STATE OF WISCONSIN, Plaintiff-Respondent, v. ALAN M. JOHNSON, Defendant-Appellant.
Appeal No. 2023AP2272-CR
IN COURT OF APPEALS DISTRICT II
February 5, 2025
Cir. Ct. No. 2016CF422
Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
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APPEAL from a judgment of the circuit court for Walworth County: PHILLIP A. KOSS, Judge. Affirmed.
Before Gundrum, P.J., Neubauer and Lazar, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in
BACKGROUND
¶2 This matter returns to us following remand for a new trial. As background, Johnson shot and killed his brother-in-law, K.M., in K.M.s home. State v. Johnson (Johnson I), 2021 WI 61, ¶¶9-10, 397 Wis. 2d 633, 961 N.W.2d 18. According to Johnsons version of events, K.M., who married Johnsons older sister when Johnson was a child, repeatedly physically abused and one time sexually abused him. Id., ¶6. Years earlier, Johnson found what he believed to be child pornography on K.M.s computer. Id., ¶7. Johnson eventually reported this to authorities but was told that the evidence was “stale.” Id.
¶3 On October 24, 2016 at around 11:45 p.m., Johnson snuck into K.M.s home intending to discover “fresh pictures” of child pornography on K.M.s computer to deliver to the police. Id., ¶8. Johnson brought a gun to protect himself because he was scared of K.M. Id. After two hours of searching K.M.s computer, Johnson believed he had “found what they needed.” Id.
¶4 Suddenly, K.M. appeared in the doorway and saw Johnson. Id., ¶9. According to Johnson, K.M. shut the door and then burst through the door and attacked Johnson. Id. The ensuing altercation left K.M. dead; Johnson shot him five times. Id., ¶¶1, 9.
¶6 Following trial, the jury found Johnson guilty of first-degree reckless homicide. It acquitted Johnson of burglary.
¶7 In Johnson I, Johnson argued, in part, the circuit court erred by failing to instruct the jury on perfect self-defense and the lesser-included offense of second-degree reckless homicide. Id., ¶¶20, 27. He also argued the circuit court erred by prohibiting testimony that Johnson found child pornography on K.M.s computer the night K.M. was killed. Id., ¶4.
¶8 Our supreme court agreed the circuit court erred by refusing to instruct the jury on perfect self-defense and second-degree reckless homicide. Id., ¶¶26, 31. However, the court determined the circuit court did not err by prohibiting testimony that Johnson found child pornography on K.M.s computer on the night K.M was killed. Id., ¶36. The case was remanded for a new trial. Id., ¶37. The court noted that, on retrial, the State was “precluded from trying Johnson for burglary and first- and second-degree [intentional] homicide” because the first jury had acquitted him on those charges. Id., ¶37 n.20.
¶9 On remand, the State elected to retry Johnson. An amended information charged Johnson with one count of first-degree reckless homicide, use of a dangerous weapon.
¶11 It explained:
I‘ve reviewed obviously the transcripts. I reviewed that motion hearing where this was discussed, and [the previous circuit courts] decision. I‘ve reviewed the pleadings filed by all the parties here. Certainly I‘ve reviewed both the court of appeals and the supreme courts decision.
And my understanding is that the [S]tate is not conceding that there is child pornography on the victims computer. They would concede that there are unseemly photographs, perhaps nude photographs, perhaps what might be considered pornography, but not necessarily of children.
The circuit court emphasized that the detective who examined K.M.s computer testified at the original motion hearing that, although there were some pornographic images on the computer, the detective could not determine whether the females in the photographs were under eighteen years old.
¶12 The circuit court continued:
[W]hile I agree that [Johnsons] subjective state of mind is incredibly important, his fear is what [K.M.] will do. But if its not child pornography, the [S]tate can easily make the argument [Johnson] wouldnt have to fear it.
