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Court of appeals holds evidence supports instructions and conviction on lesser-included offense of 1st-degree reckless homicide

State v. Brian A. Patterson, Appeal No. 2013AP749-CR, District 1, 7/22/14 (not recommended for publication); case activity

The State charged Patterson with 1st-degree intentional homicide in a shooting death, but the jury convicted him of a lesser-included offense: 1st degree reckless homicide.  In a cut-and-dried decision, the court of appeals held the evidence sufficient to support the conviction, and found no circuit court error in allowing the jury to consider 1st-degree reckless homicide, instructing the jury, or sentencing Patterson.

Though Patterson acted in a manner practically certain to kill the victim, the court of appeals held the evidence sufficient to support 1st-degree reckless homicide:

¶14 . . . [T]he jury could reasonable conclude that the State failed to prove Patterson intended to kill McGowan (an element of first-degree intentional homicide).  The jury could also reasonably conclude that Patterson’s conduct, in firing a gun several times in the general direction of an approaching person, was criminally reckless and showed utter disregard for human life.  Patterson’s own testimony supports the jury’s verdict.

The court of appeals rejected Patterson’s argument that he would have defended this case differently if he had known he could be charged with 1st-degree reckless homicide:

¶16      “‘When a defendant is charged with a crime he is automatically put on notice that he is subject to an alternative conviction of any lesser-included crime; the whole contains all its parts.’”  Kirby v. State, 86 Wis. 2d 292, 299-300, 272 N.W.2d 113 (Ct. App. 1978) (citation omitted).  “[N]otice and charge on the greater offense as a matter of law includes notice of the included crime.  Notice of the whole is notice of the parts.”  Geitner v. State, 59 Wis. 2d 128, 134, 207 N.W.2d 837 (1973).  Patterson concedes that first-degree reckless homicide is a lesser-included offense of first-degree intentional homicide.  The State requested the lesser-included offense based on Patterson’s testimony, which it was entitled to do.  See Moore v. State, 55 Wis. 2d 1, 7-8, 197 N.W.2d 820 (1972) (After the evidence is presented, the court may allow amendment of the complaint or information to conform to the proof where the amended charge is a lesser-included crime.).

The court of appeals also refused to consider Patterson’s claims of plain error on other aspects of the jury instructions because trial counsel didn’t object to them and this was not an exceptional case warranting a discretionary reversal.  And it declined to address Patterson’s sentencing issue because he failed to raise it in his postconviction motion.  Slip op. ¶¶18-19.

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