1987 a. 339
,
399
;
1995 a. 448
;
1997 a. 295
;
1999 a. 57
;
2001 a. 109
.
Judicial Council Note, 1988:
[As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan,
44 Wis. 2d 68
(1969); State v. Weso,
60 Wis. 2d 404
(1973).
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt,
21 Wis. 2d 284
(1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons,
164 Wis. 2d 506
,
476 N.W.2d 283
(Ct. App. 1991).
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent, although it might be admissible in very limited circumstances. State v. Morgan,
195 Wis. 2d 388
,
536 N.W.2d 425
(Ct. App. 1995),
93-2611
.
Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds,
229 Wis. 2d 67
,
598 N.W.2d 290
(Ct. App. 1999),
98-2171
.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42
,
261 Wis. 2d 249
,
661 N.W.2d 381
,
01-3063
.
The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of s. 948.40 (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson,
2010 WI 130
,
329 Wis. 2d 599
,
790 N.W.2d 909
,
08-1968
.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below,
2011 WI App 64
,
333 Wis. 2d 690
,
799 N.W.2d 95
,
10-0798
.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below,
2011 WI App 64
,
333 Wis. 2d 690
,
799 N.W.2d 95
,
10-0798
.
While swerving has been held to show regard for life, the defendant's conduct must be considered in light of the totality of the circumstances. When the defendant was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills and never braked or slowed down before running a red light, an ineffectual swerve failed to demonstrate a regard for human life. State v. Geske,
2012 WI App 15
,
339 Wis. 2d 170
,
810 N.W.2d 226
,
10-2808
.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).