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Wisconsin law governs “new crime” element of bail jumping, though “new crime” occurred in Illinois

State v. Andrei R. Byrd, 2014AP2721-CR, District 4 (not recommended for publication); case activity (including briefs)

Byrd was released on bond for 2 felonies that imposed 2 conditions: don’t leave Rock County and don’t commit any new crimes. He went to Illinois, drank too much, and started shouting at a 4th of July party. An officer saw him move toward a woman and raise his hand, causing her to move backward into a defensive posture. He was arrested for assault under Illinois law. Then the State of Wisconsin charged him with 4 counts of felony bail jumping for violating the 2 conditions of the bonds on his 2 felonies (2 x 2 = 4).

That’s the back story. The primary legal issue is whether, at the Rock County trial on the bail jumping charges, the court should have used the Illinois jury instruction for the crime charged there or the Wisconsin jury instruction for the analogue crime(s).

To prove felony bail jumping the State had to show that Byrd was (1) charged with a felony. (2) released from custody on bond, and (3) intentionally failed to comply with a condition of the bond (i.e. committed a “new crime”.) Wis JI–Criminal 1795 (2010). For the 3rd element, the court instructed the jury that the State had to prove that Byrd committed attempted battery and disorderly conduct as defined by Wisconsin law. Byrd argued that the State should have had to prove that he committed assault under Illinois law.

The court of appeals disagreed for two reasons. First:

The State may prosecute a defendant for bail jumping based on criminal conduct, whether the conduct occurred in Wisconsin or elsewhere, so long as the evidence establishes that the defendant’s conduct constituted a crime. See State v. West, 181 Wis. 2d 792, 796, 512 N.W.2d 207 (Ct. App. 1993) (new crime in the context of the offense of bail jumping broadly defined to include “an offense against the social order … that is dealt with by community action rather than by an individual or kinship group”) (quoted source omitted); see also State v. Hauk, 2002 WI App 226, ¶¶14-19, 257 Wis. 2d 579, 652 N.W.2d 393 (proving “new crime” for bail jumping purposes does not require proof of a criminal conviction for the new conduct; the question is whether defendant engaged in criminal activity). While neither case addresses the precise issue here, West and Hauk make clear that it would not matter, under Wisconsin bail jumping law, how the Illinois police officer who arrested Byrd decided to label Byrd’s conduct. ¶15.

Second, the Stated argued that the Wisconsin and Illinois laws defining disorderly conduct and attempted battery are so similar, that if it was error to use Wisconsin law, the error was harmless.  According to the court of appeals, Byrd conceded this point by failing to respond to it. ¶17.

Byrd also argued that the evidence was insufficient to prove “new crimes” under Illinois and Wisconsin law. The former failed because, according to the court of appeals, Illinois law doesn’t apply. The latter failed because the Illinois officer’s testimony supported a finding of disorderly conduct and attempted assault. Byrd added 3 ineffective assistance of counsel claims to the mix but lost all of them because he could not satisfy Strickland‘s prejudice prong. ¶¶28-44.

The court of appeals seems to say that there is no Wisconsin case law on whether the jury should have been instructed with Illinois law or Wisconsin law regarding the “new crimes” needed for the 3rd element of felony bail jumping. So this may be an issue of first impression worthy of a petition for review or a challenge in another case.

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