s and
defense counsel’s visual aids presented to explain the affirmative defense.
Peterson also does not claim that the evidence in this case was insufficient for the

19
No. 2022AP697-CR

jury to find that he committed the charged offenses. Thus, this court’s conclusion
in McAdory is simply not applicable here.9

¶42 Further, the circuit court specifically instructed the jury that “you
must base your verdict on the law I give you in these instructions” and that the
jury was to consider “only the evidence received during this trial and the law given
to you by these instructions” in reaching its verdicts. We presume that jurors
follow the instructions given by the court. See State v. LaCount, 2008 WI 59,
¶23, 310 Wis. 2d 85, 750 N.W.2d 780. Therefore, even if the State misstated the
affirmative defense during its closing arguments, the jury would not have been
misled. Accordingly, the real controversy was fully tried, and Peterson is not
entitled to a new trial in the interest of justice.

V. Ineffective Assistance of Counsel

¶43 To demonstrate constitutionally ineffective assistance of counsel,
Peterson must establish both that his defense counsel performed deficiently and
that counsel’s deficient performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Whether a defendant has been denied
constitutionally effective assistance of counsel is a mixed question of law and fact.
State v. Savage, 2020 WI 93, ¶25, 395 Wis. 2d 1, 951 N.W.2d 838. We will not
overturn a circuit court’s findings of fact unless those findings are clearly

9
Peterson also cites State v. Neuser, 191 Wis. 2d 131, 528 N.W.2d 49 (Ct. App. 1995),
and State v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372, as cases where we
“reversed on grounds that a prosecutor misstated the law in closing arguments.” Because we
have determined that the State in this case did not misstate the law during closing arguments,
these cases are inapt, and we will not address them further.

20
No. 2022AP697-CR

erroneous. Id. We review de novo whether counsel performed deficiently and, if
so, whether counsel’s deficient performance was prejudicial to the defense. Id.

¶44 “To demonstrate deficient performance, the defendant must show
that his [or her] counsel’s representation ‘fell below an objective standard of
reasonableness’ considering all the circumstances.” State v. Shata, 2015 WI 74,
¶56, 364 Wis. 2d 63, 868 N.W.2d 93 (citations omitted). Our review “of counsel’s
performance must be highly deferential,” and “counsel is strongly presumed to
have rendered adequate assistance.” Strickland, 466 U.S. at 689-90.

¶45 To establish prejudice, “a defendant must show that there is a
reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Savage, 395 Wis. 2d 1, ¶32 (citation
omitted). However, “a defendant need not prove the outcome would ‘more likely
than not’ be different in order to establish prejudice in ineffective assistance
cases.” State v. Sholar, 2018 WI 53, ¶44, 381 Wis. 2d 560, 912 N.W.2d 89
(citation omitted). “A court need not address both components of this inquiry if
the defendant does not make a sufficient showing on one.” State v. Smith, 2003
WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

a. Juror Bias

¶46 As noted above, Peterson argued on appeal that one of the jurors
who sat on his jury was statutorily and objectively biased, and we must consider
his arguments on that issue from an ineffective assistance of counsel posture.10
10
In the context of an ineffective assistance of counsel claim concerning juror bias, the
prejudice prong presents a question of whether defense “counsel’s performance resulted in the
seating of a biased juror.” See State v. Gutierrez, 2020 WI 52, ¶45, 391 Wis. 2d 799, 943
N.W.2d 870.

21
No. 2022AP697-CR

See supra ¶¶26-28. Peterson also claims that his defense counsel “should have
pressed” the juror during voir dire “for further details” related to “how he heard”
about the accident and about his “exploration” of the accident scene. (Formatting
altered.) For the reasons that follow, we conclude that the record does not support
a conclusion that the juror was either statutorily or objectively biased.

¶47 Peterson asserts that the juror was statutorily biased because he and
Deputy Benton are second cousins. A juror is statutorily biased if he or she is
“related by blood, marriage or adoption to any party or to any attorney appearing
in the case, or has any financial interest in the case.” WIS. STAT. § 805.08(1).
“[A] person meeting one of these descriptions is statutorily biased and may not
serve on a jury regardless of his or her ability to be impartial.” State v. Faucher,
227 Wis. 2d 700, 717, 596 N.W.2d 770 (1999).

