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Privilege Defense – Accident – Interplay with Self-Defense and Intent

State v. Carroll D. Watkins, 2002 WI 101, affirming as modified 2001 WI App 103, 244 Wis. 2d 205, 628 N.W.2d 419
For Watkins: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Accident has long-existed as a defense that “excuses” homicide, and therefore is incorporated in § 939.45(6) as a privilege “for any other reason.” ¶37. It is not, however, “a true affirmative defense” (which accepts the existence of all the elements of the offense) but, rather, “is a defense that negatives intent, and may negative lesser mental elements.” ¶¶39-41. Thus, proof of intent necessarily disproves accident. ¶43. What happens when self-defense (a true affirmative defense) is combined with accident (which, as noted, negates intent)? The two concepts aren’t mutually exclusive — accident requires a showing that the defendant was acting lawfully, something advanced by showing that he or she acted in lawful self-defense. ¶45. Watkins says he pulled a gun on Malone in lawful self-defense, but didn’t pull the trigger intentionally. This denial of intent didn’t defeat the possibility of self-defense for the simple reason that § 939.48(1) allows a person to threaten deadly force. ¶55.

¶58. As noted above, the defense of accident is a defense to a charge of intentional homicide only if the person who caused the death was acting lawfully and with no criminal intent. We conclude that pointing a gun at another person as a threat of force does not necessarily preclude the possibility of asserting the accident defense so long as the person reasonably believes that such a threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. See State v. Head, 2002 WI 99, ___ Wis. 2d ___, ___ N.W.2d ___, and State v. Camacho, 176 Wis. 2d 860, 865, 872, 501 N.W.2d 380 (1993) for a discussion of the objective reasonable threshold necessary to assert perfect self-defense.

Although the court of appeals found insufficient evidence to sustain the conviction, in that the evidence didn’t disprove the accident defense, the supreme court says the was evidence was sufficient. ¶77. (Other than reciting the circuit court’s findings — it was a bench trial — the supreme court doesn’t elaborate on the particulars of its disagreement with the court of appeals.) Nonetheless, the court reverses the conviction in the interest of justice, §  751.06: The circuit court didn’t provide a clear analysis of self-defense and accident — its analysis was, in effect, inconsistent with the arguments of both parties, such that “both could claim an element of surprise,” ¶¶83-84. Nor did the circuit court even mention accident in its decision, ¶85. Trial counsel may have been ineffective, ¶¶86-87. The trial court’s findings were internally inconsistent. ¶¶88-89. The trial court was also overly fixated on Watkins’ supposed duty to retreat, ¶¶90-94. Finally, the sentence (30 years in prison) seems to add to the supreme court’s unease, ¶95. In sum, then, the result is entirely fact-specific, if welcome; and the abstract discussion on accident in relation to self-defense is certainly quite significant.

On the related idea, “It is well established that the mere assertion of justification or self-defense does not concede intent,” at least where the jury could find an intent “‘merely to wound or even to frighten a feared aggressor’ rather than kill him,” see Cox v. Donnelly, 2nd Cir No. 03-2440, 10/22/04. Similarly see State v. Jones, 147 Wis. 2d 806, 814, 434 N.W.2d 380 (1989) (“a defendant’s testimony that the act that caused a death was unintended does not necessarily preclude an instruction on the privilege of self-defense”).

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