State v. Henry L. Watson

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 3, 2023
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. 2022AP1449-CR Cir. Ct. No. 2020CF1459

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HENRY L. WATSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, J.

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. 2022AP1449-CR

¶1 PER CURIAM. Henry T. Watson appeals from a judgment of
conviction for homicide by negligent handling of a dangerous weapon following a
jury trial and an order denying his motion for postconviction relief. In his brief,
Watson asserts, in his statement of issues, that “[t]he [c]ircuit [c]ourt did not
properly instruct the jury on perfect self-defense[.]” He also states that trial
counsel was ineffective because he “failed to challenge the constitutionality of the
statute. His trial counsel failed to properly object to the [j]ury’s verdict.” We
reject Watson’s arguments, and thus, we affirm the judgment of conviction and the
order denying the postconviction motion.

BACKGROUND

¶2 On April 6, 2020, Milwaukee police officers responded to a report of
a shooting in the parking lot of an auto parts store in the City of Milwaukee. They
found Thomas Jones,1 who told them that he had been shot in his lower abdomen
and right flank. The officer did not find a weapon on Jones and he was
transported to a hospital. Officers found a second victim, Javon Lattimore, lying
next to a red Chevy Impala that was lifted up on a jack—he had been shot four
times and died.

¶3 A witness identified Watson in a photo array and told police that she
saw him talking to Lattimore and Jones, pulling out a handgun, and firing it seven
or eight times in the direction of the red Chevy Impala, shooting Lattimore and
Jones. Jones told police that he met Watson the day before the shooting, while

1
Pursuant to WIS. STAT. RULE 809.86 (2021-22), we refer to the victim in this matter
using a pseudonym. All references to the Wisconsin Statutes are to the 2019-20 version unless
otherwise noted.

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No. 2022AP1449-CR

working on cars at the store. On the day of the shooting, he got into an argument
with Watson and as he was walking toward Watson, Watson pulled out a gun,
Jones put his hands up in the air, and Watson fired shots at both Lattimore and
Jones, which hit both of them. Watson told police that he got into an argument
with Jones and as Jones approached him, Jones reached into his pocket. Watson
said that he believed that Jones was armed, so he pulled out his gun and shot at
Jones. Security cameras captured the incident.

¶4 The State charged Watson with one count of first-degree reckless
homicide, use of a dangerous weapon as to Lattimore, and first-degree reckless
injury, use of a dangerous weapon as to Jones. The matter proceeded to a four-day
jury trial that started on January 4, 2021. The State was unable to secure Jones’
appearance to testify as a witness. Officers testified regarding what they saw at
the scene of the shooting and their investigation. They found ten fired 9mm
cartridge casings, multiple bullets, and bullet damage to the area around the store.
Police concluded that the shooter took the gun with him and they found no
evidence to suggest that Jones or Lattimore had a gun that day.

¶5 About four hours after the shooting, a detective received a phone call
from Watson. Watson told the detective that he made a mistake and wanted to
turn himself in with the gun he used to shoot at Jones. When officers went to meet
Watson, he gave them his firearm and ammunition, was cooperative, gave a DNA
sample, and made a full statement to police. As a result of their investigation, the
officers concluded that the 9mm casings, bullets, and bullet jackets found at the
scene were all fired from Watson’s firearm.

¶6 The jury saw surveillance video from the store which captured the
incident and the shooting. The video showed that as Jones approached a man in

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No. 2022AP1449-CR

dark clothing, Jones first put his left hand up and then down, he almost
immediately put both hands up, and then turned and ran away from the man in the
dark clothing. As he ran, the man in the dark clothing raised his right arm and
pointed it at Jones, which was consistent with shooting at Jones as he ran away
toward the red Chevy Impala. The video from the gas station nearby showed
Jones running from the store and trying to flag down people to get help.

¶7 An eyewitness to the shooting testified that she had gone to the store
on the day of the shooting in the red Chevy Impala, which was her boyfriend’s car,
to get it fixed. The car was jacked up in the parking lot and she and her boyfriend
sat inside the store. She did not see the two men near the red Chevy Impala with
any firearm or weapon and she heard the man under the car tell the other man to
go tell Watson to move along. She testified that when the man went over to
Watson, Watson pulled out a gun, shot in the air once or twice, and then shot the
man. She saw Watson shoot at least seven times. She identified Watson as the
shooter in a photo array and also at trial.

