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Waiver (Lack of Objection); Instructions – Self-Defense; McMorris Evidence

State v. Curtis L. Jackson, 2011AP2698-CR, District 1, 10/10/12; court of appeals decision (not recommended for publication), petition for review granted 2/11/13, affirmed, 2014 WI 4 (1/22/14); case activity

Waiver (Lack of Objection), Generally – Jury Instructions

¶8        … To obtain relief based on a jury instruction to which no objection was made, Jackson must show that “considering the proceedings as a whole, … [there is] a reasonable likelihood that the jury applied the … jury instruction in an unconstitutional manner.”  State v. Burris, 2011 WI 32, ¶23, 333 Wis. 2d 87, 797 N.W.2d 430.  “It is the defendant’s burden to establish a reasonable likelihood that the jury unconstitutionally applied an instruction.”  Id. at ¶46.  A defendant meets this burden only if he or she establishes that a constitutional violation was reasonably likely.  State v. Lohmeier, 205 Wis. 2d 183, 193, 556 N.W.2d 90 (1996).  “‘Wisconsin courts should not reverse a conviction simply because the jury possibly could have been misled; rather a new trial should be ordered only if there is a reasonable likelihood that the jury was misled and therefore applied potentially confusing instructions in an unconstitutional manner.’”  Burris, 333 Wis. 2d 87, ¶49 (citation omitted).

Instructions – Self-Defense 

Jackson, convicted by the jury on second-degree reckless homicide as a lesser-offense alternative to the charge of first-degree intentional homicide, argues that omission from the instructions of the following language impeded his theory of self-defense: “If the defendant was acting reasonably in the exercise of the privilege of self-defense, his conduct did not show criminally reckless conduct.” Stressing that this language isn’t part of the pattern self-defense instruction, Wis JI—Criminal 1017, and that the instructions “added substantial defense-requested language, not a part of Wis JI—Criminal 1017, emphasizing the role of self-defense in the various types of homicide,” the court rejects the argument:

¶14      Considering the instructions as a whole, and noting the numerous additions of language further explaining how Jackson’s self-defense claim related to the various degrees of homicide which the jury was to consider, we conclude that the instructions, as given, fairly explained the elements of the crimes and the nature of the defense to the jury. We further conclude that the jury was not confused because of the missing language of which Jackson complains (and which was specifically rejected by Jackson’s counsel), nor would that language, had it been included, likely have caused the jury to have come to a different conclusion.

Jackson obtained lesser-offense instructions on first- and second-degree reckless homicide; he argued that he shot the deceased in self-defense, ¶3. If his exercise of self defense was reasonable (omitted instructional language), then of course Jackson was entitled to acquittal. But it appears that that concept was separately conveyed, by pattern JI 1017, see ¶9. The much closer question is whether the instructions adequately conveyed the interplay between self-defense and (first-degree) reckless homicide. The pattern instruction touches lightly, perhaps incompletely, on this crucial issue: “You should consider the evidence relating to self-defense in deciding whether the defendant’s conduct showed utter disregard for human life,” ¶11 (ital. in decision, quoting JI 1017). Correct, but not entirely enlightening. Of course self-defense must be considered: if the defendant acted in self-defense, then he shouldn’t be convicted. But that is a virtual tautology and fails to explain the entire connection between “utter disregard” conduct and self-defense, in particular, conduct motivated by a genuinely held but unreasonable belief in the necessity of deadly force. As to that, an act undertaken in the exercise of (unreasonable) self-defense is “inconsistent with conduct evincing utter disregard,” State v. Miller, 2009 WI App 111, ¶40, 320 Wis. 2d 724, 772 N.W.2d 188. In other words, (unreasonable) self-defense negates a necessary element of first-degree reckless homicide – something that at least arguably is not conveyed by the pattern instruction. Jackson, to be sure, was convicted of an offense (second-degree reckless) that did not carry this “utter disregard” element, slip op. ¶12, so he wasn’t able to make this particular argument. But the distinction is worth keeping in mind, in terms of formulating theory of defense instructions and argumentation to the fact-finder.

McMorris Evidence – Reputation for Violence 

Evidence of the putative victim’s violent character is admissible only if the defendant knew of same, McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) :

¶21      Since McMorris, a defendant’s prior knowledge of the victim’s character, either by reputation or specific acts, has consistently been a prerequisite to admission of such evidence as part of a self-defense claim.  See Werner v. State, 66 Wis. 2d 736, 743, 226 N.W.2d 402 (1975) (“[A] defendant who establishes a factual basis for the issue of self[-]defense may testify as to his personal knowledge of prior specific acts of violence by the victim of the assault.”) (emphasis added); State v. Navarro, 2001 WI App 225, ¶13, 248 Wis. 2d 396, 636 N.W.2d 481 (“[A] defendant’s state of mind at the time of the alleged offense is relevant to his or her claim of self-defense….  Therefore, in order to introduce evidence at trial of the [victim’s] reputation for violence or past violent acts … [the defendant] must establish that at the time of the incident he knew of that reputation or of those acts.”) (citations omitted; emphasis added).

¶22      Jackson attempts to avoid the undisputed fact that he did not know McCaleb by arguing that McCaleb’s reputation for violence was offered to prove McCaleb’s motive, opportunity and lack of accident or mistake.  The flaw in that argument is that McCaleb’s state of mind is not an element of Jackson’s self-defense claim.  Jackson’s state of mind (a crucial element of self-defense) is the only fact as to which McCaleb’s character is relevant.  Like the trial court, we conclude that McCaleb’s reputation for violence, which was unknown to Jackson before the confrontation, is inadmissible in this case.

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