Wis JI-Criminal 1018

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 first degree reckless homicide which is a less serious degree of

criminal homicide.

Intentional and Reckless Homicide

The crimes referred to as first degree intentional and first degree reckless homicide are

different types 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.

Both intentional and reckless homicide require that the defendant caused the death of the

victim. First degree intentional homicide requires the State to prove 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 is for you to

decide of what type of homicide the defendant is guilty, if guilty at all, according to the

instructions which define the two offenses.

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.

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 two

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. 1

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

being). 2

"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. 3

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. 4

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.

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, you should find the defendant guilty of first degree

intentional homicide.

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

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

reckless homicide in violation of section 940.02(1) 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 first degree reckless homicide.5

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 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 First Degree Reckless 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. 6

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

"Criminally reckless conduct" means: 7

• 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. 8

3. The circumstances of the defendant's conduct showed utter disregard 9 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; and, all the

other facts and circumstances relating to the conduct. 10

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

FACT CONDUCT HAS BEEN ADMITTED. 11

[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 offense.