Justia.com Opinion Summary: Defendant was convicted of first-degree reckless injury while armed and being a felon in possession of a firearm. At issue was whether a fact-finder, in determining whether a defendant acted with utter disregard of human life, should give his conduct after a crime less weight than his conduct before and during the incident. Also at issue was whether there was a reasonable likelihood that the jury applied the circuit court's supplemental jury instruction in an unconstitutional manner. The court held that, in an utter disregard analysis, a defendant's conduct was not assigned more or less weight whether the conduct occurred before, during, or after the crime; and when evaluating whether a defendant acted with utter disregard for human life, a fact-finder should consider any relevant evidence in regard to the totality of the circumstances. The court also held that defendant had not established a reasonable likelihood that the jury applied the supplemental instruction in an unconstitutional manner where the instruction did not mislead the jury into believing that it could not consider defendant's relevant after-the-fact conduct in its determination on utter disregard for human life. Accordingly, the court reversed the court of appeals decision and remanded the case to allow that court to decide the other claims defendant raised before it.
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2011 WI 32
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP956-CR
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Donovan M. Burris,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 323 Wis. 2d 823, 781 N.W.2d 551
(Ct. App. 2010 – Unpublished)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
May 17, 2011
February 2, 2011
Circuit
Milwaukee
William Sosnay
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
PROSSER, J. concurs (Opinion filed).
ABRAHAMSON, C.J. dissents (Opinion filed).
ATTORNEYS:
For
the
plaintiff-respondent-petitioner
the
cause
was
argued by Maura F.J. Whelan, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For
argument
the
by
defendant-appellant
Byron
C.
Lichstein,
there
Frank
were
briefs
J.
Remington
University of Wisconsin Law School, Madison.
and
oral
Center,
2011 WI 32
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP956-CR
(L.C. No.
2007CF4362)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent-Petitioner,
v.
MAY 17, 2011
Donovan M. Burris,
A. John Voelker
Acting Clerk of Supreme
Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals.
Reversed and
cause remanded.
¶1
N.
unpublished
PATRICK
decision
CROOKS,
of
the
J.
This
court
of
is
a
appeals1
review
of
reversing
an
the
circuit court's judgment of conviction and denial of Donovan M.
Burris's (Burris) motion seeking postconviction relief and a new
trial.
Burris
Rashada
1
The underlying incident began as an argument between
and
the
mother
(Khadijah),
of
and
his
two
young
escalated
into
children,
the
Khadijah
shooting
of
State v. Burris, No. 2009AP956-CR, unpublished slip op.
(Wis. Ct. App. Jan. 26, 2010).
No.
Khadijah's
brother,
paralyzed.
reckless
Kamal
Rashada
(Kamal),
2009AP956-CR
which
left
Kamal
Burris was subsequently convicted of first-degree
injury
940.23(1)(a)
and
while
§
armed
contrary
(2007-08)2
939.63
to
and
Wis.
being
Stat.
felon
a
§
in
possession of a firearm contrary to Wis. Stat. § 941.29(2)(a).
¶2
At trial, the central focus was whether Burris acted
with utter disregard for human life, an element of Wis. Stat.
§ 940.23(1)(a).
The State presented testimony about Burris's
actions before and during the shooting from Kamal, Khadijah, and
their mother Cathy Rashada (Cathy) that tended to show he acted
with utter disregard for human life.
Burris testified on his
own behalf, asserting that the shooting was an accident, and
also
attempted
to
impeach
the
Rashadas'
testimony
with
inconsistencies between their testimony and in prior statements.
¶3
Both sides also put forth evidence of Burris's conduct
after the shooting that
element.
relevant
to
the
utter
disregard
Burris, Kamal, Khadijah, and Cathy all agreed that
immediately
after
stated that
the
presented
was
the
shooting,
shooting
evidence
that,
was
Burris
expressed
unintentional.
after
expressing
The
his
remorse
and
State
also
regret
for
shooting Kamal for about one minute, Burris left the apartment,
did not
contact the
Rashada
family
to
inquire
about
Kamal's
condition, and evaded police for approximately five months.
2
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
2
No.
¶4
jury
2009AP956-CR
After hearing this evidence and receiving the pattern
instruction
Criminal
1250,
element,
the
for
first-degree
including
jury
the
reckless
injury,
disregard
"Regarding
asked:
utter
the
element
JI——
human
for
Wis
life
of
utter
disregard, all other facts and circumstances relating to the
incident,
do
shooting?"
over
we
consider
facts
and
circumstances
after
the
The circuit court, after conferring with counsel and
Burris's
objection,
gave
the
jury
a
supplemental
instruction, which quoted verbatim part of this court's decision
in State v. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170.
¶5
Following
his
conviction,
Burris
moved
for
postconviction relief on several grounds, including a challenge
to
the
supplemental
jury
instruction
as
unconstitutionally
misleading, all of which the circuit court denied.
The court of
appeals reversed and remanded for a new trial based on Burris's
challenge to the supplemental jury instruction and thus did not
reach Burris's other claims.
The State petitioned this court
for review, which we granted.
¶6
The State raises the following issues for review: (1)
whether a fact-finder, in determining whether a defendant acted
with utter disregard for human life, should give his conduct
after a crime less weight than his conduct before and during the
incident, and (2) whether there is a reasonable likelihood that
the
jury
applied
the
circuit
court's
supplemental
jury
instruction in an unconstitutional manner.
¶7
We conclude that, in an utter disregard analysis, a
defendant's conduct is not, as a matter of law, assigned more or
3
No.
less
weight
after
the
whether
crime.
the
We
conduct
hold
occurred
that,
when
2009AP956-CR
before,
during,
evaluating
or
whether
a
defendant acted with utter disregard for human life, a factfinder should consider any relevant evidence in regard to the
totality of the circumstances.
¶8
We
reasonable
further
hold
likelihood
that
that
the
Burris
jury
has
not
applied
established
the
a
supplemental
jury instruction on the utter disregard for human life element
in
an
unconstitutional
manner.
We
are
satisfied
that
the
supplemental instruction did not mislead the jury into believing
that
it
could
not
consider
Burris's
relevant
after-the-fact
conduct in its determination on utter disregard for human life.
¶9
Therefore, we reverse the court of appeals decision
and remand the case to allow the court of appeals to decide the
other claims Burris raised before it.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶10
The
Rashada
family
and
Burris
disagree
about
the
details of what led up to the shooting on September 5, 2007,
that
led
to
the
charges
at
issue
in
this
case.
Relevant
discrepancies in their testimony are discussed in more detail
below; however, the basic facts are as follows.
¶11
Burris arrived unannounced at the Rashada residence to
talk to Khadijah and to see their two children.
Cathy, Kamal,
Khadijah, and the two children were present when Burris arrived.
Burris had with him a loaded .45 caliber pistol with a hair
trigger and a disabled safety.
argument over the children
Burris and Khadijah got into an
and
4
a
male
friend
of
Khadijah's,
No.
2009AP956-CR
which developed into a shouting match in which obscenities were
exchanged.
¶12
What happened during the argument leading up to the
shooting was the heart of the dispute at trial regarding whether
Burris acted with utter disregard for human life.
However, no
one disputes that Kamal was shot in the neck, at close range,
and
as
a
result
was
hospitalized
for
two
months
and
left
police
for
paralyzed.
¶13
After
the
shooting,
Burris
evaded
approximately five months before turning himself in.
charged
Burris
with
first-degree
reckless
injury
The State
while
armed
contrary to Wis. Stat. § 940.23(1)(a)3 and § 939.63,4 and being a
3
Wis. Stat. § 940.23(1)(a) provides: "Whoever recklessly
causes
great
bodily
harm to another human
being under
circumstances which show utter disregard for human life is
guilty of a Class D felony."
4
Wis. Stat. § 939.63 provides in relevant part:
(1) If a person commits a crime while possessing,
using or threatening to use a dangerous weapon, the
maximum term of imprisonment prescribed by law for
that crime may be increased as follows:
(a) The maximum term of imprisonment for a misdemeanor
may be increased by not more than 6 months.
