State v. Edward Sanders, Jr.

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.
February 18, 2026
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. 2024AP142-CR Cir. Ct. No. 2020CF956

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EDWARD SANDERS, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: ROBERT S. REPISCHAK, Judge. Affirmed.

Before Neubauer, P.J., Grogan, and Lazar, 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. Edward Sanders, Jr., appeals from a judgment
convicting him of first-degree reckless homicide with use of a dangerous weapon
No. 2024AP142-CR

and from an order denying postconviction relief. Sanders argues: (1) he received
ineffective assistance of trial counsel; (2) the circuit court erroneously instructed
the jury on retreat, thus depriving him of a fair trial; and (3) he is entitled to
discretionary reversal in the interest of justice. We affirm.

¶2 Sanders shot G.M.1 outside Outbreak Billiards after an altercation
involving Sanders’s brother, Deangelo Herron. Multiple witnesses testified to a
chaotic fight in the parking lot, during which Herron was punched and fell to the
ground. Sanders testified that he believed his brother was in danger. The jury
acquitted Sanders of first-degree intentional homicide and two counts of
first-degree recklessly endangering safety, but found him guilty of first-degree
reckless homicide.2 Sanders moved for postconviction relief. The circuit court
denied his motion after an evidentiary hearing. See State v. Machner, 92 Wis. 2d
797, 285 N.W.2d 905 (Ct. App. 1979).

¶3 Sanders first argues that his trial counsel was ineffective for failing
to authenticate and introduce at trial the recording of his 911 call. A defendant
alleging ineffective assistance must prove both deficient performance and
prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant
fails on one prong, we need not address the other. Id. at 697.

¶4 Without deciding the matter, we assume, consistent with the circuit
court’s analysis, that counsel’s failure to properly authenticate the 911 evidence,

1
We use initials to protect the victim’s privacy. See WIS. STAT. RULE 809.19(1)(g)
(2023-24). All references to the Wisconsin Statutes are to the 2023-24 version.
2
The two counts of first-degree recklessly endangering safety that Sanders was acquitted
of involved persons other than G.M.

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No. 2024AP142-CR

which led to its exclusion from trial, constituted deficient performance. See id.
Even so, Sanders has not shown that he was prejudiced.

¶5 To establish the affirmative defense of self-defense or defense of
others, Sanders needed to show that he held a reasonable belief that the force he
used was necessary to prevent imminent death or great bodily harm to himself or
his brother. See WIS. STAT. § 939.48(1). The 911 call described the fight and
Sanders’s perception that the men were “jumping” his brother. During his trial
testimony, Sanders described the fight in much more detail and his perceptions
about the danger he believed his brother faced. The 911 call lacked the detail and
nuance present in Sanders’s trial testimony. The call would have been probative
of Sanders’s subjective belief about what occurred—which was a subject of
Sanders’s testimony—but would have done little to show that Sanders had a
reasonable belief that he needed to use the amount of force that he used. We
therefore conclude that there is no reasonable probability that playing the
recording would have changed the outcome. See Strickland, 466 U.S. at 694
(“[A] defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”).

¶6 Sanders next contends that counsel was ineffective for not eliciting
certain details from his police interview during his trial testimony. Sanders
testified that he yelled, “get back, get back” while the men continued to pummel
his brother. He contends that his counsel should have elicited from him that he
yelled to the men “get back” five times. The State correctly notes that Sanders
does not show how counsel caused any omission in his testimony, nor does he
demonstrate that this incremental detail—saying “get back” five times rather than
two times—would have altered the verdict. Sanders testified that he warned the

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No. 2024AP142-CR

men and feared for Herron’s safety, and the circuit court found counsel’s
questioning reasonable. Sanders therefore fails to establish deficient performance
or prejudice as to this argument.

¶7 Sanders also argues that counsel should have requested that the
definition of “great bodily harm” be inserted into the homicide/self-defense jury
instruction. The circuit court gave the standard instruction, which is
presumptively accurate. Cf. State v. Ellington, 2005 WI App 243, ¶8, 288 Wis. 2d
264, 707 N.W.2d 907 (“Although not binding on us, the committee’s assessment
of a proper jury instruction is ‘persuasive.’” (citation omitted)). Moreover, the
jury heard the statutory definition of great bodily harm twice in connection with
the reckless-endangerment counts. Because the jury received the definition and
acquitted Sanders of both forms of intentional homicide, he has not shown that the
absence of the definition within the first count instruction prejudiced him.

¶8 For similar reasons, counsel was not ineffective for failing to object
to the State’s discussion of “great bodily harm” during closing argument. The
circuit court found the State’s argument consistent with the evidence and not
misleading. Sanders’s counsel testified that he strategically avoids objections
during closing because they draw attention to the opponent’s argument, and he
instead addressed the State’s points in his own closing. This strategic choice is
entitled to deference. See Strickland, 466 U.S. at 690-91.

¶9 Sanders next challenges the circuit court’s decision to give the
retreat instruction, WIS JI—CRIMINAL 810. A court has broad discretion in
crafting its instructions so long as the instructions accurately reflect the law. See
State v. Anderson, 2014 WI 93, ¶16, 357 Wis. 2d 337, 851 N.W.2d 760. The
instruction accurately states that there is no duty to retreat but allows the jury to

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No. 2024AP142-CR

consider the feasibility of retreat as part of assessing the reasonableness of a
defendant’s actions undertaken in self-defense under WIS. STAT. § 939.48.
Sanders asserted both self-defense and defense-of-others, and the instruction
appropriately related to his self-defense claim. The court therefore acted within its
discretion in giving the jury the retreat instruction.

¶10 Finally, Sanders is not entitled to discretionary reversal under WIS.
STAT. § 752.35. Such relief is reserved for exceptional cases. State v. Avery,
2013 WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60. Sanders’s argument simply
repackages his ineffective-assistance claims, which we have rejected. The Record
demonstrates that the real controversy—whether Sanders acted reasonably in
firing his weapon—was fully tried, and Sanders does not show a substantial
probability that there would be a different result on retrial. See Vollmer v. Luety,
156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990).3

By the Court.—Judgment and order affirmed.

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

3
Sanders claimed that counsel should have objected to the State’s rebuttal remark that
Sanders had heard the other witnesses and could tailor his testimony accordingly. The circuit
court concluded that this was a permissible credibility argument under Portuondo v. Agard, 529
U.S. 61, 66-67 (2000). Sanders concedes in his reply brief that he cannot prevail on this issue and
therefore withdrew this argument.

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