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State v. Curtis L. Jackson, 2011AP2698-CR, petition for review granted, 2/11/13

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

1. Whether the jury instructions on self defense as it pertained to second degree reckless homicide fairly and adequately explained the defense to the jury.

2. Whether trial court erroneously excluded evidence of the victim’s reputation for violence.

Petitions for review aren’t available on the court’s website, so issue-formulation is educated guesswork based on the decision of the court of appeals. With that caveat, it appears the case presents important instructional and evidentiary issues that recur in battery and homicide cases where the defendant claims he acted in self defense.

Jackson, convicted of second-degree reckless homicide as a lesser-offense alternative to the charge of first-degree intentional homicide, argued that his theory of self-defense was impeded by the judge’s omission of the following language from the instructions: “If the defendant was acting reasonably in the exercise of the privilege of self-defense, his conduct did not show criminally reckless conduct.” The court of appeals rejected the argument, stressing that this language isn’t part of the pattern self-defense instruction and that the instructions added substantial defense-requested language emphasizing the role of self-defense in the various types of homicide. (¶14).

Because Jackson was charged with intentional homicide but got lesser-offense instructions on first- and second-degree reckless homicide and argued self-defense, there was no doubt a welter of instructions dealing with intentional and reckless crimes and, concomitantly, the two standard methods for instructing on self defense that correspond to those crimes (Wis. J.I.-Criminal 801 and 805). As noted in our post on the court of appeals decision, there is a question whether the standard instructions explain the entire connection between the element for first degree reckless conduct, with its “utter disregard” element, and self-defense, though Jackson was convicted of second-degree reckless, which does have an “utter disregard” element, and wasn’t able to make that argument. Be that as it may, the supreme court’s decision in this case will clarify whether the standard instructions on these issues are correct or need to be revisited.

On the second issue, Jackson sought to introduce evidence of the victim’s reputation for violence, citing three specific incidents of assaultive behavior. But Jackson did not know of those incidents at the time of the shooting, so it would not constitute evidence under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) (evidence of the putative victim’s violent character is admissible only if the defendant knew of same). Instead, he argued the victim’s reputation for violence was offered to prove the victim’s motive, opportunity, and lack of accident or mistake, and so was admissible under Wis. Stat. § 904.04(2)(b) (allowing “evidence of a pertinent trait of character of the victim of the crime offered by the accused”) and provable by evidence of reputation or of specific instances of conduct if the character trait is an essential element of a charge, claim or defense under § 904.05. The court of appeals held the victim’s character trait was not relevant to the self defense claim because Jackson didn’t know about it. (¶20). If this issue was renewed in the petition, the case will clarify the admissibility of reputation evidence not otherwise admissible under McMorris.

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