On Point blog, page 1 of 5
Court of Appeals: Aiding buyer in drug sale can lead to Len Bias liability because it also aided dealer
State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)
In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.
SCOW to address how the castle doctrine interacts with perfect self-defense
State v. Alan M. Johnson, 2018AP2318-CR, review of published opinion granted 9/16/20; case activity (including briefs)
Issues for review (from the State’s Petition)
1. Was Johnson entitled to a jury instruction for perfect self-defense based on his testimony concerning his motivation for trespassing with a loaded firearm in KM’s house, despite the fact that KM was unarmed, shot five times, and Johnson could not recall anything about the shooting other than that KM “lunged” at him?
2. Was Johnson entitled to submission of the lesser-included offense of second-degree reckless homicide under the above circumstances?
3. Did the circuit court erroneously exercise its discretion in excluding evidence of alleged child pornography Johnson found on KM’s computer before he killed KM?
SCOW DIGs case on solicitation of 1st degree reckless injury
If you’re waiting for a decision on whether solicitation of 1st degree reckless injury is a crime in Wisconsin and on whether solicitation of 1st degree recklessly endangering safety is a lesser included offense of 1st degree reckless injury, STOP! SCOW just dismissed the case raising these issues–State v. Kelly James Kloss–as improvidently granted. SCOW’s really DIGing it this term. This is the second time in less than a month that it has issued a Dismissed as Improvidently Granted order.
SCOW to address whether solicitation of reckless conduct is a crime
State v. Kelly James Kloss, 2018AP651-CR, petition and cross petition for review of a published court of appeals decision, both granted 6/11/19; case activity (including briefs)
Issues:
Is solicitation of first degree reckless injury a crime under Wisconsin law?
Is solicitation of first degree recklessly endangering safety a lesser included offense of first degree reckless injury, making conviction for both offenses multiplicitous in this case?
Close only counts in horseshoes, hand grenades, and attempted child enticement
State v. Shayd C. Mitchell, 2017AP1536-CR, District 3, 8/7/18 (not recommended for publication); case activity (including briefs)
Mitchell was stopped two blocks away from the Family Video store he was walking to for an assignation with someone he thought was a 15-year-old boy. That was close enough to get him convicted of attempted child enticement.
Forgoing lesser-included instruction a reasonable strategic choice
State v. Terry S. Shannon, 2015AP922, 12/7/2016, District 2 (not recommended for publication); case activity (including briefs)
Terry Shannon appeals the denial of his Wis. Stat. § 974.06 motion. He was convicted, at trial, of first-degree intentional homicide; he alleges his trial counsel was ineffective for not requesting that the jury be instructed on second-degree intentional.
Of reasonable inferences and fearful jurors
State v. Isiah O. Smith, 2015AP1645-CR, 11/15/16, District 1 (not recommended for publication); case activity (including briefs)
Two guys walk into an apartment complex and leave a short time later. One carried a gun and a cell phone; the other a cell phone. They got into a car belonging to a friend of the guy carrying only the cell phone and drove off. A surveillance video captured these movements but not the shooting death that occurred in the complex at about the same time. Was there sufficient evidence to convict the guy holding just the cell phone of 2nd degree reckless homicide as a party to a crime?
“Twilight zone” between great bodily harm and bodily harm is for jury
State v. Anthony Darnell Davis, 2016 WI App 73; case activity (including briefs)
Davis argued that he could not be convicted of recklessly causing “great bodily harm” to a child where the injuries he inflicted were bone fractures which, by statute, qualify as only “substantial bodily harm.” See Wis. Stat. § 939.22(38). The court of appeals disagreed.
Constitutional challenge to penalty enhancer for using a computer to facilitate a child sex crime fails
State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)
The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.
Evidence about “shooting party” sufficient to support endangering safety conviction
State v. Steven E. Steffek, 2015AP93-CR, District 2, 7/1/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The evidence was sufficient to convict Steffek of endangering safety by negligent handling of a dangerous weapon, § 941.20(1)(a), as a party to the crime, despite the fact there was no evidence that anyone was dodging bullets in a “zone of danger.”