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State v. Washington

Court of Appeals of Wisconsin, District I

July 9, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Andreal Washington, Defendant-Appellant.

         Not recommended for publication in the official reports.

          APPEAL from an order of the circuit court for Milwaukee County: No. 2018CF2013 JEFFREY A. CONEN, Judge. Affirmed.

          Before Brash, P.J., Kessler and Dugan, JJ.

          BRASH, P.J.

         ¶1 Andreal Washington appeals a nonfinal order[1] of the circuit court denying his motion to dismiss the second-degree reckless homicide charge against him on the grounds that this prosecution violates double jeopardy. Washington was previously acquitted of felony murder regarding the death of Travis Deon Williams. The State then subsequently filed the current charges[2]against Washington for Williams's death.

         ¶2 We conclude that the circuit court properly denied Washington's motion to dismiss. We therefore affirm.

         Background

         ¶3 Williams was shot and killed in the basement of a residence located on North 64th Street in Milwaukee on April 30, 2016. Several witnesses identified Washington as the shooter. Washington was arrested and charged with first-degree reckless homicide.

         ¶4 In March 2017, an amended information was filed charging Washington with felony murder, based on the police investigation of the incident which indicated that Washington shot Williams during an armed robbery at the residence. A jury trial was held in September 2017 on that sole charge against Washington. Washington testified at trial; he admitted that he had shot Williams, but denied that it involved an armed robbery. The jury returned a verdict of not guilty.

         ¶5 The State subsequently charged Washington in May 2018 with second-degree reckless homicide for the shooting death of Williams. Washington filed a motion to dismiss the charge, arguing that this prosecution violates the constitutional protections against double jeopardy, and further, that it is barred by the doctrine of collateral estoppel.

         ¶6 At a hearing held in June 2018, the circuit court denied Washington's motion.[3] The court held that there was no double jeopardy violation because the elements required to prove felony murder are not the same as those required to prove second-degree reckless homicide, citing the test established in Blockburger v. United States, 284 U.S. 299 (1932). The court noted that the only "partial element" that those crimes have in common is that "somebody died." The court also rejected Washington's collateral estoppel argument using the same reasoning: the charges against Washington could not have been fully tried previously since the elements for the crimes are not the same. Washington now files this interlocutory appeal.

         Discussion

         ¶7 The Fifth Amendment to the United States Constitution, as well as article I, section 8 of the Wisconsin Constitution, prohibits "subjecting any person 'for the same offense to be twice put in jeopardy.'" State v. Hill, 2000 WI.App. 259, ¶10, 240 Wis.2d 1, 622 N.W.2d 34. The issue of whether double jeopardy protections have been violated is a question of law that we review de novo. See State v. Steinhardt, 2017 WI 62, ¶11, 375 Wis.2d 712, 896 N.W.2d 700.

         ¶8 In determining whether a subsequent prosecution is violating double jeopardy, we apply the test set forth by the United States Supreme Court in Blockburger.[4]Blockburger states that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does ...


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