Wis JI-Criminal 1016

Crimes to Consider

The defendant in this case is charged with first degree intentional homicide, and you

must first consider whether the defendant is guilty of that offense. If you are not satisfied

that the defendant is guilty of first degree intentional homicide, you must consider whether

or not the defendant is guilty of second degree intentional homicide or first degree reckless

homicide which are less serious degrees of criminal homicide.

Intentional and Reckless Homicide

The crimes referred to as first and second degree intentional homicide and first degree

reckless homicide are different degrees of homicide. Homicide is the taking of the life of

another human being. The degree of homicide defined by the law depends on the facts and

circumstances of each particular case.

While the law separates homicides into different types and degrees, there are certain

elements which are common to each crime. Both intentional and reckless homicide require

that the defendant caused the death of the victim. First and second degree intentional

homicide require the State to prove the additional fact that the defendant acted with the

intent to kill. First degree reckless homicide requires that the defendant acted recklessly,

under circumstances which show utter disregard for human life. It will also be important

for you to consider the privilege of self-defense in deciding which crime, if any, the

defendant has committed.

Self-Defense

The Criminal Code of Wisconsin provides that a person is privileged to intentionally

use force against another for the purpose of preventing or terminating what (he) (she)

reasonably believes to be an unlawful interference with (his) (her) person by the other

person. However, (he) (she) may intentionally use only such force as (he) (she) reasonably

believes is necessary to prevent or terminate the interference. (He) (She) may not

intentionally use force which is intended or likely to cause death unless (he) (she)

reasonably believes that such force is necessary to prevent imminent death or great bodily

harm to (himself) (herself).2

As applied to this case, the effect of the law of self-defense is:

• The defendant is not guilty of any homicide offense if the defendant reasonably

believed that (he) (she) was preventing or terminating an unlawful interference

with (his) (her) person, and reasonably believed the force used was necessary to

prevent imminent death or great bodily harm to (himself) (herself).3

• The defendant is guilty of second degree intentional homicide if the defendant

caused the death of (name of victim) with the intent to kill and actually believed

the force used was necessary to prevent imminent death or great bodily harm to

(himself) (herself), but the belief or the amount of force used was unreasonable.4

• The defendant is guilty of first degree intentional homicide if the defendant caused

the death of (name of victim) with the intent to kill and did not actually believe

the force used was necessary to prevent imminent death or great bodily harm to

(himself) (herself).5

• The defendant is guilty of first degree reckless homicide if the defendant caused

the death of (name of victim) by criminally reckless conduct and the

circumstances of the conduct showed utter disregard for human life. You will be

asked to consider the privilege of self-defense in deciding whether the elements

of first degree reckless homicide are present.6

Because the law provides that it is the State’s burden to prove all the facts necessary

to constitute a crime beyond a reasonable doubt, you will not be asked to make a separate

finding on whether the defendant acted in self-defense. Instead, you will be asked to

determine whether the State has established the necessary facts to justify a finding of guilty

for first or second degree intentional homicide or for first degree reckless homicide. If the

State does not satisfy you that those facts are established by the evidence, you will be

instructed to find the defendant not guilty.

The facts necessary to constitute each crime will now be defined for you in greater

detail.

Statutory Definition of First Degree Intentional Homicide

First degree intentional homicide, as defined in § 940.01 of the Criminal Code of

Wisconsin, is committed by one who causes the death of another human being with the

intent to kill that person or another. In this case, first degree intentional homicide also

requires that the defendant did not actually believe the force used was necessary to prevent

imminent death or great bodily harm to himself.7

State’s Burden of Proof

Before you may find the defendant guilty of first degree intentional homicide, the State

must prove by evidence which satisfies you beyond a reasonable doubt that the following

three elements were present.

Elements of First Degree Intentional Homicide That the State Must Prove

1. The defendant caused the death of (name of victim).

“Cause” means that the defendant’s act was a substantial factor in producing

the death.8

2. The defendant acted with the intent to kill ((name of victim)) (another human

being).9

3. The defendant did not actually believe that the force used was necessary to prevent

imminent death or great bodily harm to himself.10

Meaning of “Intent to Kill”

“Intent to kill” means that the defendant had the mental purpose to take the life of

another human being or was aware that (his) (her) conduct was practically certain to cause

the death of another human being.11

When May Intent Exist?

