COURT OF APPEALS 

DECISION 

DATED AND FILED

July 9, 2019 

Sheila T. Reiff 

Clerk of Court of Appeals 

 

NOTICE 

 This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1254-CR Cir. Ct. No. 2018CF2013

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT I 

STATE OF WISCONSIN, 

 PLAINTIFF-RESPONDENT, 

V. 

ANDREAL WASHINGTON, 

 DEFENDANT-APPELLANT. 

 APPEAL from an order of the circuit court for Milwaukee County: 

JEFFREY A. CONEN, Judge. Affirmed. 

 Before Brash, P.J., Kessler and Dugan, JJ. 

¶1 BRASH, P.J. Andreal Washington appeals a nonfinal order1 of the 

circuit court denying his motion to dismiss the second-degree reckless homicide 

 

1

 We grant Washington’s petition for leave to appeal in accordance with State v. Jenich, 

94 Wis. 2d 74, 288 N.W.2d 114 (1980). 
No. 2018AP1254-CR 

2 

charge against him on the grounds that this prosecution violates double jeopardy. 

Washington was previously acquitted of felony murder regarding the death of 

Travis Deon Williams. The State then subsequently filed the current charges2

against Washington for Williams’s death. 

¶2 We conclude that the circuit court properly denied Washington’s 

motion to dismiss. We therefore affirm. 

BACKGROUND

¶3 Williams was shot and killed in the basement of a residence located 

on North 64th Street in Milwaukee on April 30, 2016. Several witnesses 

identified Washington as the shooter. Washington was arrested and charged with 

first-degree reckless homicide. 

¶4 In March 2017, an amended information was filed charging 

Washington with felony murder, based on the police investigation of the incident 

which indicated that Washington shot Williams during an armed robbery at the 

residence. A jury trial was held in September 2017 on that sole charge against 

Washington. Washington testified at trial; he admitted that he had shot Williams, 

but denied that it involved an armed robbery. The jury returned a verdict of not 

guilty. 

¶5 The State subsequently charged Washington in May 2018 with 

second-degree reckless homicide for the shooting death of Williams. Washington 

filed a motion to dismiss the charge, arguing that this prosecution violates the 

 

2

 Washington is also currently charged with being a felon in possession of a firearm; he 

does not challenge that charge in this appeal. 
No. 2018AP1254-CR 

3 

constitutional protections against double jeopardy, and further, that it is barred by 

the doctrine of collateral estoppel. 

¶6 At a hearing held in June 2018, the circuit court denied 

Washington’s motion.3 The court held that there was no double jeopardy violation 

because the elements required to prove felony murder are not the same as those 

required to prove second-degree reckless homicide, citing the test established in 

Blockburger v. United States, 284 U.S. 299 (1932). The court noted that the only 

“partial element” that those crimes have in common is that “somebody died.” The 

court also rejected Washington’s collateral estoppel argument using the same 

reasoning: the charges against Washington could not have been fully tried 

previously since the elements for the crimes are not the same. Washington now 

files this interlocutory appeal. 

DISCUSSION

¶7 The Fifth Amendment to the United States Constitution, as well as 

article I, section 8 of the Wisconsin Constitution, prohibits “subjecting any person 

‘for the same offense to be twice put in jeopardy.’” State v. Hill, 2000 WI App 

259, ¶10, 240 Wis. 2d 1, 622 N.W.2d 34. The issue of whether double jeopardy 

protections have been violated is a question of law that we review de novo. See

State v. Steinhardt, 2017 WI 62, ¶11, 375 Wis. 2d 712, 896 N.W.2d 700. 

¶8 In determining whether a subsequent prosecution is violating double

jeopardy, we apply the test set forth by the United States Supreme Court in 

 

3

 The Honorable Jeffrey A. Conen presided over the first trial, and also heard 

Washington’s motion to dismiss. 
No. 2018AP1254-CR 

4 

Blockburger.

