recommended for publication in the official reports.
from an order of the circuit court for Milwaukee County: No.
2018CF2013 JEFFREY A. CONEN, Judge. Affirmed.
Brash, P.J., Kessler and Dugan, JJ.
Andreal Washington appeals a nonfinal order 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 chargesagainst Washington for Williams's
We conclude that the circuit court properly denied
Washington's motion to dismiss. We therefore affirm.
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
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
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.
At a hearing held in June 2018, the circuit court denied
Washington's motion. 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.
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.
In determining whether a subsequent prosecution is violating
double jeopardy, we apply the test set forth by the United
States Supreme Court in Blockburger.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 ...