While the law requires that the defendant acted with intent to kill, it does not require

that the intent exist for any particular length of time before the act is committed. The act

need not be brooded over, considered, or reflected upon for a week, a day, an hour, or even

for a minute. There need not be any appreciable time between the formation of the intent

and the act. The intent to kill may be formed at any time before the act, including the

instant before the act, and must continue to exist at the time of the act.

Deciding About Intent

You cannot look into a person’s mind to find intent. Intent to kill must be found, if

found at all, from the defendant’s acts, words, and statements, if any, and from all the facts

and circumstances in this case bearing upon intent.12

Intent and Motive

Intent should not be confused with motive. While proof of intent is necessary to a

conviction, proof of motive is not. “Motive” refers to a person’s reason for doing

something. While motive may be shown as a circumstance to aid in establishing the guilt

of a defendant, the State is not required to prove motive on the part of a defendant in order

to convict. Evidence of motive does not by itself establish guilt. You should give it the

weight you believe it deserves under all of the circumstances.

Actual Belief That The Force Used Was Necessary

The third element of first degree intentional homicide requires that the defendant did

not actually believe the force used was necessary to prevent imminent death or great bodily

harm to (himself) (herself). This requires the State to prove13 either:

1) that the defendant did not actually believe (he) (she) was in imminent danger of

death or great bodily harm; or

2) that the defendant did not actually believe the force used was necessary to prevent

imminent danger of death or great bodily harm to (himself) (herself).

When first degree intentional homicide is considered, the reasonableness of the

defendant’s belief is not an issue. You are to be concerned only with what the defendant

actually believed. Whether these beliefs are reasonable is important only if you later

consider whether the defendant is guilty of second degree intentional homicide.14

Jury’s Decision

If you are satisfied beyond a reasonable doubt that the defendant caused the death of

(name of victim) with the intent to kill and that the defendant did not actually believe that

the force used was necessary to prevent imminent death or great bodily harm to (himself)

(herself), you should find the defendant guilty of first degree intentional homicide.

If you are not so satisfied, you must not find the defendant guilty of first degree

intentional homicide, and you must consider whether the defendant is guilty of second

degree intentional homicide, as defined in § 940.05 of the Criminal Code of Wisconsin,

which is a lesser included offense of first degree intentional homicide.

Make Every Reasonable Effort to Agree

You should make every reasonable effort to agree unanimously on the charge of first

degree intentional homicide before considering the offense of second degree intentional

homicide.15 However, if after full and complete consideration of the evidence, you

conclude that further deliberation would not result in unanimous agreement on the charge

of first degree intentional homicide, you should consider whether the defendant is guilty of

second degree intentional homicide.

Second Degree Intentional Homicide

Before you may find the defendant guilty of second degree intentional homicide, the

State must prove by evidence which satisfies you beyond a reasonable doubt that the

following three elements were present.

Elements of Second Degree Intentional Homicide That the State Must Prove

1. The defendant caused the death of (name of victim).

2. The defendant acted with the intent to kill ((name of victim)) (another human

being).

3. The defendant did not reasonably believe that (he) (she) was preventing or

terminating an unlawful interference with (his) (her) person or did not reasonably

believe that the force used was necessary to prevent imminent death or great bodily

harm to (himself) (herself).16

You have already been instructed on the definitions of “causing death” and “with intent

to kill.” The same definitions apply to your consideration of second degree intentional

homicide.

Reasonable Belief That the Force Used Was Necessary

The third element of second degree intentional homicide requires that the defendant

did not reasonably believe that (he) (she) was preventing or terminating an unlawful

interference with (his) (her) person or did not reasonably believe the force used was

necessary to prevent imminent death or great bodily harm to (himself) (herself). This

requires that the State prove any one of the following:17

1) that a reasonable person in the circumstances of the defendant would not have

believed that (he) (she) was preventing or terminating an unlawful interference with

(his) (her) person; or

2) that a reasonable person in the circumstances of the defendant would not have

believed (he) (she) was in danger of imminent death or great bodily harm; or

3) that a reasonable person in the circumstances of the defendant would not have

believed that the amount of force used was necessary to prevent imminent death or

great bodily harm to (himself) (herself).

