Background
Demetrius L. Cooper was convicted after a five-day jury trial of attempted first-degree intentional homicide for shooting at Thomas, a confidential informant who had testified against him in a pending drug case. Evidence showed that Cooper had said “no witness, no trial,” tried to lure Thomas to an isolated location with a fraudulent inheritance letter, located and surveyed Thomas’ home, and returned armed on the night of the shooting.
When Thomas and his wife, Mary, went outside, Cooper fired toward Thomas from about 130 feet away. Cooper later admitted the shooting to others, and additional evidence showed that he tried to prevent witnesses from testifying and attempted to manufacture a false alibi. After an earlier direct appeal, the court restored Cooper’s appellate rights solely to challenge the circuit court’s refusal to instruct the jury on recklessly endangering safety as a lesser-included offense concerning Thomas.
The Court’s Holding
The Court of Appeals affirmed. A defendant is entitled to a lesser-included-offense instruction only when the evidence provides reasonable grounds both to acquit on the greater charge and to convict on the lesser charge. Reviewing that question de novo, the court concluded that no reasonable view of the evidence supported finding that Cooper merely acted recklessly toward Thomas.
The evidence instead unequivocally showed an intent to kill: Cooper planned to eliminate Thomas as a witness, previously tried to lure him elsewhere, surveilled his home, lay in wait, refrained from firing when Mary emerged alone, and fired only after Thomas appeared. Although a reckless-endangerment instruction was appropriate regarding Mary as potential collateral harm, Cooper’s failure to hit Thomas did not diminish the evidence that Thomas was his intended target.
Key Takeaways
- A lesser-included-offense instruction requires evidence supporting both acquittal on the greater offense and conviction on the lesser offense.
- A defendant’s missed shots do not establish recklessness when the surrounding evidence unequivocally demonstrates an intent to kill the targeted victim.
- The same shooting may support different instructions for an intended target and a person exposed only as collateral harm.
Why It Matters
The decision illustrates that courts assess lesser-included instructions victim by victim and in light of the full evidentiary record. Evidence of planning, motive, waiting for a particular victim, and post-offense witness manipulation may foreclose a reasonable inference of mere recklessness even when the attack fails.
The opinion is unpublished and may not be cited as precedent or authority except for the limited purposes permitted by Wisconsin law.