Criminal Liability - Again, It's Not a Good Thing

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1 Criminal Law Issues and Your Case Craig A. Mastantuono Mastantuono Law Office, S.C. 817 North Marshall Street Milwaukee, Wisconsin P F Outcome Advocacy in Concurrent Civil/Criminal Proceedings It is not uncommon for the civil and criminal justice systems to interact when conduct occurs causing injury to another s person or property, resulting in concurrent cases. One case asserts a civil claim of liability and damages, and the other case prosecutes a criminal allegation seeking conviction and sentence. When such situations arise, attorneys who practice in different areas of law civil justice and criminal justice - can affect the claims and interests of the parties involved in the other arena. Justice is better served and clients interests are more effectively represented when attorneys monitor the proceedings and potential for litigation and settlement in the other case, and assert clients interests when necessary to the attorney(s) in the other case. Actual practice experience in the opposite arena is not necessary for counsel to act on behalf of the client in this situation - only a basic understanding of the legal and procedural framework, due diligence in paying attention to the other case, and ascertaining whether potential exists for either a beneficial or adverse effect on the client resulting from the outcome of the other case. For civil lawyers asserting injury claims for damages, the criminal justice system can seem foreign, with different burdens of proof required to successfully prosecute liability, no civil discovery process, a comparative rocket docket for cases to arrive at disposition, and justice dispensed punitively and affecting liberty interests, rather than compensatory and affecting financial interests. The key for the civil attorney monitoring the outcome of a criminal case depends on an initial assessment of the importance of the criminal case. Counsel should seek answers to the following questions: What outcome in the criminal case would benefit the client s civil claim? Can civil counsel affect the district attorney s charging decision? Does either attorney in the criminal case have a position potentially consistent with that outcome? Adverse to that outcome? Does counsel advocating for that interest in the criminal case either prosecutor or defense attorney - know that and care about that?

2 Is advocacy on behalf of the client in the opposite arena necessary to achieve that outcome? How can that advocacy be accomplished more effectively? Are there potential outcome pitfalls for the client? What legislative or procedural tools are available to allow counsel to gain access to information in the criminal case or to influence or at the least be notified regarding criminal case prosecution decisions? Example: Case Scenario Tony Carboni owns Sunshine Foods and Beverage on Milwaukee s northwest side. Nina Medina, age 14, and her two friends, Tina Delina, age 17 and Michael Noot, age 16, visit the store frequently after school to purchase candy and snacks. On a particular Monday, Tina and her friends enter the store with the intent to do a snatch and run which means taking items and running out without paying for them. With Michael holding the door to the store open, Nina and Tina enter the store and select several items. They hesitate, while Carboni stands at the counter, distracted by Michael continuing to hold open the store s door. Carboni tells the girls to leave and don t come back, yelling at them, and exits the counter enclosure with his handgun to confront Michael at the door. Carboni had been the victim of prior store armed holdups. As he exits the store, Michael closes the door in Carboni s face, hitting him. The girls and Michael run away, and Carboni fires his handgun in their direction, striking Nina Medina in the lower right leg. She is treated at a local hospital. Following the incident, Tony Carboni is charged in criminal court with the following: Count 1: Count 2: Count 3: Second Degree Recklessly Endangering Safety of Another While Armed (Felony maximum penalty 10 yrs. prison/$25,000 fine) Disorderly Conduct While Armed (Misdemeanor maximum penalty 9 mos. Jail/$1,000 fine) Injury by Negligent Handling of Dangerous Weapon (Felony maximum penalty 3 yrs. prison/$10,000 fine) Nina Medina s parents hire counsel to assert civil claims for Intentional Assault and Negligence Causing Injury, suing both Carboni and ABC Insurance Company for damages. ABC challenges coverage of the policy in place for Sunshine at the time of incident due to Carboni s alleged criminal conduct. During plea negotiations in the criminal case, the district attorney pushes for a guilty plea to Count 1, Second Degree Recklessly Endangering Safety of Another While Armed. That charge requires a finding of criminally reckless conduct, or conduct that created a risk of death or great bodily harm to another person, that the risk was unreasonable and substantial, and the defendant was aware that his conduct created the risk. Criminal defense counsel pushes for a

