State v. Michael J. Foster

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.
July 29, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP2149-CR Cir. Ct. No. 2017CF431

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL J. FOSTER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Jefferson County: WILLIAM F. HUE and ROBERT F. DEHRING, Judges.
Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

¶1 FITZPATRICK, P.J. Michael Foster appeals a judgment of
conviction and an order of the Jefferson County Circuit Court denying his request
No. 2020AP2149-CR

for postconviction relief.1 Foster was convicted of resisting an officer causing
substantial bodily harm contrary to WIS. STAT. § 946.41(2r) (2019-20).2 Foster
filed a postconviction motion for a new trial, alleging that his trial counsel
provided constitutionally ineffective assistance by failing to request a jury
instruction regarding the defense raised at trial that the officer used excessive force
during the officer’s interaction with Foster. The circuit court denied Foster’s
motion. We affirm the ruling of the circuit court. Foster’s assertion that his trial
counsel was ineffective fails because he has not provided to this court:
(1) material instructional language that trial counsel purportedly should have
requested; and (2) a developed argument articulating a basis, through reliance on
applicable authorities, for such an instruction.

BACKGROUND

¶2 There is no dispute regarding the following material facts.

¶3 Foster was arrested and taken to the Watertown Police Department
to complete the booking process.3 During that process, Foster briefly left the
booking room to use the restroom. When he returned, the arresting officer4
noticed that Foster was carrying a wallet. The officer requested that Foster hand

1
The Honorable William F. Hue presided at the trial in this action and entered the
judgment of conviction. The Honorable Robert F. Dehring denied Foster’s postconviction
motion.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
The reason for Foster’s arrest is not consequential to the issues before this court.

We refer to the injured officer as “the arresting officer” or “the officer,” rather than by
4

name, because he is the victim of a crime. See WIS. STAT. RULE 809.86(4).

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No. 2020AP2149-CR

over the wallet, but Foster refused. The officer called for back-up assistance from
other officers. Before other officers arrived, the officer attempted to take the
wallet from Foster, and the officer testified as to his perception that Foster was
physically confronting him. During the process of attempting to get the wallet
from Foster, the officer forced Foster to the floor and placed Foster in handcuffs.
The officer’s ankle broke in three places during this incident. We will mention
other details of this interaction between the officer and Foster later in this opinion.

¶4 At trial, the circuit court read the following jury instruction, and we
highlight the portions most pertinent to this appeal:

Resisting an officer as defined in Wisconsin
Statutes is committed by one who knowingly resists an
officer while the officer is doing any act in an official
capacity and with lawful authority. Before you may find
the defendant guilty of this offense, the State must prove by
evidence which satisfies you beyond a reasonable doubt
that the following four elements were present:

One, the defendant resisted an officer. A police
officer is an officer. To resist an officer means to oppose
the officer by force or threat of force. The resistance must
be directed to the officer personally. Two, the officer was
doing an act in an official capacity. … [P]olice officers act
in an official capacity when they perform duties that they
are employed to perform. The duties of a police officer
include booking or processing a subject after arrest.

Three, the officer was acting with lawful authority.
Police officers act with lawful authority if their acts are
conducted in accordance with the law. In this case it is
alleged that the officer was booking or processing the
defendant after arrest.

Four, the defendant knew that [the officer] was an
officer acting in an official capacity and with lawful
authority and that the defendant knew his conduct would
resist the officer.

See WIS JI—CRIMINAL 1765 (emphasis added). Foster’s trial counsel argued to
the jury that, when restraining Foster to obtain the wallet, the officer used

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No. 2020AP2149-CR

“excessive force.” According to trial counsel’s argument, the alleged excessive
force used by the officer was a basis for the jury to conclude that the State failed to
prove the third element of the charged crime—that the officer was acting with
“lawful authority”—as well as the fourth element—that Foster knew the officer
was acting with lawful authority. Foster’s trial counsel did not request a jury
instruction regarding this defense.5

¶5 Foster was found guilty of resisting an officer, causing substantial
bodily harm. Foster filed a postconviction motion for a new trial arguing that trial
counsel was constitutionally ineffective in failing to request a jury instruction to
support Foster’s defense that the officer used excessive force, and therefore was
not acting with lawful authority, in his interactions with Foster. The circuit court
held a Machner6 hearing and denied Foster’s postconviction motion. Foster
appeals.

