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§ 940.42, Attempted Intimidation of Witness – Multiplicity: Multiple Counts, Same Witness

State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether separate counts are supported for attempted intimidation of the same witness, representing each separate letter sent by the defendant to the witness imploring her not to testify against him.

Holding: Multiple counts are permissible, at least where each count is based on distinct facts, because: The statutory language does not rebut the presumption that the legislature intended multiple punishments, ¶21; policy concerns (attempts to intimidate a witness directly assault judicial integrity) support “charging a person wit a separate count for each letter sent, and/or each other act performed, for the purpose of attempting to ‘dissuade’ any witness from attending or giving testimony at a court proceeding or trial,” ¶25; the nature of the proscribed conduct is such that telescoping all acts into one count “would remove all incentive to discontinue intimidating acts once an actor had completed one such act,” ¶26.

A not uncommon situation, in Milwaukee anyway: the defendant contacts the complainant and asks her not to testify. In this instance, he beseeched her in seven different letters. (There happened to be two different witnesses, mother and daughter, and Moore wants them both not to testify, so it’s 7 letters x 2). His trust was apparently misplaced and rather than refuse to testify, the recipient took all the letters to the authorities, so that Moore ended up with 14 counts of attempted intimidation. (As the court notes, “intimidation” somewhat overstates the elemental showing: attempts at “dissuasion” suffice, ¶1 n. 2.) On the other hand … each series of letters represents a single effort aimed at a unitary goal, namely dissuading a witness from testifying. Should multiple such letters be regarded as a single, continuing offense or, as the court of appeals holds, multiple discrete crimes? What if the witness had indeed been dissuaded? Would there then be 6 attempts and 1 completed witness-intimidation? How would you identify which was which?

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