¶48 Based on the plain language of the statute, Peterson’s claim clearly
fails. Benton was not a “party” or an “attorney appearing in the case.” A “party”
is defined as “[o]ne by or against whom a lawsuit is brought; anyone who both is
directly interested in a lawsuit and has a right to control the proceedings, make a
defense, or appeal from an adverse judgment.” Party, BLACK’S LAW DICTIONARY
(11th ed. 2019). Thus, in a criminal proceeding, a “party” would include the State
and the defendant. While Peterson claims Benton was essentially treated as a
party to the case because he “was seated at the prosecution table” and was “sitting
as [an] agent with the State,” the statute, by its plain language, does not apply
where an individual is not a party but is treated like a party.

¶49 Next, Peterson argues that the juror did not correctly and completely
answer questions during voir dire and that “[t]his failure,” along with the juror’s
“ties to Benton and Peterson,” shows objective bias. “The concept of objective

22
No. 2022AP697-CR

bias relates to the question of ‘whether [a] reasonable person in the individual
prospective juror’s position could be impartial.’” Lepsch, 374 Wis. 2d 98, ¶24
(alteration in original; citation omitted). “The focus is on the facts and
circumstances surrounding the voir dire and trial, and whether given those facts
and circumstances, a reasonable person in the juror’s position would be biased.”
Funk, 335 Wis. 2d 369, ¶38. To exclude a juror because of objective bias, there
must be either: “(1) some direct or personal connection between the challenged
juror and some important aspect of the particular case, or (2) a firmly held
negative predisposition by the juror regarding the justice system that precludes the
juror from fairly and impartially deciding the case.” State v. Jimmie R.R., 2000
WI App 5, ¶19, 232 Wis. 2d 138, 606 N.W.2d 196.

¶50 We review whether a juror is objectively biased as a mixed question
of fact and law. Funk, 335 Wis. 2d 369, ¶30. We uphold the circuit court’s
findings of fact unless they are clearly erroneous, but we review whether those
facts fulfill the legal standard for objective bias de novo. Id. “Although we do not
defer to a circuit court’s decision on a question of law, where the factual and legal
determinations are intertwined (as they are in determining objective bias), we give
weight to the circuit court’s legal conclusion.” Id. “We have said that we will
reverse a circuit court’s determination in regard to objective bias ‘only if as a
matter of law a reasonable judge could not have reached such a conclusion.’” Id.
(citation omitted).

¶51 Initially, we agree with the circuit court that the juror’s testimony at
the Machner hearing did not reveal any additional material information suggesting
that he incorrectly or incompletely responded to a question during voir dire.
See Funk, 335 Wis. 2d 369, ¶¶32, 39 (discussing the standards by which we are to
review an objective bias claim “[i]n cases involving a juror who was not

23
No. 2022AP697-CR

forthcoming during voir dire and subsequently sat on the jury”).11 As noted above,
see supra ¶27, the juror disclosed his relationship with Benton, his previous
interactions with Peterson, and his presence at the scene of the accident during
voir dire. At the Machner hearing, the juror provided further details. He testified
that he and Benton are second cousins and that the high school that they attended
had a class of about thirty-five people, but he stated that they did not “hang around
in the same circle” and socialized only “[o]nce in a great while.” As for Peterson,
the juror explained that Peterson was a customer at the convenience store where
the juror worked and that Peterson was “[a]lways” “cordial,” the juror never had
“any issues” with Peterson, and he had never seen Peterson intoxicated. The juror
also stated that he knew of a disagreement someone else had with Peterson.

¶52 The juror noted that on the night of the accident, he was “literally
there in the aftermath.” According to the juror, he observed “the car crashed, and
then the motorcycle on its side, barricades everywhere, police activity
everywhere.” He testified that he got as close “as the barricades would let [him],”
which was “a couple hundred feet,” but he did not talk to anyone at the scene.
Instead, the juror stated that he spoke with an individual at a bar “[l]ess than half a
block” down the road who knew that Peterson and another person were involved.

¶53 Peterson claims that the juror provided “false” information due to
the differences between his answers during voir dire and his testimony at the
Machner hearing. According to Peterson, during voir dire, the juror should have

11
To prove objective bias, a defendant must prove both: (1) “that the juror incorrectly or
incompletely responded to a material question on voir dire,” and if so, (2) “that it is more
probable than not that under the facts and circumstances surrounding the particular case, the juror
was biased against the moving party.” State v. Funk, 2011 WI 62, ¶32, 335 Wis. 2d 369, 799
N.W.2d 421 (citation omitted).