¶6 We mention other material facts in the following discussion.

DISCUSSION

¶7 Foster argues that trial counsel was ineffective for not requesting a
jury instruction squarely addressing his theory of defense that the officer used
excessive force in his interaction with Foster. We next set forth principles
governing ineffective assistance of counsel claims and our standard of review.

5
Neither party argues that the instructions given to the jury included an instruction
squarely addressing the excessive force defense advanced by Foster’s trial counsel.
6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2020AP2149-CR

I. Governing Principles and Standard of Review.

A. Ineffective Assistance of Counsel.

¶8 To succeed on a claim that ineffective assistance of counsel violated
his or her constitutional right to counsel, a defendant “must establish that
counsel’s performance was deficient and that the deficient performance was
prejudicial. If the defendant fails to satisfy either prong, we need not consider the
other.” State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93
(internal citation omitted). We decide this appeal on the deficiency prong.

¶9 “To establish that counsel’s performance was deficient, the
defendant must show that it fell below ‘an objective standard of reasonableness.’”
Breitzman, 378 Wis. 2d 431, ¶38 (quoted source omitted). “A convicted
defendant making a claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.” Strickland v. Washington, 466 U.S. 668, 690 (1984); see
also State ex rel. Flores v. State, 183 Wis. 2d 587, 620, 516 N.W.2d 362 (1994);
State v. Tobatto, 2016 WI App 28, ¶12, 368 Wis. 2d 300, 878 N.W.2d 701. “The
court must then determine whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. There is a strong presumption that trial
counsel’s conduct falls within this “wide range” of reasonable professional
assistance. Breitzman, 378 Wis. 2d 431, ¶38.

¶10 Generally, the failure to request, or object to, a jury instruction in the
circuit court results in the forfeiture of any challenges to the instructions on
appeal. See State v. Austin, 2013 WI App 96, ¶20, 349 Wis. 2d 744, 836 N.W.2d
833. However, a claimed error in the jury instructions forfeited by trial counsel’s

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No. 2020AP2149-CR

failure to request, or object to, an instruction may be reviewed under a claim of
ineffective assistance of counsel. Id.

¶11 Appellate review of an ineffective assistance of counsel claim
presents a mixed question of fact and law. State v. Cooks, 2006 WI App 262, ¶34,
297 Wis. 2d 633, 726 N.W.2d 322. We will not disturb the circuit court’s findings
of fact unless those are clearly erroneous. Id. The determination of whether
counsel’s performance falls below the constitutional minimum, including whether
trial counsel performed deficiently, is a question of law we review de novo. Id.;
Breitzman, 378 Wis. 2d 431, ¶38.

B. Theory of Defense Jury Instructions.

¶12 We now consider governing principles regarding theory of defense
jury instructions. A defendant is entitled to a jury instruction on his or her theory
of defense if:

(1) the defense relates to a legal theory of a defense, as
opposed to an interpretation of evidence; (2) the request is
timely made; (3) the defense is not adequately covered by
other instructions; and (4) the defense is supported by
sufficient evidence.

State v. Coleman, 206 Wis. 2d 199, 212-13, 556 N.W.2d 701 (1996) (internal
citations omitted). Our analysis concerns only the first requirement, that the
proposed jury instruction relates to a legal theory of a defense.

¶13 A theory of defense instruction instructs the jury on a legal theory
that supports the defendant’s assertion that he or she has a defense to the crime
charged. State v. Dundon, 226 Wis. 2d 654, ¶46, 594 N.W.2d 780 (1999); see
also State v. Davidson, 44 Wis. 2d 177, 191-92, 170 N.W.2d 755 (1969). In
addition, under the first requirement of the Coleman test, the requested instruction

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No. 2020AP2149-CR

must instruct on a valid defense. State v. Gaudesi, 112 Wis. 2d 213, 223, 332
N.W.2d 302 (1983). In other words, the requested instruction must correctly state
a principle that is recognized as a defense to the crime charged. Id. at 223. See
also Dundon, 226 Wis. 2d 654, ¶46 (“[I]t was not an erroneous exercise of
discretion to refuse to instruct the jury on an invalid defense.”).