(b) If the maximum term of imprisonment for a felony
is more than 5 years or is a life term, the maximum
term of imprisonment for the felony may be increased
by not more than 5 years.
(c) If the maximum term of imprisonment for a felony
is more than 2 years, but not more than 5 years, the
maximum term of imprisonment for the felony may be
increased by not more than 4 years.
5
No.
felon
in
possession
§ 941.29(2)(a).5
In
of
a
a
firearm
three-day
contrary
trial
to
before
2009AP956-CR
Wis.
the
Stat.
Milwaukee
County Circuit Court, the Honorable William Sosnay presiding,
the State and Burris presented different accounts of Burris's
conduct leading up to the shooting.
¶14
For the State, Kamal, Cathy, and Khadijah testified to
the following version of events.
house, he briefly spoke
formula
for
the
with
children.
When Burris arrived at the
Cathy
Shortly
about
buying
thereafter,
diapers
and
Khadijah
and
Burris began to argue, and Burris began to threaten Khadijah and
swear at her.
Khadijah and Burris continued this argument in
the living room, where Burris had his gun out and was waving it
around.
Cathy
and
Khadijah
refused and continued to
asked
threaten
Burris
Khadijah
to
and
leave,
wave
but
the gun
(d) The maximum term of imprisonment for a felony not
specified in par. (b) or (c) may be increased by not
more than 3 years.
5
Wis. Stat. § 941.29 provides in relevant part:
(1) A person is subject to the requirements
penalties of this section if he or she has been:
and
(a) Convicted of a felony in this state.
. . . .
(2) A person specified in sub. (1) is guilty of a
Class G felony if he or she possesses a firearm under
any of the following circumstances:
(a) The person possesses a firearm subsequent to the
conviction for the felony or other crime, as specified
in sub. (1) (a) or (b).
6
he
No.
around.
The two young children were present in the living room
at the time.
living
2009AP956-CR
room
Burris.
While Burris and Khadijah were arguing in the
near
Kamal
the
front
tapped
door,
Burris
on
attention and asked him to leave.
Kamal
his
was
left
standing
side
to
behind
get
his
When Kamal tapped him, Burris
turned around, raised the gun, called Kamal the "'N' word," and
shot Kamal in the neck at close range.
¶15
these
During cross-examination, Burris attempted to impeach
witnesses
testimony.
regarding
some
inconsistencies
in
their
Kamal's testimony differed from what he told Officer
Vartanian in the ambulance right after the shooting.
Kamal told
Officer Vartanian that Kamal pushed the gun away from Khadijah
and then pushed Burris out the front door, at which time Burris
reached back inside and shot Kamal.
Kamal explained at trial
that Officer Vartanian may have misunderstood what he said, but
that his testimony at trial was correct.
Cathy testified that
she saw Burris raise the gun before shooting Kamal, but in an
earlier statement to police she had stated that she did not see
Burris raise the gun.
Khadijah testified that Burris waved the
gun around before he raised it to shoot Kamal, but in an earlier
statement to Officer Koscielak, Khadijah had stated that Burris
kept the gun by his side.
Khadijah also testified that Kamal
had only tapped Burris when Burris turned and raised the gun to
shoot
Kamal,
but
in
an
earlier
statement
to
police
she
had
stated that Kamal grabbed Burris's wrist before Burris shot him.
On redirect,
the State attempted
inconsistencies.
7
to
reconcile
some
of these
No.
¶16
Burris
leading
happened
presented
up
apartment,
spoke
to
with
the
the
Cathy
following
shooting.
briefly,
2009AP956-CR
version
Burris
and
then
of
what
entered
went
to
the
the
bedroom to put the gun he had with him under the mattress.
Burris had a gun with him for his protection because, after an
argument with some associates of the Rashadas' neighbors, he
feared for his safety.
the
bathroom
to
talk
After stowing the gun, Burris went to
to
Khadijah
and
to
see
his
children.
Burris and Khadijah's conversation developed into an argument,
which continued as they moved into the bedroom.
get
into
a
heated
argument
never threatened Khadijah.
asked
Burris
to
leave,
and
exchange
While they did
obscenities,
Burris
When Cathy came into the bedroom and
he
complied
by
grabbing
his
gun
and
heading for the door but began to argue with Khadijah again in
the living room.
Burris never raised the gun or waved it around
but kept it by his side.
Khadijah
were
arguing
Burris claimed that while Burris and
near
the
front
door,
Kamal
grabbed
Burris's right wrist from behind, and that when Burris turned
and pulled his hand away, the gun went off and shot Kamal.
¶17
The Rashadas and
Burris
presented
regarding what happened after the shooting.
similar
testimony
Immediately after
the shooting, Burris called out to Kamal and stated that he did
not mean to shoot him and that he hoped Kamal would not die.
Burris asked either Cathy or Khadijah to shoot him and tried to
hand over the gun.
After about one minute, Burris stated he
could not go to jail and left the apartment.
Burris then evaded
police,
weeks,
leaving
Milwaukee
for
8
about
two
before
he
No.
ultimately turned
himself
after the shooting.
to
inquire
turned
about
himself
in
a
little
less
than
2009AP956-CR
five
months
Burris did not contact the Rashada family
Kamal's
in
to
condition.
police,
he
Shortly
called
before
Camilla
Burris
Rashada
(Camilla), Kamal's sister, to explain to her that he had not
intended to shoot Kamal.
¶18
The circuit court gave the pattern jury instruction
for first-degree reckless injury, which, pertinent to the utter
disregard for human life element, provides:
In determining whether the conduct showed utter
disregard for human life, you should consider these
factors: What the defendant was doing, how dangerous
the conduct was, how obvious the danger was, whether
the conduct showed any regard for life and all other
facts and circumstances relating to the conduct.
Wis JI-Criminal 1250; see also Wis JI——Criminal 924A (providing
a nearly identical instruction for the utter disregard element).
¶19
submitted
At
some
the
point
following
during
the
question
deliberations,
to
the
the
circuit
jury
court:
"Regarding the element of utter disregard, all other facts and
circumstances relating to the incident, do we consider facts and
circumstances after the shooting?"
¶20
suggested
To respond to the jury's question, the circuit court
giving
a
supplemental
jury
language in Jensen, 236 Wis. 2d 521, ¶32.
instruction
quoting
Burris responded that
the pattern jury instruction was complete and sufficient, and
that the circuit court could respond simply by charging the jury
to apply their common sense reading of the pattern instruction.
9
No.
2009AP956-CR
Over Burris's objection, the circuit court gave the following
supplemental instruction:
First of all, I want to emphasize that you are to rely
on the instructions that I gave you. All right? And
to rely on all of the instructions that I gave you.
And in response to this question, if this clarifies
anything, after-the-fact regard for human life does
not negate utter disregard otherwise established by
the circumstances before and during the crime. It may
be considered by the fact-finder as a part of the
total factual picture, but it does not operate to
preclude a finding of utter disregard for human life.
The element of utter disregard for human life is
measured objectively on the basis of what a reasonable
person in the defendant's position would have known.
¶21
The jury convicted Burris on all charges, and Burris
moved for postconviction relief on the following grounds: (1)
Burris's
counsel
was
ineffective
because
he
elicited
harmful
other-acts testimony from Cathy, failed to request a cautionary
instruction
State's
for
this
improper
evidence,
closing
and
failed
argument
to
object
regarding
its
to
the
charging
decision, and (2) the circuit court erred by giving the jury
this
supplemental
instruction.
The
Milwaukee
County
Circuit
Court, the Honorable Dennis R. Cimpl presiding, denied Burris's
motion, and Burris appealed.
¶22
The court of appeals reversed, concluding that, while
the language in the supplemental jury instruction was legally
accurate,
applied
there
the
was
a
supplemental
reasonable
likelihood
instruction
10
in
an
that
the
jury
unconstitutional
No.
manner.6
2009AP956-CR
State v. Burris, No. 2009AP956-CR, unpublished slip
op., ¶33 (Wis. Ct. App. Jan. 26, 2010).
