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SCOW affirms new trial in unusual homicide case involving a self-defense claim

State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)

In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.

Johnson killed his brother-in-law, K.M., while he was in K.M.’s house. Johnson had armed himself and entered K.M.’s house uninvited in the middle of the night to look for child porn on K.M.’s computer. According to Johnson’s trial testimony, when K.M. found Johnson a couple hours later, K.M. closed the door to the room Johnson was in, but then burst back in and attacked. Johnson shot K.M. five times. (¶¶1, 5-10).

Johnson claimed “perfect” self-defense under § 939.48(1), which means he has to have “some evidence” of a reasonable belief that K.M. was engaged in an unlawful interference with Johnson’s person and that it was reasonable for him to believe that shooting K.M. was necessary to prevent great bodily harm or imminent death to himself. (¶11). The circuit court refused to instruct on perfect self-defense because, as described by the supreme court, it determined that no reasonable person could conclude that Johnson satisfied either prong of the standard. (¶12).

“Some evidence” is a “low bar,” as the supreme court reminded us recently, and if the defendant meets it the defense 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. Citing this standard and the evidence Johnson adduced—his testimony about what happened at K.M.’s house that night, as well as evidence of K.M.’s prior physically abusive conduct toward Johnson and Johnson’s sister and Johnson’s previous discovery of what he thought was child porn on K.M.’s computer—a majority of the supreme court agrees with the court of appeals that there was “some evidence” to support perfect self-defense, even if the jury might ultimately conclude Johnson’s conduct was unreasonable. Therefore, the circuit court erred in refusing to instruct on the defense. (¶¶22-25).

Three justices dissent (Ziegler, joined by Roggensack and, in part, by Karofsky), essentially arguing Johnson presented no evidence of self-defense (¶¶38-88)—a claim that runs hard up against the longstanding “some evidence” rule that says the jury, not the judge, gets to weigh all the evidence and decide what a person under all the circumstances would reasonably believe about the need to use deadly force.

While the supreme court resolves the case with a mine-run application of its well-established “some evidence” rule, the impetus to take review was the novel “castle doctrine” issue that drove the decisions of the trial court and the court of appeals. As noted in our post on the court of appeals decision, the trial court initially decided Johnson met the low bar for getting a perfect self-defense instruction, but then changed course at the close of evidence based on the castle doctrine, which creates a “presumption” that, because Johnson was trespassing in K.M.s home, K.M. could reasonably believe force was needed to protect himself from Johnson. See § 939.48(1m)(ar). Because K.M. had the privilege of protecting his home, Johnson could not have had a reasonable belief that K.M. was unlawfully interfering with him, and thus, the trial court decided, wasn’t entitled to the self-defense instruction.

But the castle doctrine 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. After careful consideration of this exception, the court of appeals held that whether K.M. was entitled to the “castle doctrine” presumption was a jury question, not a question for the judge. And if K.M. wasn’t entitled to the castle doctrine presumption, it would also be up to the jury to decide whether Johnson acted in self-defense. Thus, the trial court erred in denying Johnson the self-defense instruction. 393 Wis. 2d 688, ¶¶12-23.

The supreme court majority relegates the castle doctrine issue to a footnote, saying “we need not determine the scope and meaning of the castle doctrine to rule on the issues before us because we are examining Johnson’s, not K.M.’s, actions.” (¶23 n.11). Because there is some evidence from which a jury could find that Johnson reasonably believed he was being unlawfully interfered with, “[t]he substance and applicability of the castle doctrine does not change or alter that conclusion, and therefore exploring it is unnecessary to decide this case. Nothing in this opinion interprets, applies, or limits the castle doctrine in any way.” (Id.).

This is somewhat surprising, given the lower courts’ disagreement about the castle doctrine’s impact on whether Johnson could meet the first prong of self-defense. That said, the end result doesn’t mean the issue is completely unresolved. The court of appeals’ reasoning on that point remains in place, given the supreme court’s affirmance on the self-defense instruction error. State v. Harris, 2010 WI 79, ¶34 n.12, 326 Wis. 2d 685, 786 N.W.2d 409 (“Only when a case is overruled does it lose all of its precedential value.”); State v. Jackson, 2011 WI App 63, ¶15 n.3, 333 Wis. 2d 665, 799 N.W.2d 461 (distinguishing between reversed and overruled court of appeals cases).

Two of the dissenting justices (Ziegler, joined by Roggensack) decry the majority’s failure to address the castle doctrine, hold that K.M. was entitled to the presumption the doctrine allows, and fear the decision opens the door to vigilante justice and dilutes residents’ right to defend themselves in their homes. (¶¶41, 61-66). But in light of the court of appeals’ sensible interpretation limiting the exception to the doctrine (393 Wis. 2d 688, ¶21 n.10) and the highly unusual facts in this case, these worries about the rise of vigilante justice and dilution of the castle doctrine are overstated.

There was another instructional issue in the case: the circuit court’s refusal to instruct the jury on the lesser included offense of second degree reckless homicide. Johnson was charged with first degree intentional homicide, and the trial court instructed on the lessers of second degree intentional and first degree reckless homicide. The only difference between first and second degree reckless homicide is the first requires utter disregard of human life, and the facts here, veiwed in favor of Johnson, could support the conclusion he was not acting with utter disregard. Thus, he was entitled to instruction on that lesser, too. (¶¶27-31).

Johnson was convicted of first degree reckless homicide, and thus can’t be retried on the two greater offenses. (¶37 n.20).

Finally, the court of appeals held the circuit court erred in denying Johnson’s motion to admit other-acts evidence that Johnson found what he believed to be child porn on K.M.’s computer. The supreme court reverses, holding the circuit court’s decision to exclude the evidence because the danger of unfair prejudice substantially outweighed its probative value was “a quintessential judgment call of the type we rely on the circuit courts to make every day.” (¶36).

Quintessential or not, the intersection of that evidence and Johnson’s self-defense claim makes the evidence “highly relevant” and “highly probative” to “the central issue in the case” (to quote the court of appeals, 393 Wis. 2d 688, ¶50). Even if that doesn’t demand de novo rather than deferential review (as Johnson unsuccessfully argued (¶33)), it seems evidence the circuit court discounted the probative value of the evidence in light of its erroneous legal conclusions about the castle doctrine and Johnson’s right to the self-defense instruction. That in turn would mean its exercise of discretion was tainted by an error of law, making it a classic—one might even say quintessential—erroneous exercise of discretion.

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