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Evidence insufficient to invoke “defense of others” privilege

State v. Gabriel Justin Bogan, 2014AP285-CR, District 1, 10/14/14 (not recommended for publication); case activity

In this 1st-degree reckless homicide and 1st-degree reckless endangering safety case, the court of appeals held that the evidence presented at trial did not support a “defense of others” jury instruction. Thus, Bogan’s trial lawyer was not ineffective for failing to pursue that theory of defense.

The “defense of others” privilege requires proof that: (1) subjectively, the defendant actually believed that he was acting to prevent or terminate an unlawful interference; and (2) objectively, his belief was reasonable.  He may then use only such force as he reasonably believes is necessary to prevent or terminate the interference.  State v. Giminski, 2001 WI App 211, ¶¶11-13, 247 Wis. 2d 750, 634 N.W.2d 604.

Here’s why Bogan supposedly failed the test.  A guy named Jefferson, backed by a group of friends, confronted a guy named Newman and his group of friends. Jefferson flashed a gun at Newman’s group, so they fled. Jefferson’s group split up and chased down the members of Newman’s group.  Bogan, a member of Newman’s group, shot at a subset of Jefferson’s group. He killed one member (Young) and injured another (Burgess).  Jefferson himself was not part of that subset, so, said the court of appeals, Bogan couldn’t have believed that his shots were aimed at protecting Newman.

It is undisputed that Jefferson had a gun and that Jefferson and a group of his friends, including the victims, Burgess and Young, were chasing after Newman. However, it is also undisputed that at the time Bogan shot Burgess and Young:   Burgess and Young were not with Jefferson; Bogan was not with Newman; and neither Burgess nor Young was armed. Even if we were to accept Bogan’s somewhat incredulous argument that he believed he needed to shoot Burgess and Young to prevent them from seriously harming Newman, we cannot conclude that his belief was reasonable when neither Burgess nor Young had a weapon, much less a gun, and Newman was not present. See Giminski, 247 Wis. 2d 750, ¶13. Because Bogan was not entitled to the defense-of-others instruction, trial counsel was not deficient for failing to request it nor was Bogan prejudiced by the fact that it was not given.

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