The court of appeals
stated that it agreed with the State and Burris that the correct
answer to the jury's question was yes.
Id., ¶28.
The court of
appeals concluded that, in response to the jury's question, the
supplemental
context
from
jury
instruction,
Jensen,
suggested
which
that
took
language
Burris's
out
of
after-the-fact
conduct was not significant and could not outweigh his conduct
Id., ¶32.
before and during the crime.
Because the court of
appeals concluded that this was an inaccurate portrayal of the
law and
that
it was
reasonably
likely
that
the
supplemental
instruction misled the jury in this way, it reversed the circuit
court's judgment of conviction.
Id., ¶¶32-33.
In his dissent,
6
Because the court of appeals reversed based on its
conclusion that the supplemental jury instruction was erroneous,
the court of appeals did not address Burris's three other
claims.
Burris, No. 2009AP956-CR, ¶1.
Before the court of
appeals, Burris argued that he was entitled to a new trial for
the following reasons:
(1) the trial court erroneously answered the jury's
question concerning whether after-the-shooting conduct
could be considered in a manner which misled the jury;
(2) the trial court erred when it allowed the State to
cross-examine Burris on an irrelevant issue and then
also allowed the State to present rebuttal evidence on
that issue; (3) trial counsel provided ineffective
assistance in several respects; and (4) a new trial is
warranted in the interest of justice.
Id.
As the State petitioned this court for review of the sole issue
upon which the court of appeals decision was based, Burris's
other claims are not before us.
11
No.
the
Honorable
Ralph
A.
Fine
noted
that
the
2009AP956-CR
supplemental
instruction explained that the jury could consider after-thefact conduct "as a part of the total factual picture" and thus
the instruction could not have misled the jury.
Id., ¶¶35-37
(Fine, J., dissenting) (quoting Jensen, 236 Wis. 2d 521, ¶32).
¶23
The State petitioned this court for review, which we
granted.
We begin by clarifying that, in an analysis of whether
a defendant acted with utter disregard for human life, the factfinder
should
consider
the
totality
of
the
circumstances,
including all relevant evidence of a defendant's conduct before,
during, and after the crime.7
proceedings
reasonable
as
a
whole,
likelihood
that
We then conclude, considering the
that
Burris
the
jury
has
not
applied
established
the
a
supplemental
jury instruction in an unconstitutional manner, that is, that
the jury was misled into believing that it could not consider
7
While this first issue was not raised as a separate issue
in the State's petition for review, we note that the State
briefed and argued the issue of whether conduct after a crime
should be entitled to less weight than other conduct.
In its
petition for review, the State discussed but did not fully
articulate its position on this issue; however, in its briefs
before this court and during oral argument it clarified its
argument in this regard.
Burris also addressed this issue in
his brief and at some length during oral argument, asserting
that this court should dismiss the State's petition as
improvidently granted because the State had changed its position
on the evidentiary weight due a defendant's after-the-fact
conduct.
Because this issue presents a question of law, which
both parties briefed and argued, and "is of sufficient public
interest to merit a decision," we exercise our discretion to
address it. See State v. Ward, 2000 WI 3, ¶45, 231 Wis. 2d 723,
604
N.W.2d 517
(quoting
Apex
Elec.
Corp.
v.
Gee,
217
Wis. 2d 378, 384, 577 N.W.2d 23 (1998)).
12
No.
2009AP956-CR
Burris's relevant after-the-fact conduct in its determination on
utter disregard for human life.
II. ANALYSIS
¶24
Allegations that the jury improperly applied legally
correct jury instructions in a manner that denied the defendant
due process raise questions of constitutional fact that this
court reviews de novo.
92,
556
N.W.2d 90
State v. Lohmeier, 205 Wis. 2d 183, 191-
(1996).
We
examine
the
challenged
jury
instructions in light of the proceedings as a whole, keeping in
mind that circuit courts have broad discretion in deciding which
instructions to give.
Id. at 194; Nommensen v. Am. Cont'l Ins.
Co., 2001 WI 112, ¶50, 246 Wis. 2d 132, 629 N.W.2d 301.
A. Evidentiary Weight of a Defendant's After-the-Fact Conduct
¶25
The State argues that, while it may be considered as
part of the totality of the circumstances, a defendant's afterthe-fact mitigating conduct does not have the same evidentiary
weight as a defendant's actions before and during the crime.
The State relies on the language in Jensen quoted by the circuit
court in the supplemental jury instruction, and on the court of
appeals
decisions
in
State
v.
Edmunds,
229
Wis. 2d 67,
598
N.W.2d 290 (Ct. App. 1999), and State v. Holtz, 173 Wis. 2d 515,
496 N.W.2d 668 (Ct. App. 1992).
of
appeals
distinguished
The State notes that the court
between
depending upon when it occurred.
the
defendants'
conduct
The State infers from these
factual analyses that, in a determination of utter disregard,
after-the-fact conduct is not as significant as conduct before
and during the injury.
Further, the State asserts that language
13
No.
to
the
contrary
Wis. 2d 724,
in
772
State
v.
Miller,
N.W.2d 188,
2009
is
based
the
State's
WI
on
2009AP956-CR
App
111,
320
an
incorrect
interpretation of Jensen.
¶26
Burris
disagrees
with
the utter disregard standard.
the
court
of
appeals
have
interpretation
of
Burris argues that this court and
consistently
held
that
whether
a
defendant showed utter disregard for human life is a totality of
the circumstances analysis in which the fact-finder may consider
conduct before, during, and after the incident.
that
this
is
consistent
with
Wis.
Stat.
Burris asserts
§ 940.23(1)(a),
the
pattern jury instructions, Wis JI——Criminal 924A and 1250, and
utter disregard case law, see, e.g., Miller, 320 Wis. 2d 724;
Edmunds,
229
Wis. 2d 521.
Wis. 2d 67;
Holtz,
173
Wis. 2d 515;
Jensen,
236
Burris notes that, in the decisions that the State
relies on, this court and the court of appeals were evaluating
the sufficiency of the evidence, and thus any characterization
of a particular category of evidence was limited to the facts of
that case.
¶27
We reject the State's assertion and emphasize that in
an utter disregard analysis there is no rule assigning more or
less weight to a particular category of a defendant's conduct
based on when that conduct occurred.
¶28
not
Both parties agree that Wis. Stat. § 940.23(1)(a) is
instructive
regarding
what
14
evidence
establishes
utter
No.
disregard.8
2009AP956-CR
Rather, decisions of this court and the court of
appeals provide the well-established standard.
¶29
utter
We
most
disregard
Jensen
was
recently
for
human
convicted
of
addressed
life
in
the
proper
Jensen,
first-degree
236
analysis
for
Wis. 2d 521.
reckless
injury
for
vigorously shaking his infant son, leaving him with permanent,
life-altering disabilities.
presented at trial.
Id., ¶1.
The following facts were
During an overnight visit, Jensen's ten-
week-old, 12-pound son began to cry uncontrollably.
After
unsuccessfully
trying
to
soothe
him,
Jensen
Id., ¶6.
vigorously
shook his son 7 to 15 times, such that the infant's head snapped
forward, hitting his chest, and back, and Jensen stopped shaking
him only when the baby stopped crying.
Id.
After about 30
seconds, Jensen called 911 and told the operator that he had an
"accident"
with
holding him.
¶30
his
son——tripping
over
a
phone
cord
while
Id., ¶¶6-7.
Jensen appealed the conviction, arguing that (1) the
State was required to, but did not, prove Jensen's "subjective
awareness that shaking his son posed an extreme risk of death,"
(2) the circumstances——the excessive use of disciplinary force——
were not sufficient to establish utter disregard for human life,
and (3) calling 911 after he realized his son was having trouble
8
The statute does not elaborate on the definition of utter
disregard for human life, or what conduct establishes that
element, but simply proscribes recklessly causing injury "under
circumstances which show utter disregard for human life." Wis.
