Johnson killed his brother-in-law, K.M., while he was in K.M.’s house, uninvited, to look to see whether K.M. had child porn on his computer. The court of appeals orders a new trial for Johnson because the trial court erred in denying Johnson’s perfect self-defense instruction and lesser-included offense instruction and in excluding evidence that there was, in fact, child porn on K.M.’s computer.
Since Johnson was a trespasser when K.M. found and confronted him in his own home, Johnson’s self-defense claim has a couple of hurdles to clear. First and foremost, he has to have a reasonable belief K.M. was involved in an unlawful interference with Johnson. § 939.48(1). Because the encounter occurred in K.M.’s home, the “castle doctrine” comes into play, creating the second hurdle. The doctrine creates a “presumption” that K.M. reasonably believed force was needed to protect himself from Johnson. § 939.48(1m)(ar). But that presumption doesn’t apply if K.M. was engaged in criminal activity or was using his home to further criminal activity. § 939.48(1m)(b)1. (¶¶12-18).
As the supreme court reminded us a couple of years ago, if the defendant meets the “low bar” of “some evidence” of self-defense, the issue must be submitted to the jury, no matter how weak the trial judge might think that evidence is. State v. Stietz, 2017 WI 58, 16, 375 Wis. 2d 572, 895 N.W.2d 796. The circuit court initially decided Johnson met that low bar, but changed course at the close of evidence, saying Johnson could have no reasonable belief that K.M. was unlawfully interfering with him because K.M. had the benefit of the castle doctrine presumption. (¶¶11, 19). Not so, says the court of appeals:
¶20 The circuit court’s conclusion that Johnson had no reasonable belief that K.M. was engaged in an unlawful interference was not necessarily wrong; the problem lies in the very fact that it was the circuit court, rather than the jury, that weighed the evidence and resolved the inferences needed to reach that conclusion.
¶21 We conclude that under the unique facts of this case, whether Johnson [sic: should be K.M.] was entitled to the castle doctrine presumption is a jury issue. Given the facts presented, a reasonable fact finder could conclude that Johnson reasonably believed that K.M. was unlawfully interfering with his person, and that K.M.’s purpose in attacking Johnson was not because he viewed it as “necessary to prevent imminent death or great bodily harm” to himself but rather because he wanted to prevent Johnson from reporting his ongoing criminal activity of possession of child pornography, or perhaps in a fit of rage over the fact that such activity had been discovered. If a jury concludes that Johnson had such a belief, and that it was reasonable, then the castle doctrine, which is otherwise presumed to make K.M.’s conduct lawful, would not preclude Johnson from invoking perfect self-defense.10
10 We do not find that the castle doctrine may be found inapplicable any time a homeowner has illegal material in his residence at the time of an unlawful and forcible entry by another. While the language could be read that way, and seemingly has in a few jurisdictions, we do not do so here. Construing similar language contained in Stand Your Ground statutes, some courts have denied the statute’s protection to any defendant who was engaged in criminal activity without regard to any nexus between that activity and the reason for the use of force. See, e.g., Dorsey v. State, 74 So. 3d 521, 527 (Fla. Dist. Ct. App. 2011) (defendant barred from firearm possession could not invoke Stand Your Ground law); Dawkins v. State, 2011 OK CR 1, ¶11, 252 P.3d 214 (noting that “possession of illegal drugs on the premises” would preclude application of Stand Your Ground law).
We conclude that there must be some connection/nexus between the criminal activity and the homeowner/actor’s use of force. If such a criminal connection/nexus is established, the presumption in Wis. Stat. § 939.48(1m)(ar) that the actor’s conduct was lawful can be rebutted.
Because K.M.’s entitlement to the castle doctrine was a jury question, so, too, is the question of whether Johnson was acting in self-defense:
¶23 In denying Johnson’s request to instruct the jury on perfect self- defense, the court found that K.M. had no weapon, was shot five times, and was naked from the waist up. The conclusions to draw from the number of shots fired and the significance, if any, of K.M. being clothed or partially clothed and whether K.M. had a weapon are for the jury to weigh with all the other evidence to determine whether Johnson “reasonably” believed that K.M. was engaged in an “unlawful interference” of his person. The court, in making its own determination of whether it considered Johnson’s beliefs to be reasonable, improperly weighed the evidence. [Stietz, 375 Wis. 2d 572,] ¶18.
In light of the jury’s acquittal of Johnson on first and second degree intentional homicide and burglary, and convicting on the lesser offense of first degree reckless homicide, the failure to give a perfect self-defense instruction was obviously not harmless. (¶¶29-30).
Speaking of lesser included offenses, the circuit court also erred in denying an instruction on second degree reckless homicide. The only difference between the two is the element of utter disregard for human life, and given Johnson’s mission in the house and the fact he was in the computer room for hours, never seeking out K.M. for a confrontation, means it’s possible a jury could conclude he wasn’t acting with utter disregard. (¶¶31-41). The circuit court properly refused to instruct on negligent homicide, however, in view of Johnson’s self-defense claim, which involved him bringing a gun to defend himself if he was confronted by K.M. (¶42).
Finally, the circuit court excluded evidence that Johnson found child porn on K.M.’s computer. This was error, for the evidence is admissible under the three-prong test established by State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and the error wasn’t harmless. (¶¶43-51).