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COA finds no error in denying mistrial or in refusing self-defense instruction

State v. Raymond R. Barton, 2019AP1990, 9/24/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had happened because “things had happened before.” He also asserts the court should have instructed the jury on self-defense. The court of appeals rejects both arguments.

Regarding the daughter’s statement, the court of appeals notes that the prosecutor said he’d told all witnesses not to talk any past acts by Barton. Concluding the defense mistrial response was not the result of the prosecutor’s “overreaching or laxness,” the court of appeals notes that it is required to give great deference to the trial court’s decision. See State v Bunch, 191 Wis. 2d 501, 507, 529 N.W.2d 923 (Ct. App. 1995). Basically, the trial court determined that the stray remark wasn’t very significant in light of the trial testimony, and the court of appeals observes that the “things” that may have “happened” weren’t described as being violent acts, or even acts by Barton. The court of appeals also notes that the question isn’t the admissibility of the daughter’s testimony under Sullivan or any other rule: Barton didn’t move to strike it and the state didn’t argue it was admissible. The only question was whether mistrial was the right remedy for its introduction, and the appellate court finds reasonable the trial court’s determination that it was not.

As to the denial of the self-defense instruction, the court of appeals concludes with the circuit court that there was not even “some evidence” that would support it, citing State v. Stietz, 2017 WI 58, ¶¶15-17, 375 Wis. 2d 572, 895 N.W.2d 796:

Beginning with E.M.’s profane interjection, Barton fails to point to any evidence supporting a reasonable inference that this interjection could have led Barton to believe that there was an imminent threat to his person. It is true that using this profanity was against a “house rule” and was known to anger Barton. Further, a jury could certainly find that interrupting an argument from another room was highly annoying in itself. It is reasonable on these facts for Barton to argue that E.M. intended to provoke an emotional reaction in him. But it is too great a leap to contend that this could have reasonably given rise to a belief by Barton that he was in imminent physical danger. E.M. made the interjection from another room and did not present himself after making it. Barton had to go looking for him. Further, the interjection did not carry any explicit physical threat.

Adding E.M.’s second statement, “I’m right here,” does not meaningfully alter the picture. It is a stretch to argue, as Barton does, that he could reasonably have interpreted “I’m right here,” coming shortly after the profane interjection, as an invitation to engage in a mutual fight. But even assuming that much, Barton fails to explain why he could not simply have declined the purported invitation. There is not a reasonable inference that could be drawn from E.M. saying, “I’m right here,” that Barton could have had a reasonable belief that E.M. planned to attack Barton, requiring Barton to restrain him, much less preemptively attack him.


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