State v. Lorainz D. Johnson

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.
November 1, 2022
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. 2021AP572-CR Cir. Ct. No. 2016CF3300

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LORAINZ D. JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. CONEN and MICHELLE ACKERMAN
HAVAS, Judges. Affirmed.

Before Donald, P.J., Dugan and White, 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).
No. 2021AP572-CR

¶1 PER CURIAM. Lorainz D. Johnson appeals from a judgment of
conviction for first-degree reckless homicide and an order of the circuit court
denying his postconviction motion for a new trial.1

¶2 On appeal, Johnson first argues that he is entitled to a new trial
because he received ineffective assistance of counsel. He contends that his trial
counsel was ineffective for failing to request a jury instruction on the lesser-
included offense of second-degree reckless homicide. He also contends that his
trial counsel was ineffective for failing to request WIS JI—CRIMINAL 801, the jury
instruction that specifically applies to self-defense for criminally reckless conduct.
Johnson additionally argues that he is entitled to a new trial in the interest of
justice.

¶3 For the reasons set forth below, we conclude that Johnson did not
receive ineffective assistance of counsel and that the interest of justice does not
require a new trial. Accordingly, we affirm.

BACKGROUND

¶4 The State charged Johnson with first-degree reckless homicide for
the shooting death of Jovonte Daniels, and the case proceeded to a jury trial. At
trial, witness testimony established that on the night of July 23, 2016, Johnson was
walking into a gas station convenience store as Daniels was walking out. Daniels
approached Johnson, and the two began to argue. Daniels bent over to put down

1
The Honorable Jeffrey A. Conen presided over the trial and sentencing and entered the
judgment of conviction. The Honorable Michelle Ackerman Havas decided Johnson’s
postconviction motion. We refer to Judge Conen as the trial court and Judge Havas as the
postconviction court.

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the chips and sodas he was carrying, and as he was standing back up, Johnson shot
him in the chest. At the time Johnson shot Daniels, the two were standing only a
few steps apart. Johnson fled from the gas station and hid the gun at a nearby bus
stop. Daniels returned to his truck, and his girlfriend took him to the hospital,
where he died of his injuries.

¶5 In addition to the witness testimony about the shooting, the jury also
heard testimony that Daniels and Johnson were romantically involved with the
same woman and that the two men exchanged both written and voice messages on
Facebook in the months prior to their encounter at the gas station. In several of
the messages, Daniels accused Johnson of damaging his girlfriend’s car, he
insulted Johnson, and he threatened to kill Johnson. In fact, in one of the
messages, Daniels sent Johnson a picture of Daniels holding a gun with an
extended magazine.

¶6 Johnson testified at trial that he shot Daniels in self-defense because
he felt threatened by Daniels that night at the gas station as a result of the threats
that Daniels made to him on Facebook. Johnson testified that on that night,
Daniels prevented him from entering the gas station convenience store and that as
he was telling Daniels that he did not “want a beef with [Daniels],” Daniels
“ke[pt] coming towards [him]” saying, “I told you when I seen you I was going to
fuck you up.” Then, Johnson testified that Daniels dropped the items he was
carrying, and as Daniels’s right arm was coming up, Johnson fired his gun once.
At that point, Daniels “took off running one way and [Johnson] went the other
way.” Johnson testified that when he left the gas station, he did not know that
Daniels was shot—rather, he believed that Daniels was going to chase him. He
also testified that he fled the scene because he feared that Daniels would come
after him when he saw Daniels run to his truck.

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¶7 Johnson further testified that he believed that Daniels was going to
shoot him that night at the gas station. He stated that Daniels had a gun at the gas
station, and that he believed the gun was similar to the one that Daniels was
holding in the Facebook message that he sent to Johnson.2

¶8 At the close of trial, the jury was instructed on self-defense using
WIS JI—CRIMINAL 805, and both the State and trial counsel argued in closing
about whether Johnson’s conduct constituted self-defense.3 The State argued:

Ultimately where this all comes down to is this. If
you believe Mr. Johnson, you should find him not guilty.
Because if he told you the truth, that [Daniels] had a gun,
was pulling it out, that [Daniels] made these threats on
Facebook to kill him, that he believed those threats, then
his actions are privileged and you should find him not
guilty. But if [you] don’t believe him, then there’s no self-
defense. And that’s what this case is all about, is he telling
the truth. And that’s a question of credibility.

