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Defense of Self, § 939.48 – Interplay with Imperfect Self-Defense

State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan

Issue/Holding:

¶84. To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold. The trial evidence must show: (1) a reasonable belief in the existence of an unlawful interference; and (2) a reasonable belief that the amount of force the person intentionally used was necessary to prevent or terminate the interference. Wis. Stat. § 939.48(1)….¶106. Perfect self-defense is a privilege recognized in Wis. Stat. § 939.45(2). Before a privilege may be considered by the fact-finder, the defendant must raise the privilege as an affirmative defense. State v. Trentadue, 180 Wis. 2d 670, 674, 510 N.W.2d 727 (Ct. App. 1993). Once the defendant successfully raises an affirmative defense, the state is required to disprove the defense beyond a reasonable doubt. State v. Stoehr, 134 Wis. 2d 66, 84 n.8, 396 N.W.2d 177 (1986).

¶107. Unnecessary defensive force is also an affirmative defense, Wis. Stat. § 940.01(2), but not a privilege under Wis. Stat. § 939.45. When the issue of unnecessary defensive force (imperfect self-defense) “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).” Wis. Stat.  § 940.01(3)….

¶110. Raising the affirmative defense of unnecessary defensive force should not present great difficulty. We have already determined that the defendant is not required to meet an objective reasonable threshold. Consequently, unnecessary defensive force must have a lower threshold for the admissibility of evidence than perfect self-defense, which does have an objective reasonable threshold. Unnecessary defensive force also has a lower threshold than “adequate provocation,” because “provocation” is defined as “something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.” Wis. Stat. § 939.44(1)(b) (emphasis added).

Court explains that defendant has mere burden of production — to show “some evidence” supporting the defense. Though the threshold for perfect is logically higher than for imperfect self-defense, the two defense are so overlapping that “it would be very challenging for the court to exclude evidence on one but not the other.” ¶¶110-17.

But see:

State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School

Issue/Holding: The holding of State v. Head, 2002 WI 99 [first-degree intentional homicide mitigated to 2nd-degree if defendant had actual but unreasonable belief in necessity of deadly force] is a “new rule” not requiring retroactive application to collateral attacks, ¶¶61-84.

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