Stat. § 940.23(1)(a).
15
No.
2009AP956-CR
breathing showed regard for his life and precluded a finding of
utter disregard.
¶31
acted
This court first clarified that whether a defendant
with
analysis,
Id., ¶2.
utter
disregard
dependent
upon
for
"what
human
a
life
is
reasonable
an
objective
person
in
the
defendant's position would have known," which may be "proven by
evidence relating to the defendant's subjective state of mind——
by the defendant's statements, for example, before, during and
after the crime."
¶32
Id., ¶17 (emphasis added).
Turning to the sufficiency of the evidence, this court
noted that in an utter disregard analysis "the factfinder is to
consider
'all
the
factors
conduct . . . includ[ing] . . . what
relating
the
defendant
to
the
was
doing;
why he was doing it; how dangerous the conduct was; how obvious
the danger was and whether the conduct showed any regard for
human life.'"
Id., ¶24 (quoting Wis JI——Criminal 1250).
We
elaborated that:
In conducting such an examination, we consider the
type of act, its nature, why the perpetrator acted as
he/she did, the extent of the victim's injuries and
the degree of force that was required to cause those
injuries. We also consider the type of victim, the
victim's
age,
vulnerability,
fragility,
and
relationship to the perpetrator. And finally, we
consider whether the totality of the circumstances
showed any regard for the victim's life.
Id. (quoting Edmunds, 229 Wis. 2d at 77) (emphasis added).
¶33
Ultimately,
under
the
sufficiency
of
the
evidence
standard of review and in response to Jensen's claim that the
16
No.
911 call
precluded
a finding
of
utter
2009AP956-CR
disregard,
this court
concluded:
After-the-fact regard for human life does not negate
“utter
disregard”
otherwise
established
by
the
circumstances before and during the crime. It may be
considered by the factfinder as a part of the total
factual picture, but it does not operate to preclude a
finding of utter disregard for human life.
Id., ¶32.
¶34
Viewed in light of the rest of our decision in Jensen
and the context of that language, Jensen does not, as a matter
of law, assign more or less weight to a defendant's conduct,
whether
that
incident.
conduct
occurred
before,
during,
or
after
the
After explaining that the fact-finder should consider
a defendant's relevant conduct "before, during and after the
crime" in reviewing, under the totality of the circumstances,
whether the defendant acted with utter disregard for human life,
we applied that standard
Id., ¶¶17, 24.
to
the
particular
facts
in
Jensen.
In response to Jensen's claim that mitigating
actions taken after the fact necessarily "preclude" a finding of
utter disregard, we clarified that no such rule exists and that,
given the circumstances in Jensen, his 911 call did not show
sufficient regard for human life to require the reversal of the
fact-finder's determination that his conduct as a whole evinced
utter disregard.
Id., ¶¶30-32.
This conclusion should not be
read in isolation, but rather along with the standard for an
utter disregard analysis provided in Jensen.
¶35
Nor should the way in which we distinguished some of
our previous decisions in Jensen suggest that we created a new
17
No.
standard
based
upon
those
distinctions.
See
2009AP956-CR
Id.,
¶¶30-31
(distinguishing Wagner v. State, 76 Wis. 2d 30, 250 N.W.2d 331
(1977) and Balistreri v. State, 83 Wis. 2d 440, 265 N.W.2d 290
(1978)).
In Wagner and Balistreri the mitigating conduct——the
defendants'
attempt
conclude
that
finding
of
Balistreri,
there
utter
83
to
avoid
was
an
accident——led
insufficient
disregard.
Wis. 2d at
The
court
to
to
support
a
evidence
Wagner,
458.
this
76
factual
Wis. 2d at
distinctions
47;
we
pointed out in Jensen between Wagner's and Balistreri's attempts
to avoid
after
injuring someone
inflicting
the
and
injury
Jensen's
simply
decision
supported
to
our
regarding the sufficiency of the evidence in Jensen.
call
911
conclusion
This did
not create a rule assigning less weight to a defendant's afterthe-fact conduct.
¶36
The
court
of
appeals
concisely
noted
as
much
in
Miller, 320 Wis. 2d 724, in response to an argument similar to
the State's argument in this case regarding the role of afterthe-fact conduct in an utter disregard calculus:
For this reason, we reject the State's suggestion that
Wagner, Balistreri and Jensen may be read to stand for
the proposition that evidence of “after-the-fact”
regard for life is of less import than conduct
evincing regard for life during and before the act.
Courts consider the totality of the circumstances when
determining whether the defendant showed some regard
for life, which may include conduct occurring before,
during and after the commission of the criminally
reckless act itself.
Id., ¶35 n.12 (emphasis added) (citations omitted).
18
No.
¶37
2009AP956-CR
Thus, the State's reliance on the court of appeals
decisions in Holtz and Edmunds, rejecting sufficiency of the
evidence
claims
mitigating
premised
conduct,
is
on
a
defendant's
misplaced.
In
Holtz,
after-the-fact
the
court
of
appeals distinguished Wagner and Balistreri, concluding that the
defendant's ultimate decision to stop his attack, in light of
his other aggravating conduct, was not significant enough to
reverse the finding of utter disregard.
519-20.
Holtz, 173 Wis. 2d at
In Edmunds, the court of appeals also concluded that a
911 call "when combined with the violence perpetrated against so
fragile
a
victim,
did
not
require
the
jury
to
find
Edmunds's conduct had not demonstrated an utter disregard."
Wis. 2d at 78.
that
229
The court of appeals' assessment of the relative
weight of the evidence in each case was not an endorsement of
that
delineation
in
every
case.
Reviewing
courts
may
find
distinctions between defendants' conduct in sufficiency of the
evidence
cases
useful
in
reviewing
a
fact-finder's
determination, but their use of such patterns does not mean that
new legal standards should be grafted onto the fact-finder's
initial determination of whether certain conduct demonstrates an
utter disregard.
¶38
In
its
totality
of
the
circumstances
analysis,
the
fact-finder should consider all evidence relevant to whether a
defendant acted with utter disregard for human life.
236 Wis. 2d 521, ¶¶17, 24.
defendant's
conduct
or
The weight to be given evidence of a
statements
often a jury, to decide.
Jensen,
is
for
the
trier
of fact,
This accords with the well-settled
19
No.
2009AP956-CR
maxim in Wisconsin that "questions of the weight and reliability
of relevant evidence are matters for the trier of fact."
State
v. Fischer, 2010 WI 6, ¶36, 322 Wis. 2d 265, 778 N.W.2d 629.
There is no bright-line rule regarding the evidentiary weight of
a particular category of a defendant's conduct depending on when
that conduct occurred relative to the crime.9
¶39
We note that an instruction to consider the totality
of the circumstances is a broad standard, but it is not without
some
limits.
As
part
of
the
totality
of
the
circumstances
analysis, the fact-finder should consider a defendant's relevant
conduct
before,
during
Wis. 2d 521, ¶¶17, 24.
and
after
the
crime.
Jensen,
236
A defendant's conduct is relevant if it
occurs within a reasonable period of time after the crime.
The
length of time will depend on the circumstances in each case and
is limited by the requirement that evidence is admissible only
if it is relevant to some element of the crime, in this case,
whether the defendant acted with utter disregard for human life.
See Wis. Stat. § 904.02 (2009-10).
¶40
We
also
recognize
a
concern
underlying
the
State's
argument: that a jury could give undue weight to a defendant's
remorse after the fact and return a finding of not guilty of a
first-degree
reckless
offense
even
when
conduct clearly evinces utter disregard.
9
a
defendant's
other
However, this concern
As the court of appeals noted in State v. Miller, 2009 WI
App 111, ¶37, 320 Wis. 2d 724, 772 N.W.2d 188, we have
"carefully avoided per se rules in this area and instead [have]
consistently applied a totality of the circumstances approach to
the cases." We continue along that path today.