¶8 Watson testified that he was at the store parking lot on the day of the
shooting trying to get work by handing out his business cards and talking to
people. He saw Jones and Lattimore talking, while Lattimore was working on the
red Chevy Impala—he saw Lattimore come from under the car and grab some
tools. Then Jones approached Watson—upset, with his left hand raised, and his
right hand in his pocket. Watson testified that as Jones walked toward him, Jones
was “yelling” at Watson telling him to “move the fuck around.” Jones “had his
left hand in his pocket,” then “was lifting it up” and showed Watson “something
black,” which Watson “thought was a gun” because Jones said, “I’m going to fuck
your ass up.” Watson then pulled his own gun out of his pants pocket because he
thought that he was in danger and fired his weapon. He testified that Jones

4
No. 2022AP1449-CR

“turned” and “deviated to the left as if he was about to try to turn around and
return fire,” so he “continued to fire” until Jones was behind the red Chevy
Impala. Watson stated that he ran back to his own car so he would not get shot.
Watson further testified that later that day someone told him that two people had
been shot in the store parking lot. He called the police, told him that he was
involved, was cooperative, and was shocked when police told him that someone
under the car had died in the shooting.

¶9 At the close of the evidence, the parties agreed that for count one—
first-degree reckless homicide, use of a dangerous weapon, of Lattimore—the jury
should be instructed on the lesser-included offense of second-degree reckless
homicide, use of a dangerous weapon. The next morning trial counsel also
requested an instruction for the lesser-included offense of homicide by negligent
handling of a dangerous weapon—the circuit court granted the request. As a part
of the instructions regarding count one, the circuit court specifically instructed the
jury on self-defense:

There is evidence in this case that [Watson] was acting in
self-defense as to [Jones]. The fact that the law may allow
[Watson] to use force in self-defense as to [Jones], does not
necessarily mean that the causing of harm to [Lattimore]
was lawful. You must consider the law of self-defense in
deciding whether [Watson’s] conduct as to [Jones] was
criminally reckless conduct, … but [Watson] does not have
a privilege of self-defense as to [Lattimore].2

¶10 The jury rendered verdicts of guilty of the lesser-included offense of
homicide by negligent handling of a firearm on count one related to Lattimore, and
not guilty on count two related to Jones. Trial counsel moved the court for
2
The circuit court also read the jury the standard jury instruction regarding self-defense
as it related to Watson’s use of force as to Jones in count two.

5
No. 2022AP1449-CR

“judgment of acquittal on Count two and judgment notwithstanding the verdict on
Count one.” The circuit court stated that it would “enter a judgment on both of the
verdicts as rendered by the jury[.]”

¶11 At sentencing, the circuit court described the video evidence as
showing that during a confrontation between Watson and Jones, while Jones had
both arms up, Watson fired shots at him that killed an “innocent person,
[Lattimore.]” After discussing the reasons for imposing the sentence, the court
sentenced Watson to the maximum sentence on count one of ten years of
imprisonment, consisting of five years of initial confinement and five years of
extended supervision.3

¶12 Watson filed a postconviction motion seeking “an order vacating the
judgment of conviction and to dismiss the case.” He alleged that trial counsel
performed deficiently, first, because “[h]e did not object to the verdict of guilty”
on the count of homicide by negligent handling of a dangerous weapon, as he
should have. He argues that trial counsel was deficient for failing to object
because “he was found not guilty by self-defense on the count of [first-degree]
reckless injury use of a dangerous weapon”—count two—and because “he
unintentionally kill[ed]” Lattimore, while “lawfully defending himself from
[Jones].” Watson asserted that he had no intent to kill Lattimore, and therefore, he
cannot be criminally liable because he cannot be criminally negligent “if he was
found to be acting lawfully by self-defense.” Second, he alleged that trial counsel
was deficient by failing “to question the constitutionality of the statutes.”

3
We note that Watson does not challenge the sentence imposed by the circuit court.

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No. 2022AP1449-CR

¶13 In a written decision and order, the circuit court denied Watson’s
motion without a hearing.

DISCUSSION

I. Watson could not claim self-defense as to count one

¶14 At the outset, we note that Watson makes a convoluted argument
that because he was lawfully intentionally acting in self-defense against Jones, that
he cannot be found guilty of negligently killing Lattimore. He states that:

The principal question for the jury at the end of the trail
[sic] was not whether Lat[t]imore had been killed or who
had done it. Rather, the question came down to intent:
what was Watson’s intent when he pulled his gun out, and
what was his intent when he discharged his gun? If Watson
killed Lat[t]imore while acting lawfully in self-defense
towards [Jones], then no crime was proven.