4

 Blockburger states that “where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be applied to 

determine whether there are two offenses or only one, is whether each provision 

requires proof of a fact which the other does not.” Id., 284 U.S. at 304. This test 

was essentially codified at WIS. STAT. § 939.71 (2017-18).5 

¶9 In denying Washington’s motion to dismiss, the circuit court 

reviewed the elements of both second-degree reckless homicide and felony murder 

and noted that “we’re not even close on elements.” The elements of felony 

murder are that the defendant committed one of the crimes specified in WIS. STAT. 

§ 940.03, and that the death of the victim was caused by the commission of that 

crime. See WIS JI—CRIMINAL 1030. Thus, in order to prove felony murder, the 

defendant’s commission of the underlying crime must first be proven. In contrast, 

second-degree reckless homicide only requires proof that the defendant caused the 

 

4

 Washington suggests that we apply an additional factor to the double jeopardy test: 

whether the State “will prove conduct that constitutes an offense for which the defendant has 

already been prosecuted,” set forth by the United States Supreme Court in Grady v. Corbin, 495 

U.S. 508, 510 (1990). However, Grady was expressly overturned by the Court three years later in 

United States v. Dixon, 509 U.S. 688, 704 (1993). We therefore decline to apply the additional 

factor from Grady. 

5

 WISCONSIN STAT. § 939.71 states: 

If an act forms the basis for a crime punishable under more than 

one statutory provision of this state ... a conviction or acquittal

on the merits under one provision bars a subsequent prosecution 

under the other provision unless each provision requires proof of 

a fact for conviction which the other does not require. 

(Emphasis added.) 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2018AP1254-CR 

5 

death of the victim by “criminally reckless conduct.” See WIS JI—CRIMINAL 

1060. 

¶10 We conclude, as the circuit court did, that the elements of these 

crimes are not the same. Therefore, the prosecution of Washington for seconddegree reckless homicide following his acquittal for felony murder in the death of 

Williams is not barred by either Blockburger or WIS. STAT. § 939.71. See State v. 

Vassos, 218 Wis. 2d 330, 336-37, 579 N.W.2d 35 (1998). 

¶11 Washington also argues that second-degree reckless homicide is a

lesser-included crime to felony murder, citing WIS. STAT. § 939.66(2),6 and 

therefore prosecution is barred, citing United States v. Dixon, 509 U.S. 688, 705 

(1993). That argument fails as well. In the first place, § 939.66 prevents multiple 

convictions for an offense and its lesser-included offense, not the subsequent

prosecution of a lesser-included offense. Vassos, 218 Wis. 2d at 338-39. Our 

supreme court in Vassos rejected the same argument regarding the subsequent 

prosecution for misdemeanor battery after an acquittal for felony battery. Id. 

¶12 Furthermore, under Wisconsin law, the test to determine whether an 

offense is a lesser-included offense of another is also controlled by the 

 

6

 WISCONSIN STAT. § 939.66(2) states: 

Upon prosecution for a crime, the actor may be convicted of 

either the crime charged or an included crime, but not both. An 

included crime may be any of the following: 

.... 

(2) A crime which is a less serious type of criminal 

homicide under subch. I of ch. 940 than the one charged. 

(Emphasis added.) 
No. 2018AP1254-CR 

6 

Blockburger test. State v. Lechner, 217 Wis. 2d 392, 405, 576 N.W.2d 912 

(1998). Since we have already concluded that the prosecution of Washington for 

second-degree reckless homicide is not barred by Blockburger, Washington’s 

argument is inapposite.7 

¶13 Accordingly, we affirm the circuit court’s denial of Washington’s 

motion to dismiss. 

By the Court.—Order affirmed. 

 Not recommended for publication in the official reports. 

 

7

 In his motion to dismiss, Washington also argued that the doctrine of collateral estoppel 

applied in this case. He mentions the issue in his appellant’s brief, but also includes a comment 

that it was his understanding that the issue “is not a subject of this brief.” We are unclear as to 

the meaning of that comment, and therefore we are unsure whether Washington has abandoned 

that issue. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 

(Ct. App. 1998) (an issue that is raised at the trial court level but not raised on appeal is deemed 

abandoned). If Washington did intend to argue that collateral estoppel applies, he did not develop 

the argument, and we do not consider undeveloped arguments. See Indus. Risk Insurers v. 

American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82. 

Accordingly, we do not address this issue.