State v. Daniel C. Vanderpool

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.
October 16, 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. 2022AP1694-CR Cir. Ct. No. 2018CF1356

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIEL C. VANDERPOOL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: JASON A. ROSSELL, Judge. Affirmed.

Before Gundrum, 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).
No. 2022AP1694-CR

¶1 PER CURIAM. Daniel C. Vanderpool appeals a judgment
convicting him of first-degree intentional homicide with use of a dangerous
weapon, as a repeater; driving a vehicle without the owner’s consent, as a habitual
criminal; and bail jumping, as a habitual criminal. He also appeals an order
denying his motion for postconviction relief. Vanderpool argues that: (1) he
received ineffective assistance of trial counsel because his counsel failed to
request or adequately argue for certain jury instructions; (2) the circuit court
misused its discretion in denying his motion to admit expert testimony from
Dr. Amanda Brost; and (3) he is entitled to discretionary reversal pursuant WIS.
STAT. § 752.35 (2021-22).1 We affirm.

¶2 Vanderpool was convicted of the charges for the stabbing death of
J.K. According to Vanderpool’s testimony at trial, J.K. was a friend he met
through a dating website. Vanderpool testified that on the evening of J.K.’s
murder, J.K. made sexual advances towards him while they were hanging out in
J.K.’s apartment, leading Vanderpool to fear for his life. Vanderpool testified that
he grabbed a knife and slashed out at J.K. and then blacked out. Vanderpool
claimed that his next memory was at a different friend’s house. J.K.’s body was
discovered days later with over twenty ferocious stab wounds, leading to
Vanderpool’s arrest and subsequent trial.

¶3 During his trial, Vanderpool’s defense centered on his claim that he
acted in self-defense and that his actions were influenced by post-traumatic stress
disorder (PTSD) stemming from past traumatic experiences. His defense counsel,

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

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No. 2022AP1694-CR

however, did not request a jury instruction on perfect self-defense or instructions
for the lesser-included offense of first-degree reckless homicide, which
Vanderpool argues was a critical oversight. The jury convicted Vanderpool. In
his postconviction motion, Vanderpool argued that he received ineffective
assistance of counsel. The circuit court denied Vanderpool’s motion without an
evidentiary hearing. This appeal follows.

¶4 Vanderpool argues that his trial counsel provided him with
constitutionally ineffective assistance by failing to request or adequately argue for
three jury instructions. “The purpose of a jury instruction is to fully and fairly
inform the jury of a rule or principle of law applicable to a particular case.” State
v. Hubbard, 2008 WI 92, ¶26, 313 Wis. 2d 1, 752 N.W.2d 839 (citations omitted).
“[A] circuit court has broad discretion in deciding whether to give a particular jury
instruction.” State v. Fonte, 2005 WI 77, ¶9, 281 Wis. 2d 654, 698 N.W.2d 594.

¶5 The legal standard for evaluating claims of ineffective assistance of
counsel is well established. To prevail, a defendant must demonstrate: (1) that
counsel’s performance was deficient, meaning it fell below an objective standard
of reasonableness, and (2) that the deficient performance prejudiced the defense,
meaning there is a reasonable probability that the result of the trial would have
been different but for the counsel’s errors. Strickland v. Washington, 466 U.S.
668, 687 (1984). On appeal, we defer to the circuit court’s findings of fact unless
they are clearly erroneous, but we review the ultimate legal question of whether
the defendant received constitutionally ineffective assistance de novo. State v.
Thiel, 2003 WI 111, ¶24, 264 Wis. 2d 571, 665 N.W.2d 305.

¶6 There are two different types of self-defense recognized in
Wisconsin law. “Perfect self-defense” is when a defendant argues that the force

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No. 2022AP1694-CR

he or she used against the victim was necessary to prevent the threat of imminent
death or great bodily harm. See State v. Head, 2002 WI 99, ¶66, 255 Wis. 2d 194,
648 N.W.2d 413. “Imperfect self-defense” is when a defendant argues that he or
she used force to defend themselves from the threat of imminent death or great
bodily harm but the amount of force used was unnecessary under the
circumstances. Id., ¶69

¶7 Vanderpool’s first ineffective assistance of counsel argument is
premised on his claim that his trial counsel should have requested a jury
instruction on perfect self-defense.2 Rather than seeking an instruction on perfect
self-defense, Vanderpool’s trial counsel sought an instruction on imperfect
self-defense.

¶8 “[A] defendant seeking a jury instruction on perfect self-defense to a
charge of first-degree intentional homicide must satisfy an objective threshold
showing that she reasonably believed that she was preventing or terminating an
unlawful interference with her person and reasonably believed that the force she
used was necessary to prevent imminent death or great bodily harm.” Id., ¶4
(emphases in original).

¶9 Vanderpool testified at trial that J.K. pushed him against a wall and
started kissing him. Vanderpool further testified that he believed that he was
going to be forced to have sexual intercourse, although he did not want to do so at
that time, so he slashed out at J.K. with a knife that he noticed was within reach.
Vanderpool said that he then blacked out.

