Chapter 940

940.01 Annotation The defense under s. 939.46 (1m) is a complete defense to first-degree intentional homicide. State v. Kizer, 2022 WI 58, 403 Wis. 2d 142, 976 N.W.2d 356, 20-0192.

940.01 Annotation Barring psychiatric or psychological opinion testimony on the defendant’s capacity to form an intent to kill is constitutional. Haas v. Abrahamson, 910 F.2d 384 (1990).

940.01 Annotation The Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.

940.01 Annotation State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin’s Law of Imperfect Self-Defense Homicide. Lieser. 1995 WLR 741.

940.02 940.02 First-degree reckless homicide.

940.02(1) (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.

940.02(1m) (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.

940.02(2) (2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class B felony:

940.02(2)(a) (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:

940.02(2)(a)1. 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.

940.02(2)(a)2. 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.

940.02(2)(a)3. 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.

940.02(2)(b) (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.

940.02 History History: 1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109; 2023 a. 29.

940.02 Note 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).

940.02 Note 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]

940.02 Annotation 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).

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation 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.

940.02 Annotation The Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.

940.02 Annotation A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis. O’Brien. 2020 WLR 1065.

940.03 940.03 Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.19, 940.195, 940.20, 940.201, 940.203, 940.204, 940.225 (1) or (2) (a), 940.30, 940.31, 943.02, 943.10 (2), 943.231 (1), or 943.32 (2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.

940.03 History History: 1987 a. 399; 2001 a. 109; 2005 a. 313; 2021 a. 209; 2023 a. 10.

940.03 Note Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). The revised statute eliminates the “natural and probable consequence” limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first-degree sexual assault or 2nd-degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years’ imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson, 5 Wis. 2d 595, 93 N.W.2d 355 (1958). [Bill 191-S]

940.03 Annotation To prove that the defendant caused the death, the state need only prove that the defendant’s conduct was a substantial factor. The phrase “while committing or attempting to commit” encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994). See also State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994); State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994).

940.03 Annotation Attempted felony murder does not exist. Attempt requires intent, and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.

940.03 Annotation Oimen, 184 Wis. 2d 423 (1994), affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.

940.03 Annotation 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.

940.03 Annotation For purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.

940.03 Annotation 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.

940.03 Annotation 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.

940.03 Annotation Felony murder is committed when the death of another person is caused by a defendant during the commission of certain crimes, including burglary. The elements of burglary include the intent to either steal or to commit a felony. The evidence demonstrated that the defendant in this case forced his way into a building and started shooting with two guns, which was indicative of an intent to recklessly endanger the safety of those inside—a felony. Therefore, the defendant was convicted of a valid crime. State v. Mays, 2022 WI App 24, 402 Wis. 2d 162, 975 N.W.2d 649, 21-0765.

940.04 940.04 Abortion.

940.04(1) (1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.

940.04(2) (2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:

940.04(2)(a) (a) Intentionally destroys the life of an unborn quick child; or

940.04(2)(b) (b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother’s death was committed.

940.04(5) (5) This section does not apply to a therapeutic abortion which:

940.04(5)(a) (a) Is performed by a physician; and

940.04(5)(b) (b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and

940.04(5)(c) (c) Unless an emergency prevents, is performed in a licensed maternity hospital.

940.04(6) (6) In this section “unborn child” means a human being from the time of conception until it is born alive.

940.04 History History: 2001 a. 109; 2011 a. 217.

940.04 Annotation Aborting a child against a father’s wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).

940.04 Annotation Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe, 410 U.S. 113 (1973). State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).

940.04 Annotation 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.

940.04 Annotation The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9, 96 S. Ct. 170, 46 L. Ed. 2d 152 (1975). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.04 Annotation Discussing the viability of an unborn child. Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979).

940.04 Annotation Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).

940.04 Annotation Discussing abortion issues. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983); Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983); Simopoulas v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

940.04 Annotation The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.04 Annotation Wisconsin’s abortion statute, former s. 940.04, 1969 stats., is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.04 Annotation When U.S. Supreme Court decisions clearly made Wisconsin’s antiabortion statute unenforceable, the issue in a physician’s action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).

940.05 940.05 Second-degree intentional homicide.

940.05(1) (1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:

940.05(1)(a) (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or

940.05(1)(b) (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.

940.05(2) (2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.

940.05(2g) (2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:

940.05(2g)(a) (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or

940.05(2g)(b) (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.

940.05(2h) (2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.

940.05(3) (3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.

940.05 History History: 1987 a. 399; 1997 a. 295.

940.05 Note Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.

940.05 Note Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state’s inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.

940.05 Note When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury’s finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]

940.05 Annotation The prosecution is required to prove only that the defendant’s acts were a substantial factor in the victim’s death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).

940.05 Annotation 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.

940.05 Annotation The Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.

940.06 940.06 Second-degree reckless homicide.

940.06(1) (1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.

940.06(2) (2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.

940.06 History History: 1987 a. 399; 1997 a. 295; 2001 a. 109.

940.06 Note Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S]

940.06 Annotation Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

940.06 Annotation 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.

940.06 Annotation The second-degree reckless homicide statute requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor’s subjective awareness of that risk. The circuit court’s refusal to instruct the jury about the effect of the parents’ sincere belief in prayer treatment for their child on the subjective awareness element of second-degree reckless homicide did not undermine the parents’ ability to defend themselves. The second-degree reckless homicide statute does not require that the actor be subjectively aware that the actor’s conduct is a cause of the death of the actor’s child. The statute and the jury instructions require only that the actor be subjectively aware that the actor’s conduct created the unreasonable and substantial risk of death or great bodily harm. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044.

940.06 Annotation 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.

940.06 Annotation The Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.

940.07 940.07 Homicide resulting from negligent control of vicious animal. Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class G felony.