State v. Burris

• Decision Date: 17 May 2011
• Docket Number: No. 2009AP956–CR.,2009AP956–CR.
• Citation: 2011 WI 32,333 Wis.2d 87,797 N.W.2d 430
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner,v.Donovan M. BURRIS, Defendant–Appellant.
• Court: Wisconsin Supreme Court

333 Wis.2d 87

797 N.W.2d 430

2011 WI 32

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Donovan M. BURRIS, Defendant–Appellant.

No. 2009AP956–CR.

Supreme Court of Wisconsin.

Argued Feb. 2, 2011.Decided May 17, 2011.

For the plaintiff-respondent-petitioner the cause was argued by Maura F.J. Whelan, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.For the defendant-appellant there were briefs and oral argument by Byron C. Lichstein, Frank J. Remington Center, University of Wisconsin Law School, Madison.

N. PATRICK CROOKS, J.

¶ 1 This is a review of an unpublished decision of the court of appeals ¹ reversing the circuit court's judgment of conviction and denial of Donovan M. Burris's (Burris) motion seeking postconviction relief and a new trial. The underlying incident began as an argument between Burris and the mother of his two young children, Khadijah Rashada (Khadijah), and escalated into the shooting of Khadijah's brother, Kamal Rashada (Kamal), which left Kamal paralyzed. Burris was subsequently convicted of first-degree reckless injury while armed contrary to Wis. Stat. § 940.23(1)(a) and § 939.63 (2007–08) ² and being a felon in possession of a firearm contrary to Wis. Stat. § 941.29(2)(a).

¶ 2 At trial, the central focus was whether Burris acted with utter disregard for human life, an element of Wis. Stat. § 940.23(1)(a). The State presented testimony about Burris's actions before and during the shooting from Kamal, Khadijah, and their mother Cathy Rashada (Cathy) that tended to show he acted with utter disregard for human life. Burris testified on his own behalf, asserting that the shooting was an accident, and also attempted to impeach the Rashadas' testimony with inconsistencies between their testimony and in prior statements.

¶ 3 Both sides also put forth evidence of Burris's conduct after the shooting that was relevant to the utter disregard element. Burris, Kamal, Khadijah, and Cathy all agreed that immediately after the shooting, Burris expressed remorse and stated that the shooting was unintentional. The State also presented evidence that, after expressing his regret for shooting Kamal for about one minute, Burris left the apartment, did not contact the Rashada family to inquire about Kamal's condition, and evaded police for approximately five months.

¶ 4 After hearing this evidence and receiving the pattern jury instruction for first-degree reckless injury, Wis JI—Criminal 1250, including the utter disregard for human life element, the jury asked: “Regarding the element of utter disregard, all other facts and circumstances relating to the incident, do we consider facts and circumstances after the shooting?” The circuit court, after conferring with counsel and over Burris's objection, gave the jury a supplemental instruction, which quoted verbatim part of this court's decision in State v. Jensen, 2000 WI 84, 236 Wis.2d 521, 613 N.W.2d 170.

¶ 5 Following his conviction, Burris moved for postconviction relief on several grounds, including a challenge to the supplemental jury instruction as unconstitutionally misleading, all of which the circuit court denied. The court of appeals reversed and remanded for a new trial based on Burris's challenge to the supplemental jury instruction and thus did not reach Burris's other claims. The State petitioned this court for review, which we granted.

¶ 6 The State raises the following issues for review: (1) whether a fact-finder, in determining whether a defendant acted with utter disregard for human life, should give his conduct after a crime less weight than his conduct before and during the incident, and (2) whether there is a reasonable likelihood that the jury applied the circuit court's supplemental jury instruction in an unconstitutional manner.

¶ 7 We conclude that, in an utter disregard analysis, a defendant's conduct is not, as a matter of law, assigned more or less weight whether the conduct occurred before, during, or after the crime. We hold that, when evaluating whether a defendant acted with utter disregard for human life, a fact-finder should consider any relevant evidence in regard to the totality of the circumstances.

¶ 8 We further hold that Burris has not established a reasonable likelihood that the jury applied the supplemental jury instruction on the utter disregard for human life element in an unconstitutional manner. We are satisfied that the supplemental instruction did not mislead the jury into believing that it could not consider Burris's relevant after-the-fact conduct in its determination on utter disregard for human life.