The State then argued that everything that Johnson said was a lie.

¶9 Trial counsel argued that “the question is whether my client acted in
self-defense.” He did not contest that Johnson argued with Daniels and that
Johnson shot him. Instead, trial counsel highlighted that Daniels made “serious”
threats against Johnson through Facebook messages and “Johnson did what he had
to do to protect his own life.” He told the jury, “[U]nder [these] circumstances it’s

2
In contrast to Johnson’s testimony, Daniels’s girlfriend and an employee at the gas
station testified that they never saw Daniels with a gun that day. In fact, the gas station employee
testified that Daniels was shot right away as he was standing up, and Daniels’s girlfriend
described that Daniels was squaring up to fight Johnson when he put down the chips.
Investigating officers also did not recover a gun connected to Daniels.
3
Prior to trial, counsel submitted a request for WIS JI—CRIMINAL 850. Following the
lead of the parties, we accept that this request was made in error, and we construe this request
instead as one for WIS JI—CRIMINAL 805.

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rational for a human being who’s confronted with danger, deadly danger, as
Mr. Johnson was, to react … to engage in conduct which would save their own
life.”

¶10 The jury ultimately found Johnson guilty of first-degree reckless
homicide, and he was subsequently sentenced to twenty-four years of
imprisonment, composed of fourteen years of initial confinement and ten years of
extended supervision.

¶11 Johnson filed a postconviction motion, arguing that he received
ineffective assistance of counsel and that a new trial was warranted in the interest
of justice. As to his claim of ineffective assistance of counsel, Johnson argued that
trial counsel was ineffective when he failed to request an instruction on the lesser-
included offense of second-degree reckless homicide, and that his trial counsel
was ineffective for failing to request WIS JI—CRIMINAL 801, which specifically
applies to self-defense for criminally reckless conduct. The postconviction court
held a Machner4 hearing on Johnson’s motion.

¶12 At the hearing, trial counsel testified that his overall trial strategy
was self-defense, and he testified that he discussed a self-defense strategy and
taking an “all-or-nothing approach”5 with Johnson, both before trial and during
trial. As part of this strategy, trial counsel specifically discussed the possibility of
requesting a jury instruction on the lesser-included offense of second-degree

4
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
5
In this case, the phrase “all or nothing approach” meant that the defense would be that
Johnson was not guilty of first-degree reckless homicide, focusing on acquittal based on self-
defense rather than pursuing a lesser-included offense of second-degree reckless homicide.

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No. 2021AP572-CR

reckless homicide with Johnson at the close of the State’s case, before Johnson
testified. He explained his reasoning behind continuing with the original strategy
saying that “the evidence had been going in pretty well … and so it was an all-or-
nothing approach.” As to whether he thought he could maintain a self-defense
strategy and also pursue a lesser-included offense of second-degree reckless
homicide, trial counsel testified that “[o]f course you could,” but whether that was
a good strategy is “another issue.”

¶13 Trial counsel further testified that the conversation he specifically
had with Johnson about requesting an instruction on the lesser-included offense
occurred in the court’s prisoner holding cell the morning before Johnson was
scheduled to testify.6 At the time of the conversation, trial counsel believed that
Johnson was understanding the conversation; however, trial counsel did testify
that, in hindsight, he “wish[ed]” he had asked for a mistrial in order to allow
Johnson more time to recover from the seizure Johnson had the day before.

¶14 In contrast to trial counsel’s testimony, Johnson testified that trial
counsel never discussed the lesser-included offense with him that morning in the
holding cell and that the conversation that trial counsel described never happened.
Instead, Johnson testified that he had a seizure the day before he testified and that
he was given his seizure medication at the jail. He further testified that he
remembered coming back to trial the next day, and that he knew he was going to
testify. Johnson described that he was “back to [him]self” and was feeling

6
Johnson was originally scheduled to testify on the second day of trial. However, prior
to Johnson taking the stand, he suffered a seizure, and the proceedings were adjourned for
Johnson to receive medical care. The trial resumed the following morning, and Johnson testified
at that time.