Central to Watson’s defense was his testimony that
demonstrated why he pulled out his gun and discharged his
gun towards [Jones] and without any intent in [striking]
Lat[t]imore.

Watson further argues that:

Watson acted lawfully in self-defense and cannot be found
to be criminally negligent at the same time …. An element
of homicide by negligent handling of a dangerous weapon
is the actor is actin[g] in a criminally negligent manner and
by the way of self-defense jury instructions, lawfully action
in self-defense and criminally negligent actions are
mutually exclusive of each other and cannot co-exist at the
same time.

¶15 The problem with Watson’s argument is that, at best, he is asserting
that he was acting in self-defense when shooting at Jones because he believed that
Jones had a firearm and was going to shoot him. He does not allege that Lattimore
was in any way threatening him at any time. Rather, he states, “Watson’s sole

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No. 2022AP1449-CR

issue in this case is whether he unintentionally kills a third-party [Lattimore] while
using a justifiable force in self-defense is [he] criminally liable for the injury to the
third party.” He further argues that if Watson killed Lattimore, while acting
lawfully in self-defense towards Jones, then no crime was proven.

¶16 We conclude that even if Watson could claim he acted in self-
defense, based on his assertion that he believed that Jones had a gun and was
going to shoot him, he could not claim that he acted in self-defense as to
Lattimore. WISCONSIN STAT. § 939.48(3) clearly limits the privilege of self-
defense where a defendant’s conduct results in injury to an unintended third
person. The statute in relevant part provides that:

The privilege of self-defense extends not only to the
intentional infliction of harm upon a real or apparent
wrongdoer, but also to the unintended infliction of harm
upon a 3rd person, except that if the unintended infliction of
harm amounts to … first-degree or 2nd-degree reckless
homicide [or] homicide by negligent handling of a
dangerous weapon … the actor is liable for whichever one
of those crimes is committed.

Id. (emphasis added).4

¶17 As noted, here Watson was charged with one count of first-degree
reckless homicide, use of a dangerous weapon for shooting and killing Lattimore.
The jury found him guilty of the lesser-included offense of homicide by negligent
handling of a firearm as to Lattimore. Watson acknowledges that he fired the gun
to protect himself from Jones—not Lattimore. Therefore, the plain language of
WIS. STAT. § 939.48(3) bars Watson from asserting self-defense to avoid

4
We note that the statute specifies other crimes that are not relevant to this case.

8
No. 2022AP1449-CR

conviction for homicide by negligent handling of a firearm as to Lattimore—a
“3rd person.”

¶18 We conclude that, considering the facts of this case, including the
fact that he was convicted of homicide by negligent handling of a firearm, because
Watson offers no Wisconsin5 legal authority demonstrating the viability of his
self-defense claim that he advances, he fails to show that he was entitled to claim
self-defense as to the negligent handling of a firearm charge in count one
involving Lattimore. Thus, as we next discuss, each of his other claims, which are
based on his claim that he is entitled to a privilege of self-defense as to his
shooting Lattimore, are without merit.6

5
We note that Watson cited to cases from other jurisdictions, but we conclude that those
cases are inapposite to Wisconsin law. We also note that the State argued in its brief that the
cases from other jurisdictions were inapposite to Wisconsin law. Watson does not respond to the
State’s argument in his reply brief, and thus, we consider that he concedes that the State is
correct. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (holding that an appellant’s failure to dispute respondent’s arguments in a reply brief
may be taken as a concession).
6
We also note that Watson acknowledges that trial counsel did not object to the jury
instructions that the circuit court gave to the jury. Thus, as our supreme court has stated, “the
court of appeals has no power to reach an unobjected-to jury instruction because the court of
appeals lacks a discretionary power of review.” State v. Trammell, 2019 WI 59, ¶25, 387
Wis. 2d 156, 928 N.W.2d 564. However, we address the jury instruction for the purpose of
resolving Watson’s additional arguments.

9
No. 2022AP1449-CR

II. Watson’s claims that the circuit court did not adequately
instruct the jury on perfect self-defense and that trial
counsel was ineffective for not objecting to the
instructions

¶19 On appeal, Watson rephrases his claims that he asserted in his
postconviction motion,7 now stating that the circuit court “did not adequately
instruct the jury on perfect self-defense,” “the court did not give the jury proper
instructions about criminal negligence and acting lawfully cannot coexist,” and
trial counsel was ineffective when “he did not object to jury instructions which
failed to inform the jury properly.”

