Jury instruction did not unconstitutionally mislead the jury, supreme court concludes

By Joe Forward, Legal Writer, State Bar of Wisconsin

May 19, 2011 – In examining whether a defendant showed “utter disregard for human life,” the jury must weigh the evidence on the “totality of the circumstances” without assigning more or less weight to conduct that occurs before, during, or after an alleged crime occurs.

That’s what the Wisconsin Supreme Court clarified in State v. Burris, 2011 WI 32 (May 17, 2011), a case in which a jury convicted Donovan Burris with first-degree reckless injury while armed. The court also concluded that a supplemental jury instruction did not mislead the jury on this point.

Burris shot Kamal Rashada, who was paralyzed as a result of a bullet to the neck. Kamal Rashada is the brother of Khadijah Rashada, mother of Burris’s children. The central question at trial was whether Burris showed “utter disregard for human life,” an element of the crime, when the shooting occurred.

Burris arrived at the Rashada residence with a loaded .45 caliber pistol, with hair trigger and disabled safety. An argument between Burris escalated into a shouting match. Members of the Rashada family testified that Burris was waiving the gun around and shot Kamal when Kamal asked him to leave.

Burris testified that he was arguing with Khadijah on his way out the front door, and the gun went off accidentally when Kamal grabbed his wrist and Burris attempted to pull his hand away.

However, the Rashadas and Burris testified that Burris showed remorse after the shooting, stated that he did not mean to do it, and declared that he hoped Kamal would not die. Then he left the apartment, evaded police for five months, and did not contact the Rashada family about Kamal’s condition.

The jury, charged with determining whether Burris demonstrated “utter disregard for human life,” asked the court whether it was to consider facts and circumstances that took place “after” the shooting, perhaps noting the fact that Burris showed remorse after the shooting occurred.

The circuit court gave a supplementary jury instruction, stating in part that “after-the-fact regard for human life does not negate utter disregard otherwise established by the circumstances before and during the crime.” The jury later convicted Burris on the charges.

Disregard for human life under Jensen

In his motion for post-conviction relief, Burris argued the circuit court erred by giving the supplemental jury instruction. The circuit court denied the motion, but the court of appeals reversed, concluding that although the supplemental jury instruction was legally sufficient it likely misled the jury.

That is, the court of appeals concluded the supplemental instruction “suggested that Burris’s after-the-fact conduct was not significant and could not outweigh his conduct before and during the crime.”

However, the Wisconsin Supreme Court – in an opinion written by Justice N. Patrick Crooks – reversed (6-1), concluding that Burris had not established “a reasonable likelihood that the jury applied the supplemental jury instruction … in an unconstitutional manner.”

Contrary to the state’s argument, the majority clarified that under State v. Jensen, 2000 WI 84, Wis. 2d 521, 613 N.W.2d 170, a jury may consider conduct before, during, and after an incident in making a determination of whether someone has showed an utter disregard for human life.

“We reject the State’s assertion and emphasize that in an utter disregard analysis there is no rule assigning more or less weight to a particular category of a defendant’s conduct based on when that conduct occurred,” Justice Crooks wrote.

But the court also clarified that Jensen does not, “as a matter of law, assign more or less weight to a defendant’s conduct, whether that conduct occurred before, during or after the incident.”

The supreme court recognized but rejected the state’s argument that a jury with freedom to view the totality of the circumstances “could give undue weight to a defendant’s remorse after the fact … when a defendant’s other conduct clearly evinces utter disregard.”

“We are satisfied that an instruction to consider the totality of the circumstances, i.e., not giving undue weight to any particular evidence, applied along with the jurors’ common sense, will allow the jury to fairly and appropriately apply the instruction and follow the law,” Justice Crooks wrote.

Instruction not applied unconstitutionally

Burris argued the supplemental jury instruction suggested the jury should give more weight to Burris’s actions before and during the crime, and therefore it was unconstitutionally misleading.

However, noting a defendant is entitled to reversal only if there a is a reasonable likelihood the jury applied the instruction unconstitutionally, the supreme court majority ruled that Burris did not meet his burden to prove the jury did so in this case.

The court noted that extensive after-the-fact evidence was presented at trial, Burris’s counsel focused on this evidence in closing argument, and the “pattern and supplemental jury instructions indicat[ed] [the jury] could consider this conduct in its determination.”

However, the court noted the potential for confusion in cases where supplemental instructions are taken out of context from Jensen, and recommended the Criminal Jury Instructions Committee add comments to the Wisconsin Jury Instructions that advise against doing so.

Concurrence and dissent

Justice David Prosser wrote a concurring opinion, agreeing with the ultimate conclusion, but arguing that “conduct ‘after the crime’ cannot be an element ‘of the crime.’”

“The crime is complete when the defendant ‘recklessly causes’ great bodily harm,” Prosser wrote. “I can understand how a defendant’s ‘after the crime’ conduct could affect the defendant’s sentence, but I cannot conceive of how a defendant’s ‘after the crime’ conduct could determine the ‘crime itself.’”

Chief Justice Shirley Abrahamson dissented. Although she agreed that the fact finder should “examine the totality of the circumstances,” the chief justice asserted that Burris met his burden to prove the supplemental jury instruction misled the jury.

“Although the supplemental instruction was but one part of the entire proceeding, it is clear that the supplemental instruction muddled the law regarding an element of central importance to Burris’s defense, an element the jury focused on and was confused about,” Chief Justice Abrahamson wrote.

Attorneys

Byron C. Lichstein of the Frank J. Remington Center at the University of Wisconsin Law School, Madison, represented Donovan Burris. Assistant Attorney General Maura F.J. Whelan represented the state.