State v. Antonio Darnell Mays

Rule of Law:

A charge of felony murder, predicated on an armed burglary where the underlying felony is the intent to commit second-degree recklessly endangering safety, constitutes a valid crime under Wisconsin law because an individual can form a purpose or intent to cause a particular result through criminally reckless conduct.

Facts:

• In March 2018, police responded to a shooting at an apartment building on North 27th Street, where they found Malyk Smith and Romale Richardson shot dead.
• Witnesses Christopher Wright and Jervita Tisdale reported that several people, including Richardson, were playing dice at Smith's residence when a person forced entry and started shooting after Smith (or Richardson) answered the door, and Richardson fired back.
• Wright heard Brandon Jones, who had been playing dice and lost money at the apartment, make a telephone call, mention his losses, ask for the apartment address, and then leave shortly before the shooting.
• Mays arrived at St. Joseph’s Hospital with a gunshot wound, brought by his cousin, Jones, and initially told police he was running away from two males attempting to rob him when he was shot.
• Jones later told detectives that he had lost money playing dice at Smith’s residence, called Mays, and then saw Mays enter the apartment, heard approximately nine shots, and observed Mays run out with two guns.
• Jones admitted he drove Mays to a residence where Mays left the guns, and then drove Mays to the hospital.
• Ballistics tests matched casings from the shooting scene to a .45 caliber gun and a 9mm gun later discovered during a search warrant at Mays's residence.
• Mays's blood was found at the scene of the shooting.

Procedural Posture:

• Antonio Darnell Mays was initially charged in the circuit court for Milwaukee County with two counts of 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.
• The matter proceeded to a jury trial in October 2018.
• On the third day of trial, the State filed an amended information attempting to change the first count of first-degree reckless homicide (for Smith's death) to felony murder, with armed burglary predicated on the intent to commit second-degree recklessly endangering safety as the underlying felony.
• Mays objected to amending the information, arguing it would be prejudicial and was a concession by the State.
• The trial court initially indicated its inclination was to disallow the amended information, suggesting felony murder could instead be included as a lesser-included offense in the jury instructions.
• The State subsequently agreed to withdraw the amended information, and Mays's trial counsel withdrew his objection.
• The jury instructions provided 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), predicated on the intent to commit second-degree recklessly endangering safety.
• 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.
• Mays filed a postconviction motion in the circuit court for Milwaukee County, seeking to vacate his felony murder conviction on the grounds that the underlying burglary charge (predicated on the intent to commit second-degree recklessly endangering safety) was not a "cognizable crime" under Wisconsin law.
• The circuit court denied Mays's postconviction motion, relying on State v. Kloss.
• Mays appealed the judgment of conviction and the order denying postconviction relief to the Court of Appeals of Wisconsin (defendant-appellant).