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Exclusion of evidence didn’t violate defendant’s right to present defense; instruction on self defense adequately instructed the jury

State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)

Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.

Right to present a defense

1. As part of his self defense claim, Ochoa sought to admit evidence under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), regarding the two victims’ past acts of violence. The circuit court allowed testimony about the victims’ reputation for being violent, but excluded Ochoa’s proffered evidence of specific acts of violence.(¶¶3, 21-28). It did not erroneously exercise its discretion in so ruling. The specific acts were almost 20 years in the past, and in the intervening period Ochoa and one of the victims were close friends and even lived together, showing no concern for the victim’s past violent acts. In addition, the specific acts were different, and as to some of them Ochoa provided insufficient detail to support a finding the events occurred. (¶¶29-30).

2. Ochoa also sought to present three experts, one to testify about the slang meaning of one of the victim’s statements (in Spanish) to Ochoa and two to testify on “the dynamics of violent encounters” and the defensive use of force and the conclusions that could be drawn about the incident in this case based on the forensic evidence. (¶¶4, 31). The circuit court excluded this evidence after holding Daubert hearings and finding the experts’ proposed testimony irrelevant  or not sufficiently reliable. (¶¶33-34). The court of appeals holds the circuit court’s decisions excluding the experts was a reasonable exercise of discretion as it was based on the specific facts and an application of the correct law. (¶¶35-40).

3. Ochoa argues the circuit court improperly excluded his testimony about why he returned to the home where the victims were shot after having left and going to his own home some hours earlier. In a fact-specific ruling, the court of appeals holds the circuit court didn’t actually exclude that testimony, and thus did not err. (¶¶8, 41-49).

Pattern jury instruction’s incorporation of self defense

At trial Ochoa asked the court to modify the pattern instruction on the substantive offenses, Wis. J.I.—Criminal 1016, which includes first degree intentional homicide and the lesser included offenses of second degree intentional homicide and first degree reckless homicide and also incorporates instructions on applying self defense to all the offenses. But as Ochoa points out, JI-1016 is missing something explicitly included in the standard self defense instruction, Wis. J.I.—Criminal 805: the crucial definition of “reasonably believes” from § 939.22(32). The definition is crucial because it tells the jury that a defendant can have a reasonable belief—about a victim’s unlawful interference with the defendant, or about the amount of force necessary to prevent or terminate the interference and therefore about the need to use force that might cause death or great bodily harm—even though the defendant’s belief about the facts is erroneous. Thus, JI-805 tells a jury that “[a] belief may be reasonable even though [it is] mistaken.” (¶¶50-52).

Ochoa asked the circuit court to modify JI-1016 to include the definition of “reasonably believes,” but in the absence of case law saying JI-1016 was flawed the circuit court declined. (¶¶54-58). The court of appeals holds the circuit court didn’t erroneously exercise its discretion.

Though it concedes there’s no apparent reason why JI-1016 doesn’t include the definition of “reasonably believes” contained in JI-805, the court of appeals concludes the absence of that definition ultimately doesn’t matter here because Ochoa hasn’t identified a mistake of fact that would make the definition applicable or necessary to his defense. (¶¶61-63). Instead, his examples of mistaken beliefs “present questions about whether his perception of the danger [from the victims] was reasonable.” (¶64). And “under the facts of this case the jury properly heard that self-defense must be based on a reasonable belief, that whether Ochoa’s belief was reasonable as to self-defense must be considered from the perspective of an ordinary, reasonable person in Ochoa’s position at the time of the offense, and how the self-defense privilege specifically applied to the charged and lesser-included offenses. When viewed as a whole, and under the facts of this case, the instruction given is in accord with the self-defense privilege….” (¶65).



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