Wis JI-Criminal 1072

Crimes to Consider

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

must consider whether or not the defendant is guilty of attempted second degree intentional

homicide which is a less serious degree of criminal homicide.

Intentional Homicide

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

different degrees of homicide. Homicide is the taking of the life of another human being.

The degree of attempted homicide defined by the law depends on the facts and

circumstances of each particular case.

While the law separates attempted intentional homicides into two degrees, there are

certain elements which are common to each crime. Both attempted first and second degree

intentional homicide require that:

• the defendant intended to kill another person; and

• the defendant did acts toward the commission of that crime which indicate

unequivocally, under all the circumstances, that (he) (she) had formed that intent

and would have caused the death of (name of victim) except for the intervention

of another person or some other extraneous factor.

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 under the following circumstances:

• force is used for the purpose of preventing or terminating what the person

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

other person; and,

• the person uses only the amount of force that (he) (she) reasonably believes is

necessary to prevent or terminate the interference; and,

• the person 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

If you find that the elements of attempted first or second degree intentional homicide

have been proved in this case, the effect of the law of self-defense is as follows:

• The defendant is not guilty of either attempted first or second degree intentional

homicide if the defendant:

(1) reasonably believed that (he) (she) was preventing or terminating an

unlawful interference with (his) (her) person, and

(2) reasonably believed the force used was necessary to prevent imminent

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

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

defendant 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 attempted first degree intentional homicide if the

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

imminent death or great bodily harm to (himself) (herself).5

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 attempted first or second degree intentional 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 elements of each crime will now be defined for you in greater detail.

Attempted First Degree Intentional Homicide

Before you may find the defendant guilty of attempted 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 Attempted First Degree Intentional Homicide

That the State Must Prove

1. The defendant intended to kill (name of victim).

“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.6

2. The defendant did acts which demonstrate unequivocally, under all the

circumstances, that (he)(she) had formed that intent and would have caused the

death of (name of victim) except for the intervention of another person or some

other extraneous factor.7

“Unequivocally” means that no other inference or conclusion can reasonably

and fairly be drawn from the defendant’s acts, under the circumstances.

“Another person” means anyone but the defendant and may include the

intended victim.

An “extraneous factor” is something outside the knowledge of the defendant

or outside the defendant’s control.

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

imminent death or great bodily harm to himself.8

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.9

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 attempted 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 prove10 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 attempted 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 attempted second degree

intentional homicide.11

Jury’s Decision

If you are satisfied beyond a reasonable doubt that the defendant intended to kill (name

of victim), and that the defendant’s acts demonstrated unequivocally that the defendant

intended to kill and would have killed (name of victim) except for the intervention of

another person or some other extraneous factor, 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 attempted first degree

intentional homicide.

If you are not so satisfied, you must not find the defendant guilty12 of attempted first

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

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

of Wisconsin, which is a lesser included offense of attempted first degree intentional

homicide.

Make Every Reasonable Effort to Agree

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

attempted first degree intentional homicide before considering the offense of attempted

second degree intentional homicide.13 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 attempted first degree intentional homicide, you should

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

Attempted Second Degree Intentional Homicide

Before you may find the defendant guilty of attempted 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 Attempted Second Degree Intentional Homicide

That the State Must Prove

1. The defendant intended to kill (name of victim).

2. The defendant did acts which demonstrate unequivocally, under all the

circumstances, that (he)(she) had formed that intent and would have caused the

death of (name of victim) except for the intervention of another person or some

other extraneous factor.

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).14

You have already been instructed on the definitions of “intent to kill,”

“unequivocally,” “another person,” and “extraneous factor.” The same definitions apply

to your consideration of attempted second degree intentional homicide.

Reasonable Belief That the Force Used Was Necessary

The third element of attempted 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:15

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.16 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.17 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’s Decision

If you are satisfied beyond a reasonable doubt that the defendant intended to kill (name

of victim), and that the defendant’s acts demonstrated unequivocally that the defendant

intended to kill and would have killed (name of victim) except for the intervention of

another person or some other extraneous factor, and 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), you should find the defendant

guilty of attempted second degree intentional homicide.

If you are not satisfied beyond a reasonable doubt that the defendant is guilty of

attempted second degree intentional homicide, 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.