3 plea to Count 3, Injury by Negligent Handling of Dangerous Weapon. That charge requires a finding of criminally negligent conduct, or conduct that created a risk of death or great bodily harm, that the risk was unreasonable and substantial, and the defendant should have been aware that his conduct created the risk. Civil plaintiff counsel for victim Nina Medina and criminal defense counsel for Tony Carboni agree that an outcome in the criminal case should involve a finding of guilt on Count 3, but for different reasons. Civil plaintiff counsel desires an outcome that makes it harder for ABC Insurance to deny coverage, while criminal defense counsel seeks to limit Mr. Carboni s sentencing exposure. I) Criminal Mental States Civil counsel should have a familiarity with the relevant mental states in the criminal code to assist in determining what outcomes may be either favorable or detrimental to the crime victim/client s interests. A) Criminal Intent, Wis. Stat : (1) When criminal intent is an element of a crime in chs. 939 or 951, such intent is indicated by the term "intentionally", the phrase "with intent to", the phrase "with intent that", or some form of the verbs "know" or "believe". (2) "Know" requires only that the actor believes that the specified fact exists. (3) "Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition, except as provided in sub. (6), the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally". (4) "With intent to" or "with intent that" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result (5) Criminal intent does not require proof of knowledge of the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section. (6) Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question. B) Criminal Recklessness, Wis. Stat : (1) In this section, criminal recklessness means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk, except that for purposes of ss (1m), (2) and (1) (b) and (2) (b), criminal recklessness means that the actor creates an unreasonable and substantial risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another and the actor is aware of that risk.

4 (2) Except as provided in ss , , , and , if criminal recklessness is an element of a crime in chs. 939 to 951, the recklessness is indicated by the term reckless or recklessly. (3) A voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness if, had the actor not been in that condition, he or she would have been aware of creating an unreasonable and substantial risk of death or great bodily harm to another human being. C) Criminal Negligence, Wis. Stat : (1) In this section, criminal negligence means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another, except that for purposes of ss (2), (2) and (2), criminal negligence means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another. (2) If criminal negligence is an element of a crime in chs. 939 to 951 or s , the negligence is indicated by the term "negligent" or "negligently". II) Wisconsin Victim Rights Legislation Civil counsel should have a familiarity with Constitutional and statutory provisions concerning the rights of crime victims in Wisconsin in order to assist in accessing criminal prosecutors on behalf of crime victims/clients. A) Wisconsin Constitutional Provision: Article I. Section 9m reads: Victims of crime. This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: Timely disposition of the case; The opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; Reasonable protection from the accused throughout the criminal justice process; Notification of court proceedings; The opportunity to confer with the prosecution; The opportunity to make a statement to the court at disposition; Restitution; Compensation; and Information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [1993 J.R. 2, vote April 1993]

