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§ 940.23(1), Reckless Injury – “Utter Disregard for Human Life” – Insufficient Proof, Interplay of Self-Defense

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se

Issue/Holding: Miller incontrovertibly had some basis to fire a shotgun at his drunken, violent antagonist and even if not adequate to establish full self-defense was enough to defeat the reckless injury element of utter disregard for human life, thereby requiring entry of judgment of acquittal on remand, ¶¶31-44.

Lengthy clips from the court’s detailed analysis omitted, but make no mistake: this is a very significant case with potential ramifications for more than a few prosecutions, especially any crime having utter-disregard as an element where self-defense is raised. What it probably boils down to is that utter-disregard requires conduct for which there is no justification or excuse, and someone with a colorable claim of self-defense by definition will have some justification. Thus, the court indicates that pointing a loaded gun at someone evinces a depraved mind unless “otherwise defensible” even if not privileged, ¶37. Miller’s conduct was aimed at protecting himself and his friends from an aggressor and therefore not conduct for which “there is no justification or excuse,” ¶40. In this case, the court deeming the evidence uncontroverted, Miller’s conduct undoubtedly was not depraved-mind. In the typical case, the evidence might not establish enough justification to defeat the element incontestably, but could nonetheless support an argument to the jury on absence of depraved mind and/or some or another lesser-offense option not, of course, containing the utter-disregard element.Note as well the court’s recognition, ¶35 n. 12, that conduct occurring after the injury-causing event isn’t necessarily less important than before-and-during conduct. That’s probably something that cuts both ways, but in this case helps Miller.

Finally, given the result, the court didn’t have to discuss the underlying question, which was whether counsel performed deficiently in not discussing a lesser offense option with Miller. The dissent, however, deems the evidence sufficient and proceeds to discuss the subsidiary issue at length, ¶¶81-95, concluding that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.

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