¶20 These allegations are based on Watson’s argument that because he
was lawfully intentionally acting in self-defense against Jones, that he cannot be
found guilty of negligently killing Lattimore. We concluded above that pursuant
to WIS. STAT. § 939.48(3), Watson could not claim that he acted in self-defense as
to Lattimore. Thus, we conclude that the circuit court properly instructed the jury
that Watson did not have a privilege of self-defense as to Lattimore.

¶21 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. See State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d
334. We review independently, as a matter of law, whether the facts demonstrate

7
In his postconviction motion, Watson alleged that trial counsel performed deficiently
because “[h]e did not object to the verdict of guilty” on the count of homicide by negligent
handling of a dangerous weapon, as he should have because “he was found not guilty by self-
defense on the count of [first-degree] reckless injury use of a dangerous weapon” and because “he
unintentionally kill[ed]” Lattimore while “lawfully defending himself from [Jones]” Watson had
no intent to kill Lattimore, and therefore, he cannot be criminally liable because he cannot be
criminally negligent “if he was found to be acting lawfully by self-defense.”

10
No. 2022AP1449-CR

ineffective assistance of counsel. See State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d
273, 914 N.W.2d 95.

¶22 Because, as noted, the jury instructions were proper, trial counsel
could not have been deficient. It is not deficient performance for trial counsel to
not pursue futile arguments.8 See State v. Cameron, 2016 WI App 54, ¶27, 370
Wis. 2d 661, 885 N.W.2d 611 (“It is not deficient performance for counsel not to
make a pointless objection.”); State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d
113 (Ct. App. 1994) (stating that counsel is not ineffective for failing to pursue
futile arguments).

III. Watson has not shown that WIS. STAT. § 939.48(3) is
unconstitutional

A. Watson did not adequately plead his claim

¶23 In his motion for postconviction relief, Watson alleged that trial
counsel was ineffective in failing “to question the constitutionality of the statutes.”
He also asserted that:

The statute of self-defense [WIS. STAT. § 939.48(3)]
is unconstitutional because it puts an impossible burden on
anybody that is acting in self-defense. It creates that
burden by stating that self-defense is exempted if the
unintended infliction of harm to a third-party amounts to
the crime of homicide by negligent handling of a dangerous
weapon. This puts an unconstitutional burden on anybody
that is lawfully engaged in self-defense and then knowing
where third parties are, even if they are concealed. What
this statute accomplishes is it punishes a person acting in

8
We also note that Watson did not allege that trial counsel was ineffective for not
objecting to the jury instructions that the circuit court gave to the jury. “The general rule is that
issues not presented to the circuit court will not be considered for the first time on appeal.”
State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997) (citation omitted).

11
No. 2022AP1449-CR

the law that they could not conceivably predict. It’s
[predicated] upon the result and not the act.

¶24 The circuit court adopted the State’s argument that Watson’s claim
was deficiently pled. It incorporated the State’s argument into its written decision:

In the instant case, [Watson] has failed to meet his burden
in several ways. First, [Watson] never clearly alleges how
the statute is unconstitutional or what constitutional
provision it violates, “[h]e merely asserts that this is the
case.” State v. Scherreiks, 153 Wis. 2d 510, 520[, 451
N.W.2d 759] (Ct. App. 1989). “Simply to label a claimed
error as unconstitutional does not make it so.” State v.
Lobermeir, [2021 WI App 77, ¶17 n.6, 343 Wis. 2d 456,
821 N.W.2d 400]. This court “need not decide[] the
validity of [constitutional] claims broadly stated but never
specifically argued.” Id.

In the instant case, [Watson] claims that [WIS. STAT.
§] 939.48(3) is unconstitutional because it requires those
acting in self-defense to know where third parties are
during the incident. He does not state which constitutional
provisions this violates, or how this statute stands in
contrast to a constitutional prohibition. Rather, he simply
makes a conclusory claim and thus should be denied
pursuant to State v. Allen, [2004 WI 106,] 274 Wis. 2d 568,
[682 N.W.2d 433].

