State v. Peete
In State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994), the police officers found cocaine and loaded handguns while searching Peete's residence. Peete, 185 Wis. 2d at 11.
He was charged with possession of cocaine with intent to deliver while in possession of a dangerous weapon. Id.
The jury was instructed that if it was "satisfied beyond a reasonable doubt that the defendant committed the crime while possessing a dangerous weapon," it could answer "yes" to the question whether Peete committed the crime while possessing a dangerous weapon. Peete, 185 Wis. 2d at 12-13.
The court first decided that "possession" under Wis. Stat. 939.63 included constructive as well as actual possession. Id.
It then addressed the question whether the phrase "while possessing" requires the State to prove the existence of a nexus between the crime and the weapon. Peete, 185 Wis. 2d at 9.
The State and Peete both asserted the State did have to prove a nexus, and the court agreed. Peete, 185 Wis. 2d at 16-17.
The court went on to define an adequate nexus. It concluded, when the State charges that a defendant has committed a crime while possessing a dangerous weapon, the State must prove the defendant possessed the weapon to facilitate commission of the predicate offense. Peete, 185 Wis. 2d at 18.
The court arrived at this conclusion by analyzing the language of Wis. Stat. 939.63. Id.
The court observed that when the defendant commits a crime while using or threatening to use a dangerous weapon, the weapon facilitates the commission of the crime because the use or threat of use makes the victim afraid, protects the defendant, and protects any contraband in the defendant's possession. Id.
"Thus," the court stated, "the nexus requirement we establish, that a defendant possess the weapon to facilitate commission of the predicate offense, makes the language 'while possessing' in sec. 939.63 parallel in meaning to 'while ... using' or 'while ... threatening to use.' Id.
The court reversed the jury's answer to the question on the weapon enhancer and remanded for a new trial on that issue "because the court did not require that the jury find beyond reasonable doubt that Peete possessed a dangerous weapon to facilitate the commission of the predicate drug offense." Peete, 185 Wis. 2d at 19.
In sum, the statute in question set an enhanced penalty for "a person who commits a crime while possessing, using or threatening to use a dangerous weapon." Peete, 517 N.W.2d at 150 n.1.
The predicate crime was possession of cocaine with intent to deliver. Peete, 517 N.W.2d at at 151. During a search of premises where the defendant was present and the drugs were found, the police also found four loaded handguns in various locations. Id.
The Wisconsin Supreme Court reversed the defendant's conviction, requiring proof of a relationship, i.e., a nexus, between the predicate crime and possession of the weapons. See Peete, 517 N.W.2d at at 154.
Specifically, the court held that the state was "required to prove that the defendant possessed the weapon to facilitate commission of the predicate offense." Id.
The defendant in Peete was in possession of a firearm, yet the court in Peete required proof of a nexus.