Defense Win: COA grants new trial in multiplicity challenge to Len Bias case

State v. Samuel R. Osornio, 2024AP2368-CR, 6/26/25, District 4, (recommended for publication); case activity (including briefs)

Osornio argues that he is entitled to a new trial because the state charged him with both reckless homicide by delivery of heroin, based on allegations that he delivered heroin to A.B. and A.B. fatally overdosed on this heroin, and, separately, with delivery of the same heroin to A.B. (¶1). COA reverses, concluding that the two counts were multiplicitous, as Osornio was exposed to the potential for punishment twice for the same offense of delivering heroin to A.B. (¶3).

Counts 1 and 2 of the complaint alleged the same conduct, that Osornio intentionally delivered three grams or less of heroin to A.B., in violation of § 961.41(1)(d)1., but count 1 also included the allegations that A.B. used that heroin and that this heroin use was a substantial factor in causing his death. A jury found him guilty on both charges. The State does not dispute that counts 1 and 2 are multiplicitous on the facts of this case. The offenses are identical in law and fact under the “elements-only” test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), in that all of the elements of the delivery charge are also elements in the homicide charge based on the same alleged facts, and neither side argues that the legislature intended to allow multiple punishments for this criminal conduct. See State v. Ziegler, 2012 WI 73, ¶¶59-63, 342 Wis. 2d 256, 816 N.W.2d 238.

Osornio does not raise a multiplicity challenge on the basis that he received multiple punishments for the same offense because issue was brought to the circuit court’s attention in time for the court to enter a conviction and sentence him on the reckless homicide charge alone. (¶39). Here, the multiplicity issue wasn’t noticed by either party or the court until the jury’s  deliberations. Instead, Osornio argues that deficient performance by his attorneys cost him the probable outcome of a conviction on, at most, the delivery charge. (¶40).

Osornio contends that his trial counsel failed to timely recognize that the prosecution should have been forced to choose between charging either a single count of reckless homicide or a single count of heroin delivery. If the state charged reckless homicide, either side could have requested an instruction on the lesser-included offense of heroin delivery. In that case, the jury would have been instructed that it must “make every reasonable effort to agree unanimously on [its] verdict on the” greater offense “before considering” the lesser charge, and to turn to the lesser offense only “after full
and complete consideration of the evidence.” WIS JI—CRIMINAL 112. (¶¶40-41).

COA discusses the legal standards and facts of the case before concluding that Osornio showed “that there is at least a reasonable probability that he would not have been convicted of reckless homicide if the jury had been properly instructed from the start.” (¶42). As to the facts of this case, after deliberating for more than three hours, the jury sent the following note: “We have a conclusion on Count Two. We cannot come to an agreement on Count One. How should we proceed?” (¶48). Osornio filed a postconviction motion claiming ineffective assistance of trial counsel based on the multiplicity issue, and at the hearing, both defense counsel testified that they did not notice the multiplicity issue until after the jury had begun deliberating. (¶56). For these reasons, COA concludes that trial counsel performed deficiently and that Osornio was prejudiced. (¶¶59-63; ¶¶64-74).

Osornio also contends he is entitled to a new trial because the circuit court improperly admitted other-acts evidence. (¶2). Although the multiplicity issue is dispositive, COA chooses to address this issue as well, as the issue may resurface at a retrial and it is fully briefed on appeal. (¶13). The court concludes that Osornio fails to establish that the court erred in admitting the other-acts evidence, which consisted of testimony by Y.Z. that Osornio delivered heroin to her just minutes before Osornio allegedly delivered heroin to A.B. (¶2). Thus, this evidence is admissible at a future trial.