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No error in failure to give instructions on lesser included homicide charges where defendant’s trial testimony didn’t support them

State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity

The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:

¶14      The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses. If Cole is to be believed, Cole decided to hide the gun from Evans for his protection. At that time, Cole did not know that the gun was loaded. As she was in the process of hiding the gun, Evans grabbed her in a “bear hug.” When Evans grabbed Cole, it knocked her off balance. Cole and Evans stumbled, and the gun went off. This evidence does not establish that Cole was or should have been aware that her having picked up the gun before Evans’ amorous advance created an unreasonable and substantial risk of death or great bodily harm to Evans. See Wis JI—Criminal 1060;Wis JI—Criminal 1175. Under Cole’s version, her conduct was not reckless or negligent at all – the shooting was “an unfortunate result of a prudent attempt” to protect Evans from himself. See State v. Echols, 152 Wis. 2d 725, 741, 449 N.W.2d 320 (Ct. App. 1989) (explaining that, while fight over gun presented unreasonable risk and high probability of death or great bodily harm, defendant’s testimony, if believed, did not create that situation; rather, “the shooting was an unfortunate result of a prudent attempt” by defendant to protect himself). We therefore conclude that the circuit court did not err by refusing to instruct the jury on the lesser-included offenses of second-degree reckless homicide and homicide by negligent handling of a dangerous weapon.

Nor did the trial court err in its rulings regarding evidence Cole sought to elicit about Evans’s previous suicidal threats:

¶18      Based on our review of the record, the following is clear: (1) Cole was allowed to testify that Evans was depressed about his legal problems and was facing prison time, and that Cole was concerned about the presence of a gun; and, (2) the circuit court ruled that Cole could testify that in March 2010, Evans made comments that caused Cole to believe he might harm himself and, as a result, Cole hid a gun from him. The testimony the court decided to allow would have provided the explanation that Cole proffered for her decision to hide the gun from Evans. This was ultimately the evidence that Cole sought to present. We therefore reject Cole’s argument that the circuit court erred by not allowing her to present evidence of Evans’ suicidal threats.

The court also rejects, in a fact-specific discussion, Cole’s claims that trial counsel was ineffective. (¶¶19-35).

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