State v. Collin M. Kane

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 6, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP2214-CR Cir. Ct. No. 2019CF1275

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

COLLIN M. KANE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: JENNIFER R. DOROW, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP2214-CR

¶1 PER CURIAM. Collin M. Kane appeals a judgment of conviction
for first-degree reckless homicide by delivery of a controlled substance as a party
to a crime. The victim was his girlfriend Helen,1 who died of a fentanyl overdose.
The day prior to her death, Kane had arranged the drug purchase with his
ex-girlfriend, who ultimately purchased the drugs for Kane and Helen.

¶2 On appeal, Kane argues the joint-user defense should relieve him of
liability under the relevant homicide statute, WIS. STAT. § 940.02(2)(a), because
he and Helen simultaneously and jointly acquired the drugs for their own personal
use together. He also challenges his trial attorney’s failure to object to certain
police testimony at his trial, including testimony about the nature of and reason for
the charges against Kane and others. Finally, Kane argues that this same
testimony was also plain error that necessitates a new trial.

¶3 We conclude that as it relates to party-to-a-crime liability for
reckless homicide by delivery of a controlled substance, there is no joint-user
defense available under Wisconsin law. We also conclude Kane’s trial counsel
did not perform deficiently in failing to object to any of the challenged police
testimony. That testimony also did not constitute plain error. Accordingly, we
affirm.

1
Consistent with the policy underlying WIS. STAT. RULE 809.86 (2021-22) and the
parties’ briefing practice, we use a pseudonym for the victim.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2022AP2214-CR

BACKGROUND

¶4 On the evening of October 7, 2018, Helen died from a fentanyl
overdose. Kane was in her room for the entire day until he abruptly left her house
shortly before her body was discovered. In the preceding hours, he had exchanged
panicked text messages with his ex-girlfriend, Alesha Block. Block had advised
Kane to get help for Helen, but Kane had not.

¶5 As the investigation proceeded, police discovered that Kane and
Block had exchanged more text messages on the day prior to Helen’s death.
Police understood those messages as Kane requesting that Block pick up heroin
for him and Helen from their regular dealer, Jevante Winston.2

¶6 By the time of trial, it was generally undisputed that Block had
purchased the drugs for Kane and Helen. Kane owed Winston money and could
not buy the heroin himself. He and Helen pooled together $30, met Block, drove
with her to the pickup location, gave her the money, and left the car while Block
drove to meet Winston. Block brought back the heroin and broke some off for
Kane and Helen. Then Kane and Helen went back to Helen’s house, where they
remained until the following day.

¶7 Kane proceeded to trial on a charge of first-degree reckless homicide
by delivery of a controlled substance as a party to a crime. The trial featured
extensive testimony from the principal investigating officer, Detective Aaron
Hoppe. The defense’s argument was that Kane’s role in the drug transaction was

2
Winston—also known as “TJ”—was Kane’s dealer first, and Kane had introduced
Block to him.

3
No. 2022AP2214-CR

so minimal that it did not constitute aiding and abetting the delivery. The jury
found Kane guilty, and he was ordered to serve a bifurcated sentence of ten years’
initial confinement and eight years’ extended supervision.3

¶8 Kane filed a postconviction motion seeking the dismissal of the
complaint or, alternatively, a new trial. The motion proposed that under the
“joint-user defense” recognized in other jurisdictions, Kane could not be found
guilty in relation to the delivery of a controlled substance because he and Helen
were joint users who simultaneously acquired possession of the drugs solely for
their own personal use. Kane also presented ineffective assistance of counsel
claims relating to his trial counsel’s failure to object to certain of Hoppe’s
testimony regarding his understanding of the text messages between Kane and
Block and the nature of and reason for the charge against Kane, amongst others.
Kane also alleged that the admission of certain of Hoppe’s testimony was plain
error necessitating a new trial.

¶9 Following a Machner hearing,4 the circuit court denied the motion.
The court declined to recognize a joint-user defense to Kane’s crime under
Wisconsin law. The court also determined that Kane’s trial counsel was not
constitutionally deficient in her handling of Hoppe’s testimony, nor did that
testimony constitute plain error. Kane now appeals, advancing the same
arguments as in his postconviction motion.

