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Miranda – Custody; Lesser Included Offense Instruction

State v. Tony Lamont Jackson, 2010AP351-CR, District 1, 12/14/10

court of appeals decision (3-judge, not recommended for publication); for Jackson: Hans P. Koesser; Jackson BiC; State Resp.; Reply

Miranda – Custody

Initially treated at the scene of a shooting by the police as a witness rather than suspect, Jackson voluntarily accompanied the police to the station to continue providing information, and was not in custody for purposes of entitlement to Miranda warnings until he admitted , ¶¶16-22..

Lesser Included Offense Instruction – Homicide by Negligent Handling of Dangerous Weapom

No reasonable basis existed in the evidence for acquittal of second-degree reckless homicide and conviction of homicide by negligent handling of dangerous weapon, § 940.08. Therefore, Jackson wasn’t entitled to have the jury instructed on the latter crime as a lesser included offense of  the former. The theory Jackson relies on – that he fired his gun at a car in self-defense and struck the victim by mistake – is inconsistent with negligence. (“Jacksonpicked up a gun with the intent to hit a person in a moving vehicle, that Jackson injured the wrong person was the tragic risk he took when firing the shot.  His actions were not negligent, and, therefore, the trial court did not err in refusing to submit an instruction on negligence to the jury,” ¶31.) Lofton v. State, 83 Wis. 2d 472, 266 N.W.2d 576 (1978) (production of loaded gun during heated argument demonstrated negligence to high degree), deemed, if not quite controlling, sufficiently similar to be instructive.

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