One death can equal two homicides

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The plain language of sec. 939.66(2) states that a defendant cannot be convicted of both homicide and “[a] crime which is a less serious type of criminal homicide than the one charged.”

Nevertheless, the Wisconsin Court of Appeals held on Oct. 1 that he can.

Patrick R. Patterson provided Oxycodone to Tanya S. when she was 17 years old, and she died as a result of ingesting the drug.

Patterson was convicted of first-degree reckless homicide by delivery of a controlled substance, under sec. 940.02(2)(a), and contributing to the delinquency of a child with death as a consequence, under sec. 948.40(4)(a).

He argued that conviction for both charges violated sec. 939.66(2), but the both circuit court and Court of Appeals disagreed.

The court concluded that the Wisconsin Supreme Court’s opinion in State v. Davison, 2003 WI 89 was dispositive.

Davison was convicted of both aggravated battery and battery by a prisoner. He argued that sec. 939.66 barred the multiple convictions.

The statute provides, in relevant part:

“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(2) A crime which is a less serious type of criminal homicide than the one charged.

(2m) A crime which is a less serious or equally serious type of battery than the one charged.”

The court concluded that, just as the court in Davison permitted multiple battery convictions despite subsec. (2m), multiple homicide convictions are permitted despite subsec. (2).

Judge Paul Lundsten wrote for the court, “the Davison court concluded that sec. 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged. The reasons why the Davison court reached these conclusions need not be repeated here. Rather, what matters is that the Davison court effectively rejected the proposition that sec. 939.66(2) shows a clear legislative intent not to allow punishment for both a charged criminal homicide and a charged less serious type of criminal homicide.”

As an addition factor, the court also noted that contributing to the delinquency of a minor, causing death, is not technically a homicide charge.

The court said, “Although sec. 948.40(4)(a) requires death as a consequence, it focuses on the protection of children and the prevention of their delinquency. This is evidenced by, among other things, the legislature’s decision to include it in the chapter of the Wisconsin Statutes covering crimes against children (Wis. Stat. ch. 948), not in the chapter covering crimes against life and bodily security (Wis. Stat. ch. 940).”

Although the court noted this was one factor in its analysis, it wrote in a footnote that it was not the basis for its holding.

The state had argued that “homicide” does not include the delinquency charge, but the court said it would assume, without deciding, that “homicide” does includes contributing to the delinquency of a child, causing death.

Analysis

Before concluding, the court wrote, “Patterson’s arguments are for the most part foreclosed by Davison. To the extent he asserts that there is something different about this case because of the specific crimes involved, he has cited nothing to support that assertion. Thus, we reject Patterson’s multiplicity challenge.”

However, in future cases, defendants do have plenty to work with in arguing that Davison does not apply to homicides: the Supreme Court’s reasoning in Davison is heavily based on the structure and legislative history of the battery statutes, which simply don’t apply to homicide; and the holding in Davison is so narrow, it could easily be limited to its facts.

The court in Davison began by acknowledging, “Based on the plain language of the subsection, one would normally conclude that the legislature intended that the defendant not be convicted of both crimes.”

Nevertheless, the court reached a contrary holding.

One reason was the structure of the battery statutes. Section 940.19 prohibits simple battery – striking another with intent to harm – plus numerous gradations of aggravated battery that depend on combinations of two factors: the degree of harm caused and the degree of the defendant’s intent.

The statutes also have dozens of special circumstances batteries, most set forth in sec. 940.20, such as battery by a prisoner, battery to a judge and battery of a witness.

The court’s holding in Davison could be limited to battery cases involving one battery offense under sec. 940.19, and another under sec. 940.20.

The court found it reasonable to conclude that the Legislature intended conviction where the battery is aggravated both by the degree of harm caused and by the status of the victim.

One reasonable interpretation that the court recognized was that “battery,” as used in sec. 939.66(2m), was only meant to apply to the batteries in sec. 940.19, thus prohibiting, for instance, convictions for both substantial battery and battery causing great bodily harm, based on the same conduct.

Given the dichotomy in the factors that make a battery aggravated in sec. 940.19, and those that make it aggravated in sec. 940.20, there is no possibility for dual punishment based on the same aggravating factor. Thus, there is reason to doubt that the Legislature intended to preclude multiple convictions in those cases.

The court in Davison also devoted several pages to the very complicated legislative history of the battery statutes – history wholly inapplicable to the homicide statutes.

Ultimately, the court’s holding was that Davison failed to meet his burden of persuasion – showing that the Legislature “clearly intended to prohibit multiple punishments on these facts.”

That is a narrow holding that should not be casually invoked to foreclose arguments based on very different facts and statutes.

Given the wholly different legislative histories of the battery and the homicide statutes, the different structures of the statutes and the narrow holding in Davison, defendants have plenty to work with in arguing that Davison does not apply to homicide cases.

This case, however, may not be the best vehicle for making that argument to the Wisconsin Supreme Court, because of the argument that the appellate court declined to squarely address.

Simply put, contributing to the delinquency of a child, causing death, is not homicide; therefore, sec. 939.66(2) probably does not apply. Although the circuit court rejected that argument, and the Court of Appeals assumed without deciding that it was a homicide, this argument is much stronger than the argument that Davison is controlling precedent.