24
No. 2022AP697-CR

stated that he heard about the accident from individuals at the bar, he should have
admitted that he was less than half a block away rather than a few blocks away,
and he should have stated that he saw the wreckage rather than that he saw an
ambulance from a distance.

¶54 The circuit court rejected Peterson’s claim that the juror provided
false information. Specifically, the court found that “[t]he testimony at the
postconviction motion hearing regarding [the juror’s] relationship [with Benton]
did not lend much more detail th[a]n what was known on the day the jury was
selected.” Further, it noted that it could not “conclude a lack of candor existed
when asked questions about [the juror’s] prior knowledge of the accident scene.”
Finally, it found that the juror’s familiarity with Peterson had no impact on his
opinion of Peterson. Based on this record, we cannot conclude that the court’s
findings were clearly erroneous.

¶55 We also conclude that the record fails to demonstrate that the juror
was objectively biased. In support of his position that the juror was objectively
biased, Peterson cites first to United States v. Brazelton, 557 F.3d 750 (7th Cir.
2009), for the proposition that “the court recognized implied bias where a juror
shares ‘any degree of kinship with a principal in a case,’ and that it would be
prudent to disqualify a juror who was second cousin of the complaining witness.”
See id. at 754. In that case, “one of the jurors seated was [a second cousin of] the
victim in the [uncharged] shooting that led to Brazelton’s arrest and the search of
his home.” Id. at 752, 754.

¶56 Peterson’s citation to Brazelton is inapt. First, the case involved a
juror’s relationship to a victim of a crime connected to the case, id. at 754, not to a
law enforcement officer investigating the case. Second, the federal court did not

25
No. 2022AP697-CR

determine “whether the relationship [of a second cousin] is close enough to
assume bias”; instead, the court stated it “need not answer that question” because
“Brazelton’s on-the-record decision to pass up not one, but two opportunities to
ask that Juror Number Four be struck for cause was a waiver” and “would be
equivalent to allowing the defendant to ‘plant an error and grow a risk-free trial.’”
Id. at 754-55 (citation omitted). Finally, even if the court had determined that a
second cousin is close enough to assume bias, we would not be bound by the
court’s decision. See Lomax v. Fiedler, 204 Wis. 2d 196, 217, 554 N.W.2d 841
(Ct. App. 1996) (explaining that decisions of federal district and appellate courts
are not binding on state courts).

¶57 Equally unavailing is Peterson’s citation to State v. Gesch, 167
Wis. 2d 660, 663, 665, 482 N.W.2d 99 (1992), where a prospective juror was the
brother of a police officer who was the state’s witness. Our supreme court
concluded that a reasonable person would have a difficult time “remain[ing]
unaffected by the testimony of a relative by blood or marriage to the third degree.”
Id. at 663, 667-68. Unlike in Gesch, the juror in this case was not a “relative by
blood or marriage to the third degree.” See WIS. STAT. § 990.001(16). Thus,
Gesch does not mandate a finding of objective bias. Second, the brothers in
Gesch had a close relationship, while Benton and the juror in the instant case did
not have any significant relationship. See Gesch, 167 Wis. 2d at 664.

¶58 Considering both the juror’s statements during voir dire as well as
his testimony at the Machner hearing, we do not agree with Peterson that the
juror’s relationship to Benton, his familiarity with Peterson, or his observations of
the accident site qualify as “some direct or personal connection” with “some
important aspect of” this case such that a reasonable person in the juror’s position
could not set aside his or her opinion or knowledge and be impartial. The juror

26
No. 2022AP697-CR

was merely Benton’s very extended relative, and the two men did not have a
relationship, let alone a significant one. The same applies to the juror’s overall
familiarity with Peterson. The juror testified that he had interacted with Peterson
where he worked, but there was no suggestion of any negative experiences directly
with Peterson such that a reasonable person living in a small, rural community
could not be impartial under the same circumstances.

¶59 Finally, while the juror may have witnessed the aftermath of the
accident, we are not convinced that this connection to the case warrants a
determination of objective bias. The juror testified that he saw the motorcycle on
its side, but there was no indication that he witnessed or heard anything more
inflammatory, such as seeing the victim after the accident or hearing people
negatively discuss Peterson either at the scene or later at the bar. Merely
expressing sadness for those involved does not objectively demonstrate bias,
absent some direct or personal connection.

