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Defense win on soliciting reckless injury versus soliciting reckless endangerment of safety

State v. Kelly James Kloss, 2019 WI App 13, petition and cross petition for review granted, 6/11/19, petitions dismissed as improvidently granted, 3/6/20; case activity (including briefs)

Bad news first: Addressing an issue of first impression, the court of appeals held that Wisconsin now recognizes the crime of solicitation of 1st degree reckless injury. Good news: Solicitation of 1st degree recklessly endangering safety is a lesser included offense of solicitation of 1st degree reckless injury, which means that convicting a defendant of both violates multiplicity principles and Double Jeopardy. Defense wins!

While incarcerated, Kloss made 50 calls to his wife in 12 days urging her to get her handgun and shotgun and shoot any cop that came to her door. “Blow them away.” “Wipe them out.” “I’m hoping you’re going to get at least a half a dozen of them.” Turns out law enforcement was listening in. Opinion, ¶¶3-4.

Kloss was convicted of both solicitation of 1st degree reckless injury and solicitation of 1st degree reckless endangering safety. The defense argued that Wisconsin law does not recognize the former claim. The court of appeals disagreed based on W. LaFave, Substantive Criminal Law §11.1(c) (3d ed. 2017):

¶10 . . . Stated more clearly, LaFave says that A can be guilty of solicitation to commit murder or manslaughter if A solicits B to engage in criminally negligent conduct and does so for the purpose of causing C’s death. This example assumes that it is possible to prove that A solicited B to engage in negligent conduct intending that B’s negligent conduct cause C’s death. Thus, it follows from LaFave’s example that soliciting/ reckless-injury is a crime because it is likewise possible to prove that A solicited B to engage in reckless conduct intending that B’s reckless conduct result in great bodily harm.

Even so, the court of appeals reversed the soliciting/endangering safety conviction after applying the multiplicity test of Blockburger v. United States, 284 U.S. 299 (1932). It held that the 2 offenses are identical in law and fact. Opinion ¶¶20-31 (citing State v. Ziegler, 2012 WI 73,¶¶60-63,  342 Wis. 2d 256, 816 N.W.2d 238). For lots more on multiplicity, see our prior posts here. 

Neither the State nor the defendant briefed the remedy the court of appeals should grant when it finds that 2 convictions are multiplicitous. The court of appeals took matters into its own hands, reversed the “lesser included” offense, and held that this reversal disturbed the circuit court’s overall sentence structure. It remanded the case for new sentencing on the soliciting reckless injury conviction.  Opinion, ¶¶32-36.

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