3
Following Kane’s conviction, first-degree reckless homicide by delivery of a controlled
substance was reclassified from a Class C felony to a Class B felony. See 2023 Wis. Act 29.
4
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

4
No. 2022AP2214-CR

DISCUSSION

I. A joint-user defense to reckless homicide by delivery under WIS. STAT.
§ 940.02(2)(a) is not available to Kane under existing Wisconsin law,
and it would be an absurd interpretation of the relevant statutes to
recognize such a defense.

¶10 Using a sufficiency-of-the-evidence lens,5 Kane argues that he could
not be found liable for reckless homicide by delivery of a controlled substance
under the circumstances here. Kane does not argue the jury, as instructed, lacked
sufficient evidence to convict him of first-degree reckless homicide as a party to a
crime. Rather, he argues this court should recognize the joint-user defense
articulated in United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the thesis
being that individuals cannot be liable for delivery merely by jointly and
simultaneously procuring drugs that they intend to share for personal use.6
Cf. State v. Smith, 189 Wis. 2d 496, 501, 525 N.W.2d 264 (1995) (holding that
evidence that a buyer desired to purchase a small amount of cocaine for personal
use was insufficient to establish a conspiracy to deliver a controlled substance).

¶11 Although Kane argues otherwise, the contours of his proposed
joint-user defense are inconsistent with the criminal liability established by
Wisconsin law for reckless homicide by delivery of a controlled substance as a

5
We will uphold a conviction under the sufficiency-of-the-evidence standard unless the
evidence, viewed most favorably to the conviction, is so lacking in probative value and force that
no reasonable trier of fact could have found guilt beyond a reasonable doubt. State v. Beamon,
2013 WI 47, ¶20, 347 Wis. 2d 559, 830 N.W.2d 681. The question of whether the evidence was
sufficient to sustain a guilty verdict is a question of law that we review de novo. State v. Smith,
2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410.
6
Kane is unclear about the remedy flowing from this requested recognition; he variously
proposes that we reverse the judgment of conviction and, as a matter of law, direct the circuit
court to enter a judgment of acquittal, or, in the alternative, that we direct the court to hold a new
trial (presumably one at which the jury would be instructed about the joint-user defense).

5
No. 2022AP2214-CR

party to a crime. Notably, he frames his argument as an “interpretation” of WIS.
STAT. § 940.02(2)(a), but he fails to demonstrate how his interpretation comports
with the language of the relevant statutes. This omission is significant: any
interpretive task typically begins with the statutory text. State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

¶12 The text of WIS. STAT. § 940.02(2)(a), considered in the context of
party-to-a-crime liability, requires that we reject Kane’s interpretation. As
relevant here, subsec. (2)(a) criminalizes the “delivery”—as defined by WIS. STAT.
§ 961.01(6) via cross-reference to WIS. STAT. § 961.41—of a controlled substance
if another person uses that substance and dies as a result of that use.
Section 961.01(6), in turn, generally defines “delivery” as “the actual, constructive
or attempted transfer from one to person to another.” And party-to-a-crime
liability attaches when a person is “concerned in the commission of a crime,”
meaning the person directly committed the crime, intentionally aided and abetted
the commission of the crime, or was party to a conspiracy with another to commit
it. WIS. STAT. § 939.05(2)(a)-(c).

¶13 Under this statutory framework, the circuit court correctly ruled that
for someone in Kane’s position, no joint-user defense is available. To Kane, all
that matters is that he and Helen jointly acquired possession of the drugs for their
own shared use. Analogizing the situation to one in which one person orders a
pizza for a group of people to share, Kane asserts that it is irrelevant for liability
purposes that he was the one to facilitate the transaction by coordinating with
Block. The plain statutory language requires that we reject this argument.

¶14 Indeed, we recently rejected a sufficiency-of-the-evidence challenge
from a defendant who had an even smaller role in the procurement of drugs than

6
No. 2022AP2214-CR

Kane did. In State v. Hibbard, 2022 WI App 53, ¶14, 404 Wis. 2d 668, 982
N.W.2d 105, review denied, 2023 WI 29, 998 N.W.2d 830, the defendant picked
up his daughter and drove her to the place where she had arranged to pick up
heroin. Hibbard’s text messages were such that the jury could infer he had
knowledge that the dealer intended to deliver heroin to his daughter at the meeting
spot. Id., ¶14. Hibbard’s daughter gave him some of the drugs when they
returned home. Id., ¶4.

