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01-1679 State v. Gordon

By: dmc-admin//January 21, 2002//

01-1679 State v. Gordon

By: dmc-admin//January 21, 2002//

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“The trial court did not recite the jury instruction on first-degree recklessly endangering safety. Rather, it simply responded to the jury’s specific and logical inquiry by explaining that the crime of first-degree recklessly endangering safety involves an additional element – the defendant must act with utter disregard for human life. Additionally, the trial court made it abundantly clear that Gordon was not charged with first-degree recklessly endangering safety, that the jurors were not to speculate or deliberate regarding the crime in the first-degree, and that the jury’s sole task was to focus on the two elements of the second-degree charge.

However, where defendant’s counsel during closing argument, in effect, conceded defendant’s guilt to the charge of disorderly conduct while armed, we agree with defendant that defense counsel unconstitutionally waived defendant’s right to plead not guilty.

Accordingly, we remand the matter to the trial court so that it may conduct a Machner evidentiary hearing.

Further, by directing the jury to accept as conclusively proven that Gordon was served with the order, the trial court erroneously removed a factual issue from the jury’s consideration. For the foregoing reasons, we reverse the judgment convicting Gordon of knowingly violating a domestic abuse injunction and remand the matter to the trial court for a new trial on this charge.

Affirmed in part, reversed in part and remanded with directions.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Sankovitz, J., Curley, J.

Attorneys:

For Appellant: Not given

For Respondent: Not given

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