¶ 9 Therefore, we reverse the court of appeals decision and remand the case to allow the court of appeals to decide the other claims Burris raised before it.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 10 The Rashada family and Burris disagree about the details of what led up to the shooting on September 5, 2007, that led to the charges at issue in this case. Relevant discrepancies in their testimony are discussed in more detail below; however, the basic facts are as follows.

¶ 11 Burris arrived unannounced at the Rashada residence to talk to Khadijah and to see their two children. Cathy, Kamal, Khadijah, and the two children were present when Burris arrived. Burris had with him a loaded .45 caliber pistol with a hair trigger and a disabled safety. Burris and Khadijah got into an argument over the children and a male friend of Khadijah's, which developed into a shouting match in which obscenities were exchanged.

¶ 12 What happened during the argument leading up to the shooting was the heart of the dispute at trial regarding whether Burris acted with utter disregard for human life. However, no one disputes that Kamal was shot in the neck, at close range, and as a result was hospitalized for two months and left paralyzed.

¶ 13 After the shooting, Burris evaded police for approximately five months before turning himself in. The State charged Burris with first-degree reckless injury while armed contrary to Wis. Stat. § 940.23(1)(a) ³ and § 939.63,⁴ and being a felon in possession of a firearm contrary to Wis. Stat. § 941.29(2)(a).⁵ In a three-day trial before the Milwaukee County Circuit Court, the Honorable William Sosnay presiding, the State and Burris presented different accounts of Burris's conduct leading up to the shooting.

¶ 14 For the State, Kamal, Cathy, and Khadijah testified to the following version of events. When Burris arrived at the house, he briefly spoke with Cathy about buying diapers and formula for the children. Shortly thereafter, Khadijah and Burris began to argue, and Burris began to threaten Khadijah and swear at her. Khadijah and Burris continued this argument in the living room, where Burris had his gun out and was waving it around. Cathy and Khadijah asked Burris to leave, but he refused and continued to threaten Khadijah and wave the gun around. The two young children were present in the living room at the time. While Burris and Khadijah were arguing in the living room near the front door, Kamal was standing behind Burris. Kamal tapped Burris on his left side to get his attention and asked him to leave. When Kamal tapped him, Burris turned around, raised the gun, called Kamal the “ ‘N’ word,” and shot Kamal in the neck at close range.

¶ 15 During cross-examination, Burris attempted to impeach these witnesses regarding some inconsistencies in their testimony. Kamal's testimony differed from what he told Officer Vartanian in the ambulance right after the shooting. Kamal told Officer Vartanian that Kamal pushed the gun away from Khadijah and then pushed Burris out the front door, at which time Burris reached back inside and shot Kamal. Kamal explained at trial that Officer Vartanian may have misunderstood what he said, but that his testimony at trial was correct. Cathy testified that she saw Burris raise the gun before shooting Kamal, but in an earlier statement to police she had stated that she did not see Burris raise the gun. Khadijah testified that Burris waved the gun around before he raised it to shoot Kamal, but in an earlier statement to Officer Koscielak, Khadijah had stated that Burris kept the gun by his side. Khadijah also testified that Kamal had only tapped Burris when Burris turned and raised the gun to shoot Kamal, but in an earlier statement to police she had stated that Kamal grabbed Burris's wrist before Burris shot him. On redirect, the State attempted to reconcile some of these inconsistencies.

¶ 16 Burris presented the following version of what happened leading up to the shooting. Burris entered the apartment, spoke with Cathy briefly, and then went to the bedroom to put the gun he had with him under the mattress. Burris had a gun with him for his protection because, after an argument with some associates of the Rashadas' neighbors, he feared for his safety. After stowing the gun, Burris went to the bathroom to talk to Khadijah and to see his children. Burris and Khadijah's conversation developed into an argument, which continued as they moved into the bedroom. While they did get into a heated argument and exchange obscenities, Burris never threatened Khadijah. When Cathy came into the bedroom and asked Burris to leave, he complied by grabbing his gun and heading for the door but began to argue with Khadijah again in the living room. Burris never raised the gun or waved it around but kept it by his side. Burris claimed that while Burris and Khadijah were arguing near the front door, Kamal grabbed Burris's right wrist from behind, and that when Burris turned and pulled his hand away, the gun went off and shot Kamal.

¶ 17 The Rashadas and Burris presented similar testimony regarding what happened after the shooting. Immediately after the shooting, Burris called out to Kamal and stated that he did not mean to shoot him and that he hoped Kamal would not die. Burris asked either Cathy or Khadijah to...