State v. Young

386 Wis.2d 352

927 N.W.2d 160 (Table)

2019 WI App 15

STATE of Wisconsin, Plaintiff-Respondent,

v.Lorne Andrew YOUNG, Defendant-Appellant.

Appeal No. 2018AP308-CR

Court of Appeals of Wisconsin.

DATED AND FILED February 20, 2019

PER CURIAM.

¶1 Lorne Young appeals from a judgment convicting him of homicide by negligent handling of a dangerous weapon and from an order denying his motion for postconviction relief.¹ Young claims he is entitled to have his sentence modified either because: (1) the circuit court treated an argument made by Young’s counsel as a reflection on Young’s character (i.e., the court considered an improper factor); or (2) the court was not presented with recent research regarding brain development into emerging adulthood (i.e., there is now a new factor for the court to consider). We reject both contentions.

BACKGROUND

¶2 The homicide charge was based upon an incident in which Young shot and killed Kyle Ross—his sister’s boyfriend—with a hunting rifle Young had grabbed from his truck after being approached by Ross. There were conflicting accounts as to how the rifle discharged. Young claimed he had grabbed the rifle "to use as an impact weapon to defend himself" and that it discharged when it hit the door of the truck after Ross tried to grab it. Young’s sister told the police that Young had raised the rifle to his shoulder and fired one shot while Young and Ross were arguing outside the truck, and she told Ross’s father that Young had shot Ross while Ross’s hands were up.

¶3 At the sentencing hearing, the State first reminded the circuit court that, as part of the plea agreement in which the charge had been reduced from first-degree intentional homicide, Young had agreed not to argue against a maximum sentence recommendation by the State. The State went on to support its recommendation for a maximum sentence by arguing that the crime represented a vicious and aggravated overreaction to the situation, just as Young had previously overreacted as a juvenile by making a bomb threat at his school. The State then argued that Young revealed his character when, notwithstanding the plea agreement as to the sentence recommendation, he told the presentence investigation (PSI) author he thought jail time followed by probation would be an appropriate sentence. The State further argued that Young had demonstrated his character to be "despicable" by advising his lawyer to seek an offset in the restitution award for donations the victim’s family had received from the community. The State also noted that the PSI recommended the highest available sentence set forth in the agency’s grid, based upon categorizing the offense as aggravated and Young’s risk of reoffending as high.

¶4 When Young’s attorney addressed the circuit court, she clarified that she, and not her client, was responsible for the argument made in Young’s sentencing memorandum that restitution be offset. Young chose not to exercise his right of allocution and the defense did not make a specific sentence recommendation.

¶5 The circuit court then engaged in a lengthy discussion of the severity of the offense and the character of the offender, in conjunction with the court’s expressed sentencing objective of the need to protect the public. Among its comments as to the severity of the offense, the court stated:

The apparent interaction that occurred that day is difficult to reconcile from the standpoint of the outcome compared to the genesis of what was going on. It’s hard to reconcile simply picking up your sister who’s distraught and driving in a car and then having an interaction with a boyfriend that’s running towards the car with no sign of being armed, other than perhaps at its worst upset and angry at something, to pulling out a deer rifle and having someone killed. It’s tough to reconcile all that.

....

There was no fair reading of what appears to have happened that day that could justify any reason why a reasonable person would grab a gun, loaded or unloaded, under these circumstances when there were any number of very logical, very appropriate, and, in fact, I would say necessary alternatives, none of which were exercised. Mr. Young went to DEFCON 1 right away. And for those of you who don't understand that reference, it means you—you decided to use judgment with the ultimate weapon at your disposal leading to this. So yes, this is no accident. No one—I don't think [anyone] of reasonable mind could say it’s an accident. Gun accidents occur when you're cleaning a gun in your house and it goes off and shoots somebody. That’s an accident. An accident is when you're aiming at a whitetail deer and you miss it and it goes through someone’s house and kills somebody or hits somebody. That’s an accident. Pulling a gun out in—in the heat of passion when you think someone’s mad at you, that’s not an accident. That’s not an accident. Now, it doesn't necessarily mean it has to be negligent, but in this case it was. And it was the type of negligence and gross negligence that carries with it a criminal penalty.

