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State v. Donovan M. Burris, 2009AP956-CR, Wis SCt rev granted 9/21/10

decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein

Issue (from Table of Pending Cases):

Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996).

Reckless injury trial, Burris’ testified the gun went off when the victim grabbed it, so that guilt turned on the utter-disregard element. Standard instructions were given, but during deliberations the jury asked whether “facts and circumstances after the shooting” were relevant to this element. Over objection, the trial judge gave this supplemental instruction:

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.

On appeal, everyone agreed that post-act conduct is relevant to whether the act was performed in utter disregard for human life. However, while the principle is beyond debate, its delivery by the judge misled the jury. In other words, the rhetoric (does not negate; does not preclude) tended to direct the jury to not consider after-the-fact conduct.

Settled law? Highly fact-specific issue? Sure, but don’t forget, it’s a State’s petition.

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