State v. Mays

402 Wis.2d 162

975 N.W.2d 649

2022 WI App 24

STATE of Wisconsin, Plaintiff-Respondent,

v.Antonio Darnell MAYS, Defendant-Appellant.^†

Appeal No. 2021AP765-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: January 12, 2022

Opinion Filed: April 12, 2022

On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Sara Lynn Shaeffer, assistant attorney general.

Before Brash, C.J., Donald, P.J., and White, J.

BRASH, C.J.

¶1 Antonio Darnell Mays appeals his judgment of conviction for felony murder, first-degree reckless homicide with a dangerous weapon as a party to a crime, and two counts of being a felon in possession of a firearm. He also appeals from the order denying him postconviction relief.

¶2 Mays argues that his conviction for felony murder with the underlying charge of armed burglary must be vacated because the crime, as advanced by the State, does not exist. Specifically, for the felony murder count the State argued that Mays caused the death of Malyk Smith while committing armed burglary, which was predicated on Mays entering a building with the intent to commit the felony of second-degree recklessly endangering safety. Mays asserts that one cannot intend to commit a reckless crime.

¶3 We disagree. Felony murder is committed when the death of another person is caused by a defendant during the commission of certain crimes, including burglary. The elements of burglary include the intent to either steal or to commit a felony. The evidence demonstrates that Mays forced his way into a building and started shooting with two guns, which is indicative of an intent to recklessly endanger the safety of those inside—a felony. Therefore, we conclude that Mays was convicted of a valid crime. Accordingly, we affirm.

BACKGROUND

¶4 The charges against Mays stem from an incident that occurred in March 2018. According to the criminal complaint, police officers from the City of Milwaukee responded to a shooting at an apartment building on North 27th Street. The officers discovered two people inside the building who had been shot; both died at the scene. The victims were later identified as Smith and Romale Richardson.

¶5 Detectives interviewed two witnesses, Christopher Wright and Jervita Tisdale, who were present at the residence during the shooting. Wright stated that this was Smith's residence, and that there were several people there that night playing dice for money, including Richardson. Wright said at one point there was a knock at the door, which Smith answered, and a person came in and started shooting. Wright stated that Richardson had a gun and fired back. Tisdale gave a similar account, except that she thought Richardson had opened the door—only slightly—and that the person then forced his way in and started shooting at Richardson, and that Richardson fired back at him.

¶6 Wright also told police that Brandon Jones was at the apartment playing dice that night. Wright heard Jones make a telephone call and tell that person that he had lost money playing dice; Jones also asked the others present for the address of the apartment during the call. Jones then left the apartment, and it was shortly thereafter that the shooting occurred.

¶7 The same day, officers responded to a report of a gun shot victim at St. Joseph's Hospital. That victim, identified as Mays, had been brought to the hospital by his cousin, Jones. Mays told police that Jones had picked him up and they drove to a residence, but he stayed in the car. Mays said he started walking to a gas station when he was approached by two Black males who attempted to rob him. He said he was running away from them when he was shot, and that Jones then picked him up and took him to the hospital.

¶8 Detectives interviewed Jones. Jones told them that he had lost money playing dice at Smith's residence, and that he had called Mays. Jones said that at some point after he left Smith's apartment, he and Mays were in a parking lot outside of the apartment; Mays went inside, and Jones heard approximately nine shots. Jones then saw Mays run outside with two guns. Jones said that he drove Mays to a residence where Mays left the guns, and he then drove Mays to the hospital.

¶9 Ballistics tests on ten bullet casings found at the scene indicated that there were three firearms fired at the scene: six casings came from the gun belonging to Richardson, which was found at the scene; three casings came from a .45 caliber gun; and one casing came from a 9mm gun. Officers executed a search warrant at Mays's residence and discovered seven firearms, including a .45 caliber and a 9mm, which were later confirmed to match the casings retrieved from the shooting scene.

¶10 Neither Wright nor Tisdale could identify Mays in a line-up, but Tisdale identified a jacket that was recovered from Mays at the hospital as the jacket the shooter was wearing. Additionally, Mays's blood was found at the scene of the shooting.