5 B) Wisconsin Statutes Chapter 950: Rights of Victims and Witnesses of Crime 1) Wis. Stat , Legislative Intent: In recognition of the civic and moral duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation to state and local law enforcement efforts and the general effectiveness and well-being of the criminal justice system of this state, the legislature declares its intent, in this chapter, to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy and sensitivity; and that the rights extended in this chapter to victims and witnesses of crime are honored and protected by law enforcement agencies, prosecutors and judges in a manner no less vigorous than the protections afforded criminal defendants. 2) Definition of Victim pursuant to Wis. Stat (4)(a), (20m) A person against whom a delinquent act or crime has been committed. Person includes natural persons as well as businesses and governments. Wis. Stat (26). If a child, then a parent, guardian, or legal custodian. If physically or emotionally unable to exercise the rights, then a person designated by the person or a family member. If deceased, then any of the following: a family member or a person who resided with the person who is deceased. If incompetent under Chapter 880, the guardian of the person. Does not include a person alleged to have committed the delinquent act or crime. 3) Rights of Victims, Wis. Stat (4): (1v)Victims of crimes have the following rights: (a) To have his or her interest considered when the court is deciding whether to grant a continuance in the case, as provided under ss (2) and (3)(b)3. (b) To attend court proceedings in the case, subject to ss and (1). The court may require the victim to exercise his or her right under this paragraph using telephone or live audiovisual means, if available, if the victim is under arrest, incarcerated, imprisoned or otherwise detained by any law enforcement agency or is admitted or committed on an inpatient basis to a treatment facility under ch. 51, 971, or 980, and the victim does not have a person specified in s (4)(a)3 to exercise the victim's right under this paragraph. (bm) To be provided with appropriate intercession services to ensure that employers of victims will cooperate with the criminal justice process and the juvenile justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearances. (c) To be accompanied by a service representative, as provided under s (d) To request an order for, and to be given the results of, testing to determine the presence of a communicable disease, as provided under ss or (dl) To not be the subject of a law enforcement officer's or district attorney's order,

6 request, or suggestion that he or she submit to a test using a lie detector, as defined in s (1)(b), if he or she claims to have been the victim of a sexual assault under s (2), , (1) or (2), or , except as permitted under s (e) To be provided a waiting area under ss and (em) To have his or her interests considered by the court in determining whether to exclude persons from a preliminary hearing, as provided under s (4). (f) To have the earned release review commission make a reasonable attempt to notify the victim of applications for parole or release to extended supervision, as provided under s (1). 1 (g) To have reasonable attempts made to notify the victim of hearings or court proceedings, as provided under ss (6), (4m) and (6), (2), (3) and (3)(b). 2 (gm) To have reasonable attempts made to notify the victim of an offender who submits a petition for sentence adjustment as provided under s (1r) (d), an offender who applies for release to extended supervision under s (2)(b), , or (1), or an offender who applies for a reduction under s (4m). 3 (i) To have, at his or her request, the opportunity to consult with intake workers, district attorneys and corporation counsel in cases under ch. 938, as provided under ss (1m), and (1)(am). (j) To have, at his or her request, the opportunity to consult with the prosecution in a case brought in a court of criminal jurisdiction, as provided under s (2). (k) To a speedy disposition of the case in which they are involved as a victim in order to minimize the length of time they must endure the stress of their responsibilities in connection with the matter. (l) To have the district attorney or corporation counsel, whichever is applicable, make a reasonable attempt to contact the victim concerning the victim s right to make a statement, as provided under ss (1)(b)2., (3m)(b) and (3)(b). (m) To provide statements concerning sentencing, disposition or parole, as provided under ss (1)(e), (1)(b)1., (3m)(a) and (3)(a). (n) To have direct input in the parole decision making process, as provided by the rules promulgated under s (1)(em). (nn) To attend parole interviews or hearings and make statements as provided under s (1)(eg). (nt) To attend a hearing on a petition for modification of a sentence and provide a statement concerning modification of the sentence, as provided under s (4). 4 1 Shown as amended effective October 1, 2009 by 2009 Wis. Act Shown as amended effective October 1, 2009 by 2009 Wis. Act Shown as amended effective October 1, 2009 by 2009 Wis. Act Shown as amended effective October 1, 2009 by 2009 Wis. Act 28.

