2009AP956-CR State v. Burris

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1st-degree reckless injury
Utter disregard for human life

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; 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.

“Viewed in light of the rest of our decision in Jensen and the context of that language, Jensen does not, as a matter of law, assign more or less weight to a defendant’s conduct, whether that conduct occurred before, during, or after the incident. After explaining that the fact-finder should consider a defendant’s relevant conduct ‘before, during and after the crime’ in reviewing, under the totality of the circumstances, whether the defendant acted with utter disregard for human life, we applied that standard to the particular facts in Jensen. Id., ¶¶17, 24. In response to Jensen’s claim that mitigating actions taken after the fact necessarily ‘preclude’ a finding of utter disregard, we clarified that no such rule exists and that, given the circumstances in Jensen, his 911 call did not show sufficient regard for human life to require the reversal of the fact-finder’s determination that his conduct as a whole evinced utter disregard. Id., ¶¶30-32. This conclusion should not be read in isolation, but rather along with the standard for an utter disregard analysis provided in Jensen.” Reversed and Remanded.

2009AP956-CR State v. Burris

Crooks, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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