On Point

State v. Jefrey S. Kimbrough, 2001 WI App 138, PFR filed 6/25/01
For Kimbrough: Glenn C. Cushing, SPD, Madison Appellate

Issue: Whether the evidence satisfied the reckless-conduct element, in particular that the defendant was subjectively aware of the risks in shaking a baby who died as a result.

Holding: The jury was entitled to draw a finding of guilt on this element from competing inferences: Though defendant’s intelligence was “limited,” he wasn’t retarded; nor was there evidence that he was incapable of appreciating the risk of shaking a baby. ¶15. Despite statements that defendant gave to the police indicating a lack of awareness of the consequence of his act, he also lied in minimizing his conduct, which the jury could reasonably infer was due to his awareness of the risk of his conduct. ¶18: “We concur with the view expressed in case law that such escalating admissions may be used by the jury to infer the defendant’s subjective awareness of the risk posed by shaking a baby.”

Lavelle Chambers v. McCaughtry, 264 F.3d 732 (7th Cir 2001)
For Chambers: John T. Wasielewski

Issue/Holding: Chambers is liable for the killing of a police officer by Chambers’ codefendant, while the pair were trying to flee apprehension during commission of a felony (armed burglary).

State v. Scott Leason Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142
For Badker: Timothy A. Provis

Issue: Whether the evidence was sufficient to sustain conviction for “hiding” corpse, § 940.11(2).

Holding: By dumping the deceased’s body into a 6-foot-deep, water-lined ditch in a secluded wildlife refuge, Badker satisfied the element of “hiding” under § 940.11(2).

State v. Murle E. Perkins, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, reversed on other grounds, State v. Perkins, 2001 WI 46, ¶2 n. 2
For Perkins: William E. Schmaal, SPD, Madison Appellate

Issue: Whether a conditional threat to shoot a judge, made by a drunk and very depressed individual just before being taken into Ch. 51 emergency detention, sufficed to support conviction for threat to the judge, § 940.203(2).

Holding: The evidence supports the necessary elements, namely whether a reasonable person would interpret the defendant’s statement as a serious expression of intent to harm the judge. ¶14.

A judge found Perkins in contempt for failing to pay about $50,000 in child support. Perkins reacted by getting drunk and threatening suicide. When an officer showed up, he engaged Perkins in a 30-minute conversation. Perkins was still drunk and “very depressed.” During the course of their conversation, Perkins told the officer that if he were going to shoot himself, he’d shoot the judge “first because he’s a brain dead son of a bitch.” Turned out not to be the sort of banter tolerated in Vernon County, and Perkins was convicted of threatening a judge, § 940.203(2). There are, the court acknowledges, first amendment implications, exemplified by Watts v. U.S., 394 U.S. 705 (1969), such that only a “real” or “true” threat — as opposed to an idle one or political hyperbole — can be sanctioned. The test is “whether the communication would be interpreted by a reasonable person as a serious expression of intent to inflict bodily harm.” ¶12-13. That test was met, the court stressing the contempt order along with the epithet “brain dead son of a bitch” as showing actual animus. ¶¶15-17.

State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363
For Black: Michael S. Holzman

Issue: Whether the defendant’s admission of “handling” a gun established the element of “possesses” a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.

Holding:

¶19 At the outset, we note the absence of any mens rea⁵ requirement in this statute. That is, the statute makes no reference to intent and therefore creates a strict liability offense. State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999); State v. Coleman, 206 Wis. 2d 199, 207, 556 N.W.2d 701 (1996). As a result, the State is only required to show that the felon “possessed” the firearm with knowledge that it is a firearm. In this context, “possess,” according to the legal definition, simply “means that the defendant knowingly had actual physical control of a firearm.” Wis JI——Criminal 1343 (1997); see State v. Loukota, 180 Wis. 2d 191, 201, 508 N.W.2d 896, (Ct. App. 1993) (determining that this definition of possession was appropriately given and that Wis. Stat. § 941.29(2) does not require ownership, just mere possession). Furthermore, there are no temporal limitations in this statute. It does not specify what length of time a felon must possess the firearm in order to violate the statute. While to some it may seem unduly harsh that a felon who handles a firearm for a brief period violates this statute, such a result comports with the theory of strict liability. . . . [T]he legislature struck a balance between the possibility of a harsh result to an individual felon and the greater good of protecting the public from felons with firearms. We decline to upset this balance by rewriting the statute with an intent requirement. In the present case, the complaint stated that Black “handled the pistol,” which is sufficient to show possession because such an action amounts to exercising actual physical control over the firearm, even though it may have been only for a brief period of time.