II. Foster Has Not Established That Trial Counsel’s
Performance Was Deficient.

¶14 Foster argues that trial counsel’s performance was deficient in that
trial counsel failed to request a jury instruction on Foster’s theory of defense
because such an instruction “was crucial to provide legal authority for trial counsel
to convince the jury” that, at the time the officer tried to get the wallet from Foster,
the officer used excessive force and, accordingly, the officer was not acting with
“lawful authority.” The State argues that Foster fails to prove deficient
performance of trial counsel because Foster’s argument does not “fit the facts” of
this case. More particularly, the State contends that the specific language taken
from part of a footnote in the comment to a standard jury instruction that Foster
relies on applies only to an officer’s lawful authority when making an arrest. By
contrast, the officer’s alleged use of excessive force in this case occurred during
the booking process, after Foster had been arrested. The State also contends that
Foster’s argument fails because he does not provide either the instructional
language that trial counsel purportedly should have proposed to the circuit court or
an argument sufficient to support a theory of defense jury instruction applicable to
the circumstances of this case.

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No. 2020AP2149-CR

A. Necessary Bases for Foster’s Argument.

¶15 We repeat that there is a “strong presumption” that trial counsel’s
performance falls within a “wide range of reasonable professional assistance.”
Breitzman, 378 Wis. 2d 431, ¶38. We now discuss necessary bases of Foster’s
argument in order for him to overcome that presumption and establish that trial
counsel’s performance was deficient in that he did not request in the circuit court a
theory of defense jury instruction.

¶16 As already noted, to prove deficient performance a defendant must
identify specific “acts or omissions” by trial counsel that fall outside the “range of
professionally competent assistance.” Strickland, 466 U.S. at 690; Flores, 183
Wis. 2d at 620. Further, a circuit court must ensure that jury instructions “fully
and fairly inform the jury of the rules of law applicable to the case” and that the
instructions “assist the jury in making a reasonable analysis of the evidence.”
Coleman, 206 Wis. 2d at 212. From those precepts, it is manifest that, for Foster
to establish deficient performance in these circumstances, he must present this
court with material, specific language for a theory of defense jury instruction that
would have fully and fairly informed the jury of the applicable rules of law and
assisted the jury in reasonably analyzing the evidence. The proposition has been
summarized in persuasive authority as follows:

When the claim of error is that counsel was ineffective for
failing to request that a jury instruction be given (or failing
to argue that the instructions given did not accurately or
completely instruct the jury on the law), the appellant must,
at the very least, explain what parts of the [challenged]
instruction were inadequate or what the instruction should
have said.

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No. 2020AP2149-CR

State v. Powell, 2020 UT App 63, ¶47, 463 P.3d 705, 717 (internal quotation
marks omitted).7

¶17 This is an application of the rule that, in order to prove deficient
performance, a defendant is required to establish that trial counsel’s performance
fell below “an objective standard of reasonableness.” Breitzman, 378 Wis. 2d
341, ¶38 (quoted source omitted). For trial counsel to have properly asserted a
theory of defense instruction, counsel would have been required to articulate for
the circuit court a basis for a specifically worded instruction, along with applicable
supporting authority. See Gaudesi, 112 Wis. 2d at 223 (stating that the theory of
defense instruction must correctly state principles supporting a valid defense);
WIS. STAT. §§ 972.10(5), 805.13.8 Accordingly, in order to show that trial

7
This conclusion regarding postconviction counsel’s burden is also supported by the fact
that trial counsel would have been required to provide specific instructional language to the
circuit court. See WIS. STAT. § 972.10(5) (stating that, when a party requests that an instruction
be given to the jury, the instruction “shall be reduced to writing” and filed with the clerk unless
the court otherwise directs).
8
WISCONSIN STAT. § 972.10(5) states in pertinent part:

Counsel for the parties [in a criminal case] … shall specify and
state the particular ground on which the instruction is objected
to, and it shall not be sufficient to object generally that the
instruction does not state the law, or is against the law, but the
objection shall specify with particularity how the instruction is
insufficient or does not state the law or to what particular
language there is an objection.

(Emphasis added.) WISCONSIN STAT. § 805.13(3) also applies in a criminal case (see WIS. STAT.
§ 972.11(1)) and states in pertinent part:

Counsel may object to the proposed instructions or verdict on the
grounds of incompleteness or other error, stating the grounds for
objection with particularity on the record.

(Emphasis added.)

