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The state Supreme Court has reinstated the conviction of a Milwaukee man charged with first-degree reckless injury after he shot a man in the neck. Donovan Burris, now 24, was sentenced to 18 years in prison following a jury trial in 2008.

Milwaukee County Courthouse

At the trial, witnesses provided varying accounts of the circumstance surrounding the shooting, which occurred in 2007. All agreed, according to the Supreme Court opinion, that during an argument with the mother of his children and her brother, Kamal Rashada, Burris shot Rashada in his neck at point-blank range, paralyzing him.

The witnesses also agreed that Burris, after shooting Rashada, exclaimed that he didn’t mean to shoot him, expressed remorse and begged for someone in the room to take the gun and shoot him (Burris).

The prosecution and defense agreed the gun, which Burris had brought to the home, had a hair trigger. He claimed he brought the gun to the house because he had been threatened by neighbors in the area and feared for his safety.

To prove he committed first-degree reckless injury, prosecutors needed to persuade the jury he acted with “utter disregard for human life.”

At the trial, Burris said the gun went off after Rashada grabbed his wrist; other witnesses testified Burris was waving around the gun and may have pointed it at Rashada before firing it.

During deliberations, the Milwaukee County Circuit Court jury asked Judge William Sosnay if they could consider Burris’ conduct after the shooting. To answer, Sosnay cited a 2010 state Supreme Court decision stating that “after-the-fact regard for human life does not negate utter disregard otherwise established by the circumstance before and during the crime. It may be considered … as a part of the total factual picture, but it does not operate to preclude a finding of utter disregard for human life.”

The appeals court ruled that the jury instruction was confusing and may have led the jury to believe it couldn’t consider Burris’ post-shooting remorse at all when Wisconsin case law says it can be weighed alongside other evidence. It reversed the conviction and said Burris was entitled to a new trial.

But the Supreme Court opinion reinstates the conviction. The majority opinion admits the instruction was “potentially ambiguous” but argues there was no “reasonable likelihood” it misled the jury and resulted in an unconstitutional verdict. Justice David Prosser concurred with the majority opinion but argued that Burris’ remorse was irrelevant; all that mattered, he said, was what happened before and during the shooting.

A dissenting opinion by Justice Shirley Abrahamson argued the appeals court was right and the jury instruction was misleading and warranted a new trial.

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