20
No.
2009AP956-CR
does not justify creating a bright-line rule and limiting the
jury's role of weighing evidence.10
We are satisfied that an
instruction to consider the totality of the circumstances, i.e.,
not
giving
undue
weight
to
any
particular
evidence,
applied
along with the jurors' common sense, will allow the jury to
fairly and appropriately apply the instruction and follow the
law.
See
Wis
JI——Criminal
924A
(The
Committee
declined
to
further define what constitutes utter disregard because "[t]he
jury should be able to give the phrase a common sense meaning in
determining whether the conduct is such that it amounts to an
aggravated reckless offense."); see also Wis JI——Criminal 1250
n.5 (providing a nearly verbatim explanation).
¶41
evaluating
We reaffirm our previous decisions and hold that when
whether
a
defendant's
conduct
reflects
utter
disregard for human life, the fact-finder should examine the
totality of the circumstances surrounding the crime.
In this
10
Justice Prosser, in his concurrence, misinterprets the
law providing what evidence a fact-finder may use to decide the
utter disregard element. As discussed above, this court and the
court of appeals have consistently held that a fact-finder may
consider relevant evidence of a defendant's state of mind to
determine the subjective part of the element of utter disregard,
including all of a defendant's relevant conduct and statements
surrounding the crime.
By including the phrase "under circumstances which show,"
the legislature has recognized that to determine whether a
defendant acted with utter disregard for human life the factfinder must look to the surrounding circumstances, which include
the defendant's relevant conduct and statements.
Wis. Stat. §
940.23(1)(a).
Nothing in the statute limits the relevant
circumstances to those before and during the crime, and logic
dictates that those circumstances cannot be so limited.
21
No.
2009AP956-CR
analysis, the fact-finder should consider all relevant conduct
before, during and after a crime, giving each the weight it
deems appropriate under the circumstances.
Upon clarifying the
appropriate standard for utter disregard, we turn to whether
Burris established a reasonable likelihood that the supplemental
jury instruction unconstitutionally misled the jury.
B. Propriety of the Supplemental Jury Instruction
¶42
Consistent with its argument above, the State first
asserts that, since after-the-fact conduct is entitled to less
weight, the supplemental instruction did not mislead the jury if
it conveyed as much.
appeals
Second, the State argues that the court of
improperly
instructions
as
failed
a
to
whole
consider
when
reasonable likelihood that
the
concluding
the
jury
was
proceedings
that
there
misled.
and
was
Third,
a
the
State asserts that the court of appeals failed to recognize that
Burris
had
likelihood.
the
burden
of
proof
to
establish
a
reasonable
Fourth, the State points out that, under Lohmeier,
reversal is warranted only if there is a reasonable likelihood
that the jury applied the instruction in an unconstitutional
manner,
but
the
court
constitutional violation.
of
appeals
did
not
address
any
See Lohmeier, 205 Wis. 2d at 193-94.
Finally, the State argues that it was just as likely that the
jury considered Burris's aggravating after-the-fact conduct of
fleeing
as
it
was
that
the
jury
considered
his
remorse
immediately after the shooting.
¶43
Burris
responds
that
the
correct
response
to
the
jury's question was simply "yes," or an instruction to review
22
No.
2009AP956-CR
the previously given pattern jury instruction and to follow the
directions
within
that
instruction
to
answer
its
question.
Burris argues that the Jensen language confused the jury and,
because it was taken out of context, suggested "that the afterthe-fact
conduct
difference
Thus,
between
Burris
regarding
consistent
less
happened
the
not
given
leading
regarding
fact
demonstrating that
or
that,
testimony
and
important
finding
asserts
what
shooting,
was
it
that
could
finding
the
up
jury
Burris's
not
utter
to
the
the
testimony
shooting,
remorse
asked
make
disregard."
conflicting
Burris's
the
thought
and
after
this
the
the
question——
after-the-fact
conduct
was significant——and got a confusing response, it is reasonably
likely that the supplemental instruction was unconstitutionally
misleading.
¶44
There are two types of jury instruction challenges:
those challenging the legal accuracy of the instructions, and
those
alleging
that
unconstitutionally
Wis. 2d at 192.
a
misled
legally
the
accurate
jury.
See
This is the latter challenge.
instruction
Lohmeier,
205
Both parties
agree that the language in the supplemental jury instruction,
taken directly from Jensen, 236 Wis. 2d 521, ¶32, was legally
accurate.
Thus, Burris challenges whether that instruction led
the jury to misapply the law.
¶45
reasonable
A defendant is entitled to reversal if "there is a
likelihood
instruction[]
in
a
that
manner
the
jury
that
Lohmeier, 205 Wis. 2d at 193.
applied
violates
the
the
challenged
constitution."
The reviewing court should not
23
No.
2009AP956-CR
examine the challenged jury instruction in isolation but rather
"should view the jury instructions in light of the proceedings
as a whole."
Id.
at
194.
We
begin by clarifying certain
aspects of the reasonable likelihood standard.
¶46
It is the defendant's burden to establish a reasonable
likelihood
that
instruction.
the
jury
unconstitutionally
applied
an
See id. at 193; Boyde v. California, 494 U.S. 370,
380 (1990); Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct.
823, 831 (2009).
While the question of burden of proof was not
specifically addressed in Lohmeier, in clarifying the standard
of review, we explained that we were following the standard set
forth by the United States Supreme Court in Boyde.
205 Wis. 2d at 193.
United
States
Lohmeier,
Thus, the placement of the burden in this
Supreme
Court
case
and
others
applying
it
is
instructive here.
¶47
whether
homicide
In
a
Boyde,
the
United
States
jury
instruction
given
in
trial
prohibited
the
Supreme
jury
defendant's
mitigating
conduct
the
relevant
Court
penalty
from
to
examined
phase
of
considering
whether
the
a
the
death
penalty was warranted, even though not necessarily relevant to
guilt or innocence of the crime charged.
78.
494 U.S. at 373, 377-
As we did in Lohmeier, the Supreme Court clarified the
appropriate
standard
for
challenges
to
legally
correct
jury
instructions, and in so doing, suggested that the defendant bore
the
burden
of
establishing
unconstitutional application.
a
reasonable
likelihood
Boyde, 494 U.S. at 380.
24
of
No.
¶48
United
2009AP956-CR
More recently, in Waddington, 129 S. Ct. at 831, the
States
Supreme
Court
reaffirmed
that the burden was the defendant's.
Boyde,
and
emphasized
In reviewing a challenge
to a legally accurate instruction on the basis that the jury may
have been misled into incorrectly applying that instruction, the
Court
stated
instruction
that
was
"the
defendant
ambiguous
and
must
that
show
there
both
was
a
that
the
reasonable
likelihood that the jury applied the instruction in a way that
relieved the State of its burden of proving every element of the
Waddington, 129 S. Ct. at 831
crime beyond a reasonable doubt."
(emphasis added and internal quotations omitted).
While, in
Lohmeier, we had not explicitly placed the burden of proof on
the defendant, we do so now.11
¶49
A
establishes
likely.
defendant
that
a
meets
this
burden
constitutional
Lohmeier, 205 Wis. 2d at 193.
only
violation
if
was
he
or
she
reasonably
"Wisconsin courts should
not reverse a conviction simply because the jury possibly could
have been misled; rather a new trial should be ordered only if
there is a reasonable likelihood that the jury was misled and
therefore
applied
potentially
confusing
11
instructions
in
an
This conclusion is in line with the placement of the
burden
in
other
contexts
in
appeals
challenging
the
constitutionality of a criminal conviction. See, e.g., State v.
Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990) (burden on
defendant to prove reasonable probability of prejudice in
ineffective assistance of counsel claim); State v. Smith, 2010
WI 16, ¶¶8-9, 323 Wis. 2d 377, 780 N.W.2d 90 (burden on
defendant to prove unconstitutionality of statute under which he
was convicted).
It is also clearly in line with the United
States Supreme Court cases discussed herein.
