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Utter Disregard for Life: After-the-Fact Conduct / Supplemental Jury Instruction

State v. Donovan M. Burris, 2011 WI 32, reversing unpublished decision; for Burris: Byron C. Lichstein; case activity

Utter Disregard for Life – After-the-Fact Conduct

¶7   We conclude that, in an utter disregard analysis, a defendant’s conduct is not, as a matter of law, assigned more or less weight whether the conduct occurred before, during, or after the crime.  We hold that, when evaluating whether a defendant acted with utter disregard for human life, a fact-finder should consider any relevant evidence in regard to the totality of the circumstances.

The crime at issue is first-degree reckless injury, § 940.23, but the element under discussion, utter disregard for human life, is common to other offenses (§§ 940.02(1), 941.30). As suggested by the blockquote, the court rejects the argument that “a defendant’s after-the-fact mitigating conduct does not have the same evidentiary weight as a defendant’s actions before and during the crime …. We reject the State’s assertion and emphasize that in an utter disregard analysis there is no rule assigning more or less weight to a particular category of a defendant’s conduct based on when that conduct occurred,” ¶¶25, 27.

Detailed discussion of utter-disregard element by the court follows, omitted here except to note that the court cites with approval State v. Miller, 2009 WI App 111, ¶35 n.12, 320 Wis. 2d 724, 772 N.W.2d 188, to the effect that after-the-fact conduct has no “less import than conduct evincing regard for life during and before the act.” (Burris, ¶36)

¶38  In its totality of the circumstances analysis, the fact-finder should consider all evidence relevant to whether a defendant acted with utter disregard for human life.  Jensen, 236 Wis. 2d 521, ¶¶17, 24.  The weight to be given evidence of a defendant’s conduct or statements is for the trier of fact, often a jury, to decide.  This accords with the well-settled maxim in Wisconsin that “questions of the weight and reliability of relevant evidence are matters for the trier of fact.”  State v. Fischer, 2010 WI 6, ¶36, 322 Wis. 2d 265, 778 N.W.2d 629.  There is no bright-line rule regarding the evidentiary weight of a particular category of a defendant’s conduct depending on when that conduct occurred relative to the crime.[9]

¶39  We note that an instruction to consider the totality of the circumstances is a broad standard, but it is not without some limits.  As part of the totality of the circumstances analysis, the fact-finder should consider a defendant’s relevant conduct before, during and after the crime.  Jensen, 236 Wis. 2d 521, ¶¶17, 24.  A defendant’s conduct is relevant if it occurs within a reasonable period of time after the crime.  The length of time will depend on the circumstances in each case and is limited by the requirement that evidence is admissible only if it is relevant to some element of the crime, in this case, whether the defendant acted with utter disregard for human life.  See Wis. Stat. § 904.02 (2009-10).

Supplemental Jury Instruction – Utter Disregard Element

In response to a jury question, during deliberations, as to whether it could consider the defendant’s post-shooting conduct as bearing on the utter-disregard element, the trial court gave the following supplemental instruction:

… after-the-fact regard for human life does not negate utter disregard otherwise established by the circumstances before and during the crime.  It may be considered by the fact-finder as a part of the total factual picture, but it does not operate to preclude a finding of utter disregard for human life.  The element of utter disregard for human life is measured objectively on the basis of what a reasonable person in the defendant’s position would have known.

This language was quoted from Jensen, 231 Wis. 2d 521, ¶32, and therefore was “legally accurate.” The question, instead, is whether, notwithstanding its accuracy, it “unconstitutionally misled the jury,” ¶44. Burris bears the burden of showing a reasonable likelihood the jury unconstitutionally applied the instruction, by precluding consideration of constitutionally relevant evidence, ¶¶46, 50. The court concludes that he can’t meet this burden, because the jury would have understood that its task was to “consider the totality of the circumstances including Burris’s relevant conduct before, during and after the shooting,” ¶51. The jury heard evidence about Burris’s post-shooting conduct (including his expressions of remorse, distress, and lack of intent to shoot the victim), and was instructed to take into account “all other facts and circumstances relating to the conduct”; and closing argument directed the jury’s attention to his post-shooting conduct, ¶¶51-63. The court, however, adds this recommendation:

¶64  Burris has not established a reasonable likelihood that the jury was misled in this case, but supplemental instructions such as the one given here, taken out of context from Jensen, do have the potential to be confusing.  Thus, we recommend that the Criminal Jury Instruction Committee, in its comments to the “first-degree reckless” offense instructions, Wis JI——Criminal 1016-22, 1250, and the utter disregard for human life instruction, Wis JI——Criminal 924A, advise against taking certain language directly from utter disregard cases such as Jensen without providing the necessary context to fully explain the proper inquiry.  Additionally, we recommend that the Committee consider revising these instructions to more explicitly direct the jury that, in its utter disregard for human life consideration, it should consider the totality of the circumstances including any relevant evidence regarding a defendant’s conduct before, during, and after the crime.

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