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Defense of Self – jury instructions – duty to retreat

State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999)
For Wenger: Richard L. Wachowski

Holding: Duty-to-retreat instruction, Wis JI-Crim 810, properly submitted, though retreat would have been into defendant’s own home:

Here, the trial court used the pattern instruction to inform the jury of the applicable law on retreat.  The jury instruction put squarely before the jury the disputed issue of whether Wenger’s use of deadly force was reasonably necessary to “prevent or terminate the interference,” as there was evidence that Wenger may have been able to retreat safely into his house and lock the door.  The feasibility of retreat goes to the reasonableness of Wenger’s belief that he needed to shoot Mueller to prevent or terminate the interference.  See Herriges, 155 Wis.2d at 303, 455 N.W.2d at 638.  In short, the evidence warranted the instruction, and the trial court properly exercised its discretion in giving the instruction.  See Vick, 104 Wis.2d at 690-91, 312 N.W.2d at 495.[4]

[4] The State argues that the trial court did not err by giving the pattern jury instruction on retreat because Wenger was not entitled to a self-defense instruction; therefore, the State argues, Wenger cannot complain of an alleged error in giving the retreat instruction.  Based on the following testimony by Wenger, the State argues that Wenger could not reasonably have believed that he was threatened with imminent death or great bodily harm to justify the use of deadly force:  (1) Mueller was 10 to 12 feet away from him at the time of the shooting; (2) Mueller was turning at a 90-degree angle; and (3) Mueller had no weapon.  Looking at all the evidence in the light most favorable to the Wenger’s theory, however, see State v. Jones, 147 Wis.2d 806, 816, 434 N.W.2d 380, 383 (1989), Wenger was entitled to a self-defense instruction because, accepting Wenger’s testimony regarding the day’s events and his fear of Mueller, Wenger’s belief regarding the necessity of deadly force was reasonable

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