Date: 11-10-2021

Case Style:

State of Wisconsin v. Kyle H. Rittenhouse

Case Number: 2020CF000983

Judge: Bruce E. Schroeder

Court: Circuit Court, Kenosha County, Wisconsin

Plaintiff's Attorney: Thomas Binger

Defendant's Attorney: Mark D. Richards and Corey Chirafisi

Description: Kenosha, Wisconsin criminal defense lawyer represented defendant charged with two counts of first-degree reckless homicide, 1st-Degree Recklessly Endangering Safety, 1st-Degree Recklessly Endangering Safety, 1st-Degree Intentional HomicideAttempt 1st-Degree Intentional Homicide and Possess Dangerous Weapon-Person < 18.

Kyle Rittenhouse, DOB 01/03/2003, traveled from Illinois to Kenosha, Wisconsin to protect property that he believed was at risk of being damaged and/or destroyed by rioters protesting the shooting of a black man by a white cop.

He came into conflict with protesters and shot and killed two with the AR-15 that had been purchased by a friend and given to him.

Charges:

940.01  First-degree intentional homicide.
(1)  Offenses.
(a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.
(2)  Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:
(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.
(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).
(3)  Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).
History: 1987 a. 399; 1997 a. 295.
Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub. (2) formerly contained a narrower definition of “intent to kill" than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.
The affirmative defenses specified in sub. (2) were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub. (2) specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub. (2) (b) are reasonable. Section 939.48.
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
The trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense “has been placed in issue" before submitting the issue to the jury. In Interest of Shawn B. N. 173 Wis. 2d 343, 497 N.W.2d 141 (Ct. App. 1992).
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes from its application actions by a pregnant woman. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.
Barring psychiatric or psychological opinion testimony on the defendant's capacity to form an intent to kill is constitutional. Haas v. Abrahamson, 910 F. 2d 384 (1990) citing Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980).
A privilege for excusable homicide by accident or misfortune is incorporated in s. 939.45 (6). Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant may demonstrate that he or she was acting lawfully, a necessary element of an accident defense, by showing that he or she was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm. A defendant seeking a jury instruction on unnecessary defensive force under sub. (2) (b) to a charge of first-degree intentional homicide is not required to satisfy the objective threshold. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
A defendant who claims self-defense to a charge of first-degree intentional homicide may use evidence of a victim's violent character and past acts of violence to show a satisfactory factual basis that he or she actually believed he or she was in imminent danger of death or great bodily harm and actually believed that the force used was necessary to defend himself or herself, even if both beliefs were unreasonable. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was “wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
940.02  First-degree reckless homicide.
(1)  Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
(1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class B felony.
(2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:
(a) By manufacture, distribution or delivery, in violation of s. 961.41, of a controlled substance included in schedule I or II under ch. 961, of a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or of ketamine or flunitrazepam, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:
1. Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
2. Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of s. 961.41 occurs.
3. To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under ch. 961, of the controlled substance analog of the controlled substance included in schedule I or II under ch. 961 or of the ketamine or flunitrazepam is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of s. 961.41 is guilty under this paragraph.
(b) By administering or assisting in administering a controlled substance included in schedule I or II under ch. 961, a controlled substance analog of a controlled substance included in schedule I or II of ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
History: 1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109.
Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of “conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of “conduct evincing a depraved mind, regardless of life". State v. Dolan, 44 Wis. 2d 68 (1969); State v. Weso, 60 Wis. 2d 404 (1973).
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt, 21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons, 164 Wis. 2d 506, 476 N.W.2d 283 (Ct. App. 1991).
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent, although it might be admissible in very limited circumstances. State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995), 93-2611.
Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), 98-2171.
The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of s. 948.40 (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was “wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
While swerving has been held to show regard for life, the defendant's conduct must be considered in light of the totality of the circumstances. When the defendant was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills and never braked or slowed down before running a red light, an ineffectual swerve failed to demonstrate a regard for h

1 940.02(1) 1st-Degree Reckless Homicide Felony B
Modifier: 939.63(1)(b) Use of a Dangerous Weapon
2 941.30(1) 1st-Degree Recklessly Endangering Safety Felony F
Modifier: 939.63(1)(b) Use of a Dangerous Weapon
3 941.30(1) 1st-Degree Recklessly Endangering Safety Felony F
Modifier: 939.63(1)(b) Use of a Dangerous Weapon
4 940.01(1)(a) 1st-Degree Intentional Homicide Felony A
Modifier: 939.63(1)(b) Use of a Dangerous Weapon
5 940.01(1)(a) Attempt 1st-Degree Intentional Homicide Felony A
Modifier: 939.63(1)(b) Use of a Dangerous Weapon
6 948.60(2)(a) Possess Dangerous Weapon-Person < 18 Misd. A
7 323.28 Fail to Comply w/ Emergency Mngt Order of State or Local Gov Forf. U

Draft No. 3 proposed jury instructions sent to attys over the weekend.

Outcome: Pending

Plaintiff's Experts:

Defendant's Experts:

Comments: Jo-Ellen Dimitrius consulted with the Defendant's lawyers.