In its first decision addressing Wisconsin’s recently adopted “castle doctrine,” § 939.48(1m), the court of appeals holds Chew wasn’t entitled to a self-defense jury instruction under the statute because the men Chew shot at were not “in” his “dwelling.”
Chew’s ex-girlfriend, accompanied by her new boyfriend Lee and his friend Lucas, went to Chew’s apartment to get some of her property. At some point Lee and Lucas entered the apartment and battered Chew. During the beating Chew managed to shoot each man in a leg. After the men fled the apartment Chew followed them and fired more shots from the hall and then the doorway of the apartment building as they fled across a parking lot. Chew was charged with recklessly endangering safety by use of a dangerous weapon for the shots he fired as Lee and Lucas fled across the parking lot. (¶2).
The trial court denied Chew’s request to have the jury instructed about the castle doctrine because Chew was outside his apartment when he fired the shots. (¶3). The court of appeals affirms, but for a different reason: There was no evidence Lee and Lucas were in Chew’s dwelling at the time Chew fired the shots.
The doctrine applies to the use of force against either someone who is in the process of unlawfully and forcibly entering a dwelling, § 939.48(1m)(ar)1., or someone who has already unlawfully and forcibly entered a dwelling, § 939.48(1m)(ar)2. Chew’s situation falls under the second category, as Lee and Lucas had already entered his apartment when Chew fired the shots in question. (¶9). To qualify for the instruction under subdivision 2., there must be evidence that: 1) Lee and Lucas were in Chew’s dwelling, 2) after entering unlawfully and forcibly, 3) while Chew was in his dwelling, and 4) Chew knew or reasonably believed that Lee and Lucas had unlawfully and forcibly entered Chew’s dwelling. (¶9).
Chew doesn’t even get his foot in the door, as the facts don’t satisfy the first requirement:
¶11 Under Wis. Stat. § 939.48(1m)(ar)2., the person against whom the force was used must be “in the actor’s dwelling.” We find it significant that the singular possessive is used here. To possess means “to have and hold as property: have a just right to: be master of: OWN.” Webster’s Third New International Dictionary 1770 (1993). The statute applies only if the men were in Chew’s dwelling.
(h) “Dwelling” means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use. “Dwelling” includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.
Key in this definition is the requirement that the part of the lot or site in question is “devoted to residential use.” While the statute lists several parts of a residential lot that are part of “dwelling,” it tellingly does not include a parking lot. See State v. Popenhagen, 2008 WI 55, ¶43, 309 Wis. 2d 601, 749 N.W.2d 611 (a statute that lists specific items may exclude those not listed). We can discern whether or not the list should be extended to include an apartment shared parking lot by looking at the items on the list. The common denominator of driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements as relates to an actor’s “home” is that all are on the homeowner’s lot—property over which the actor has exclusive control. The same would be true of tenants renting a single place of residence. An apartment building parking lot, on the other hand, is shared by all the tenants. It is not exclusive to Chew or “devoted to [the] residential use” of any one tenant. Sec. 895.07(1)(h). While Chew may have had the right to park there, the parking lot was not part of his own dwelling….
A few points. First, § 939.48(1m)(ar)2. uses the past tense, referring to the use of a force against a person who “was in the actor’s dwelling….” Strictly speaking, Lee and Lucas fit that tense: They were in the dwelling, just not when the shots at question were fired. The court acknowledges the past tense, but concludes the use of force is allowed only against persons in the dwelling because “the statute is written entirely in the past tense and contemplates contemporaneous facts….” (¶9 n.4). No doubt the purpose of the castle doctrine statute also helped the court reach this conclusion:
¶14 Our conclusion comports with the rationale behind the castle doctrine. Under the castle doctrine, one who is attacked in his or her own home can use force against the intruder to defend himself or herself. Chew was attacked in his home, this is undisputed. But Chew’s use of deadly force at issue here occurred after the attack in Chew’s home, when the men who had been in his apartment were fleeing across a parking lot. The castle doctrine does not justify continued use of deadly force against an intruder when that intruder is no longer in the actor’s dwelling.
Second, the trial court granted Chew’s request for the standard self-defense instruction. (¶3). This is notable because in the view of the Criminal Jury Instruction Committee, the standard instruction was all Chew would have gotten if the castle doctrine did apply (with one caveat, noted below). The Committee concluded § 939.48(1m) didn’t change the substance of the existing self-defense privilege under § 939.48(1); instead, it simply provides another way for the defendant to meet the burden of production—the showing of “some evidence” that triggers instructing on self-defense, State v. Peters, 2002 WI App 243, ¶¶21-22, 258 Wis. 2d 148, 653 N.W.2d 300. Thus, the Committee says, “the substance of the new rule [i.e., the presumption of reasonableness about the use of force] is not presented to the jury and the standard instructions on the privilege of self-defense can be use without change.” Wis. J.I.—Criminal 805A (2013), at 4-5, 7, 9.
No appellate court has ruled on whether the Committee is correct, and it is certainly arguable that its interpretation is not the only reasonable one. After all, why go to the trouble of adopting a statute creating a new presumption about the reasonableness of the use of force if all the legislature was trying to do was ease a defendant’s burden of production for getting a self-defense instruction? Doing so seems especially strange given that evidence of the circumstances in § 939.48(1m)(ar)1. or 2. would almost certainly have been enough to get a self-defense instruction under prior law. Wis. J.I.—Criminal 805A’s interpretation of § 939.48(1m) basically means the legislature accomplished nothing by creating the new statute, a result contrary to the canon that statutes should not be read in a way that renders any portion of them superfluous. Landis v. Physicians Ins. Co., 2001 WI 86, 16, 245 Wis. 2d 1, 628 N.W.2d 893.
Chew disputed the Committee’s conclusion and argued for an additional instruction about the presumption (see his briefs, available here), but given the court of appeals’ holding that the castle doctrine doesn’t apply to Chew the decision says nothing about the correctness of Wis. J.I.—Criminal 805A. While the court is perhaps hinting it will depart from the Committee’s conclusion by saying § 939.48(1m) “generally allows for a jury instruction that use of force is presumably justified when a person is defending himself or herself against an unlawful and forcible intruder in that person’s home” (¶1) [but see the Update below], the court ultimately “do[es] not address a number of issues raised by the parties: whether the men unlawfully entered Chew’s apartment; whether Chew was in his dwelling when he fired the shots out of the apartment building doorway; or what instruction Chew should have received, had he been entitled to an instruction under the statute.” (¶5). Thus, the issue of whether Wis. J.I.—Criminial 805A takes the right approach will have to wait for another day.
UPDATE: In errata issued 10/22/14, the court changed the language from ¶1 quoted above; it no longer refers to the use of a jury instruction, but simply summarizes the castle doctrine itself by saying “[t]he new law generally provides that use of force is presumably justified when a person is defending himself or herself against an unlawful and forcible intruder in that person’s home.” The upshot being, the court no longer hints at any view about Wis. J.I.—Criminial 805A, and whether it is right or not remains an open question.
We noted above a caveat to the jury instructions that would be given if the castle doctrine applied. As Chew argued (and the state conceded (brief at 7-8)), if the castle doctrine applied it was error for the trial court to read the retreat instruction, Wis. J.I.—Criminial 810, because § 939.48(1m)(ar)(intro.) clearly says the jury “may not consider whether the actor had an opportunity to flee or retreat” before using force. See also Wis. J.I.—Criminal 805A, at 10. Of course, the castle doctrine didn’t apply to Chew, so there was no error in giving the instruction in his case.