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No. 2021AP572-CR

“prepared [and] ready to testify” that morning. However, despite feeling prepared
and ready to testify, he said that he never had a conversation with trial counsel
about an instruction on a lesser-included offense of second-degree reckless
homicide.

¶15 The postconviction court subsequently denied Johnson’s motion.
Specifically, the postconviction court found that the issue regarding the lesser-
included offense instruction came down to a credibility determination, and the
postconviction court found trial counsel’s account of events more credible. The
postconviction court explained this credibility determination:

I know Mr. Johnson is saying it did not happen.
Mr. Johnson, however, indicates that he was fully in regard
of himself. He just indicates this is—who do I believe?
You say it did not happen. The end. You said you were
preparing for testimony. You had gathered yourself. You
were ready to go. So you’re not saying that you were so
affected by your seizure the day before that you were
unable to remember the conversation. You’re saying it did
not happen.

The postconviction court further explained:

But taking Mr. Johnson’s own comments in what he said—
and I wrote it down. He was given the meds at the jail after
the seizure. He knew he was going to testify, doesn’t
remember the conversation, was preparing to testify, [and]
was back to myself. That’s the part that hit me. You were
back to yourself.

So this isn’t a question of him being so affected by
the seizure that he was able to do that.

Thus, the postconviction court found that trial counsel’s failure to request a lesser-
included offense instruction for second-degree reckless homicide was not deficient
performance because trial counsel discussed the instruction with Johnson and

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No. 2021AP572-CR

decided to continue with the all-or-nothing approach after that conversation and an
assessment of the trial evidence.

¶16 As to Johnson’s argument that he received ineffective assistance of
counsel for counsel’s failure to request a different self-defense instruction, the
postconviction court found that Johnson suffered no prejudice. In so doing, the
postconviction court pointed to the jury instructions that were given and the
closing arguments that were made, and it stated that the jury was clearly presented
with “a full complement of the law and what they were to consider.” The
postconviction court also stated that the jury was told by the State and trial counsel
that if it believed Johnson, the jury should acquit, but if the jury did not believe
Johnson, it should convict. Thus, the postconviction court found that Johnson
suffered no prejudice because a different jury instruction on self-defense would
not have changed what was already presented to the jury.

¶17 Johnson now appeals.

DISCUSSION

¶18 On appeal, Johnson argues that he is entitled to a new trial because
his trial counsel was ineffective for two reasons. First, he contends that his trial
counsel was ineffective for failing to request a jury instruction on the lesser-
included offense of second-degree reckless homicide. Second, he contends that
his trial counsel was ineffective for failing to request a jury instruction that
specifically applies to self-defense for reckless criminal conduct. He additionally
argues that he is entitled to a new trial in the interest of justice.

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No. 2021AP572-CR

¶19 We address each argument in turn, and we conclude that Johnson did
not receive ineffective assistance of counsel, nor is he entitled to a new trial in the
interest of justice.

I. Ineffective Assistance of Counsel

¶20 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id.

¶21 “To demonstrate deficient performance, the defendant must show
that his counsel’s representation ‘fell below an objective standard of
reasonableness’ considering all the circumstances.” State v. Carter, 2010 WI 40,
¶22, 324 Wis. 2d 640, 782 N.W.2d 695 (citation omitted). Prejudice occurs when
counsel’s error is of such magnitude that there is a “reasonable probability” that
but for the error the outcome would have been different. State v. Erickson, 227
Wis. 2d 758, 769, 596 N.W.2d 749 (1999). “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ That requires a
‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (citations omitted).

¶22 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they

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No. 2021AP572-CR

are clearly erroneous.” Id. “We independently review, as a matter of law,
whether those facts demonstrate ineffective assistance of counsel.” Id.

¶23 We need not address both prongs of the analysis if the defendant
makes an insufficient showing on one. State v. Johnson, 153 Wis. 2d 121, 128,
449 N.W.2d 845 (1990).

