Man Killed After Fishing Argument on St. Croix River

[BoxMN]

I feel bad for both families. No winners here. Years ago, I was involved in a similar, but luckily much lesser, situation. No knives or weapons other than a boot to the head (my head) and no broken bones, but I was a mess. Just thinking afterward about all the "what ifs" was scary. What if other guy was a minor, what if weapons were involved, what if I would have just sat where I was instead of trying to "do the right thing"... I and the other guy were lucky that night, actually. I also learned, for myself anyway, that unless life or injury is threatened I will simply call the police and be a spectator - that is what they get paid for (but usually show up too late - but I digress)

Anyway, I hope the facts can come out and justice is served, though none of it will help either family, regardless. I wish all parties the best, and hope we all can learn from this tragic event. My lesson, if a-hooles are around just find a better place to go, I guess my age is showing...

[Whoaru99]

If the young mad stabbed the older guy while the older guy was allegedly in the act of trying to drag him out of the car, self-defense may have a chance.

However, if the moment of trying to drag the young man out of the car had passed, and the young man then exited the car, approached the older guy, then stabbed him, the young man should share a cell with Byron Smith.

[Mr.Seaguar]

The young man is being charged with reckless homicide, not murder for a reason. Because that's what he did. If the yelling back and forth really happened, those are elements of the crime. The yelling is where the confrontation started, not when the groups got together in the parking lot. You can't tell someone 900 times to eff off and then claim self defense when he hits you. This kid is in trouble. Of course the lawyers claim self defense, Ted Bundy's lawyers claimed self defense. They aren't paid to claim guilty

[nofishfisherman]

Anyone know the distinction between reckless homicide and murder? I assume its a lesser charge, just not sure what the legal distinction is. I think its clear that he didn't set out to kill the guy.

[Mr.Seaguar]

1996 609.20 Amended 1996 c 408 art 3 s 13

1995 609.20 Amended 1995 c 244 s 13

609.20 MANSLAUGHTER IN THE FIRST DEGREE.

Whoever does any of the following is guilty of manslaughter in the first degree and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both:

(1) intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation;

(2) violates section 609.224 and causes the death of another or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby;

(3) intentionally causes the death of another person because the actor is coerced by threats made by someone other than the actor's coconspirator and which cause the actor reasonably to believe that the act performed by the actor is the only means of preventing imminent death to the actor or another;

(4) proximately causes the death of another, without intent to cause death by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule III, IV, or V; or

(5) causes the death of another in committing or attempting to commit a violation of section 609.377 (malicious punishment of a child), and murder in the first, second, or third degree is not committed thereby.

As used in this section, a "person of ordinary self-control" does not include a person under the influence of intoxicants or a controlled substance.

History: 1963 c 753 art 1 s 609.20; 1981 c

[delcecchi]

I think Tom knows... but not waiting for him I googled it. (wisconsin laws)

Quote:

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.

...

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.

https://docs.legis.wisconsin.gov/statutes/statutes/940/I/02

Now we will be schooled on what "utter disregard for human life" really means, and what is "reckless".

[Mr.Seaguar]

I googled MN laws, I guess I forgot it went down in WI

[delcecchi]

I googled MN laws, I guess I forgot it went down in WI

I made the same mistake and couldn't figure out why I couldn't find "reckless homicide" but then went Duh, it was in Wisconsin.

[Tom7227]

Last paragraph in the quotes section of the statutes defines utter disregard for human life.

IMO this could be a very close case. BUT I never practiced in Wisconsin and I am retired. FYI 13+ years as a prosecutor in St. Paul but not felony level offenses. The only case I can remember trying and losing was one that involved a claim of self defense.

[Whoaru99]

Frankly, I think it's the wrong charge. There was nothing wreckless about it. Wreckless to me implies something along the lines of some type of accident where there was disregard for potential consequences. Perhaps like street racing and causing an accident where someone is killed.

It's hard for me to consider stabbing someone in the chest as a wreckless act in the way I interpret the law. I'd have charged 2nd degree Murder.

Then again, the latter posting of legal opinion seems to say they're basically the same thing.

[delcecchi]

The way I read it, wisconsin changed 2nd degree murder to reckless homicide.

This site http://statelaws.findlaw.com/wisconsin-law/wisconsin-second-degree-murder.html says that they did make that change. So that what in MN would be second degree murder is called reckless homicide in scony.

Quote:

Second-degree murder was revamped in the 1980s and turned into first-degree reckless homicide. This is an aggravated or excessively reckless homicide. The behavior that caused the death in these situations was so reckless that anyone could (or should) see it was likely to kill someone.

Here is their summary of the law.

Quote:

Code Sections

Wisconsin Statutes Section 940.02: First-Degree Reckless Homicide

What is Prohibited?

First-Degree Reckless Homicide prohibits either of the following:

Recklessly causing the death of another human or an unborn baby being showing an utter disregard for human life, including the life of an unborn baby or pregnant woman. For example, shooting a gun into a crowd, almost everyone can easily recognize that the bullet may hit and kill someone.

Causing the death of another by making or selling drugs (including ketamine or flunitrazepam - a roofie) if the person takes the drug and dies as result of its use, if multiple people are involved in the distribution of a drug that kills someone all of them can be found guilty of the death. Also includes administering a drug illegally to a human who dies from the use of the drug.