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No. 2020AP2149-CR

counsel’s performance was deficient, Foster must present this court with an
argument that supports the asserted complete theory of defense instruction in these
circumstances.

¶18 In light of those authorities, we next consider Foster’s argument in
this court.

B. Foster’s Argument.

¶19 Foster fails to cite case law or statutory authorities as support for the
theory of defense instruction that he argues trial counsel should have requested.
Rather, Foster relies solely on a portion of footnote 8 in the comment to WIS JI—
CRIMINAL 1765—RESISTING AN OFFICER. That part of the footnote to the
commentary reads:

The [Criminal Jury Instruction] Committee suggests
specifying the lawful function being performed [by the
officer] and, if raised by the evidence, instructing the jury
on the applicable legal standard.…

….

[I]f the evidence raises a question about the legality
of an arrest, something like the following may be helpful:

In this case, it is alleged that the officer was making
a lawful arrest. An arrest is lawful when the officer has
reasonable grounds to believe that the person has
committed a crime. An officer making an arrest may use
only the amount of force reasonably necessary to take the
person into custody.

WIS JI—CRIMINAL 1765 Comment, n.8.

¶20 Regarding the language that an asserted complete theory of defense
jury instruction would contain in this particular circumstance, Foster offers only
two statements in briefing in this court. In his brief-in-chief, Foster states: “Of

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No. 2020AP2149-CR

course, counsel should have wanted the tailored jury instruct[ion] on the issue of
excessive force if that were an option.” In reply, Foster states only that the
language in the footnote just quoted is “flexible enough to allow a modification of
the resisting instruction to include language that an officer securing detaining or
restraining a person may use the amount of force reasonably necessary to complete
the process, or words to that effect.”

C. Analysis.

¶21 We now summarize three integral components of an asserted
complete theory of defense jury instruction in the context of this case. We reject
Foster’s deficient performance contention because he has not provided to this
court specific instructional language and developed arguments, with support from
applicable authorities, that encompass and discuss any of those components.

1. Standards to Gauge the Officer’s Conduct.

¶22 The footnote in the comment to the standard jury instruction Foster
exclusively relies on states that, in drafting a jury instruction regarding the crime
of resisting an officer and the “lawful authority” of the officer, the jury should be
instructed “on the applicable legal standard” concerning the officer’s conduct.
WIS JI—CRIMINAL 1765—RESISTING AN OFFICER Comment, n.8. As to the
standard that applies to an excessive force claim, Foster concedes in briefing in
this court that: “The threshold between reasonable and excessive force is not easy
to define.” Yet, Foster does not propose a complete jury instruction, or a
developed argument, that specifies the standard a jury applies in determining
whether the officer used excessive force in his interaction with Foster. That
standard must be enunciated in order for the jury to assess whether the officer used

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No. 2020AP2149-CR

excessive force in obtaining the wallet from Foster based on the facts presented at
trial, which we next sum up.

¶23 The officer testified to the following. When the officer called for
backup, Foster had “what I consider a more aggressive demeanor,” and Foster was
standing “like how a boxer would stand.” The officer wanted to handcuff Foster
and “basically freeze the situation, again, for his safety and mine.” He asked
Foster to give him the wallet. When Foster repeatedly refused, the officer
“grabbed him” because he did not know how long it would be before backup
arrived and, judging from Foster’s “posture and his demeanor,” he thought that
“possible physical confrontation was imminent.” The officer said that Foster
continually physically resisted, and the officer moved Foster from standing against
a wall to the ground because “it’s just easier when somebody’s on the ground and
they’re actively resisting to control them” because “they’re not standing on their
feet as far as swinging at you or anything like that.” The officer testified on cross-
examination that Foster “never verbally threatened me,” and he engaged Foster
physically a relatively short time after Foster refused to give up the wallet. In
argument to the jury about alleged excessive force, defense trial counsel asserted
that “Foster was on the ground in 13 seconds, from the time his back hit the wall
to when he was on the ground,” and “[the officer] could have said, Mr. Foster, I
need to handcuff you again, I don’t like where this is going. [The officer] [c]ould
have [given Foster] some verbal communication.”

