A jury convicted Ron Allen of first-degree intentional homicide as party to the crime. He raises various challenges to the conviction and sentence of life without extended supervision, but the court of appeals rejects them all.
Allen and four other men, all members or former members of the same gang, were in the victim’s home when the killing occurred. Allen and two others beat and strangled the victim until he was apparently dead; a fourth member (the “general”) of the gang later shot the victim three times in the head.
Allen first claims his trial counsel was ineffective for failing to request a jury instruction as to the meaning of “conspiracy.” The reason is this: Allen’s defense at trial was coercion (which defense, if successful, would have reduced his conviction to second-degree intentional homicide). The coercion defense requires that the defendant have acted under a threat by another person but that person cannot be a “co-conspirator.” Wis. Stat. § 939.46(1). Allen’s claim was that he killed the victim under threat from the gang’s general. (In Allen’s telling, the general is someone to be afraid of; he had once beaten Allen’s arm and hand with a meat tenderizer for an hour and a half for stealing a blunt, occasionally pointing a gun at him.) Though the state’s theory of Allen’s party-to-the-crime culpability was that he “aided and abetted” the murder (rather than having engaged in a conspiracy to commit it), during closing the prosecutor described the general as Allen’s “co-conspirator.”
In context the state’s use of the term does not appear to be an attempt to argue that the general, as co-conspirator, could not be the source of a threat satisfying the coercion defense; it was instead arguing that Allen was simply not afraid of the general. However, the jury apparently picked up on the issue, because during deliberations they sent a question to the judge (which he declined to answer): “is [the general] considered a co-conspirator by law?”
Allen’s argument seems to be that first, he wasn’t a “co-conspirator” with the general, at least in his version of events, because he did not have an “agreement” with the general to “further common criminal objectives”–i.e. the homicide–but was instead acting under threat from the general. See Wis. JI–Criminal 400B1. But in the absence of a definition of “co-conspirator”, the jury might have believed that Allen’s participation in the homicide at the general’s direction made him a co-conspirator and thus ruled out the defense.
The court of appeals’ response to this argument (¶¶16-18) is unpersuasive. It notes the state’s “passing” use of the term “co-conspirator” in closing, saying that it could not have “infected the trial”; it also observes that the jury was correctly instructed as to the meaning of “aiding and abetting.” But that misses a more important problem–the fact that the instruction on coercion (which the jury also received) tells the jury that it can’t find coercion where the threat is from a “co-conspirator” without defining that term. In fact, the instruction’s notes suggests the definition of conspiracy be included where the facts put it in issue, Wis. JI–Criminal 790, but that wasn’t done here. Allen thus seems to to have a point, particularly since the jury explicitly asked the court about the meaning of the term. The court of appeals’ only other response is that the evidence against his coercion defense was sufficient, but that, of course, is not the test–it’s whether there’s a reasonable probability that the jury might have decided differently if his counsel had asked for, and received, the instruction.
Allen next argues that his counsel should have elicited testimony from other gang-member witnesses that they were afraid of the general, and that death was a potential punishment for disobeying him. The court concludes that this evidence was put before the jury in other ways, and so such testimony would have been cumulative. (¶¶20-21).
The court also rejects, as belied by the record, Allen’s claim that he rejected an offer to plead to a Class B homicide because counsel didn’t explain to him that a Class B felony was the best he could do at trial. (¶¶22-24). Allen raises a number of other fact-specific issues (sufficiency of the evidence, improper closing argument, jury sequestration, change of venue, use of a prior statement for impeachment) which the court also turns back.