25
No.
unconstitutional manner."
Id. at 193-94.
2009AP956-CR
The United States
Supreme Court has further explained in Boyde that, "[a]lthough a
defendant need not establish that the jury was more likely than
not
to
have
been
impermissibly
instruction . . . [there
is
no
inhibited
constitutional
the
violation]
there is only a possibility of such an inhibition."
380.
by
if
494 U.S. at
Even some "ambiguity, inconsistency, or deficiency" in an
instruction
reasonable
does
not
violate
likelihood
that,
jury unconstitutionally
due
process
considering
applied
the
unless
the
there
whole
instruction.
is
trial,
a
the
Waddington,
129 S. Ct. at 831-32 (quoting Middleton v. McNeil, 541 U.S. 433,
437 (2004)).
¶50
A
reasonable
jury
is
unconstitutionally
likelihood
that
the
misled
instruction
if
was
there
is
a
applied
in
a
manner that denied the defendant "a meaningful opportunity for
consideration
by
the
jury
of
his
defense . . . .
detriment of a defendant's due process rights."
Wis. 2d at
192.
Thus,
unconstitutional
manner
precludes
"the
consideration
evidence."
jury
if
it
applies
believes
of
an
the
Lohmeier, 205
Boyde, 494 U.S. at 380.
¶51
a
to
instruction
that
such
in
an
instruction
constitutionally
relevant
Applying the above standard to the case at hand, we
hold that Burris has not established a reasonable likelihood
that
the
jury
unconstitutional
applied
manner.
the
supplemental
The
jury
instruction
applied
the
in
an
instructions
properly if it understood that, in determining whether Burris
acted with utter disregard for human life, it should consider
26
No.
2009AP956-CR
the totality of the circumstances including Burris's relevant
conduct before, during and after the shooting.
Wis. 2d 521, ¶¶17, 24.
instruction
presented
jury's
in
at
light
trial
question,
Because we examine the challenged jury
of
the
along
and
See Jensen, 236
whole
with
the
proceedings,
the
initial
supplemental
the
evidence
instruction,
instruction
are
the
all
relevant to our analysis.
¶52
The State presented evidence from the Rashadas about
the events leading up to the shooting.
The parties agree that,
if believed, the Rashada family's testimony——that Burris waved
around a loaded .45 caliber pistol, raised the gun, pointed it
at
Kamal,
and
shot
him
in
the
neck
at
point-blank
range——
established that Burris acted with utter disregard.
¶53
Burris, however, presented a different account of how
the shooting happened and what he did before it occurred.
His
testimony, if believed, suggests that he did not act with utter
disregard and that the shooting was an unfortunate accident.
Burris
also
asserts
that
he
significantly
impeached
the
Rashadas' testimony about what happened before the shooting by
highlighting several inconsistencies.
¶54
Both
Burris
and
the
Rashadas
testified
that
immediately after the shooting, Burris showed remorse, stated
that he hoped Kamal would not die, and was so distraught that he
offered his gun to either Cathy or Khadijah and asked one of
them to shoot him.
By all accounts, this lasted about one
minute.
27
No.
¶55
2009AP956-CR
Then, Burris left the apartment and evaded police for
about five months before turning himself in.
To avoid capture,
Burris left Milwaukee for approximately two and a half weeks.
Sometime
after
the
shooting
and
before
turning
himself
Burris disposed of the gun used in the shooting.
in,
He also did
not contact the Rashada family about Kamal's well-being.
¶56
Relevant to the element of utter disregard for human
life, the circuit court gave the following instruction from the
pattern jury instruction for first-degree reckless injury, Wis
JI——Criminal 1250:
In determining whether the conduct showed utter
disregard for human life, you should consider these
factors: what the defendant was doing; why the
defendant was engaged in that conduct; how dangerous
the conduct was; how obvious the danger was; whether
the conduct showed any regard for life; and, all other
facts and circumstances relating to the conduct.
(Emphasis added.)
¶57
After the jury instructions were given, the State and
Burris made their closing arguments, which focused on whether
Burris acted with utter disregard for human life.
Both the
State and Burris brought up the significance of Burris's afterthe-fact conduct, including both his remorse immediately after
the
shooting
and
his
decision
to
flee
the
scene
and
evade
police.
¶58
During deliberations, the jury submitted the following
question to the circuit court: "Regarding the element of utter
disregard, all other facts and circumstances relating to the
28
No.
incident,
do
we
consider
facts
and
circumstances
2009AP956-CR
after
the
shooting?"12
¶59
In response to the jury's question, the circuit court
gave the following supplemental instruction:
First of all, I want to emphasize that you are to rely
on the instructions that I gave you. All right? And
to rely on all of the instructions that I gave you.
And in response to this question, if this clarifies
anything, after-the-fact regard for human life does
not negate utter disregard otherwise established by
the circumstances before and during the crime. It may
be considered by the fact-finder as a part of the
total factual picture, but it does not operate to
preclude a finding of utter disregard for human life.
The element of utter disregard for human life is
measured objectively on the basis of what a reasonable
person in the defendant's position would have known.
¶60
Looking at the challenged supplemental instruction in
light of the rest of the proceedings, we conclude that Burris
has not met his burden.
Burris has not established a reasonable
likelihood that the jury was unconstitutionally misled given the
extensive evidence of Burris's after-the-fact conduct presented
at
trial,
counsel's
focus
on
this
evidence
in
closing
statements, and language in both the pattern and supplemental
12
As Burris points out, the jury submitted a substantially
similar question while the circuit court and counsel were
discussing whether to give a supplemental instruction and what
to include in that instruction.
The jury asked, "Should we
consider
facts
and
circumstances
after
the
shooting
in
determining utter disregard?"
Burris argues that it is
significant that the jury asked two questions about whether it
could consider after-the-fact conduct; however, we note that the
foreperson clarified that the jury submitted two questions
before receiving an answer from the circuit court, simply
because the jury "thought to ask [the question] more directly."
29
No.
2009AP956-CR
jury instructions indicating that it could consider this conduct
in its determination.
¶61
There was extensive testimony at trial about Burris's
after-the-fact conduct.
The key witnesses and Burris himself
testified about Burris's
remorseful
conduct
immediately after
the shooting, and his actions in leaving the apartment without
calling for help, or waiting for it to arrive, and then fleeing
from police for approximately five months.
instructed
to
consider
"all
other
After the jury was
facts
and
circumstances
relating to the [defendant's] conduct" in its utter disregard
analysis, the State and Burris highlighted the significance of
both the mitigating and aggravating after-the-fact conduct in
their respective arguments during closing statements.
¶62
The pattern jury instruction told the jury to consider
"all other facts and circumstances relating to the [defendant's]
conduct."
Based on its questions, even after this instruction,
the jury was unsure whether it could consider after-the-fact
conduct.
Significantly, the circuit court responded through the
supplemental
instruction
that
after-the-fact
conduct
"may
be
considered by the fact-finder as a part of the total factual
picture."
While other language in the supplemental instruction
regarding the role of after-the-fact conduct——"does not negate"
and "does not operate to preclude"——taken out of context from
Jensen, was potentially ambiguous, ambiguity or some possibility
that the jury was misled, in and of itself, is not enough to
30
No.
prove a violation of due process.13
2009AP956-CR
Lohmeier, 205 Wis. 2d at
193-94; Waddington, 129 S. Ct. at 831-32.
¶63
Given
all
after-the-fact
instructions
the
evidence
conduct,
and
permitting
the
and
the
arguments
jury
language
to
consider
regarding
in
the
such
his
jury
conduct,
Burris has not established a reasonable likelihood that the jury
ignored
all
instruction.
reasonably
instruction
'virtual
of
that
because
of
a
potentially
ambiguous
Lohmeier, 205 Wis. 2d at 198 ("We find it is not
likely
that
the
jurors
transformed
all
of
charade.'"
