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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State v. Andreal Washington, 2018AP1254-CR, 7/9/19, District 1 (not recommended for publication); case activity (including briefs)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.

Blockburger v. United States, 284 U.S. 299, 303 (1932) states that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” This test is codified in §939.71.

The court of appeals held that felony murder and 2nd degree reckless homicide have different elements. Thus, double jeopardy principles do not preclude the State’s second prosecution against Washington.

¶4 . . . The elements of felony murder are that the defendant committed one of the crimes specified in WIS. STAT. § 940.03, and that the death of the victim was caused by the commission of that crime. See WIS JI—CRIMINAL 1030. Thus, in order to prove felony murder, the defendant’s commission of the underlying crime must first be proven. In contrast, second-degree reckless homicide only requires proof that the defendant caused the death of the victim by “criminally reckless conduct.” See WIS JI—CRIMINAL 1060.

The court of appeals also rejected Washington’s argument that the State’s 2nd degree reckless homicide charge should be dismissed because that offense is a lesser include crime to felony murder. Section 939.662(2) prevents multiple convictions for an offense and its lesser included offenses. It does not preclude the subsequent prosecution of the lesser included offense. State v.Vassos, 218 Wis. 2d 330, 338-39, 579 N.W.2d 35 (1998).

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