¶24 Foster has failed to provide proposed jury instruction language, and
made no argument, regarding the standards a jury applies in considering an
allegation of excessive force by the officer under these facts. That failure by
Foster confirms that Foster has not specified which “legal theory of … defense”

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No. 2020AP2149-CR

his proposed instruction would follow, as we now discuss. See Coleman, 206
Wis. 2d at 212-13.

¶25 As one example, Foster does not state whether the officer’s
purported use of excessive force constituted a violation of the common law or was
a constitutional violation. See Robinson v. City of West Allis, 2000 WI 126, ¶30,
239 Wis. 2d 595, 619 N.W.2d 692 (“Although this court has not often addressed
excessive use of force [by law enforcement] as a constitutional violation pursued
under 42 U.S.C. § 1983, we have addressed it as a common law cause of action.”).
Foster does not attempt to address either the common law or the constitutional
standards for an officer’s use of force in a jail against a pretrial detainee (as Foster
was at the germane time). The standards regarding use of force in an arrest as
opposed to in a jail can be distinct.

¶26 That distinction is recognized in cases concerning allegations of
constitutional violations through purported excessive force. “Excessive force
claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth
Amendment—all depending on where the defendant finds himself [or herself] in
the criminal justice system.” Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir.
2010). Excessive force during an arrest must be “analyzed under the Fourth
Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due
process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989). On the other
end of the spectrum, “prisoners already convicted of a crime who claim that their
punishments involve excessive force must proceed under the more restrictive
terms of the Eighth Amendment’s ‘cruel and unusual punishments’ clause.”
Porro, 624 F.3d at 1325-26. Under this standard, courts ask whether the “force
was applied in a good-faith effort to maintain or restore discipline, or maliciously

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No. 2020AP2149-CR

and sadistically to cause harm.” Id. at 1326 (citing Hudson v. McMillian, 503
U.S. 1, 6-7 (1992)).

¶27 In the time between arrest and post-conviction punishment, courts
apply the “due process clauses of the Fifth or Fourteenth Amendment and their
protection against arbitrary governmental action by federal or state authorities.”
Id. (citing County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)). This
category of excessive force claims was addressed in Kingsley v. Hendrickson, 576
U.S. 389 (2015). In Kingsley, the court held that the appropriate standard for a
pretrial detainee’s Fifth or Fourteenth Amendment excessive force claim is
“objective reasonableness.” However, the court noted that those standards are not
the same as excessive force standards applied to an arrest. Kingsley, 576 U.S. at
397. Pertinent to this appeal, the court stated:

A court must make this determination from the perspective
of a reasonable officer on the scene, including what the
officer knew at the time, not with the 20/20 vision of
hindsight. A court must also account for the “legitimate
interests that stem from [the government’s] need to manage
the facility in which the individual is detained,”
appropriately deferring to “policies and practices that in
th[e] judgment” of jail officials “are needed to preserve
internal order and discipline and to maintain institutional
security.”[9]

Considerations such as the following may bear on
the reasonableness or unreasonableness of the force used:
the relationship between the need for the use of force and

9
Germane to the Supreme Court’s point about policies and procedures, the officer
testified regarding the reasons that the Watertown Police Department inventoried property,
including the wallet, of an arrestee during booking. The evidence was that those procedures
allowed the person arrested to verify that all property had been inventoried and the procedures
ensured that no weapons or contraband were hidden by the arrestee. Here, in argument to the
jury, trial counsel contended that the officer was not acting with lawful authority “because he was
not following the many general orders, the procedural guidelines that officers are supposed to
follow.”

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No. 2020AP2149-CR

the amount of force used; the extent of the plaintiff’s
injury; any effort made by the officer to temper or to limit
the amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.

Id. (internal citations omitted).

¶28 These are integral components that would have to be considered in
any jury instruction regarding the use of force against a pretrial detainee by an
officer. However, Foster fails to recognize or discuss these components of an
asserted complete theory of defense jury instruction in briefing in this court.

2. Foster’s Use of Force.

¶29 Second, Foster does not mention, or propose jury instruction
language regarding, the legal basis for him to have used force against the officer.

¶30 At least in the context of an arrest, our supreme court has stated that,
when an officer uses excessive force during an arrest, the arrestee has the statutory
right to self-defense under WIS. STAT. § 939.48. State v. Hobson, 218 Wis. 2d
350, 368 n.17, 577 N.W.2d 825 (1998) (noting that the right to use force when
resisting an arrest in which an officer uses excessive force falls under the statutory
privilege of self-defense); see also State v. Reinwand, 147 Wis. 2d 192, 201, 433
N.W.2d 27 (1988) (stating that, if an officer employs excessive force in making an
arrest, the person arrested may invoke the self-defense privilege and counter with
reasonable force to protect himself or herself).