Penalty

Both First-Degree Reckless (non-drug related) and Second-Degree Intentional Homicide (equivalent to voluntary manslaughter in other states) are Class B felonies. Class B felonies can be receive a maximum sentence of 60 years in prison. This can be a life sentence for many inmates.

For deaths caused by making, selling, or administering drugs, the penalty is a Class C felony, which can be punished by up to 40 years in prison and a fine not to exceed $100,000.

Defenses

The prior version of this law allowed the mitigating circumstance of "adequate provocation" (such as seeing your spouse sleeping with a lover and killing them both) to lower the second-degree murder charge to manslaughter. However, now that first-degree reckless and second-degree intentional homicide carry the same penalty, there's no mitigation and therefore no defense on that basis.

However, other defenses may apply, depending on the facts of the case. Some defenses are "complete,” so if believed by the judge or jury the person will be found not guilty. Complete defenses include innocence and insanity, at least sometimes. Other defenses are partial, meaning they lower the offense to a less serious form of murder or homicide, such as self-defense or intoxication, again only sometimes.

Looks like penalty is up to 60 years in the pen.

[Whoaru99]

Yeah, reckless homicide and 2nd degree murder seem to be, essentially, one and the same in Wisconsin. Which, was the admission of my last sentence in previous post.

Based on this -

Quote:

Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. ... the offense has been recodified as aggravated reckless homicide. ... Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt, 21 Wis. 2d 284 (1964). ...

Under this revision (apparently as it is now), the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible.

Basically it looks like they decided just because you're angry at someone because they provoked you, you don't necessarily get the benefit of potentially lesser charge of manslaughter.

[bobberineyes]

Looks like penalty is up to 60 years in the pen.

[Stick500]

This guy has issues if he has to resort to using a knife when he can't back his mouth.

Great point. I'm still amazed that someone like this kid can make the decision to plunge a knife into someone's chest and not seem to understand that he'll probably spend decades in the clink. Moron....

[delcecchi]

" This guy has issues if he has to resort to using a knife when he can't back his mouth. "

Great point. I'm still amazed that someone like this kid can make the decision to plunge a knife into someone's chest and not seem to understand that he'll probably spend decades in the clink. Moron....

To play devil's advocate here, you think someone should be allowed to assault another person just because they are offended by something that person said? And the assaulted party isn't supposed to defend themselves, but allow themselves to be potentially injured or killed?

Is there a duty to retreat in Wisconsin? If he had a CCW and shot the guy as he grabbed him to drag him out of the window, would you say the same?

OK enough defense guy. Back to me. I just wish I knew what possessed this guy who was well respected, father, etc, to deliberately drive to where the young people were to have a physical altercation. It just seems so stupid. What could he have been thinking would happen?

[Kidd]

This case reminds me of the Trayvon Martin, George Zimmerman case where one party felt threaten and used deadly force to protect himself.

[Juneau4]

This case reminds me of the Trayvon Martin, George Zimmerman case where one party felt threaten and used deadly force to protect himself.

Ya-just a few minor differences.

1 used a gun the other a knife.

1 definitely instigated the situation, the other questionable.

Dead man black the other white. ( Race may matter)

More witnesses in 1 than the other.

[Whoaru99]

Guess that would depend on if one equates allegedly getting your head pounded on the ground with allegedly getting touched/grabbed through a window.

Kelly's buddy relates a different story. He alledges that Kelly was looking at the other members of the Acre-Kendall party when Acre-Kendall approached and stabbed him. Sorta like a sucker punch, but instead a knife to the upper chest.

[bobberineyes]

What was a large knife doing in the car with him anyhow, if it was a filet knife wouldn't you think it would be in a tackle box. Sounds like he was anticipating things going bad for him if they crossed the river. That's motive right there.

[Stick500]

yeh, I was wondering if the kids were the type that regularly carry knives, or if they only happened to have one because they were fishing- it's too bad the whole lot of them couldn't have settled it with their fists, but even that of course can be very dangerous

when I was a kid there was a fight a couple streets over and one kid got kicked in the head and killed- quite an eye-opener for a grade schooler- that happening has made me think twice about ever getting into a fight for the rest of my life

[Kidd]

1 used a gun the other a knife.

[Kidd]

Guess that would depend on if one equates allegedly getting your head pounded on the ground with allegedly getting touched/grabbed through a window.

[delcecchi]

Lots of people carry various size knives. The classic Buck 110 folder has a 3 3/4 inch blade and can kill someone. Heck, a Kershaw Leek like I sometimes carry has a 3 inch blade, and I wouldn't want to get stabbed with that either.

[Whoaru99]

doesn't matter if the kid felt in danger of being physically harmed.

[Kidd]

This is what I was referring to. Whether it's accurate or not I don't know.

From the Strib:

"Acre-Kendall’s friends, ages 17 and 19, told authorities Kelly attempted to pull Acre-Kendall out of a car as he sat with his feet outside, and that Kelly was then stabbed, Gearhart said.

As for

Quote:

"Actually it does matter. I don't believe just claiming you were afraid isn't enough.

That was how Zimmerman got off, by claiming he was afraid for his life.