7 (o) To have information concerning the impact of a delinquent act on the victim included in a court report under s and to have the person preparing the court report attempt to contact the victim, as provided under s (p) To have the person preparing a presentence investigation under s make a reasonable attempt to contact the victim, as provided in s (2m). (pm) To have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court. (q) To restitution, as provided under ss (2) (a)5., (1t), (5), , , (6), , and (qm) To recompense as provided under s (5)(a). (r) To a judgment for unpaid restitution, as provided under ss (2m) and (3)(b). (rm) To compensation, as provided under ch (s) To have any stolen or other personal property expeditiously returned by law enforcement agencies when no longer needed as evidence. If feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis and property the ownership of which is disputed, shall be returned to the person within 10 days of being taken. (t) To receive information from law enforcement agencies, as provided under s (2g). (u) To receive information from district attorneys, as provided under s (2r). (um) To have district attorneys make a reasonable attempt to notify the victim under s (4m) regarding conditional releases under s (v) To have the department of corrections make a reasonable attempt to notify the victim under s (4) regarding community residential confinements, under s (4m) regarding participation in the intensive sanctions program, under s regarding escapes from a Type 1 prison, under s (3) regarding per-sons registered under s , under s regarding release upon expiration of certain sentences, under s regarding parole releases, and under s regarding release or escape of a juvenile from correctional custody. (vm) To have the appropriate clerk of court send the victim a copy of an inmate s petition for extended supervision and notification of the hearing on that petition under s (6). (w) To have the department of corrections make a reasonable attempt to notify the victim under s (4m) regarding leave granted to qualified inmates under (x) To have the department of health and family services make a reasonable attempt to notify the victim under s (6m) regarding termination or discharge under s and under s (10) regarding home visits under s (10).

8 (xm) To have the department of health and family services make a reasonable attempt to notify the victim under s regarding supervised release under s and discharge under s or (y) To have reasonable attempts made to notify the victim concerning actions taken in a juvenile proceeding, as provided under ss (5m), (2m), and (yd) To have the appropriate clerk of court make a reasonable attempt to send the victim a copy of a motion made under s (2) for postconviction deoxyribonucleic acid testing of certain evidence and notification of any hearing on that motion, as provided under s (4). (ym) To have the governor make a reasonable attempt to notify the victim of a pardon application, as provided under s (2) and (3). (z) To make a written statement concerning pardon applications, as provided under s (2). (zm) To request information from a district attorney concerning the disposition of a case involving a crime of which he or she was a victim, as provided under s (6). (zx) To complain to the department of justice concerning the treatment of crime victims, as provided under s (3), and to request review by the crime victims rights board of the complaint, as provided under s (2). III) Procedure & Discovery Civil Counsel should have a basic understanding of the following statutory provisions in the criminal code, and case law, in order to: A) Ascertain parameters of a criminal prosecutor s charging decision. Prosecutors in Wisconsin are afforded broad discretion for purposes of determining whether to bring charges against a defendant and initiate criminal proceedings. State v. Burke, 153 Wis. 2d 445, 451, 451 N.W.2d 739 (1990) (citing State v. Hooper, 101 Wis. 2d 517, 532, 305 N.W.2d 110 (1981)). B) Anticipate potential pre-trial testimony in a felony case regarding the incident. Preliminary Hearing, Wis. Stat : (1) A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant. A preliminary examination may be held in conjunction with a bail revocation hearing under s (5) (b), but separate findings shall be made by the judge relating to the preliminary examination and to the bail revocation. C) Anticipate prosecution notice requirements to a crime victim/client. District Attorney s Duty to the Victim, Wis. Stat : (2) In any case in which a defendant has been charged with a crime, the district attorney shall, as soon as practicable, offer all of the victims in the case who have requested the opportunity an opportunity to confer with the district attorney concerning the prosecution of the case and the possible outcomes of the prosecution, including

9 potential plea agreements and sentencing recommendations. The duty to confer under this subsection does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge against the defendant. D) Ascertain what information regarding the incident will be disclosed to the defendant in a criminal case. Discovery, Wis. Stat : (1) What a District Attorney Must Disclose to a Defendant: Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state: (a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s or before a grand jury, and the names of witnesses to the defendant's written statements. (b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements. (bm) Evidence obtained in the manner described under s (2)(b), if the district attorney intends to use the evidence at trial. (c) A copy of the defendant's criminal record. (d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only. (e) Any relevant written or recorded statements of a witness named on a list under par. (d), including any audiovisual recording of an oral statement of a child under s , any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial. (f) The criminal record of a prosecution witness which is known to the district attorney. (g) Any physical evidence that the district attorney intends to offer in evidence at the trial. (h) Any exculpatory evidence.