Determining Whether Beliefs Were Reasonable

A belief may be reasonable even though mistaken.18 In determining whether the

defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence

and prudence would have believed in the defendant’s position under the circumstances that

existed at the time of the alleged offense.19 The reasonableness of the defendant’s beliefs

must be determined from the standpoint of the defendant at the time of the defendant’s acts

and not from the viewpoint of the jury now.

Jury Decision

If you are satisfied beyond a reasonable doubt that the defendant caused the death of

(name of victim) with the intent to kill and did not reasonably believe that (he) (she) was

preventing or terminating an unlawful interference with (his) (her) person or did not

reasonably believe the force used was necessary to prevent imminent death or great bodily

harm to (himself) (herself), you should find the defendant guilty of second degree

intentional homicide.

If you are not so satisfied, you must not find the defendant guilty of second degree

intentional homicide, and you should consider whether the defendant is guilty of first

degree reckless homicide, in violation of § 940.02 of the Criminal Code of Wisconsin,

which is also a lesser included offense of first degree intentional homicide.

Make Every Reasonable Effort to Agree

You should make every reasonable effort to agree unanimously on the charge of

second degree intentional homicide before considering the offense of first degree reckless

homicide.20 However, if after full and complete consideration of the evidence, you

conclude that further deliberation would not result in unanimous agreement on the charge

of second degree intentional homicide, you should consider whether the defendant is guilty

of first degree reckless homicide.

Statutory Definition of First Degree Reckless Homicide

First degree reckless homicide, as defined in § 940.02(1) of the Criminal Code of

Wisconsin, is committed by one who recklessly causes the death of another human being

under circumstances that show utter disregard for human life.

State’s Burden Of Proof

Before you may find the defendant guilty of first degree reckless homicide, the State

must prove by evidence which satisfies you beyond a reasonable doubt that the following

three elements were present.

Elements of the Crime That the State Must Prove

1. The defendant caused the death of (name of victim).

“Cause” means that the defendant’s act was a substantial factor in producing

the death.21

2. The defendant caused the death by criminally reckless conduct.

“Criminally reckless conduct” means:22

• the conduct created a risk of death or great bodily harm to another

person; and

• the risk of death or great bodily harm was unreasonable and substantial;

and

• the defendant was aware that (his) (her) conduct created the

unreasonable and substantial risk of death or great bodily harm.23

You should consider the evidence relating to self-defense in deciding whether

the defendant’s conduct created an unreasonable risk to another. If the defendant

was acting lawfully in self-defense, (his) (her) conduct did not create an unreasonable risk to another. The burden is on the state to prove beyond a reasonable doubt

that the defendant did not act lawfully in self-defense. And, you must be satisfied

beyond a reasonable doubt from all the evidence in the case that the risk was

unreasonable.24

3. The circumstances of the defendant’s conduct showed utter disregard25 for human

life.

In determining whether the circumstances of the conduct showed utter

disregard for human life, consider these factors: what the defendant was doing;

why the defendant was engaged in that conduct; how dangerous the conduct was;

how obvious the danger was; whether the conduct showed any regard for life; 26

and, all other facts and circumstances relating to the conduct. You should consider

the evidence relating to self-defense in deciding whether the circumstances of the

defendant’s conduct showed utter disregard for human life. The burden is on the

state to prove beyond a reasonable doubt that the defendant did not act lawfully in

self-defense. And, you must be satisfied beyond a reasonable doubt from all the

evidence in the case that the circumstances of the defendant’s conduct showed

utter disregard for human life.27

ADD THE FOLLOWING IF EVIDENCE OF THE DEFENDANT’S AFTER-THE-

FACT CONDUCT HAS BEEN ADMITTED.28

[Consider also the defendant’s conduct after the death to the extent that it helps you

decide whether or not the circumstances showed utter disregard for human life at the time

the death occurred.]

Jury’s Decision

If you are satisfied beyond a reasonable doubt that the defendant caused the death of

(name of victim) by criminally reckless conduct and that the circumstances of the conduct

showed utter disregard for human life, you should find the defendant guilty of first degree

reckless homicide.

If you are not so satisfied, you must find the defendant not guilty.

You are not, in any event, to find the defendant guilty of more than one of the foregoing

offenses.