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§ 940.02, First Degree Reckless Homicide — Refusal to Instruct on, as Lesser Offense

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Issue: Whether the first-degree intentional homicide defendant was entitled to an instruction on the lesser offense of first-degree reckless homicide.

Holding: Barreau must show a reasonable basis for negating intent to kill. The victim was killed by multiple blows to the head with a baseball bat. Barreau argues that the victim was still alive when Barreau (and his accomplice) left him; and that only two of the blows were sufficient to kill the victim. Neither theory prevails:

¶22. But even this does not get Barreau very far. Although a reasonable view of the evidence suggests that Barreau and Keeran believed Hansen was not yet dead when they fled the house, there is no evidence indicating that they believed Hansen would ultimately survive. Barreau seems to suggest that a defendant is entitled to a reckless homicide instruction any time he or she left the scene of the crime while the victim was still alive. Barreau points to no authority for such a proposition and we are unaware of any.
¶23. When someone beats another over the head at least ten times with a baseball bat and then stabs him in the neck with a knife, what could the expectation be, other than that the victim will die? If the assailant (either Barreau or Keeran or both) intended, as Barreau argues, to merely incapacitate Hansen without killing him, why strike him repeatedly on his skull? If only injury was intended, why stab the victim in the neck, even after he was clearly incapacitated? Barreau provides no explanation for these questions. Had Hansen been struck only once on his skull or repeatedly on a less vulnerable part of his body, we would agree that the assailant’s conduct could be reasonably viewed as reckless. But this is not what happened.

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