¶11 Mays was charged with two counts of first-degree reckless homicide using a dangerous weapon, as a party to a crime, and two counts of being a felon in possession of a firearm. The matter proceeded to a jury trial in October 2018.

¶12 On the third day of trial, the State filed an amended information changing the first count of first-degree reckless homicide—for the death of Smith—to felony murder, with the underlying felony of armed burglary. For the record, the State explained that a charge of felony murder "better conform[ed]" to the evidence regarding Smith's death. Specifically, the State noted that it was not clear from the evidence who shot Smith during the "volley of gunfire" that was exchanged, but that the evidence did show that Smith was killed during the "unlawful intrusion" into the apartment. More particularly, the evidence suggested that Smith may have opened the door that night and, since he was shot in the back, Richardson may have shot him, not Mays.

¶13 The State asserted that this evidence supported the crime of armed burglary as the underlying felony, because Mays had "unlawfully entered the apartment with the intent to commit [a] felony"—to shoot Richardson. The State further noted that felony murder is a lesser-included offense of first-degree reckless homicide, and thus it could ask for that jury instruction instead of amending the information.

¶14 Mays objected to amending the information, even though the new charge reduced his prison exposure. He argued that amending the information at that point would be prejudicial, in that defending a burglary charge from the beginning may have altered his defense strategy. Mays further argued that this was essentially a concession by the State that they could not prove the first count of first-degree reckless homicide, and requested that it be dismissed.

¶15 The trial court initially "tabled" its decision on whether to allow the amended information, but noted that its "inclination" was to not allow it and instead include felony murder in the jury instructions as a lesser-included offense. As a result, the State agreed to withdraw the amended information, and Mays's trial counsel withdrew his objection.

¶16 As relevant to this appeal, the instructions provided to the jury by the trial court—which were agreed upon by the parties—included the elements of felony murder with the underlying crime of armed burglary, as a party to a crime while using a dangerous weapon.¹ The court described for the jury the elements of this crime:

1) [T]he defendant intentionally entered a building.

2) [T]he defendant entered the building without the consent of the person in lawful possession.

3) [T]he defendant knew that the entry was without consent.

4) [T]he defendant entered the building with the intent to commit second-degree recklessly endangering safety that is, the defendant intended to commit second-degree recklessly endangering safety at the time the defendant entered the building.

5) [T]he defendant committed the crime while armed with a dangerous weapon. A firearm, whether loaded or unloaded, is a dangerous weapon.

The jury instructions also provided the definition of second-degree recklessly endangering safety, which the court explained "is committed by one who recklessly endangers the safety of another human being."

¶17 Ultimately, the jury convicted Mays of felony murder, first-degree reckless homicide with a dangerous weapon as a party to a crime, and both counts of being a felon in possession of a firearm. Mays was sentenced in December 2018 to a global sentence of forty years of initial confinement and fifteen years of extended supervision.

¶18 Mays filed a postconviction motion seeking to vacate his felony murder conviction on the grounds that the burglary charge predicated on the intent to commit second-degree recklessly endangering safety is not a "cognizable crime under Wisconsin law because one cannot intentionally commit a reckless act." Therefore, Mays asserted that the trial court lacked subject matter jurisdiction to enter the conviction for felony murder.

¶19 The trial court rejected this argument. Relying on this court's decision in State v. Kloss , 2019 WI App 13, 386 Wis. 2d 314, 925 N.W.2d 563, the trial court determined that a person can intend to commit reckless conduct, particularly under circumstances such as those that occurred in this case: Mays entered the apartment "gun in hand, and began firing," which indicates "he did so with the intent to endanger the safety of another human being by criminally reckless conduct." The trial court concluded that this is "plainly a crime under Wisconsin law," and therefore denied Mays's postconviction motion. This appeal follows.

DISCUSSION

¶20 Mays presents the same argument on appeal—that his felony murder conviction with the underlying felony of armed burglary, which is predicated on an...