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SCOW finds no problem with problematic jury instructions on self-defense, accident

State v. Joseph T. Langlois, 2018 WI 73, 6/20/18, affirming a published court of appeals decision, 2017 WI App 44; case activity (including briefs)

A majority of the supreme court concludes that the jury instructions given in this case, when viewed in their entirety, accurately stated the law the jury needed to decide the case. Two dissenting justices disagree, concluding that when considered in their entirety, the instructions could have led the jury astray.

Langlois was charged with first degree reckless homicide after he killed his brother. He raised the defenses of accident and self-defense. The jury was instructed on the charged offense and two lesser included offenses: second degree reckless homicide and negligent homicide. The jury convicted him of negligent homicide. (¶¶2-3).

The jury instructions were complicated because they had to cover the charged offense, the two lesser offenses, and the application of the two defenses to each charge. The instructions on self-defense and accident for first degree reckless were fine. In particular, the self-defense instruction (Wis. J.I.—Criminal 801) included the modifications made after State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, which held that the previous version of the instruction didn’t make it clear the state has the burden to prove the absence of self-defense. (¶24).

But the instructions on the lesser included offenses had problems. The second degree reckless homicide instructions made no mention of either self-defense or accident. (¶25). The negligent homicide instruction included some of the self-defense language, but it omitted the key paragraph explaining that the state has the burden to prove the absence of self-defense. (¶26). Thus, the self-defense instruction for the negligent homicide was markedly different from the self-defense instruction given on the first degree reckless homicide, and Langlois argued the difference effectively told the jury that the state didn’t bear that burden when it came to the negligent homicide charge. (¶¶31, 37).

The explanation of the accident defense in the negligent homicide instruction was also problematic, as it incompletely described the negligence standard by referring generally to the defendant’s conduct creating the risk of death or great bodily harm while leaving out the fact that the risk must be “unreasonable and substantial.” (¶26). Langlois argued that omitting “unreasonable and substantial” and referring only to “the risk” generally lowered the state’s burden to prove “awareness of an unreasonable and substantial risk” and instead allowed it to prove simple “awareness of a risk.” (¶¶30, 37, 40).

Invoking the rule that instructions must be read in their entirety, as a whole and in context (¶¶34, 38, 47), the majority holds that none of these problems with the negligent homicide instruction created instructional error.

As to the omission of “unreasonable and substantial” from the accident explanation in the negligent homicide instruction, the majority holds the jury would have understood that “the risk” at issue had to be unreasonable and substantial because the preceding paragraph of the instruction fully defined the negligence standard and requisite live of risk:

¶40     …. “‘The’ is a definite article used as a function word to indicate that a following noun or noun equivalent refers to someone or something that is unique.” State v. Arberry, 2018 WI 7, ¶19, 379 Wis. 2d 254, 905 N.W.2d 832. Thus, the use of “the” before “risk” means that the instruction “contemplates only one unique, specified [risk].” Id.

¶41     Common sense compels the conclusion that the “one unique, specified risk” is the “unreasonable and substantial risk” discussed in the immediately preceding sentence. …. This understanding is confirmed by the explanatory phrase that immediately follows this legalistic pronoun: “the risk of death or great bodily harm required for a crime.” (Emphasis added.)

As to absence of the state bearing the burden of proof on self-defense, the majority relies on a number of phrases elsewhere in the instructions to conclude the jury would understand the state also bore the burden on the negligent homicide offense:

  • First, “[a]lthough the initial self-defense instruction was given after the statutory definition for first-degree reckless homicide, the first paragraph made it clear that the instruction applied generally to the case and specifically to criminally negligent conduct. …. Therefore, the jury was aware that the initial instruction it was receiving applied to the case generally and to criminally negligent conduct specifically.” (¶43).
  • Second, although the circuit court did not re-recite the state’s burden of proof after defining the negligent homicide offense, “it twice incorporated by reference its initial instruction on self-defense when it said, ‘As I previously indicated.’ Thus, the jury was reminded that the initial instruction, recited in the context of reckless homicide, applied equally to the context of negligent homicide.” (¶44).
  • Third, the circuit court gave the jury a general instruction on the state’s burden to establish guilt beyond a reasonable doubt. “Because self-defense is a negative defense [in the context of an offense charging criminal negligence], the State disproves self-defense beyond a reasonable doubt if it proves the elements of the crime beyond a reasonable doubt, specifically criminal negligence. Therefore, the jury was aware that the State had to prove criminal negligence—the element that self-defense would negate—beyond a reasonable doubt.” (¶45).

In other words, somehow, somewhere, in the sheaf of instructions they were given, the jury would figure out what they needed to know by paying close attention to definite articles, the judge’s “previously indicated” instruction on a different offense with different language, and, apparently, their innate knowledge of negative versus affirmative defenses. Justices Abrahamson and R.G. Bradley (writing separately) dissent from this cobbled-together fix of the instructional errors. As they point out (and as Judge Reilly pointed out in his dissent in the court of appeals), it is illogical to think the jury would conclude the specific defense instructions for one offense (first degree reckless homicide) would apply to another (negligent homicide) when the court went to the trouble of separately defining each offense and how to apply the defenses to that offense, and then provided the instructions seriatim. (¶¶64-110 (Abrahamson, J., dissenting); ¶¶112-31 (R.G. Bradley, J., dissenting). And the detail left out of the negligent homicide instruction is not a minor one, but the “critically important” reiteration of the state’s burden of proof. (¶128 (R.G. Bradley, J., dissenting)). As Justice Bradley sums it up:

¶129     The jurors are told to follow the instructions, and we presume that they do so. …. The instructions to the jurors in this case told them to move on to the next lesser-included offense if they could not agree as to guilt on the charged crime under consideration. When the jury moved on to negligent homicide, it found a constitutionally deficient self-defense instruction. Because the instruction wholly omitted the beyond- a-reasonable-doubt standard, the jury could not properly assess whether the State proved beyond a reasonable doubt that Langlois did not act in self-defense. Or, worse yet, the jury could have believed the State did not have any burden at all for disproving self-defense with respect to the negligent homicide charge.

Langlois also challenged the sufficiency of the evidence for his conviction for negligent homicide, in particular regarding whether the risk he created was unreasonable under the circumstances. (¶56). Langlois and his brother were fighting after Langlois intervened when his brother, packing up to head to boot camp, decided to help himself to some items belonging to Langlois and other family members. Langlois’s brother seemed to have the upper hand in the fight, having put a choking headlock on Langlois. But he let Langlois go, so Langlois grabbed a knife and held it at his shoulder with the blade pointing outward. When his brother started in again Langlois stabbed his brother once, killing him. Langlois testified that he had the opportunity to retreat but did not because he was “furious.” When police interviewed him Langlois never used the word “accident” or “self-defense” and he demonstrated a forward stabbing motion during his reenactment of what happened. (¶¶7-10, 15-21, 59). “This evidence is sufficient to establish beyond a reasonable doubt that Langlois’ handling of the fillet knife created a risk of death or great bodily harm that was unreasonable and substantial.” (¶59). And it’s a risk he should have been aware of, not only because of the dangerous nature of the fillet knife but also because character witnesses for the defense testified to Langlois’s intelligence. (¶60).

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