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⁵ Mens rea is “[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.” Black’s Law Dictionary 999 (7th ed. 1999).

This conviction was based on a guilty plea, and factual basis for a plea need not be established to the same degree of certainty as at a trial. Edwards v. State, 51 Wis.2d 231, 236, 186 N.W.2d 193 (1971) (“The standard does not require the evidence in the form submitted at the hearing be admissible at trial or that it be sufficient to convict beyond a reasonable doubt.”). Even less “proof” is needed when there’s a plea bargain, as in this case. Broadie v. State, 68 Wis.2d 420, 423-424, 228 N.W.2d 687 (1975). (“Where[,] as here, the guilty plea is pursuant to a plea bargain, the court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea.”) It might be argued that the decision is based on this essentially procedural principle. Still, the court doesn’t rely on this principle (in fact, doesn’t even mention it). Instead, the court seems to take a very broad view of “possesses” under § 941.29.

UPDATE: A subsequent 7th Circuit case, throwing out a federal conviction for felon in possession, comes at the problem of possession from a different angle — where the felon participates in criminal activity with others who wield guns but doesn’t himself “handle” one, U.S. v. Rawlings, 341 F. 3d 657 (7th Cir. 2003): “his relation to the guns does not satisfy the test for constructive possession, which requires power to control.” You can probably reconcile that result with Black, in that Black’s “handling” of the gun suggested sufficient control, especially given the reduced proof attending a guilty plea. Nonetheless, Rawlings very strongly supports a critical limitation — not barred by Black — on the reach of § 941.29. And for discussion on “transitory possession” (which is to say, mere handling) in relation to dominion and control, see U.S. v. Teemer, 394 F.3d 59 (1st Cir 2005) (rejecting such defense); U.S. v. Johnson, 9th Cir No. 05-10708, 8/29/06 (same); but see, U.S. v. Mason, 233 F.3d 619 (D.C. Cir 2001) (recognizing defense). Authority for idea that mere presence of gun not enough to establish possession: U.S. v. Ruiz, 9th Cir No. 04-10308, 8/30/06. Compare, U.S. v. Nevils, 9th Cir No. 06-50485, 11/20/08 (“proximity” to weapon goes only to accessibility, not dominion and control; insufficient evidence, though weapons found on Nevils, given that he was then either asleep or passed out); U.S. v. Cunningham, 3rd Cir No. 06-3899, 2/21/08 (insufficient evidence of knowledge of gun’s presence to support constructive possession).

State v. Michael J. Kryzaniak/Sherry L. Kryzaniak, 2001 WI App 44
For Kryzaniak: Raymond G. Meyer II

Issue: Whether warrantless entry of a residence to arrest a third party was justified by the exigent circumstance of hot pursuit.

Holding:

¶18 … (T)here was no immediate or continuous pursuit of a suspect from the scene of a crime; thus, there was no hot pursuit and no exigent circumstances.… There was no pursuit here, only a day-long investigation of Anderson’s whereabouts. The police were at the Kryzaniak residence as the result of an investigation, not a police chase.

…

¶21 Our reluctance to find exigent circumstances is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Welsh, 466 U.S. at 750.… ¶22 Consequently, the nature of the underlying offense is an important factor to be considered in the exigent circumstances calculus. Id. at 751. Most courts addressing this issue have disallowed warrantless home arrests for nonfelonious crimes. Id. at 752.

State v. Edward Garrett, 2001 WI App 240, PFR filed
For Garrett: Michael P. Sessa

Issue: Whether warrantless entry of defendant’s apartment was justified under the exigent circumstances doctrine (risk that evidence — drugs — will be destroyed).

Holding: Warrantless entry of a residence may be justified where both probable cause and exigent circumstances are shown. Probable cause is conceded, leaving exigent circumstances — in this instance, risk of destruction of drugs. ¶¶9-11. The court finds exigent circumstances, based on: Garrett’s having been seen, several minutes after an undercover cocaine purchase and arrest in his building, standing in his doorway holding what appeared to be cocaine; his “flight” into his apartment; and his subsequent failure to answer the door when the police knocked. ¶13. State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, extended. ¶18 (doesn’t matter whether, as in Hughes and unlike here, officer in uniform).