II. Failure to Request an Instruction for a Lesser-Included
Offense of Second-Degree Reckless Homicide

¶24 Johnson argues that his trial counsel was ineffective because his trial
counsel took an all-or-nothing approach and failed to request a jury instruction on
the lesser-included offense of second-degree reckless homicide. He further
contends that he was entitled to a jury instruction on second-degree reckless
homicide because the evidence supported a finding that he did not act with utter
disregard.7 Therefore, he argues that his trial counsel was ineffective for failing to
request the instruction for second-degree reckless homicide.8

¶25 We disagree, and we conclude that trial counsel’s performance was
not deficient because trial counsel discussed an all-or-nothing approach with
Johnson prior to trial, specifically discussed a lesser-included offense instruction

7
The element of utter disregard is the defining element for first-degree reckless
homicide, and without proof of utter disregard, Johnson argues that he could only be convicted of
second-degree reckless homicide. See State v. Miller, 2009 WI App 111, ¶32, 320 Wis. 2d 724,
772 N.W.2d 188 (recognizing that first- and second-degree reckless homicide require proof of the
same elements with the exception of the element of utter disregard).
8
In connection with this argument, Johnson raises an additional argument that his trial
counsel was ineffective for failing to argue that Johnson did not act with utter disregard.
However, we conclude that Johnson did not raise this argument below, and therefore, we decline
to address his argument on this point further. See State v. Caban, 210 Wis. 2d 597, 604, 563
N.W.2d 501 (1997) (“The general rule is that issues not presented to the circuit court will not be
considered for the first time on appeal.”).

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No. 2021AP572-CR

with Johnson during the trial, and made a reasonable strategic decision based on
an assessment of the trial evidence.

¶26 Here, we start with the postconviction court’s finding that trial
counsel discussed the trial strategy with Johnson and specifically discussed a
lesser-included instruction with Johnson in the holding cell. As a factual finding
based on a credibility determination, we accept the postconviction court’s finding
that this discussion occurred unless such a finding is clearly erroneous. See
State v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752.

¶27 We do not discern any error in the postconviction court’s finding.
The postconviction court thoroughly explained why trial counsel’s account of trial
strategy discussions was more credible and pointed to Johnson’s testimony at the
Machner hearing that Johnson was fully prepared and ready to testify that
morning and was otherwise “back to [him]self.” Thus, having established that
trial counsel discussed the trial strategy with Johnson and specifically discussed
whether to include an instruction on the lesser-included offense of second-degree
reckless homicide, we turn to whether trial counsel’s performance was deficient.

¶28 Trial counsel’s decision to take an all-or-nothing approach was a
strategic decision based on trial counsel’s discussion with Johnson, and such an
approach has been repeatedly recognized as reasonable. “[T]he decision of
whether to request a lesser-included offense instruction is a complicated one
involving legal expertise and trial strategy.” State v. Eckert, 203 Wis. 2d 497,
509, 553 N.W.2d 539 (Ct. App. 1996). Thus,

a defendant does not receive ineffective assistance where
defense counsel has discussed with the client the general
theory of defense, and when based on that general theory,
trial counsel makes a strategic decision not to request a

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No. 2021AP572-CR

lesser-included instruction because it would be inconsistent
with, or harmful to, the general theory of defense.

Id. at 510.

¶29 In this case, trial counsel discussed requesting a lesser-included
offense instruction with Johnson at the close of the State’s evidence, and even
prior to trial, trial counsel discussed an all-or-nothing approach with Johnson and
developed a self-defense theory of the case. Trial counsel’s decision, therefore, to
continue with the all-or-nothing approach was not deficient for allegedly failing to
discuss a lesser-included offense instruction with Johnson. See id.