2
We note that Vanderpool had two attorneys representing him at trial.

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No. 2022AP1694-CR

¶10 We conclude that the circuit court did not erroneously exercise its
discretion when it denied Vanderpool’s request for a jury instruction on perfect
self-defense. The trial evidence did not support such an instruction. Vanderpool
testified with respect to what happened only before he blacked out. He did not
explain what his state of mind was when he repeatedly stabbed J.K. after the initial
slash, and he did not shed light on whether he believed that the amount of force he
used against J.K. was reasonably necessary to prevent imminent death or great
bodily harm. There was no evidence about whether J.K. remained a threat and no
evidence about what Vanderpool was thinking at the time of his attack on J.K. In
contrast, other trial evidence showed that the amount of force used against J.K.
was extreme. He was stabbed approximately twenty-two times, eight of which
would have been fatal if inflicted by themselves, and his right index finger was
completely severed at the second knuckle.

¶11 In short, Vanderpool’s claimed blackout reduced any assertions
about what he was thinking and the reasons for his actions to pure speculation.
The evidence adduced at trial did not meet the legal standard for providing a
perfect self-defense jury instruction because Vanderpool did not show that the
amount of force he used was necessary, based on an objective standard of
reasonableness, to prevent his imminent death or great bodily harm. Because the
jury instruction was not supported by the evidence, trial counsel did not render
ineffective assistance by failing to request it. See State v. Wheat, 2002 WI App
153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (failing to raise an issue is not
deficient performance if the issue is without merit).

¶12 Vanderpool’s second ineffective assistance of counsel argument is
premised on his claim that his trial counsel should have requested a jury
instruction on the lesser-included offense of first-degree reckless homicide. A

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No. 2022AP1694-CR

person is guilty of first-degree reckless homicide if he or she recklessly causes
another person’s death under circumstances that show utter disregard for human
life. WIS. STAT. § 940.02(1). Vanderpool contends that this instruction was
warranted because his actions in inflicting the stab wounds on J.K. arguably
showed utter disregard for human life.

¶13 Vanderpool’s claim of ineffective assistance of counsel with regard
to this jury instruction fails because Vanderpool has not shown prejudice.
Vanderpool has not shown that the circuit court would have given the instruction,
had it been requested. A lesser-included offense instruction is appropriate when
“there is a reasonable basis in the evidence for an acquittal on the greater charge
and for a conviction on the lesser charge.” State v. Muentner, 138 Wis. 2d 374,
387, 406 N.W.2d 415 (1987). Vanderpool wholly fails to show that he meets this
standard. His trial testimony provided no grounds for the jury to ascertain that he
acted with utter disregard for human life as opposed to with an intent to kill. We
agree with the State that “Vanderpool does not offer any theory for how the jury
could find him not guilty of first-degree intentional homicide but guilty of
first-degree reckless homicide.” Again, Vanderpool’s claim of ineffective
assistance of counsel lacks merit. Wheat, 256 Wis. 2d 270, ¶14.

¶14 Vanderpool’s third ineffective assistance of counsel argument is
premised on his claim that his trial counsel should have done a better job in
arguing for a jury instruction on the lesser-included offense of second-degree
intentional homicide (imperfect self-defense). The circuit court denied
Vanderpool’s request for this instruction because Vanderpool’s testimony did not
support it, not because the argument of his counsel was not persuasive enough. A
defendant is entitled to an imperfect self-defense instruction only if there is some
evidence to show that he held a subjective belief that he was in danger of

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No. 2022AP1694-CR

imminent death or great bodily harm, regardless of whether the belief was
reasonable. Head, 255 Wis. 2d 194, ¶124; WIS. STAT. § 940.01(2)(b). Due to his
claimed blackout, Vanderpool did not provide testimony about what he thought or
subjectively believed at the time he inflicted the numerous fatal stab wounds on
J.K. This instruction was not supported by the evidence, and therefore,
Vanderpool has not shown that his trial counsel rendered ineffective assistance.

¶15 Vanderpool next contends that the circuit court misused its
discretion in excluding the testimony of his proposed expert witness, Dr. Amelia
Brost, a licensed psychologist who evaluated him and diagnosed him with PTSD.
Vanderpool argues that Dr. Brost’s testimony was crucial to his defense because it
would have provided the jury with an understanding of how his PTSD influenced
his perception of the events leading to his attack on J.K.

¶16 Expert testimony is admissible if it will assist the trier of fact to
understand the evidence or to determine a fact in issue. WIS. STAT. § 907.02(1).
We review the circuit court’s decision to admit or exclude expert testimony for an
erroneous exercise of discretion. State v. Dobbs, 2020 WI 64, ¶27, 392 Wis. 2d
505, 945 N.W.2d 609.

¶17 The circuit court excluded Dr. Brost’s testimony on the grounds that
it would not have assisted the jury in determining the central issues of whether
Vanderpool acted in self-defense or had the requisite intent to commit homicide.
While Dr. Brost could have testified about the general effects of PTSD, she could
not provide specific insight into Vanderpool’s intent or state of mind during the
incident. Her testimony would not have aided the jurors in determining whether
Vanderpool was guilty or innocent. Therefore, we conclude that the circuit court
properly exercised its discretion in deciding to exclude Dr. Brost’s testimony.

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No. 2022AP1694-CR

¶18 Finally, Vanderpool argues that he is entitled to discretionary
reversal pursuant to WIS. STAT. § 752.35. That statute allows this court to reverse
a judgment or order for a new trial in the interest of justice whenever the real
controversy has not been fully tried and it is probable that justice has for any
reason miscarried. Id. We have rejected Vanderpool’s arguments that he received
ineffective assistance of counsel and that the circuit court misused its discretion in
prohibiting Dr. Brost’s testimony. There is nothing about this case that suggests to
us that the real controversy has not been tried. Vanderpool has failed to establish
that he is entitled to relief under this statute.

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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