¶60 In summary, we agree with the circuit court’s conclusion that the
juror in this case was not objectively biased. Peterson has not shown that further
questioning of the juror—as to how the juror heard about the crash and about his
“exploration” of the crash scene—would have yielded a different outcome because
the juror’s answers at the Machner hearing did not reveal any additional evidence
of bias such that a “reasonable person” in the juror’s position could not be
impartial. See Lepsch, 374 Wis. 2d 98, ¶24. Therefore, Peterson has failed to
demonstrate that defense counsel performed deficiently, and, accordingly, defense
counsel was not ineffective by failing to remove the juror from the panel.
See State v. Wheat, 2002 WI App 153, ¶23, 256 Wis. 2d 270, 647 N.W.2d 441
(counsel is not ineffective for failing to make meritless arguments).

27
No. 2022AP697-CR

b. Right to Counsel

¶61 Peterson next claims that defense counsel was ineffective by not
objecting when the circuit court ordered counsel not to discuss Peterson’s ongoing
testimony with him during the overnight recess. According to Peterson,
“[c]ounsel cheerfully volunteered not to talk to Peterson about his testimony
between day three and day four of trial.” (Formatting altered.) Peterson claims
that this order resulted in the constructive denial of his right to counsel.

¶62 Both Peterson and the State agree that Geders and Perry provide
precedential value, but, as the circuit court recognized, neither case directly
addresses the specific issue here because “the restriction to counsel was narrowed
down to a prohibition on discussing the defendant’s testimony until his time in the
witness stand under oath had lapsed. No other denial of communication or contact
was in place and communication did occur between the defendant Peterson and his
counsel.” See Geders, 425 U.S. at 91 (“[A]n order preventing petitioner from
consulting his counsel ‘about anything’ during a 17-hour overnight recess between
his direct- and cross-examination impinged upon his right to the assistance of
counsel guaranteed by the Sixth Amendment.”); Perry, 488 U.S. at 284-85 (“[T]he
Federal Constitution does not compel every trial judge to allow the defendant to
consult with his lawyer while his testimony is in progress if the judge decides that
there is a good reason to interrupt the trial for a few minutes.”).

¶63 Nevertheless, the State claims that the reasoning of Geders and
Perry supports the circuit court’s conclusion that its sequestration order did not
violate Peterson’s right to counsel because the order was limited to discussing
Peterson’s testimony, not limiting any discussion. Peterson disagrees and cites
several cases outside our jurisdiction in support of his argument that the court’s

28
No. 2022AP697-CR

order resulted in a constructive denial of meaningful counsel. See United States v.
Santos, 201 F.3d 953 (7th Cir. 2000); Martin v. United States, 991 A.2d 791
(D.C. Cir. 2010); United States v. Triumph Capital Grp., Inc., 487 F.3d 124
(2d Cir. 2007); United States v. Cobb, 905 F.2d 784 (4th Cir. 1990); United States
v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir. 2006); Mudd v. United States, 798
F.2d 1509 (D.C. Cir. 1986).

¶64 As noted above, see supra ¶25, defense counsel did not object to the
circuit court’s sequestration order; therefore, we must review Peterson’s challenge
under the ineffective assistance of counsel rubric. To prove that counsel was
ineffective for not objecting to the court’s order, Peterson must show that it was
settled law that the court’s order was improper. See State v. Breitzman, 2017 WI
100, ¶49, 378 Wis. 2d 431, 904 N.W.2d 93. “[F]ailure to raise arguments that
require the resolution of unsettled legal questions generally does not render a
lawyer’s services ‘outside the wide range of professionally competent assistance’
sufficient to satisfy the Sixth Amendment.” Id. (alteration in original; citation
omitted).