¶15 In Hibbard, the defendant argued too that he engaged in exclusively
“buyer-side conduct” that did not fall within the ambit of WIS. STAT.
§§ 940.02(2)(a) and 939.05. Hibbard, 404 Wis. 2d 668, ¶15. We were
unpersuaded, rejecting Hibbard’s “fundamentally incorrect premise” that his
conduct could only have aided his daughter in acquiring the drugs or the dealer in
delivering the drugs, but not both. Id., ¶20. Instead, we recognized that those two
concepts were not mutually exclusive: Hibbard both aided his daughter in
obtaining the drugs and the dealer in delivering them to her. Id.

¶16 We reject Kane’s reasoning here for the same reason that we rejected
the defendant’s “buyer-side conduct” reasoning in Hibbard. Kane was the one to
reach out to Block to coordinate the transaction, even instructing Block to have her
dealer—his dealer, really—stay up waiting for them. It is Kane’s actions relative
to Block in facilitating the delivery that matter, not his actions relative to Helen as
a co-user.

¶17 And while Kane attempts to distinguish Hibbard as “not a joint-user
case” because the defendant and his daughter did not use the drugs together, his
proposed interpretation produces absurd results. See Kalal, 271 Wis. 2d 633, ¶46
(observing statutory language is interpreted to avoid absurd or unreasonable

7
No. 2022AP2214-CR

results). Kane’s construction of WIS. STAT. §§ 940.02(2)(a) and 939.05 arbitrarily
restricts criminal liability for delivery based on whether a defendant uses (or
intends to use) the drugs they helped deliver with the deceased individual.

¶18 To elaborate on that point, and as Kane’s trial counsel emphasized to
the jury, the spectrum of actions that can give rise to party-to-a-crime liability is
broad. Kane gives an almost talismanic quality to a person’s decision to use some
of the drugs he or she procures with the victim, but he fails to demonstrate why
this result is justified under the law. As set forth above, Kane was certainly a
co-user; but as the jury recognized, he was also a key cog in the delivery
mechanism. Kane does not directly grapple with this dual concept, and it seems
evident his proposed interpretation would merely prompt further litigation about
what it means to be a “joint user.”7

¶19 Existing case law highlights the absurdity of the interpretation Kane
proposes. The defendant in Hibbard, particularly, had a minimal role in the
delivery of the drugs that consisted of merely driving the victim to the drug buy.
Hibbard, 404 Wis. 2d 668, ¶4. Unlike Kane, Hibbard did not use the drugs with
the victim, but he did take some of the drugs the victim procured for himself. Id.
Kane does not provide a satisfactory explanation of why criminal liability should
attach for Hibbard’s conduct but not for his, particularly when Kane had a much
more prominent role in supplying drugs to the victim. Indeed, his involvement in
facilitating the drug transaction was at least as much as the defendant in State v.

7
To this point, Kane’s postconviction motion alleged as a fact that after Block returned
with Kane and Helen to the location where she had picked them up, all three “used some of the
fentanyl together.” Thus, even under the facts of this case, Kane’s interpretation falters, as his
trial defense was that Block was the much more culpable actor in relation to Helen’s death.

8
No. 2022AP2214-CR

Hecht, 116 Wis. 2d 605, 607-10, 342 N.W.2d 712 (1984), who was a third party to
the drug transaction but nonetheless found criminally liable for the delivery as a
party to a crime based upon his introducing the buyer and seller and negotiating
the drug transaction. The arbitrary line-drawing Kane proposes is a judicial gloss
that is unnecessary in light of the clear statutory commands8 and existing case law.

II. Kane’s trial counsel was not constitutionally ineffective for failing to
object to Hoppe’s testimony about county charging practices or the
meaning of Block’s text messages.

¶20 Kane next argues that his trial counsel was constitutionally
ineffective for failing to object to certain of Detective Hoppe’s testimony.
Specifically, he argues that certain of Hoppe’s testimony impermissibly instructed
the jury about the meaning of the law, while other portions of his testimony
contained information of which Hoppe was lacking in personal knowledge.

¶21 The Sixth Amendment guarantees a defendant the effective
assistance of counsel. State v. Savage, 2020 WI 93, ¶27, 395 Wis. 2d 1, 951
N.W.2d 838. We review an ineffective assistance of counsel claim using a mixed
standard of review. Id., ¶25. The circuit court’s factual findings, including those
regarding trial counsel’s conduct and strategy, will not be overturned unless they
are clearly erroneous, but we review de novo whether counsel’s conduct
constitutes constitutionally ineffective assistance. Id.

