State v. Burris
2011 WI 32
Wis.2011Background
- Burris was convicted of first-degree reckless injury while armed and felon in possession after a shooting that paralyzed Kamal Rashada.
- Trial focused on whether Burris acted with utter disregard for human life, an element of § 940.23(1)(a).
- Burris testified the shooting was an accident; Rashadas testified Burris waved a gun and shot Kamal at close range.
- Post-shooting conduct was disputed: Burris expressed remorse and left the scene, then evaded police for months.
- The circuit court gave a supplemental jury instruction quoting Jensen in response to a jury question about after-the-fact conduct.
- The court of appeals reversed on the adequacy of the supplemental instruction; the supreme court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether after-the-fact conduct weight differs from prior conduct | Burris argues after-the-fact conduct should not be weighted less | State argues after-the-fact conduct has less weight | No automatic weight difference; consider totality of circumstances |
| Whether the supplemental instruction misled the jury | Burris contends Jensen language misled about after-the-fact relevance | State contends instruction properly framed totality-of-the-circumstances standard | Not a reasonable likelihood of unconstitutional misapplication; instruction acceptable with context |
Key Cases Cited
- State v. Jensen, 236 Wis.2d 521 (Wis. 2000) (establishes totality-of-circumstances approach for utter disregard; after-the-fact is part of total picture)
- State v. Miller, 320 Wis.2d 724 (Wis. Ct. App. 2009) (recognizes totality approach and rejects per se rules about after-the-fact evidence)
- State v. Edmunds, 229 Wis.2d 67 (Wis. Ct. App. 1999) (discusses weighing after-the-fact conduct in utter disregard analysis)
- Holtz v. State, 173 Wis.2d 515 (Wis. Ct. App. 1992) (distinguished Wagner/Balistreri; after-the-fact conduct context matters)
- Wagner v. State, 76 Wis.2d 30 (Wis. 1977) (mitigating after-the-fact conduct can affect utter disregard finding)
- Balistreri v. State, 83 Wis.2d 440 (Wis. 1978) (mitigation analysis in utter disregard)
- Lohmeier, 205 Wis.2d 183 (Wis. 1996) (establishes reasonable-likelihood standard for misinstruction)
- Boyde v. California, 494 U.S. 370 (U.S. 1990) (burden on defendant to show misapplication of instruction)
- Waddington v. Sarausad, 555 U.S. 179 (U.S. 2009) (clarifies ambiguity standard for misinstruction)
- Jensen, 236 Wis.2d 521 (Wis. 2000) (source of Jensen language quoted in instruction)