(quoting
the
Boyde,
would
believe
prior
494
this
proceedings
U.S.
at
single
into
383)).
a
The
result, the jury's finding of utter disregard, does not indicate
otherwise.
Indeed,
the
result
is
consistent
with
the
jury
considering all the evidence of Burris's conduct before, during,
and after the shooting, including both the mitigating after-thefact conduct (Burris's immediate remorse) and the aggravating
13
Chief Justice Abrahamson's dissent would reverse Burris's
conviction and grant him a new trial because of an "ambiguous"
or a "potentially ambiguous" supplemental jury instruction, but
this is not the appropriate standard.
See dissent, ¶¶93, 95,
98. As our past precedent and that of the United States Supreme
Court advises, "Wisconsin courts should not reverse a conviction
simply because the jury possibly could have been misled," State
v. Lohmeier, 205 Wis. 2d 183, 193, 556 N.W.2d 90 (1996), or
based on some "ambiguity, inconsistency, or deficiency" in the
instruction, Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct.
823, 831 (2009) (quoting Middleton v. McNeil, 541 U.S. 433, 437
(2004)).
The reasonable likelihood standard demands that the
defendant articulate something more than an ambiguity or a
possibility that the jury was misled, and Burris has not done so
in this case. See supra ¶49.
31
No.
2009AP956-CR
after-the-fact conduct (Burris's flight from the apartment and
from police).
¶64
that
Burris has
the
jury
was
not
established
misled
in
a
this
reasonable
case,
but
likelihood
supplemental
instructions such as the one given here, taken out of context
from Jensen, do have the potential to be confusing.
Thus, we
recommend that the Criminal Jury Instruction Committee, in its
comments
Wis
to
the
JI——Criminal
"first-degree
1016-22,
reckless"
1250,
and
offense instructions,
the
utter
disregard
for
human life instruction, Wis JI——Criminal 924A, advise against
taking certain language directly from utter disregard cases such
as
Jensen
without
providing
explain the proper inquiry.
Committee
consider
explicitly direct
the
the
necessary
context
to
fully
Additionally, we recommend that the
revising
jury
these
instructions
that, in its
to
more
utter disregard for
human life consideration, it should consider the totality of the
circumstances
including
any
relevant
evidence
regarding
a
defendant's conduct before, during, and after the crime.
III. CONCLUSION
¶65
We conclude that a defendant's conduct is not, as a
matter of law, assigned more or less weight whether the conduct
occurred before, during, or after the crime.
We hold that, when
evaluating whether a defendant acted with utter disregard for
human life, a fact-finder should consider any relevant evidence
in regard to the totality of the circumstances.
¶66
reasonable
We
further
likelihood
hold
that
that
the
32
Burris
jury
has
not
applied
established
the
a
supplemental
No.
2009AP956-CR
jury instruction on the utter disregard for human life element
in
an
unconstitutional
manner.
We
are
satisfied
that
the
supplemental instruction did not mislead the jury into believing
that
it
could
not
consider
Burris's
relevant
after-the-fact
conduct in its determination on utter disregard for human life.
¶67
Therefore, we reverse the court of appeals decision
and remand the case to allow the court of appeals to decide the
other claims Burris raised before it.
By
the
Court.—The
decision
of
the
court
of
appeals
is
reversed, and the cause is remanded to the court of appeals for
further proceedings consistent with this opinion.
33
No.
¶68
DAVID T. PROSSER, J.
(concurring).
2009AP956-CR.dtp
The defendant,
Donovan M. Burris, was convicted of first-degree reckless injury
while armed in violation of Wis. Stat. §§ 940.23(1) and 939.63.
I concur in the majority's decision to reverse the decision of
the court of appeals, which had reversed the circuit court's
denial of the defendant's motion for a new trial.
In my view,
the circuit court's supplemental instruction to the jury was
correct.
¶69
I write separately because I am unpersuaded by the
arguments and analysis about the relevance of conduct "after the
crime."
¶70
The majority opinion reads in part as follows:
The State raises the following issue[ ] for
review: (1) whether a fact-finder, in determining
whether a defendant acted with utter disregard for
human life, should give his conduct after a crime less
weight than his conduct before and during the
incident . . .
We conclude that, in an utter disregard analysis,
a defendant's conduct is not, as a matter of law,
assigned more or less weight whether the conduct
occurred before, during, or after the crime. We hold
that, when evaluating whether a defendant acted with
utter disregard for human life, a fact-finder should
consider any relevant evidence in regard to the
totality of the circumstances.
Majority op., ¶¶6, 7.
¶71
I
cannot
join
the
conclusion
stated
in
¶7
of
the
majority opinion.
¶72
The statute on second-degree reckless injury reads as
follows: "Whoever recklessly causes great bodily harm to another
human
being
is
guilty
of
a
Class
1
F
felony."
Wis.
Stat.
No.
§ 940.23(2)(a).
2009AP956-CR.dtp
A Class F felony is punishable by "a fine not
to exceed $25,000 or imprisonment not to exceed 12 years and six
months, or both."
¶73
The
Wis. Stat. § 939.50(3)(f).
elements
of
second-degree
reckless
injury
spelled out in Wisconsin Jury Instructions——Criminal 1252.
are
They
are:
(1)
The defendant caused great bodily harm to (name of
victim); and
(2)
The defendant caused great bodily harm by criminally
reckless conduct.
¶74
The
instruction
explains
that
"criminally
reckless
conduct" means:
the conduct created a risk of death or great bodily
harm to another person; and
the
risk
of
death
or
great
unreasonable and substantial; and
bodily
harm
was
the defendant was aware that (his)(her) conduct
created the unreasonable and substantial risk of death
or great bodily harm.
Wis JI——Criminal 1252.
¶75
There is no suggestion that conduct "after the crime"
is relevant to whether the defendant was "criminally reckless"
or whether the defendant "caused" great bodily harm.
¶76
The statute on first-degree reckless injury is exactly
the same as the statute on second-degree reckless injury except
that it adds an element, namely, "under circumstances which show
utter disregard for human life."
Wis. Stat. § 940.23(1)(a).
First-degree reckless injury is a Class D felony, meaning that
it
is
punishable
by
"a
fine
2
not
to
exceed
$100,000
or
No.
imprisonment
not
§ 939.50(3)(d).
to
exceed
25
years,
or
2009AP956-CR.dtp
both."
Wis.
Stat.
In other words, first-degree reckless injury
doubles the period of potential imprisonment and quadruples the
potential fine over second-degree reckless injury, if the state
is able to prove a third element: that the great bodily harm
occurred
"under
circumstances
which
show
utter
disregard
for
human life."
¶77
To my mind, the clause "under circumstances which show
utter disregard for human life" modifies the phrase "recklessly
causes."
If this is correct, conduct "after the crime" cannot
be an element of "the crime."
complete
when
the
defendant
(Emphasis added.)
"recklessly
The crime is
causes"
great
bodily
harm.
¶78
There might be a factual exception to this principle
if the defendant fired multiple shots or inflicted multiple stab
wounds or administered multiple blows to the victim, making it
difficult to determine the effect and order of each individual
wound, or if the injuries are considered together.
as
here,
there
was
a
single
gunshot
and
no
But where,
other
conduct
contributed to the great bodily harm, the crime is complete when
the gun is fired and great bodily harm is caused as a result.
¶79
The majority opinion holds that a defendant's conduct
"after the crime" is to be evaluated the same as the defendant's
conduct before and during the crime.
The logical implication of
this holding is that a Class F felony can be increased to a
Class D felony by a defendant's callous or abhorrent conduct
"after the crime"; or that a defendant's Class D felony can be
3
No.
2009AP956-CR.dtp
decreased to a Class F felony by a defendant's "after the crime"
mitigating conduct and remorse.
¶80
conduct
I can understand how a defendant's "after the crime"
could
affect
the
defendant's
sentence,
but
I
cannot
conceive of how a defendant's "after the crime" conduct could
determine "the crime" itself.