¶30 However, that does not end our analysis because Johnson
nevertheless argues that he was entitled to the instruction and continuing with the
all-or-nothing approach was unreasonable, given the evidence weighing against
self-defense and in favor of second-degree reckless homicide. Johnson contends
that there were certain “bad facts” that were undisputed—including that Johnson
fled the scene and hid the gun, that Johnson responded to some of Daniels’s
Facebook messages in a joking manner, and that the two witnesses testified that
Daniels was unarmed—that made it unreasonable to continue with self-defense.
He further contends that there were certain facts supporting second-degree
reckless homicide that made it unreasonable to fail to pursue an instruction on
second-degree reckless homicide. These facts include that Johnson fired only one
shot, that there was a history of Facebook messages between Johnson and Daniels,
and that Johnson eventually turned himself in to the police about seven to eight
days after the shooting.

¶31 Regardless of the facts that Johnson argues weigh against self-
defense and in favor of second-degree reckless homicide, at the Machner hearing

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No. 2021AP572-CR

trial counsel explained his reasoning behind continuing with the original strategy
saying that “the evidence had been going in pretty well … and so it was an all-or-
nothing approach.” As to whether he thought he could maintain a self-defense
strategy and also pursue a lesser-included offense of second-degree reckless
homicide, trial counsel testified that “[o]f course you could,” but whether that was
a good strategy is “another issue.” Thus, trial counsel made a strategic decision to
continue with the all-or-nothing approach based on his assessment that “the
evidence had been going in pretty well.” See State v. Ambuehl, 145 Wis. 2d 343,
356, 425 N.W.2d 649 (Ct. App. 1988) (recognizing that “a less serious option to
consider” is not a “true alternative”). We will not second-guess trial counsel’s
strategy, given his assessment of the evidence at trial and his discussions with
Johnson. “[T]he decision of whether to request a lesser-included offense
instruction is a complicated one involving legal expertise and trial strategy.” See
Eckert, 203 Wis. 2d at 509. Indeed, as this court has previously stated, “[p]rudent
counsel could decide not to seek such an instruction for fear of the jury’s possible
reaction to it.” Ambuehl, 145 Wis. 2d at 357.

¶32 Consequently, we conclude that Johnson did not receive ineffective
assistance of counsel when trial counsel did not request a jury instruction for the
lesser-included offense of second-degree reckless homicide.

III. Failure to Request the Self-Defense Instruction for
Criminally Reckless Conduct

¶33 Johnson additionally argues that he received ineffective assistance of
counsel because his trial counsel requested the wrong self-defense instruction.
Prior to trial, trial counsel requested WIS JI—CRIMINAL 805, the self-defense
instruction for intentional homicide. However, because Johnson was charged with
first-degree reckless homicide, Johnson argues that his trial counsel should have

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No. 2021AP572-CR

requested WIS JI—CRIMINAL 801, the jury instruction that specifically applies to
self-defense for crimes involving criminally reckless conduct.

¶34 We conclude that Johnson suffered no prejudice because the jury
was provided with an instruction on self-defense—which was substantially similar
to WIS JI—CRIMINAL 801—and the jury was thoroughly presented with a self-
defense theory of the case. Thus, there is no reasonable probability of a different
outcome had the jury received a different instruction on self-defense.9

¶35 To show prejudice, Johnson is required to show that there is a
reasonable probability of a different outcome had the jury been instructed with
what Johnson asserts is the correct jury instruction on self-defense for a charge of
first-degree reckless conduct. See Erickson, 227 Wis. 2d at 769. However, in
spite of trial counsel’s failure to request WIS JI—CRIMINAL 801, the jury was
nevertheless clearly presented with a theory of self-defense. Johnson testified that
he believed he was defending himself when he shot Daniels, trial counsel argued
in closing that this case was all about whether Johnson acted in self-defense, and
the State argued that this case came down to whether the jury believed Johnson’s
testimony about the encounter with Daniels outside the gas station.

¶36 Importantly, the jury heard extensive testimony from Daniels’s
girlfriend and Johnson about the Facebook messages that the two men had

9
Johnson emphasizes that the postconviction court found that trial counsel’s
performance was deficient and that the State conceded that trial counsel’s performance was
deficient; therefore, the issue is whether Johnson was prejudiced. We resolve Johnson’s
argument on the basis of prejudice, and therefore, we do not address trial counsel’s performance.
See State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990). Nevertheless, we observe
that we review the issue of deficient performance independently of the postconviction court. See
State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95.

