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MADISON – The Wisconsin Supreme Court today reversed an unpublished decision of the court of appeals reversing the Milwaukee County conviction of Donvan M. Burris for the first-degree reckless injury of Kamal Rashada. Justice Patrick Crooks, joined by four other members of the court, wrote the majority opinion. Justice David Prosser concurred in the result but disagreed with the majority's reasoning. Chief Justice Shirley Abrahamson dissented.
Burris shot Rashada at short range in the neck, permanently disabling him. Rashada's sister Khadijah is the mother of Burris's two small children. Shortly before the shooting, Burris arrived at the Rashadas' apartment carrying “a loaded .45 caliber pistol with a hair trigger and disabled safety.” Burris and Khadijah had a heated argument, which culminated in Kamal's effort to escort Burris from the premises. Accounts differ as to whether Kamal did this forcibly and whether a struggle ensued. There was no dispute that Burris shot Kamal in the neck. All agreed that, after the shooting, Burris told Kamal he didn't mean to shoot him and hoped he wouldn't die. Then, Burris asked one of the women in the apartment to take his gun and shoot him. About a minute later, Burris said he had to leave because he couldn't go to jail. He ran out of the apartment and hid underground for nearly five months before turning himself in.
Burris was eventually convicted of first degree reckless injury. The difference between first and second degree reckless injury turns on whether the defendant inflicted the injury with “utter disregard for human life.” The jury's utter disregard determination must be based on the “totality of the circumstances.” In this case, the circuit court gave the jury an instruction that arguably implied it should give Burris's conduct after the shooting less weight than his conduct leading up to and including the shooting.
Burris appealed. He argued that the utter disregard instruction was ambiguous and unconstitutionally misleading because it suggested to the jury that Burris's after-the-fact conduct was not significant and could not outweigh his conduct before and during the crime. The court of appeals agreed and reversed and remanded for a new trial.
The State petitioned for review by the supreme court. The supreme court considered two issues: First, whether a jury should give a defendant's conduct after the crime less weight than his conduct before and during the criminal act; and second, whether, in this case, there was a reasonable likelihood that the jury applied the challenged jury instruction in an unconstitutional manner.
On the first issue, the supreme court rejected the State's argument that a defendant's after-the-fact conduct has less evidentiary importance than his actions before and during the crime. The court held 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.”
On the second issue, the court held that that Burris had not demonstrated a reasonable likelihood that the jury applied the challenged instruction in an unconstitutional manner. The court examined “the extensive evidence of Burris's after-the-fact conduct presented at trial, counsel's focus on this evidence in closing statements, and language in both the pattern and supplemental jury instructions indicating that it could consider this conduct in its determination.” Looked at in the context of the proceedings as a whole, the challenged 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.”
The court reversed the decision of the court of appeals, and remanded the case back to the court of appeals to consider additional issues raised by Burris that it did not reach the first time around.
Attorney General J.B. Van Hollen applauded the court's decision, observing: “The Wisconsin Supreme Court restored the jury's guilty verdict in a brutal shooting of an innocent young man. Along the way, the court clarified some important substantive and procedural issues. Such clarification is always welcome. The case now returns to the court of appeals for the resolution of some additional legal issues. I am hopeful that the court of appeals will ultimately affirm Mr. Burris's conviction. I look forward to the day when this chapter of the Rashada family tragedy is finally closed.”
Milwaukee County Assistant District Attorney Thomas Potter prosecuted the case in the trial court, and Assistant Attorney General Maura Whelan represented the State of Wisconsin in the Wisconsin Court of Appeals and the Wisconsin Supreme Court.