Counsel and judge's failure to appreciate multiplicity issue means new trial for Columbia County defendant

​By Alexandria Staubach
 
The Wisconsin Court of Appeals recently reversed a man’s conviction because the attorneys and court all failed to realize until too late that two charges sent to the jury were not separate offenses; instead, one was a lesser-included offense of the other.
 
Wisconsin Court of Appeals District IV remanded the case to Columbia County Circuit Court for a new trial.

Blanchard

Judge Brian Blanchard wrote for the panel, joined by Presiding Judge JoAnne Kloppenburg and Judge Chris Taylor.
 
Samuel Osornio was charged with both delivery of heroin and first-degree reckless homicide by delivery of heroin. A jury found Osornio guilty on both charges, exposing him to potential punishment on both. But the charges arose from the same conduct of delivering heroin and the elements for one count were all included in the other count as well.
 
The legal name for such situations is “multiplicity.” It happens when charges require the same elements to prove an offense to a jury, stemming from the same facts—here that Osornio delivered heroin and that he delivered heroin which resulted in death. Because the reckless-homicide charge added death to the elements of heroin delivery, the delivery charge was a “lesser-included” offense of the reckless-homicide charge.
 
The prosecutor, defense attorney, and Columbia County Circuit Judge Todd Helper all failed to appreciate that the delivery and reckless homicide charges required proof of the same elements until the jury was well into lengthy jury deliberations after a two-day trial.
 
Helper had not given any jury instruction about considering a lesser-included offense.
 
Three hours into deliberations, the jury informed the court that it could not reach a verdict as to the reckless homicide offense but that it had consensus on the delivery offense.
 
Helper then ordered the jury to continue its deliberations, still unaware of the multiplicity issue and without giving a lesser-included instruction.
 
The lesser-included instruction would have told the jury that if it had already made every reasonable effort to decide the greater offense of reckless homicide, it could proceed to resolve the lesser-included charge of heroin delivery.
 
The appeals court found that counsel for Osornio’s counsel failed to notice this multiplicity issue in a timely manner, which resulted in prejudice and ineffective assistance of counsel.
 
The question for prejudice resulting from deficient performance of counsel is “whether it is reasonably likely the result would have been different,” Blanchard wrote. Here, he said, “there is a substantial, not merely a conceivable, likelihood that a jury that was properly instructed from the start would have reached a more favorable result for Osornio.”
 
While Helper ultimately sentenced Osornio on only the reckless-homicide charge, the appeals court found that “the missed potential benefit to Osornio should have been obvious from the time the case was charged through to the time of trial.”
 
“(A)pplying the objective standard of reasonableness, the three overlapping elements in the two counts should have prompted double jeopardy concerns by defense counsel before trial,” Blanchard wrote.

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