On Point blog, page 1 of 1
Defense Win: COA grants new trial in multiplicity challenge to Len Bias case
State v. Samuel R. Osornio, 2024AP2368-CR, decision originally issued 6/25/25, subsequently withdrawn, reissued 7/18/25, District 4, (recommended for publication); case activity (including briefs)
Osornio argues that he is entitled to a new trial because the state charged him with both reckless homicide by delivery of heroin, based on allegations that he delivered heroin to A.B. and A.B. fatally overdosed on this heroin, and, separately, with delivery of the same heroin to A.B. (¶1). COA reverses, concluding that the two counts were multiplicitous, as Osornio was exposed to the potential for punishment twice for the same offense of delivering heroin to A.B. (¶3).
Acquittal on felony homicide doesn’t preclude 2nd degree reckless homicide charge
State v. Andreal Washington, 2018AP1254-CR, 7/9/19, District 1 (not recommended for publication); case activity (including briefs)
A jury acquitted Washington of the felony murder of Williams. Then the State charged him with 2nd degree reckless homicide. Washington moved to dismiss on double jeopardy grounds. The circuit court denied the motion, and the court of appeals here affirms.
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
State v. Patrick R. Patterson, 2008AP1968-CR, Wis SCt review granted 3/16/10
decision below: 2009 WI App 161; for Patterson: David R. Karpe
Issues:
Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?
Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?
Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”
Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?
State v. Patrick R. Patterson, 2009 WI App 61, PFR 10/30/09
court of appeals decision, for Patterson: David R. Karpe
Multiplicity – First-Degree Reckless Homicide by Delivery of Controlled Substance, § 940.02(2)(a) and Contributing to Delinquency Resulting in Death of Child, § 948.40(4)(a): Not Multiplicitous
Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a),
Double Jeopardy – Multiplicity – § 940.02(2)(a) and § 948.40(4)(a): Not Multiplicitous
State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe
Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.