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Imperfect self-defense mitigates a charge of 1st-degree intentional homicide, not a charge of 1st degree-reckless homicide

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)

White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:

¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.

The court of appeals also admonished White’s appellate counsel.
The court of appeals held that White’s interpretation of §939.48(1) is directly contradicted by the plain language of the statute, which states that a person’s beliefs regarding an unlawful interference with his person and the force necessary to terminate it must be “reasonable.” Opinion, ¶16. The court also took White to task for misrepresenting the law:

¶17 Moreover, White’s reliance on Harp and Head misconstrues the holdings of those cases.  Both involved charges of first-degree intentional homicide under WIS. STAT. § 940.01 See State v. Harp, 150 Wis. 2d 861, 865, 443 N.W.2d 38 (1988), overruled by State v. Camacho, 176 Wis. 2d 860, 881-82, 501 N.W.2d 380 (1993)5; and State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413.  A first-degree reckless homicide offense under WIS. STAT. § 940.02 was not at issue in either case.

¶18 What is discussed in those cases is the difference between “perfect self-defense as a complete affirmative defense to a charge of first-degree intentional homicide, and imperfect self-defense (unnecessary defensive force) to mitigate that charge.”  See Head, 255 Wis. 2d 194, ¶3.  The court in Head made it clear that it was addressing only first-degree intentional homicide cases:  “We are speaking here in the context of intentional killings—not reckless killings, or negligent killings, or accidental killings.”  Id., ¶67 . . .

¶20 White misquotes Harp.  What the case says is “[e]xcessive self-defense is not an absolute defense but it affects the nature of the crime of murder.  The legislature recognized that fact by creating the crime of manslaughter/imperfect self-defense.”  Id.  The Harp court is explaining what mitigates first-degree intentional homicide to manslaughter (now, second-degree intentional homicide).  Contrary to White’s position, the Harp language has nothing to do with first-degree reckless homicide.

¶21 White also asserts that Ross v. State holds that “imperfect self-defense is innocent of § 940.02.”  White misrepresents the holding in Ross, which involved a charge of first-degree murder and circumstances where Ross was found guilty of second-degree murder.  Id., 61 Wis. 2d 160, 162, 211 N.W.2d 827  (1973).  The court never said that if imperfect self-defense exists that a person is not guilty of first-degree reckless homicide.  First, as established above, imperfect self-defense only applies to a charge of first-degree intentional homicide and mitigates that charge to second-degree intentional homicide.  Moreover, manslaughter is not the equivalent of WIS. STAT. § 940.02, first-degree reckless homicide.  It was the equivalent of WIS. STAT. § 940.05, second-degree intentional homicide. See Head, 255 Wis. 2d 194, ¶¶61 & 80 n.9.

When we say the court took White to task for misrepresenting the law, we are not kidding. In a strongly-worded footnote 6, it admonished counsel for misrepresenting Ross and Harp and stated  pointblank that counsel violated §802.05(2)(b), which applies to appeals via 809.84, and also SCR 20:3.3(a)(1)(2007) which prohibits lawyers from knowingly making false statements to a tribunal. On Point cannot tell whether counsel was misrepresenting the law or attempting a novel and creative argument. In the latter situation, appellate lawyers have an opportunity to alert the court of appeals that they are presenting a novel theory supported by an extension of the law in their statement on oral argument and publication. White’s lawyer attempted to do so in his brief, though admittedly the statement was hard to follow.

The court of appeals also examined the jury instructions as a whole and held that the jury was properly instructed on 1st-degree and 2nd-degree reckless homicide. Because it found no jury instruction errors, White’s claims for ineffective assistance of counsel and a new trial in the interests of justice, which were premised on such errors, failed too.


{ 1 comment… add one }
  • Robert R. Henak April 16, 2018, 1:56 pm

    With all due respect to the Court, it got the law wrong on this one. While “imperfect self-defense” (i.e., an actual but unreasonable, belief in the need to protect oneself) is a statutory defense that mitigates first degree intentional homicide to second, that does not, as the Court suggests, render the defendant’s actual, if unreasonable, belief in the need to protect himself irrelevant to a charge of first degree reckless homicide.

    The latter charge requires that the defendant act with “utter disregard for life.” Yet, that element is absent when the defendant believes his actions are necessary in self-defense, even if that belief is inaccurate. See, e.g., State v. Miller, 2009 WI App 111, ¶¶37-40, 320 Wis. 2d 724, 772 N.W.2d 188.

    The Court’s attempt to distinguish Miller on the ground that it is a “sufficiency” case rather than an “instructions” or “elements” case makes no sense. If an actual, albeit unreasonable, belief in the need to protect oneself negates the element of “utter disregard” and renders the evidence insufficient for conviction on a count of first degree recklessness, as Miller holds, then a jury finding of such a belief necessarily would entitle the defendant to an acquittal on that count. Whether you call it an element of the crime or a defense that negates such an element, the state must disprove the actual belief in self-defense in order to prove first degree recklessness.

    The Court appears to overlook the fact that a statutory defense of “imperfect self-defense” is necessary to mitigate First Degree Intentional Homicide to Second Degree because and actual, if unreasonable, belief in the need for self defense does not inherently negate any element of first degree intentional homicide. The same is not true for reckless homicides, however. Because an actual, albeit unreasonable, belief in the need for self-defense inherently negates the element of “utter disregard for life,” such a belief necessarily mitigates first degree reckless homicide to second degree without the need for a separate statutory defense.

    In its rush to admonish White’s counsel, the Court got it wrong on the law. Instructions that say that the defendant’s belief in then need to act in self-defense are relevant only if reasonable misstated the law and easily could have resulted in White’s conviction for a crime he did not commit (as opposed to a lesser charge).

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