¶22 To prevail on an ineffective assistance claim, the defendant must
show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Id.; see also Strickland v. Washington,

8
At least, no one has suggested here that the relevant statutes are ambiguous.

9
No. 2022AP2214-CR

466 U.S. 668, 687 (1984). If the defendant fails to establish either prong, we need
not address the other. Savage, 395 Wis. 2d 1, ¶25.

¶23 To demonstrate deficient performance, the defendant must show that
his or her attorney made errors so serious that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Id., ¶28. We presume that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and we will grant relief only upon a showing that counsel’s performance was
objectively unreasonable under the circumstances. Id. Prejudice is demonstrated
by showing a reasonable probability that, but for counsel’s unprofessional
conduct, the result of the proceeding would have been different. Id., ¶32.

A. Hoppe’s testimony about “[t]he way the law is written” was
provided in the context of discussing the reason for the charging
decisions made in relation to Winston, Block, and Kane, and Kane’s
counsel’s decision not to object was prompted by strategic
considerations.

¶24 The resolution of Kane’s challenge requires a contextual review of
Hoppe’s testimony. Early on, the State established that all overdose deaths in
Waukesha County are investigated by the Sheriff’s Department. Hoppe testified
the investigation begins with the person that died and involves “moving up the
ladder” to “find out who played a role, whether there was financial, transportation,
calling, setting up the transaction,” or other involvement. He continued that his
office had a high clearance rate, estimating that about ninety percent of cases
ended with a referral of charges.

¶25 On cross-examination, Kane’s trial counsel believed she could use
that information—as well as Hoppe’s acknowledgement that Block had been
referred for charges—to Kane’s benefit. Her theory of the case was that the State

10
No. 2022AP2214-CR

was overreaching in its theory that Kane was the “idea guy” who had pursued
heroin from his own dealer. She and her co-counsel were eager to put that theory
before the jury in the hopes that the jury would conclude Kane’s role was so
minimal that he should not be held liable for the delivery. She wanted to
emphasize that Kane’s role was much different than the roles of Winston and
Block in the drug transaction. In essence, she wanted to make a burden-of-proof
defense.

¶26 Thus, Kane’s trial counsel, on cross-examination, focused on
Block’s culpability, emphasizing that Block had seemingly also purchased drugs
during the transaction, that she had heroin in her possession at the time she was
taken into custody, that she was evasive during police questioning, and that she
had had extensive contacts with Winston outside of Kane.

¶27 Kane’s trial counsel also asked Hoppe about whether charges had
been referred for Winston. Over the State’s objection, Hoppe was permitted to
testify that he had not referred charges to the Waukesha County District
Attorney’s Office for Winston and that Winston had not been charged in
Waukesha County, though he was involved in some federal proceedings.9

¶28 It is Hoppe’s testimony offered in response to this line of
questioning during re-direct examination that Kane views as problematic. Hoppe
answered affirmatively to the prosecutor’s question about whether more than one
person could be charged relating to a single death, and then discussed why that
was so:

9
The circuit court determined the State had opened the door to such testimony by
questioning Hoppe during direct examination about whether Block had been charged.

11
No. 2022AP2214-CR

A The way the law is written, if you take part in a
transaction that led to someone’s death, whether
you again provided transport, whether you played a
role, whether you set up the deal, provided money,
you facilitated … that transaction.

And if that transaction leads to someone’s death,
whoever is responsible, whoever played a role in
any manner, again, taking them down for the
transportation, chipping in money, setting it up
themselves, using their phone to set up that
transaction, it’s common for us to charge anyone.
We have to hold anyone responsible for that
person’s death.

Q So that would include [Winston], the Milwaukee
for-profit drug dealer guy, right?

A Yes.

Q And sometimes you testified that includes family
members or friends of the person that died?

A Yes.

Q And sometimes are those people not a drug dealer,
the way that maybe jurors think of that term?

A Yes, it’s a middle person. It’s somebody who is not
a drug dealer.… In unfortunate circumstances,
while it’s not the intent, it leads to someone’s death,
unfortunately they’re still held liable.

Q So in this case, this includes both the defendant and
Alesha Block?

A Yes, very much so.