¶31 Of importance to our analysis is that an officer’s authority to use
force is intertwined factually and legally with the defender’s right to respond with
force. Put another way, the self-defense privilege of an arrestee is coextensive
with the officer’s use of force. Id. at 201-202 (“Because the privilege exists for

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No. 2020AP2149-CR

the physical protection of the defender, it should end when the need for that
protection disappears—that is, when the use of excessive force has ceased or
abated.”).

¶32 But, Foster has not provided any framework for analyzing his
physical resistance against the officer and whether it was allowed as self-defense
in the context of a pretrial detainee. More specifically, Foster has not provided
any instructional language, or an argument, regarding the standards a jury must
apply to determine whether his use of force as a pretrial detainee in resisting the
officer was reasonable and privileged during the incident.

3. Applicable Burden of Proof.

¶33 Third, there are distinct burdens of proof for constitutional and
common law claims of excessive force. Shaw v. Leatherberry, 2005 WI 163, ¶21,
286 Wis. 2d 380, 706 N.W.2d 299. State law tort actions require the plaintiff to
satisfy the jury “by a clear and satisfactory preponderance of the evidence.” Id.,
¶20. In contrast, alleged constitutional violations require plaintiffs to convince the
jury to a “preponderance of the evidence.” Id., ¶45. Foster fails to provide us
with authority or specific jury instruction language addressing the applicable
burden the jury must apply regarding the officer’s use of force.

¶34 In a similar vein, the language from the comment in the standard
jury instruction on which Foster relies—WIS JI—CRIMINAL 1765—RESISTING AN
OFFICER—may apply to a theory of defense as the predicate for invoking the
recognized affirmative defense of privilege of self-defense under WIS. STAT.
§ 939.48 or it may, in contrast, apply to negate the “lawful authority” element of
the charged crime, resisting an officer. See State v. Staples, 99 Wis. 2d 364, 376,
299 N.W.2d 270 (Ct. App. 1980); see also WIS JI—CRIMINAL 795—LAW NOTE:

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No. 2020AP2149-CR

PRIVILEGE: RESISTING AN UNLAWFUL ARREST. The distinction makes a
difference in the jury instruction given. Staples, 99 Wis. 2d at 376 (stating that, if
self-defense is properly raised by the defendant, the jury is instructed that the State
must prove that the defendant was not privileged in his or her use of force). Foster
does not tell us which of these two theories of his excessive force defense—or any
other theory of that defense—trial counsel should have pursued.

¶35 In sum, Foster’s deficient performance assertion fails because Foster
does not recognize or argue any of the components just discussed. Foster does not
provide material, complete language regarding a theory of defense jury instruction
that fully and fairly would have informed the jury of the applicable law in these
factual circumstances. As a result, Foster has not met his burden to identify
specific “acts or omissions” by trial counsel that fall outside the “range of
professionally competent assistance.” See Strickland, 466 U.S. at 690; Flores,
183 Wis. 2d at 620. In addition, because Foster’s truncated argument does not
examine the integral components just discussed and is not supported by applicable
authorities, we have no basis to conclude that the circuit court would have been
required to give a theory of defense jury instruction in these circumstances.
Accordingly, Foster has not established that trial counsel’s performance fell below
an objective standard of reasonableness. See Breitzman, 378 Wis. 2d 341, ¶38.

¶36 For Foster to prevail on his deficient performance argument, we
would be required to draft the material portions of a complete jury instruction for
Foster and construct an argument in support. However, we cannot serve as both
advocate and judge. State v. Anderson, 2017 WI App 17, ¶28, 374 Wis. 2d 372,

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No. 2020AP2149-CR

896 N.W.2d 364 (“We will not abandon our neutrality to develop arguments for
the parties.”).10

CONCLUSION

¶37 For the foregoing reasons, we affirm the judgment and order of the
circuit court.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

10
We need not reach other arguments raised by the parties, including the issue of
prejudice to Foster, because the analysis above on the deficient performance prong is dispositive.
See State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93.

18