What does Williams mean?
On Thursday I wrote about the Supreme Court's decision last week in State v. Williams, bemoaning the fact that while the court had agreed that felonious assault and attempted murder were allied offenses, it bought into the idea that Williams could be convicted of two separate counts of attempted murder because he'd fired two shots at the victim. Several people have suggested I'm wrong, so I took another look at the decision.
There are three arguments against my position. First, the opinion never says that the result is two counts of attempted murder; the court reverses the 8th District decision, which found Williams could be convicted of single attempted murder count, and remands it, but an argument could be made that it's simply doing so in line with its recent decision in State v. Whitfield holding that the prosecutor, not the court (trial or appellate), decides which conviction to proceed on.
Second, that result would be something the State didn't even ask for. While it did argue the idea of a separate animus for each shot in their brief (pages 13-14), I went back and checked the oral argument. About 16:43 into it, the prosecutor indicates that she's talking about a separate animus for the felonious assault and the attempted murder. In fact, the State's proposition of law was that the "defendant may be found guilty and sentenced separately for these Felonious Assaults in addition to Attempted Murder."
Finally, such a result would be contrary to a number of recent Supreme Court decisions, as we'll get to later on.
On the other hand, one person agrees with me: Justice Lanzinger. In her concurrence/dissent, she agrees that the felonious assaults merge with the attempted murders, and that "this case should be remanded to the trial court for the state to elect which of the four allied offenses Williams will be sentenced on, but I would limit the election to a single crime." That's in fact the only disagreement she has with the majority; if the majority's holding is that only a single count of attempted murder survives, there's no reason for her to dissent.
It's not hard to see where she got the idea that the majority was going a different way. Justice O'Donnell's opinion, after the obligatory recitation of the facts and the basic law, buys right into the separate shot theory:
In our application of [the Cabrales test to this case, we recognize that the indictment charged Williams with two counts of attempted murder and two counts of felonious assault arising out of two separate gunshots he fired at McKinney. Counts two and three correlate to the bullet that did not strike McKinney. . . Counts one and four correlate to the bullet that paralyzed McKinney. . . Thus, for each bullet Williams fired at McKinney, he was found guilty of one count of felonious assault and one count of attempted murder. Accordingly, we consider whether the attempted-murder and felonious-assault charges relating to each gunshot are allied offenses of similar import. [My emphasis.]
O'Donnell has a point: the two subsections of the felonious assault statute do correspond to the two gunshots. Subsection (A)(1), causing serious physical harm, was the bullet that paralyzed the victim. Subsection (A)(2), using a deadly weapon to cause or attempt to cause physical harm could correspond to the bullet that missed.
Whether that distinction would suffice to make them separate offenses is yet another story. State v. Harris last year dealt with a case where the victim had been shot twice, and the Supreme Court had no trouble concluding that "under the facts of this case. . . both assault offenses were committed with the same animus." Other than the fact that in Harris the victim was hit with both bullets, there's no way to distinguish between the two.
And the "separate shot/separate act" theory runs aground on the attempted murder charges. Again, the indictment is based on separate subsections, but there's no way to ascribe the shots to one or the other: one subsection charges an attempt to purposely cause the death of another, the other an attempt to cause the death of another while committing a first- or second-degree felony offense of violence. You tell me which charge applies to which shot.
It could be that I'm reading way too much into all this, and the only real problem with the court's opinion is a lack of clarity on that point.
But if I'm not wrong, we've got a mess on our hands. How do you square Williams with Harris? And what about State v. Carter, where the defendant's convictions for two counts of felonious assault were initially upheld by the 8th District on the theory he'd stabbed the victim twice? The Supreme Court reversed and told the court to review the animus question in light of Harris, and when it did, the 8th concluded that no separate animus existed. The latter opinion contains an excellent analysis of the issue:
The fact that there were several wounds does not automatically mean that a separate animus attaches to each injury. In determining whether a separate animus exists, courts have examined case-specific factors such as whether the defendant at some point broke "a temporal continuum started by his initial act"; whether, at some point, the defendant created a "substantial independent risk of harm"; whether facts appear in the record that "distinguish the circumstances or draw a line of distinction that enables a trier of fact to reasonably conclude separate and distinct crimes were committed"; and whether a "significant amount of time passed between the beginning of the felonious assault and the end of the attack."
Perhaps the most maddening aspect of Williams is that this analysis is conspicuous by its absence: the court's opinion seemingly adopts the one shot/one count (or one stab/one count, one punch/one count) rule without articulating any justification for doing so.
The nice thing about the current state of confusion about allied offenses is that there is no shortage of cases on that issue pending review by the Supreme Court. One can only hope that the court will utilize one of those cases to clarify what it means in Williams. Until it does so, the net result of Williams is to substantially increase that confusion.