Kane’s trial counsel testified at the Machner hearing that this testimony supported
her burden-of-proof defense that the State was casting too wide a net for anyone
even tangentially related to the overdose death and that she made a conscious
decision not to object.

¶29 We agree that this was a reasonable strategic decision by defense
counsel that does not constitute constitutionally ineffective assistance. Considered

12
No. 2022AP2214-CR

in its context, the challenged testimony related to the charging practices in
Waukesha County, not to the black-letter elements of state law or to Kane’s guilt.
See State v. McDowell, 2003 WI App 168, ¶62 n.20, 266 Wis. 2d 599, 669
N.W.2d 204, aff’d, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500 (observing that
the court, not a witness, is the expert on domestic law); Roe v. State, 95 Wis. 2d
226, 248, 290 N.W.2d 291 (1980) (holding that expert witnesses may not give an
opinion as to the guilt or innocence of a defendant). Thus, we are not persuaded
an objection was necessary.

¶30 Moreover, Kane’s trial counsel reasonably regarded the testimony as
supporting her theory of the defense. She made this explicit during her closing
argument, where she highlighted all of the things Block did to set up the drug buy
and portrayed Kane as a bystander who did not—and could not, given the debt he
owed to Winston—assist with the delivery. Trial counsel’s decision not to object
was within the wide range of constitutionally permissible assistance, as the
reasonable strategic choices of counsel when presented with several plausible
options are “virtually unchallengeable.” Strickland, 466 U.S. at 690.

B. Hoppe’s testimony about the meaning of Block’s text messages was
not impermissible lay testimony necessitating an objection by
defense counsel.

¶31 During Hoppe’s testimony, he read, and discussed, the various text
messages that Kane and Block had exchanged on the night before Helen’s death.
Kane had sent Block a message asking, “how are you doing on stuff?” Hoppe
construed “stuff” to mean heroin, and he testified Block replied, “I’m fine R N,
right now, and probably until tomorrow ….” Hoppe was asked whether, based on
the messages, it appeared that Block “needed to go to Milwaukee this night to pick
up heroin for herself?” He answered in the negative. His testimony left the clear

13
No. 2022AP2214-CR

impression with the jury that Block had arranged the drug transaction with
Winston only at Kane’s behest.

¶32 Kane contends this testimony was impermissible lay testimony for
which Hoppe was lacking personal knowledge, and that Kane’s trial counsel
should have objected. At the Machner hearing, trial counsel testified she did not
object because she viewed Hoppe’s interpretation as “a reasonable interpretation
of the words themselves.” Indeed, Kane’s trial counsel had used Hoppe’s
testimony during her cross-examination, emphasizing that even if Block was
“fine” on the night of October 6, she would need more heroin at some point
soon—a proposition with which Hoppe agreed.

¶33 Like the circuit court, we note that the challenged testimony cannot
be viewed in a vacuum. See State v. Mull, 2023 WI 26, ¶36, 406 Wis. 2d 491, 987
N.W.2d 707 (“[W]e examine counsel’s choices ‘in the context of the
circumstances as they existed at the time he made his decisions.’” (citation
omitted.)). There was really no dispute at trial that Kane, Block, and Helen were
using heroin and that they were procuring the drugs from Winston. The inference
Hoppe drew about Block’s drug needs (or lack thereof) on the night of the buy
was readily apparent from the messages themselves and from the overall context
of the case.

¶34 In choosing not to object to Hoppe’s commonsense understanding of
the text messages, trial counsel made a reasonable strategic decision that we will
not overturn based on mere hindsight—particularly because Kane’s counsel
returned to the matter during cross-examination to highlight Block’s culpability.
See id., ¶35. Kane has failed to persuade us that Hoppe’s testimony on this point

14
No. 2022AP2214-CR

was improper “opinion” testimony or speculation, such that an objection was
necessary.

III. Hoppe’s testimony regarding county charging practices was not plain
error.

¶35 Kane’s final argument is that Hoppe’s testimony about Waukesha
County charging practices was plain error. Though Kane does not develop much
of an argument on this point, we note that the relevant standard is whether the
testimony “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” State v. Davidson, 2000 WI 91, ¶88, 236 Wis. 2d 537,
613 N.W.2d 606. Kane does not articulate or apply the standard, and our review
of the appellate record does not support such a claim. The jury was properly
informed that the law it was to apply to the facts was the law stated by the circuit
court during the jury instructions.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

15