¶81
The state may desire to use words or conduct "after
the crime" to reinforce its view of the "circumstances" before
and during the crime, but, in my view, words and conduct "after
the crime" cannot increase the gravity of the crime.
¶82
A defendant may desire to mitigate "utter disregard"
by his words and conduct after inflicting great bodily harm.
However, such self-serving evidence should be unavailing.
¶83
Yogi Berra famously remarked, "It's never over till
it's over."
The majority opinion gives new meaning to Yogi's
aphorism . . . at the expense of logic and order in the criminal
law.
¶84
The majority opinion——to be blunt——deprives us of any
certainty as to when the crime of first-degree reckless injury
is complete.
¶85
Because
the
majority
opinion
is
inconsistent, I respectfully concur in the result.
4
internally
No.
¶86
SHIRLEY S.
ABRAHAMSON,
C.J.
2009AP956-CR.ssa
(dissenting).
I
join
the majority in reaffirming our previous decisions holding that
when
evaluating
disregard
for
whether
human
a
life,
defendant's
the
conduct
factfinder
reflects
should
utter
examine
the
totality of the circumstances, including all relevant conduct
before, during, and after a crime.
I disagree, however, with
the
rule
majority's
application
of
this
of
law
to
the
jury
instruction
was
instruction in the present case.
¶87
I
conclude
that
the
supplemental
ambiguous and that Burris has shown that there is a reasonable
likelihood that the instruction misled the jury about a critical
element that distinguishes the charged crime from second-degree
reckless injury.
¶88
During
deliberations
in
the
present
case,
the
jury
posed the following question to the circuit court about the jury
instructions:
"Regarding the element of utter disregard, all
other facts and circumstances relating to the incident, do we
consider facts and circumstances after the shooting?"
¶89
The
jury's
confusion
about
interpreting
the
instruction and determining what evidence it might consider is
apparent from the question asked the circuit court.
¶90
Before the circuit court could answer this question,
the jury posed another question in writing, again with regard to
the element of utter disregard:
circumstances
after
the
"Should we consider facts and
shooting
disregard?"
1
in
determining
utter
No.
¶91
2009AP956-CR.ssa
On the basis of our past cases interpreting the "utter
disregard
for
human
life"
element
and
the
majority
decision
today, the correct answer to each of the jury's questions was
"yes."
Instead of this simple affirmative response, the circuit
court gave the jury a supplemental instruction, extracting an
excerpt from State v. Jensen, 2000 WI 84, ¶32, 236 Wis. 2d 521,
613 N.W.2d 170.
The following supplemental instruction is the
basis for Burris's assertion that the jury instructions were
confusing and misled the jury to apply the instruction in an
unconstitutional manner:
After-the-fact regard for human life does not negate
"utter
disregard"
otherwise
established
by
the
circumstances before and during the crime. It may be
considered by the factfinder as a part of the total
factual picture, but it does not operate to preclude a
finding of utter disregard for human life.1
¶92
The
majority
concludes
that
the
circuit
court's
responding to the jury's question by giving the jury the Jensen
supplemental instruction "was potentially ambiguous."2
¶93
I
ambiguous.
conclude
that
the
circuit
court's
response
was
The Jensen supplemental instruction, taken out of
the context of the Jensen case, is at odds with the "totality of
the circumstances" approach reaffirmed by the majority today.
The Jensen supplemental instruction language does not explain
that the jury is to consider the totality of the circumstances,
including
Burris's
actions
before,
1
during,
and
after
the
State v. Jensen, 2000 WI 84, ¶32, 236 Wis. 2d 521, 613
N.W.2d 170.
2
Majority op., ¶62.
2
No.
2009AP956-CR.ssa
commission of the crime, in evaluating whether he acted with
utter disregard for human life.
¶94
I
agree
with
the
court
of
appeals
that
when
"the
Jensen language was read to the jury in answer to the question
whether they could even consider after-the-fact actions, there
is a reasonable likelihood that the jury interpreted the answer
as suggesting that the trial court was implying that Burris's
after-the-fact conduct was not important or compelling, that it
should not be considered equally with other circumstances or
that no amount of after-the-fact regard for human life could
negate
early
behavior
suggesting
disregard
for
human
life."
State v. Burris, No. 2009AP956-CR, unpublished slip op., ¶32
(Wis. Ct. App. Jan. 26, 2010) (emphasis in original).
¶95
language
The
majority
quoted
in
opinion
the
acknowledges
supplemental
jury
that
the
Jensen
instruction
potentially ambiguous" when taken out of context.3
"was
The majority
advises the Criminal Jury Instruction Committee to refrain from
quoting Jensen out of context.4
These statements are telling.
If
of
Jensen's
language
taken
reasonable likelihood of
out
context
does
not
have
a
misleading the jury, then why does the
majority issue this advisory?
¶96
that
The Jensen language was appropriate in the context of
case.
The
Jensen
court
applied
a
"sufficiency
of
evidence" standard of review, a highly deferential standard.5
3
Majority op., ¶62.
4
Majority op., ¶64.
5
Jensen, 236 Wis. 2d 521, ¶23.
3
the
In
No.
context,
the
quoted
language
from
Jensen
2009AP956-CR.ssa
rejected
Jensen's
argument that his showing of some regard for human life after
the crime should have precluded the jury's finding that he acted
with utter disregard for human life.6
¶97
As the majority correctly points out, this language in
Jensen should not be construed to mean that post-crime conduct
is entitled to less weight than conduct before or during the
crime.7
¶98
Yet, when taken out of context, the Jensen language
"was potentially ambiguous," making it reasonably likely that
the
jury
applied
the
supplemental
instruction
in
an
unconstitutional manner.
¶99
The
Jensen
supplemental
instruction
was
misleading
because it implied that if the jury were to find that Burris's
conduct before and during the shooting showed utter disregard
for human life, then a finding that he displayed some regard for
human life after the shooting could not negate the finding of
utter disregard. If the jury interpreted the instruction in this
manner, then there is a reasonable likelihood that the jury was
misled to believe that Burris's post-shooting conduct was either
not entitled to weight or that it was entitled to less weight
than his conduct before and during the shooting.
¶100 Thus, there is a reasonable likelihood that the jury
instruction misled the jury into believing that the State did
not have the burden of proving beyond a reasonable doubt that
6
Jensen, 236 Wis. 2d 521, ¶¶30-32.
7
Majority op., ¶34.
4
No.
Burris
exhibited
utter
disregard
for
human
2009AP956-CR.ssa
life
under
the
totality of the circumstances, and instead only had the burden
of proving Burris's actions before and during the commission of
crime evinced utter disregard.
¶101 I
agree
with
the
majority
that
we
must
view
the
supplemental instruction in light of the proceeding as a whole,
rather than in isolation.8
The majority relies on the "extensive
testimony" presented at trial regarding Burris's after-the-fact
conduct,
as
well
as
the
use
of
that
conduct
by
counsel
in
closing arguments, to determine that Burris has not established
a reasonable likelihood that the ambiguous instruction misled
the jury into thinking it could not consider Burris's after-thefact conduct in determining the "utter disregard for human life"
element of the crime.
Yet, as the majority states, after the
"extensive testimony," the closing arguments, and the pattern
jury instruction, "the jury was unsure whether it could consider
after-the-fact conduct."9
¶102 Although the supplemental instruction was but one part
of the entire
instruction
proceeding,
muddled
the
it
law
is
clear
regarding
that
an
the
supplemental
element
of
central
importance to Burris's defense, an element the jury focused on
and was confused about.
¶103 While
correct
the
statement
supplemental
of
the
law
instruction
in
the
may
context
have
of
been
a
Jensen,
I
conclude that it was reasonably likely in the present case to
8
Majority op., ¶45
9
Majority op., ¶62.
5
No.
2009AP956-CR.ssa
confuse the jurors and cause them to apply the instruction in an
unconstitutional manner because the Jensen language was taken
out of its proper context.
¶104 For the reasons set forth, I dissent.
6
No.
1
2009AP956-CR.ssa
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