Contributing to child’s death not homicide

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Contributing to the delinquency of a minor, causing death, is not a “homicide.”

As a result, the Wisconsin Supreme Court held on Nov. 17, it does not run afoul of sec. 939.66 to convict a defendant of both that offense and the Len Bias law (homicide by delivery of a controlled substance.).

Although the opinion affirms a published opinion of the Court of Appeals, State v. Patterson, 2009 WI App 161, 321 Wis.2d 752, 776 N.W.2d 602, it does so on very different grounds.

Patrick R. Patterson was charged with a variety of crimes after he provided Oxycodone to his 17-year-old girlfriend, Tanya S., who died as a result. Among the charges were first-degree reckless homicide by delivery of a controlled substance in violation of sec. 940.02(2)(a), and encouraging or contributing to the delinquency of a child resulting in death in violation of sec. 948.40(1), (4)(a).

He was convicted of both crimes and appealed, but the Court of Appeals affirmed. In a unanimous opinion by Justice N. Patrick Crooks, the Supreme Court also affirmed, but for different reasons.

First, the court rejected the reasoning of the Court of Appeals – that conviction under both statutes was permissible pursuant to State v. Davison, 2003 WI 89, 263 Wis.2d 145, 666 N.W.2d 1.

In Davison, the Supreme Court held that sec. 939.66 permits conviction for both aggravated battery and battery by a prisoner.

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 of Appeals interpreted Davison to mean the statute is inapplicable when the State charges and proves two different homicides or batteries. The court held it only bars multiple convictions when only one count is initially charged.

But the Supreme Court disagreed, holding that its opinion in Davison is limited to cases involving multiple battery charges, and has no application to homicides.

Instead, the court based its opinion on an issue the Court of Appeals did not address – whether contributing to delinquency, causing death, is a homicide within the meaning of subsec. (2).

The Court of Appeals assumed that it was a homicide, but the Supreme Court held it was not.

First, the court noted that the homicide statutes are all included in Chapter 940 – “Crimes Against Life and Bodily Security.” In contrast, contributing to the delinquency of a child causing death is in Chapter 948 -“Crimes Against Children.”

Thus, the court concluded that sec. 948.40(4)(a) is not a homicide charge, but an offense proscribing other conduct, with more serious punishment when death results.

In addition, the court found that the legislative history of sec. 939.66 suggests that it is limited to the traditional homicide statutes now located in Chapter 940.

Addressing another issue raised by the appeal, the court held that Patterson could be convicted of contributing to the delinquency of a child, even though the victim was 17 years old, and a 17-year-old is not a juvenile, but an adult, under the criminal statutes.

The court concluded that the 1995 revision of the juvenile code, eliminating jurisdiction over 17-year-olds, had no effect on the definition of “child” in sec. 948.40.

Analysis

Although the opinion affirms the Court of Appeals’ opinion, and the convictions, the Supreme Court’s reasoning is a substantial improvement for criminal defendants generally.

Effectively, the Court of Appeals’ opinion wrote sec. 939.66(2) and (2m) out of the statutes. As long as the State charged two homicide or two battery counts, nothing in the statute precluded convictions for both under its analysis.

The Court of Appeals wrote, “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.” Patterson, 776 N.W.2d at 606. The court then used this reasoning to allow two convictions for homicide, as long as two homicides were charged. Id.

The Supreme Court’s interpretation, in contrast, distinguishes between how batteries and homicides are classified.

Section 940.19 prohibits simple battery – striking another with intent to harm – plus numerous gradations of aggravated battery that depend on two factors: the amount of harm caused; and the defendant’s intent.

Section 940.20 then sets forth dozens of special circumstances batteries, such as battery by a prisoner, battery to a judge, and battery of a witness. In these statutes, the battery is aggravated based on either the status of the defendant, or the status of the victim.

Under the Supreme Court’s opinion, a defendant can be convicted of one crime under sec. 940.19, plus another under 940.20, but not two batteries under sec. 940.19. The Court of Appeals’ opinion, in contrast, permitted two convictions for the same conduct, both under sec. 940.19, provided both were initially charged.

Similarly, the reasoning of the Court of Appeals opinion permitted two homicide convictions for the same conduct, both under Chapter 940. The Supreme Court opinion does not, even though it permits, as in the case at bar, one conviction under Chapter 940, and a conviction under some other chapter.

Accordingly, although the defendant’s convictions in this case were affirmed, the court’s reasoning is better for defendants than was that of the Court of Appeals.

However, one paragraph in the opinion is not good for defendants, and the court’s reasoning is highly suspect.

The court wrote, “the fact that [hit and run causing death] is not a type of criminal homicide is evident from the fact that defendants are often convicted under both that statute and a homicide statute when their conduct is proscribed by both. Like [hit and run causing death], [contributing to the delinquency of a child causing death] is not a type of criminal homicide.”

This reasoning curiously suggests that the opinions of juries are relevant when interpreting the meaning of statutes. Juries, however, merely apply the law as they are instructed; their opinions should not be relevant to statutory construction.

What the court held

Case: State v. Patterson, No. 2008AP1968-CR

Issues: Can a defendant be convicted of both homicide by delivery of a controlled substance, and contributing to the delinquency of a child causing death, based on

the same conduct?

Holdings: Yes. Contributing to the delinquency of a child, causing death, is not a homicide charge.

Attorneys: For Plaintiff: Michael C. Sanders, Madison; for Defendant: David R. Karpe, Madison.