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No. 2021AP572-CR

exchanged that ranged from insulting to threatening. Trial counsel also played the
voice messages that Daniels left for Johnson in which Daniels threatened to kill
Johnson, and introduced a picture of Daniels holding a gun with an extended
magazine that Daniels sent to Johnson as a threat. The jury further heard
testimony from both Daniels’s girlfriend and Johnson that Daniels initiated the
argument that night at the gas station and testimony from the gas station employee
that Daniels pointed at Johnson’s head.10

¶37 Despite having heard this evidence about Daniels’s threatening
conduct, the jury rejected Johnson’s theory of self-defense. As the State observed,
and we agree, this case amounted to a credibility determination where the jury was
required to choose if it believed Johnson’s testimony in which Johnson claimed
Daniels was armed that night at the gas station, or if it believed the testimony from
Daniels’s girlfriend and the gas station employee that Daniels was not armed. A
different jury instruction on self-defense—which is substantially similar to the one
that was given—would not have changed whether the jury believed Johnson’s
testimony.

¶38 At Johnson’s trial, the jury was instructed on the same elements of
self-defense contained in WIS JI—CRIMINAL 801. The jury was also instructed to
consider whether Johnson acted in self-defense in relation to the elements of first-
degree reckless homicide, similar to the instruction in WIS JI—CRIMINAL 801:

If you are satisfied beyond a reasonable doubt that all three
elements of first[-]degree reckless homicide have been
proved and the defendant did not act lawfully in self-

10
One of the investigating officers testified that the gas station employee provided a
statement that Johnson poked Daniels in the head. However, the employee testified that the
officer was mistaken, and he testified that he saw Daniels point at Johnson’s head.

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No. 2021AP572-CR

defense, you should find the defendant guilty. If you are
not so satisfied, you must find the defendant not guilty.

Overall, the instruction provided an accurate statement of the law and is
substantially similar to the instruction Johnson contends should have been given.
See State v. Langlois, 2018 WI 73, ¶38, 382 Wis. 2d 414, 913 N.W.2d 812
(stating that a jury instruction is reviewed as a whole to determine whether the
overall meaning is an accurate statement of the law). Thus, we conclude that there
is no reasonable probability of a different outcome had WIS JI—CRIMINAL 801
been given, as Johnson contends.

¶39 Accordingly, in light of the testimony given at trial, arguments by
the State and trial counsel, and the instruction that was provided to the jury, we
conclude that Johnson suffered no prejudice, and we reject his second claim of
ineffective assistance of counsel.

IV. Interest of Justice

¶40 Johnson last argues that he is entitled to a new trial in the interest of
justice. We disagree.

¶41 Pursuant to WIS. STAT. § 752.35 (2019-20),11 “if it appears from the
record that the real controversy has not been fully tried, or that it is probable that
justice has for any reason miscarried,” we may reverse the judgment or order
appealed from, “regardless of whether the proper motion or objection appears in
the record.” A miscarriage of justice may be found when there is “a probability of
a different result on retrial such that a new trial in the interest of justice is

11
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP572-CR

warranted.” See State v. Kucharski, 2015 WI 64, ¶46, 363 Wis. 2d 658, 866
N.W.2d 697. “The power to grant a new trial when it appears the real controversy
has not been fully tried ‘is formidable, and should be exercised sparingly and with
great caution.’” State v. Sugden, 2010 WI App 166, ¶37, 330 Wis. 2d 628, 795
N.W.2d 456 (citation omitted). We only exercise our power to grant a
discretionary reversal in exceptional cases. Id.

¶42 In short, this is not an exceptional case in which the record suggests
that the real controversy has not been fully tried or there was any miscarriage of
justice. We, therefore, decline to exercise our power to grant a new trial in this
case.

CONCLUSION

¶43 In sum, we conclude that Johnson did not receive ineffective
assistance of counsel and he is not entitled to a new trial in the interest of justice.
Accordingly, we affirm.

By the Court.—Judgment and order affirmed.

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

17