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SCOW to address how the castle doctrine interacts with perfect self-defense

State v. Alan M. Johnson, 2018AP2318-CR, review of published opinion granted 9/16/20; case activity (including briefs)

Issues for review (from the State’s Petition)

1. Was Johnson entitled to a jury instruction for perfect self-defense based on his testimony concerning his motivation for trespassing with a loaded firearm in KM’s house, despite the fact that KM was unarmed, shot five times, and Johnson could not recall anything about the shooting other than that KM “lunged” at him?

2. Was Johnson entitled to submission of the lesser-included offense of second-degree reckless homicide under the above circumstances?

3. Did the circuit court erroneously exercise its discretion in excluding evidence of alleged child pornography Johnson found on KM’s computer before he killed KM?

As explained in our post on the court of appeals decision, Johnson trespassed into the home of his brother-in-law, K.M., to determine whether K.M. had child porn on his computer. K.M. discovered Johnson in the house and attacked him while unarmed, which prompt Johnson to shoot K.M.  The State charged Johnson with 1st degree intentional homicide. At trial, Johnson requested, but was denied, instructions on perfect self defense and a lesser-included defense instruction. He was also barred from offering evidence that there was in fact child porn on K.M.’s computer.

Johnson lost in the circuit court but won a new trial on appeal, which led to the State’s petition for review. According to the State, this case “will determine whether a trespasser’s stated intention of uncovering evidence of a crime is sufficient to revoke a homeowner’s privilege to use force under the castle doctrine, such that the trespasser may claim perfect self-defense for killing him.” Petition at 4.

Also, argues the State:  “[T]he combined effect of the court of appeals’ rulings is to permit a jury to condone vigilante justice and allow an armed trespasser to murder an unarmed homeowner because the trespasser was motivated to uncover evidence of a crime. This result is contrary to the state’s public policy as expressed in the statutory castle doctrine, the law of self-defense, and the elements of first degree reckless homicide.” Petition at 5.

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