So why cant, as the [previous circuit court] allowed, “I found what I was looking for,” goes to his state of mind of
whether [Johnson] thought the victim would be angry enough to attack him? If we allow all these images, they are distasteful. We would all agree on that. And I agree with the supreme court and [the previous circuit court] and ultimately the [S]tate on this, that it is going to unfairly prejudice the [S]tate if they have to see all of these images, and they would. And then the [S]tate is going to have to present some evidence to mitigate this, that it really isnt child pornography, to try and present a reasonable reason that [K.M.] wouldnt be concerned.
....
[T]o show these pictures to the jury is adding days to trial and adding a distasteful view that is kind of an: Eh, [K.M.] didnt — doesnt-deserve-to-live kind of argument. Or who cares, hes just a creep. And thats not what we want the jury to do. We want the jury to focus on [Johnsons] state of mind, which Im not preventing, and for the same reasons that the supreme court upheld it.
¶13 Ultimately, the circuit court excluded the evidence on the basis it believed it would be a waste of time, confuse the issues, and unfairly prejudicial. The court concluded that Johnson could testify at trial:
I went there because I knew there was child -- I knew in the past there had been child pornography; I wanted to turn it over to the police if I found it again. I found what I was looking for, and I was going to turn that over to the police.
The clear implication to a jury is I found child pornography.
The court also precluded the State from arguing “to the jury that it has not seen evidence to corroborate [Johnsons] testimony.”
¶14 The case proceeded to trial. The testimony presented to the jury generally followed the testimony presented at the first trial.
¶15 In Johnsons second trial, the jury was instructed on perfect self-defense. As related to the privilege of self-defense, the circuit court also instructed the jury on the law of provocation. As part of the provocation
¶16 During jury deliberations, the circuit court received a question from the jury: “Do you waive your right to self-defense if you trespass into a home based on the castle law?” As the circuit court began to discuss with the parties an appropriate response, it received word from the jury foreperson that another juror had looked up a definition of the castle doctrine on her cellular phone. Johnson moved for a mistrial.
¶17 The circuit court questioned the foreperson about the situation. The foreperson advised the circuit court that some other jurors brought up the castle doctrine and
[a]nother juror suggested we bring the question to you. We did.
While I was writing the question out, another person, a third person, brought that up on her cell phone to look up the definition. As I was walking back in, she started to speak about it, and we all shut her down.
The foreperson advised that the juror, M.F., had not shared what she read on her cellular phone with anyone else.
¶18 Johnson renewed his motion for a mistrial. The State responded that the circuit court should instead provide a curative instruction to the jury. The circuit court questioned M.F. about the situation.
¶20 Outside the presence of the jury, the court addressed the parties:
[O]bviously [the] castle doctrine is in the news. It has been for years. Politicians have made much hay that we need a castle doctrine. So its not surprising that it would come up in a self-defense case, just in common sense, without somebody looking it up.
¶21 After further discussion, the circuit court decided, over Johnsons objection, it would give a curative instruction. The jury returned to the courtroom. The court instructed:
Normally we dont interfere with deliberations, but I dont want you to go into areas that need not be explored.
And I know that theres been discussion about the castle doctrine. The castle doctrine is a complex legal issue, but it does not apply at all to the facts of this case, and you should not consider it in any way. We -- There would have been an instruction on it if it applied. Please do not do any research on this case. The parties have spent a lot of time and money on this.
....
So it[] need not be a topic of discussion, and you may continue to deliberate. Reread [the jury instruction] if you need to, but please do not do any research. Its not a point of discussion.
¶22 Ultimately, the jury found Johnson guilty of second-degree reckless homicide, use of a dangerous weapon. Johnson renewed his motion for a mistrial on the basis that “one of the jurors researched on her cellular telephone the castle doctrine” and it was “not exactly clear how much of that was communicated to the remainder of the jury.”
¶23 The circuit court denied the motion. It observed that both the foreperson and the juror advised the court that the information had not been conveyed to the rest of the jury. The court continued:
But I instructed them that — quickly and strongly that the castle doctrine had nothing to do with this case whatsoever, and I can only assume, as with any jury instruction, that they took it to heart and that their decision had nothing to do with the — whatever [M.F.] found.
Johnson appeals. Additional facts will be included below.