¶65 The one thing that the parties, as well as the circuit court, agree on is
that this issue is one of first impression in this jurisdiction because no Wisconsin
case has addressed whether a limited sequestration order between the defendant
and defense counsel violates the Sixth Amendment. All of the cases cited by
Peterson in support of his position are federal appellate court cases, which are not

29
No. 2022AP697-CR

binding on this court.12 See Lomax, 204 Wis. 2d at 217. Therefore, in one
scenario, Peterson’s defense counsel did not perform deficiently because Geders
and Perry do not specifically prohibit the court’s sequestration order in this case,
and, therefore, counsel did not perform deficiently by failing to object based on a
meritless argument. See Wheat, 256 Wis. 2d 270, ¶23. In another scenario, the
issue is unsettled; therefore, defense counsel did not perform deficiently by not
objecting. See Breitzman, 378 Wis. 2d 431, ¶48.

c. Jail Call

¶66 Peterson next argues that defense counsel provided constitutionally
ineffective assistance because he failed to prepare Peterson with the jail call
recording used by the State as impeachment evidence at trial. As noted, during
cross-examination, the State presented Peterson with a recorded jail call after he
denied stating that he had three or four drinks in the eight hours before the crash.

¶67 On appeal, Peterson dubs this jail call “devastating impeachment
evidence” and claims that it was “possible only because he was unaware of the jail
call evidence, which made him look like a liar in front of the jury.” He testified at
the Machner hearing that the first time he heard the jail call recording was at trial,
that he had not been aware it existed, that defense counsel never provided him
with that jail call recording, and that counsel never discussed that phone call with
him. Peterson argues that if defense counsel had discussed the jail call with him,

12
We note that the circuit court’s amended order denying Peterson’s postconviction
motion, see supra note 4, specifically addresses Peterson’s reference at the hearing to United
States v. Santos, 201 F.3d 953 (7th Cir. 2000), admitting that the court’s previous statement that
no cases on the subject of sequestration orders between the defendant and counsel “existed in
Wisconsin or the 7th Circuit was in error.” The court recognized that Santos supports Peterson’s
argument but correctly stated that “Wisconsin law remains silent on this issue.”

30
No. 2022AP697-CR

then counsel “could have prepared Peterson for cross-examination and given him
an opportunity to explain the circumstances surrounding the jail call.”

¶68 Defense counsel testified at the Machner hearing that all Peterson’s
jail calls had been provided to the defense prior to trial by the State and that he had
reviewed the jail calls. Counsel explained that he did not “recall a specific
conversation [he] had” with Peterson regarding the jail calls, but he stated that he
was “fairly confident that [he] reviewed with [Peterson] the fact that those calls
exist[ed].” According to defense counsel, it was his typical procedure to “review
prior [inconsistent] statements made by” a defendant, so he had “to assume that
[he] would have” had those discussions with Peterson, especially given the amount
of time counsel spent with Peterson “discussing the case, and discussing his
recollection of the facts, and what he would testify to.” Defense counsel admitted,
however, that “it is possible that [he] did not specifically discuss [statements
concerning how much Peterson had to drink] with him in this case, and … that
would be a mistake.”

¶69 Based on defense counsel’s testimony, the circuit court rejected
Peterson’s claim that counsel was ineffective. According to the court, the
testimony “clearly shows Peterson met with [his defense counsel] quite often
before trial, [and] almost certainly went over his potential testimony and the likely
areas of cross[-examination] and impeachment.” Based on the record, the court
found “that there was a good chance those recordings were part of the
attorney/client preparation,” and if the recordings were not, Peterson cannot
seriously claim he was not aware of the recordings. As the court explained, “all
phone calls from the Bayfield County jail are recorded and all inmates are placed
on notice before each call that they will be recorded,” so “the existence of these
recordings was not a surprise to the defendant” and he “knew about those calls

31
No. 2022AP697-CR

long before his attorney.” Finally, the court concluded that for Peterson “[t]o
claim ignorance of the calls at this point seems oddly disingenuous.”

¶70 We conclude that regardless of whether defense counsel did or did
not discuss the jail call evidence with Peterson prior to trial, Peterson has failed to
establish that he was prejudiced by counsel’s alleged deficient performance.
Peterson told Deputy Benton at the scene of the accident that he had only one
drink, and Peterson testified at trial that he had only one drink. He later admitted
that he had three or four drinks before the accident; thus, the record suggests that
Peterson lied to law enforcement and to the jury.

¶71 Given the circumstances, we agree with the circuit court that the
State would have presented the jail call regardless of whether Peterson and defense
counsel had or had not discussed the call in advance of Peterson’s testimony. We
also see no error in the court’s findings that there is “no indication” in the record
that Peterson would have elected not to testify, that Peterson had “an alternate set
of facts explaining the admission against his own interest,” or that “a better
explanation could have been presented” for his statement about having three or
four drinks. Prejudice requires that Peterson “show that there is a reasonable
probability that, but for counsel’s professional errors, the result of the proceeding
would have been different.” See Savage, 395 Wis. 2d 1, ¶32 (citation omitted).
Peterson has failed to argue that he would not have testified or how he would have
explained his later admission to having three or four drinks to the jury had he been
alerted to the jail call during trial preparation by defense counsel. Peterson has not
shown prejudice and is not entitled to relief on this issue.