¶25 We agree with the State’s argument, adopted by the circuit court,
and conclude that Watson did not adequately plead his claim that trial counsel was
ineffective for not challenging the constitutionality of WIS. STAT. § 939.48(3).9
Although we need not address Watson’s belated allegations in his reply brief to

9
We note that the circuit court did comment that “[a]gain, [Watson] seeks to remedy the
deficiencies of his motion by raising new claims in his reply brief.” In his reply brief, Watson
argued that the statute was unconstitutional because it was vague and because it was an ex post
facto law. However, as our supreme court in State v. Allen, 2004 WI 106, ¶27, 274 Wis. 2d 568,
682 N.W.2d 433, said: “[W]e will review only the allegations contained in the four corners of
Allen’s postconviction motion, and not any additional allegations that are contained in Allen’s
brief.”

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No. 2022AP1449-CR

the circuit court that the statute was vague and was an ex post facto law, we do so
briefly to be complete.

B. Watson did not adequately allege that WIS. STAT.
§ 939.48(3) was unconstitutionally vague

¶26 Watson alleges that WIS. STAT. § 939.48(3) is unconstitutionally
vague because it does not provide “fair notice of what type of conduct is
proscribed.” His argument appears to challenge the statute as being vague as
applied to him, asserting that when he shot Jones, he believed that he “was acting
in self-defense in a lawful manner,” and therefore, he could not be acting “in a
criminal[ly] negligent manner” when he shot and killed Lattimore.

¶27 The legal standards governing a vagueness challenge are well
settled. This court presumes that the statute is constitutional and “we review it
with an eye towards preserving its constitutionality.” State v. Hibbard, 2022 WI
App 53, ¶23, 404 Wis. 2d 668, 982 N.W.2d 105. “We will not invalidate a statute
on vagueness grounds ‘if any reasonable and practical construction can be given
its language[.]’” Id. (citation omitted). “A statute is unconstitutionally vague if it
fails to give fair notice to a person of ordinary intelligence regarding what it
prohibits and if it fails to provide an objective standard for enforcement.” Id., ¶24
(citation omitted). “A fair degree of definiteness is all that is required.” Id. The
constitutionality of a statute is a question of law that we review independently.
See id., ¶22.

¶28 As we concluded above, WIS. STAT. § 939.48(3) is not vague. The
statute clearly and unambiguously states that the privilege of self-defense is not
applicable where “the unintended infliction of harm [to a third person] amounts to
the crime of … homicide by negligent handling of a dangerous weapon.” See id.

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No. 2022AP1449-CR

Where the unintended harm amounts to homicide by negligent handling of a
dangerous weapon, as it does here, “the actor is liable for” that crime. Watson
does not refute that WIS. STAT. § 939.48(3) makes the privilege of self-defense
inapplicable to his criminally negligent homicide of Lattimore.

¶29 It is not deficient performance for trial counsel to not pursue futile
arguments. See Cameron, 370 Wis. 2d 661, ¶27 (“It is not deficient performance
for counsel not to make a pointless objection.”); Toliver, 187 Wis. 2d at 360
(stating that counsel is not ineffective for failing to pursue futile arguments). It is
also not prejudicial for trial counsel to have not raised a legal challenge to the
statute if he could not establish that the challenge would have succeeded. See
State v. Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App. 1999)
(discussing that counsel’s failure to present legal challenge is not prejudicial if
defendant cannot establish challenge would have succeeded).

¶30 We conclude that because any challenge to the constitutionality of
WIS. STAT. § 939.48(3) on the grounds that it is vague would have been futile,
Watson has not shown that trial counsel was ineffective in failing to pursue that
futile argument.

C. Watson did not adequately allege that WIS. STAT.
§ 939.48(3) was an ex post facto law

¶31 Watson makes a convoluted argument that WIS. STAT. § 939.48(3) is
an ex post facto law because he was engaged in innocent conduct when he shot at
Jones and that his conduct was privileged by self-defense. He argues that
§ 939.48(3) “retrospectively” “summarily converted” his innocent conduct of
shooting at Jones in self-defense into “criminal conduct.” He further argues that:

At the time [Watson] pulled the trigger on his firearm, he
was acting lawfully. At the time that the bullet travelled

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No. 2022AP1449-CR

through the air, the intent of [Watson] that travelled with it,
was innocent. It was not until the bullet regrettably and
tragically struck [Lattimore] that [Watson’s] conduct
became a crime. Watson did not possess the requisite
mens rea to form the intent necessary to either (a) formulate
the intent to commit a crime or (b) have the intent
transferred to his action.

