Two guys walk into an apartment complex and leave a short time later. One carried a gun and a cell phone; the other a cell phone. They got into a car belonging to a friend of the guy carrying only the cell phone and drove off. A surveillance video captured these movements but not the shooting death that occurred in the complex at about the same time. Was there sufficient evidence to convict the guy holding just the cell phone of 2nd degree reckless homicide as a party to a crime?
Sufficiency of evidence
The elements of second-degree reckless homicide are: (1) the defendant caused the death of the victim; and (2) the defendant did so by criminally reckless conduct. See WIS JI— CRIMINAL 1022. “Criminal recklessness” is defined as action that “creates an unreasonable and substantial risk of death or great bodily harm to … another and the actor is aware of that risk.” See WIS. STAT. § 939.24.
The court of appeals held that under a “direct actor” theory:
The jury could draw only two conclusions from this evidence: either Smith [who carried just the cell phone] shot Alexander, or Smith was present when Kennedy [who carried the gun and a cell phone] shot Alexander. Either way, the evidence is clear that the conduct created an unreasonable and substantial risk to Alexander and the jury could conclude that Smith was aware of the risk. Slip op. ¶20.
Under an “aiding and abetting” theory:
The jury was entitled to infer from Smith’s conduct that he intended to assist Kennedy in the commission of a crime and also that Smith participated in the commission of the crime himself because the jury could reasonably infer that Smith arranged for the getaway car (owned by his girlfriend) and a driver (his girlfriend’s cousin). Slip op. ¶22.
What if Smith didn’t know that Kennedy was carrying a gun when they entered the apartment complex or that Kennedy was about shoot Alexander? The court of appeals says that doesn’t matter. “The jury was entitled to infer from Smith’s conduct that he intended to assist Kennedy in the commission of a crime and also that Smith participated in the commission of the crime himself because the jury could reasonably infer that Smith arranged for the getaway car (owned by his girlfriend) and a driver (his girlfriend’s cousin).” Slip op. ¶22. There’s “connecting the dots.” And then there’s imagining dots whose existence the State has to prove. If Smith didn’t know Kennedy had a gun or an intent to shoot Alexander, he couldn’t have been aware that he was creating an unreasonable and substantial risk of death per § 939.24.
Jury instruction regarding “mere presence” at the scene of a crime
In cases with these facts, the 7th Circuit authorizes a “mere presence” jury instruction:
5.11 MERE PRESENCE / ASSOCIATION / ACTIVITY
(a) A defendant’s presence at the scene of a crime and knowledge that a crime is being committed is not alone sufficient to establish the defendant’s guilt. [A defendant’s association with conspirators [or persons involved in a criminal enterprise] is not by itself sufficient to prove his/her participation or membership in a conspiracy [criminal enterprise].]
(b) If a defendant performed acts that advanced a criminal activity but had no knowledge that a crime was being committed or was about to be committed, those acts alone are not sufficient to establish the defendant’s guilt.
Smith’s counsel requested the “mere presence” instruction. Instead, he got WIS JI-Criminal 400: “[A] person does not aid and abet if he is only a bystander or spectator and does nothing to assist in the commission of a crime.” The court of appeals saw no difference between the two instructions. Slip op. ¶27 (quoting State v. Skaff, 152 Wis. 2d 48, 447 N.W.2d 84 (Ct. App. 1989)). Moreover, it insisted that Smith was more than just “present.” He had access to the getaway car and its driver, and he fled the scene. Slip op. ¶28.
IAC for failure to remove a juror who expressed about retaliation.
Major no-no. A mid-trial a juror told his parents that he feared retaliation if the jury returned a guilty verdict. He assumed that rowdy people attending the trial were the defendant’s family. His mom repeatedly texted a DA (not the one trying the case) about this fear. Upon questioning, the juror said he could remain fair and impartial. Smith argued ineffective assistance of counsel for failing to have the juror removed from the case. The court of appeals decided the point on Strickland’s prejudice prong. “We see nothing in the record to suggest that the juror was biased or that the seating of this particular juror affected the outcome of Smith’s trial.” Slip op. ¶32.
The verdict was guilty. So, if the juror was afraid of retaliation, he must have overcome it.