32
No. 2022AP697-CR

d. “Lack of Remorse” Evidence

¶72 Peterson next argues that his defense counsel was constitutionally
ineffective by not objecting to evidence pertaining to his lack of remorse after the
accident. According to Peterson, the circuit court granted his request for an order
prohibiting evidence as to a witness’s opinion regarding his alleged lack of
remorse at the scene, but he claims the order was not enforced. On appeal,
Peterson does not identify for this court exactly what trial testimony was
objectionable or develop any argument based on the two-part Strickland test;
instead, Peterson merely directs our attention to his postconviction motion.
Accordingly, Peterson has not developed this argument on appeal, and we do not
consider undeveloped arguments. See State v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992); see also Ellsworth v. Schelbrock, 229 Wis. 2d
542, 566, 600 N.W.2d 247 (Ct. App. 1999), aff’d, 2000 WI 63, 235 Wis. 2d 678,
611 N.W.2d 764 (“[W]e consider ‘for-reasons-stated-elsewhere’ arguments to be
inadequate and decline to consider them.”).

e. Affirmative Defense

¶73 Peterson’s final ineffective assistance claim is that defense counsel
was constitutionally ineffective by failing to object to the State’s misstatement of
the affirmative defense during closing arguments and by not further developing his
defense that his daughter’s dog caused him to crash his car into the motorcycle and
kill the victim. On the first issue, as determined above, the State did not misstate
the law during its closing argument. See supra ¶¶29-42. Therefore, defense
counsel was not deficient by failing to object based on this meritless argument.
See Wheat, 256 Wis. 2d 270, ¶23.

33
No. 2022AP697-CR

¶74 On the second issue, Peterson argues that defense counsel “devoted
negligible time to the dog’s actions.” According to Peterson, “[t]he dog’s photo
was not shown along with [a] description of the collision. At no point did
[c]ounsel identify the dog’s charge inside the vehicle as the basis for Peterson’s
affirmative defense to the jury, nor is the dog mentioned in opening or closing
arguments.” (Formatting altered.) We conclude that Peterson has failed to
establish that defense counsel performed deficiently on this issue.

¶75 First, we agree with the circuit court’s analysis in its postconviction
motion decision. According to the court, “a careful reading of the evidence
regarding this alleged event clearly reveals that the entire dog related occurrence
would have lasted no more than a few seconds. It is difficult to conclude the
evidence presented about the alleged occurrence does not represent the totality of
all that could be said.” Our review of the record also reveals that Peterson and his
daughter both testified regarding the incident with the dog. The court further
identified that defense counsel “gave no specifics as to why he did not spend more
time on the dog defense” at the Machner hearing, but the court speculated that
“[i]t may have been because there was so little to say or that the testimony elicited
on the issue seemed spurious in light of the gravity of the situation.” Finally, we
question the strength of this argument, given that neither Peterson nor his daughter
told officers on the scene that the dog was responsible for the crash.

¶76 As to Peterson’s specific arguments on appeal, he first claims that
the dog’s photo was not shown by defense counsel at the proper time. Our review
indicates that the dog’s photo was shown to the jury during Peterson’s direct
testimony, and Peterson has not argued how counsel performed deficiently by
failing to show the dog’s photo “along with [a] description of the collision” or how
doing so may have led to a different outcome at trial. Next, he claims that counsel

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No. 2022AP697-CR

did not identify the dog as the basis for Peterson’s affirmative defense, but it was
clear, based on Peterson’s testimony, that he was claiming that the dog coming
into his space caused his vehicle to turn left in front of the victim. Further, we
disagree with Peterson that defense counsel did not mention the dog during
opening and closing arguments. The dog was absolutely mentioned by counsel.

¶77 Overall, Peterson fails to point to any additional evidence regarding
the dog that defense counsel should have or could have presented at trial.
Therefore, Peterson has not demonstrated that defense counsel performed
deficiently. Peterson is not entitled to a new trial.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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