He then argues that “[m]ore importantly, more than just a retrospective result is
required to be criminally liable.” He further argues that his “original conduct was
not a crime. Therefore, it was only regarded as a crime retrospectively. Creating a
crime of his innocent conduct, again retrospectively. Criminal statutes may not
look retrospectively to determine criminality. Criminality must exist at the time
the conduct was committed, never after.”

¶32 We conclude that Watson fails to make a cogent argument for why
the statute is ex post facto, and we reject his argument. In State v. Thiel, 188
Wis. 2d 695, 703, 524 N.W.2d 641 (1994), our supreme court stated that

[w]e hold that an ex post facto law, prohibited by the
Wisconsin Constitution, is any law: which punishes as a
crime an act previously committed, which was innocent
when done; which makes more burdensome the punishment
for a crime, after its commission, or which deprives one
charged with crime of any defense available according to
law at the time when the act was committed[.]

(Citation omitted and internal quotations omitted.)

¶33 Applying the holding in Thiel to the facts in this case, we conclude
that WIS. STAT. § 939.48(3) is not an unconstitutional ex post facto law. As the
State points out, in its current form, § 939.48(3) was enacted in 1988 by 1987 Wis.
Act 399, § 472zkbm, effective January 1, 1989. The statute, in relevant part,
provides that:

The privilege of self-defense extends not only to the
intentional infliction of harm upon a real or apparent

15
No. 2022AP1449-CR

wrongdoer, but also to the unintended infliction of harm
upon a 3rd person, except that if the unintended infliction of
harm amounts to … first-degree or 2nd degree reckless
homicide, homicide injury by negligent handling of a
dangerous weapon … the actor is liable for whichever one
of those crimes is committed.

Sec. 939.48(3) (emphasis added). Pursuant to the statute, as relevant to the facts in
this case, the “privilege of self-defense” does not extend to unintended infliction
of harm upon a third person if the unintended infliction of harm amounts to
homicide by negligent handling of a dangerous weapon, which is the crime that
Watson was convicted of, and therefore, Watson is liable for committing that
crime.

¶34 WISCONSIN STAT. § 939.48(3) was effective as of January 1, 1989—
thirty-one years prior to Watson committing the crime on April 6, 2020. Thus,
when he committed the crime of negligent handling of a dangerous weapon, his
conduct was not innocent because the privilege of self-defense did not extend to
his shooting Lattimore. Watson’s conduct constituted a crime at the time he
unintentionally shot Lattimore, who was an unintended third person under the
statute. Thus, we conclude that § 939.48(3) was not an ex post facto law at the
time Watson shot Lattimore, and therefore, he was properly convicted of the crime
of negligent handling of a dangerous weapon.

¶35 Watson couches his allegation in terms of trial counsel being
ineffective for not challenging the statute as being an ex post facto law. Because
we conclude that the statute is not an ex post facto law, any challenge to the
constitutionality of the statute would be futile.

¶36 It is not deficient performance for trial counsel to not pursue futile
arguments. See Cameron, 370 Wis. 2d 661, ¶27 (“It is not deficient performance

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No. 2022AP1449-CR

for counsel not to make a pointless objection.”); Toliver, 187 Wis. 2d at 360
(stating that counsel is not ineffective for failing to pursue futile arguments). It is
also not prejudicial for trial counsel to have not raised a legal challenge to the
statute if he could not establish that the challenge would have succeeded. See
Jackson, 229 Wis. 2d at 344 (discussing that counsel’s failure to present legal
challenge is not prejudicial if defendant cannot establish challenge would have
succeeded).

¶37 Thus, we conclude that because any challenge to the
constitutionality of WIS. STAT. § 939.48(3) on the grounds that it was an ex post
facto law would have been futile, Watson has not shown that trial counsel was
ineffective in failing to pursue that futile argument.

CONCLUSION

¶38 For the reasons stated above, we conclude that Watson could not
claim a privilege of self-defense, pursuant to WIS. STAT. § 939.48(3), as to the
homicide by negligent handling of a dangerous weapon that he was convicted of
where he unintentionally shot and killed Lattimore. Thus, we conclude that the
circuit court properly instructed the jury that Watson did not have a privilege of
self-defense as to shooting and killing Lattimore, and therefore, trial counsel was
not ineffective in not objecting to the jury instructions. We also conclude that
§ 939.48(3) is not unconstitutionally vague and is not an ex post facto law.

¶39 We, therefore, affirm the judgment and order of the circuit court and
postconviction court.

By the Court.—Judgment and order affirmed.

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No. 2022AP1449-CR

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

18