940.03 Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.19, 940.195, 940.20, 940.201, 940.203, 940.225 (1) or (2) (a), 940.30, 940.31, 943.02, 943.10 (2), 943.23 (1g), or 943.32 (2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.

History: 1987 a. 399; 2001 a. 109; 2005 a. 313.

Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). The revised statute eliminates the “natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first-degree sexual assault or 2nd-degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson, 5 Wis. 2d 595, 93 N.W.2d 355 (1958). [Bill 191-S]

To prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor. The phrase “while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Ct. App. 1994), State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994) and State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994).

Attempted felony murder does not exist. Attempt requires intent and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.

Oimen affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.

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.

For purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.

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.