....

And the Court has not been given a good explanation as to how this whole thing could have degenerated so quickly to the point of, Number 1, feeling you even have to pull out a firearm. Number 2, whether you knew the gun was loaded or not. It’s painfully obvious from the facts that you knew the gun was loaded at one time. Now, whether or not you had all the time in the world to unload it, I don't know. It’s a bolt action, you know, which means that, you know, somewhere along the line you took some action to place a round in the chamber. At some point you did. Whether it was days beforehand or not, but you can't change the laws of physics. There was a round in the chamber. And when you pull the trigger, it gets fired and it shoots out. In this case it killed somebody. And the only thing I've heard with an explanation is that well, you know, I was going to use it as a bat or some type of a nonlethal weapon or something. So I haven't heard anything or the Court hasn't been satisfied that there’s a good explanation that’s been given as to how all of this could have occurred. Absent a good explanation that the Court can—or that anybody can truly grasp onto to say yeah, I get it, it’s hard for anybody to grasp, in my opinion, the concept of yeah, I can perfectly see how it all happened. Your family, because they love you, probably will, but a detached objective observer has a hard time coming to grips with how we got from Point A to Point B and someone dead in a matter of moments. Moments.

The court concluded that the overall nature of the offense was "[a]ggravated from the standpoint that it was unnecessary, over the top, completely avoidable."

¶6 As to how Young’s juvenile record related to his character, the circuit court noted:

He has a juvenile criminal record, which is somewhat unusual. Bomb scares are not exactly something that show up on people’s criminal records very often. They're fairly rare, thank goodness, but it certainly is a unique page in the defendant’s history. And I think the explanation by the State is a plausible one, that that type of activity suggests a lack of judgment. Even though it is one that was done at the time of youth, there’s certainly—we can't negate everything that we do in our youth by saying well, I was just young and stupid, because if that was the explanation for anything, everybody was young and stupid, including me. I did my share of interesting things, but there’s normal youthful indiscretions and then there’s abnormal youthful indiscretions. Bomb scares are in the abnormal youthful indiscretions.

¶7 As to how Young’s actions in this case related to his character and the need to protect the public, the circuit court stated:

Mr. Young, the people of Sawyer County, and, for that matter, anywhere else need to believe that their neighbors, and their family, and their friends, and the rest of the people in their community are going to exercise the type of reasonable judgment necessary to keep a community safe.

....

So the community has to ask themselves, is the next time that Lorne Young is faced with adversity, is he going to act this way again? Is he going to go into a fit of illogic nonsense and grab a gun when it’s not necessary—to grab a loaded gun when it’s not necessary? To put himself in a position where that gun can be used when it’s not necessary? That’s the question the community members ask. Maybe not necessarily in that context, but that’s essentially it. Can they trust you when you come back to the community to exercise the type of judgment necessary so that people aren't afraid. They don't think you're a lunatic or a wingnut, because to be quite honest with you, you acted like a lunatic that day. An unnecessary lunatic. There’s no evidence to suggest that your life was in danger. There’s no evidence to suggest that imminent—imminent death was coming upon you or severe bodily harm. There might have been a fight coming, perhaps, but if someone says, you know, put up your dukes, you don't pull up the .45 and blow their head off. It’s not reasonable. So that’s the question that communities ask themselves when these types of things happen—or at least they should ask themselves. Are we going to trust the Lorne Youngs of the world to act reasonably when the chips are down? And when the chips were down with you, you acted anything but reasonable. You acted irrational and you acted stupid. And all of that has resulted in the death of someone, which there is no coming back from. Dead is dead.

....

The rights of the public in this particular case ... [are] to remain secure in the knowledge that their communities, and their open spaces, and their highways are going to be free of lunatics with guns running around because they can't control their emotions at any particular time. And as it applies, you know, to you, to exercise the type of judgment necessary when you are faced with a difficult situation that might become physical

...