2023 Wisconsin Statutes & Annotations › Chapter 940 - Crimes against life and bodily security. › 940.02 - First-degree reckless homicide.

940.02
First-degree reckless homicide.
(1)
Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
(1m)
Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class B felony.
(2)
Whoever causes the death of another human being under any of the following circumstances is guilty of a Class B felony:
(a)
By manufacture, distribution or delivery, in violation of s. 961.41, of a controlled substance included in schedule I or II under ch. 961, of a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or of ketamine or flunitrazepam, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:
1.
Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
2.
Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of s. 961.41 occurs.
3.
To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under ch. 961, of the controlled substance analog of the controlled substance included in schedule I or II under ch. 961 or of the ketamine or flunitrazepam is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of s. 961.41 is guilty under this paragraph.
(b)
By administering or assisting in administering a controlled substance included in schedule I or II under ch. 961, a controlled substance analog of a controlled substance included in schedule I or II of ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
History:  1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109; 2023 a. 29.
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 sub. (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 the actor's 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 80 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.
Utter disregard for human life is interpreted consistently with previous interpretations of the “depraved mind" element that it replaced. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.
The only difference between first-degree and second-degree reckless homicide is that “utter disregard for human life" is a required element for first-degree, but not second-degree, reckless homicide. In this case, there was evidence that the defendant acted in fear for his own life, not necessarily with utter disregard for the victim's life. Based on that evidence, the circuit court should have instructed the jury on the lesser-included offense of second-degree reckless homicide as well as first-degree reckless homicide. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.
Under sub. (2) (a), Wisconsin's “Len Bias" law, a “delivery" occurs when a controlled substance is transferred from one person to another. In this case, the defendant aided and abetted the seller's delivery of a fatal amount of heroin to the defendant's daughter by driving her to meet the seller so that the delivery could take place. The defendant assisted both the seller's delivery of heroin and the defendant's daughter's acquisition of it. That the defendant did not communicate directly with the seller, and may have wanted to obtain some of the drugs for the defendant's own use, did not change the fact that the defendant's conduct assisted the seller in delivering the drugs to the defendant's daughter. State v. Hibbard, 2022 WI App 53, 404 Wis. 2d 668, 982 N.W.2d 105, 20-1157.
The Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.
A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin's Criminal Laws in Combating the Opioid Crisis. O'Brien. 2020 WLR 1065.