DISCUSSION
¶24 Johnson raises three arguments on appeal. He asserts the circuit court erred by: (1) denying his motion for a mistrial following the jurors actions during deliberations; (2) by excluding evidence of the images that Johnson found on K.M.s computer; and (3) including an optional pattern-jury-instruction paragraph in the provocation instruction. We address each argument in turn.
¶25 Johnson first argues the circuit court erred by denying his motion for a mistrial after learning a juror looked up the definition of the castle doctrine during deliberations. We review “a circuit courts decision to grant or deny a motion for mistrial for an erroneous exercise of discretion.” State v. Debrow, 2023 WI 54, ¶15, 408 Wis. 2d 178, 992 N.W.2d 114. A circuit court properly exercises its discretion if it applied the proper legal standard to the relevant facts and reached a reasonable discretionary decision. Id. However, “not all errors warrant a mistrial and the law prefers less drastic alternatives, if applicable and practical.” State v. Givens, 217 Wis. 2d 180, 191, 580 N.W.2d 340 (Ct. App. 1998) (citation omitted).
¶26 “A party is entitled to a new trial when prejudicial extraneous information is brought to the attention of the jury.” Manke v. Physicians Ins. Co. of Wis., 2006 WI App 50, ¶17, 289 Wis. 2d 750, 712 N.W.2d 40. The State must prove beyond a reasonable doubt that the extraneous information did not contribute to the guilty verdict. State v. Eison, 194 Wis. 2d 160, 177-78, 533 N.W.2d 738, 745 (1995). We consider whether there is a reasonable possibility that the information “would have a prejudicial effect upon a hypothetical average juror.” Id. at 178. We evaluate the “impact of the error by considering such factors as the nature of the extraneous information and the circumstances under which it was brought to the jurys attention; the nature of the [S]tates case; the defense presented at trial; and the connection between the extraneous information and a material issue in the case.” State v. Poh, 116 Wis. 2d 510, 530, 343 N.W.2d 108 (1984).
¶28 These mitigating steps were entirely reasonable and appropriate for the situation. Jurors are presumed to have followed jury instructions. State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 100, 750 N.W.2d 780, 788. Given the way in which the jurors contemporaneously advised the circuit court of the situation during deliberations and before they reached a verdict, we reject Johnsons contention that we can no longer assume the jurors in this case followed the instructions. The circuit court did not err by denying Johnsons motion for a mistrial.
¶29 Relatedly, Johnson also appears to challenge the curative instruction. In his appellate brief, he asserts the circuit court should have “explain[ed] what the Castle Doctrine means or what law does apply in the absence of the Castle Doctrine.” Johnson contends that because the circuit court failed to do so, the castle doctrine “stood in the way” of the jurys consideration of self-defense.
II. Excluded evidence
¶31 Johnson next argues the circuit court erroneously exercised its discretion by excluding evidence of the images that Johnson found on K.M.s computer. We review circuit court evidentiary determinations for an erroneous exercise of discretion. Johnson I, 397 Wis. 2d 633, ¶33. “[W]e examine whether the circuit court applied the proper legal standard to the relevant facts and reached a reasonable discretionary decision.” Id., ¶34 (citation omitted).
¶32 Johnson asserts the circuit court “erroneously determined, without reviewing the images themselves and contrary to the descriptions provided by those who had reviewed the images, that the images were not child pornography.” Johnson also argues the circuit court “unreasonably concluded that introduction of
¶33 We disagree. First, and contrary to Johnsons argument, the circuit court did not exclude the images because it determined they were not child pornography. The circuit court observed the State had a basis to assert the images were not child pornography, and it did not want minitrials on whether the images were in fact child pornography.
¶34 As for Johnsons assertion that the circuit court erred by not specifically examining the images, the record reflects that in making its determination the circuit court reviewed the parties briefs, the transcript from the previous motion hearing on this issue which included the detectives testimony as to the images that he examined, Johnsons experts analysis of K.M.s hard drive, and both our opinion and the supreme courts decision from Johnson I. The circuit court also explicitly asked the parties whether there were any images of prepubescent children engaged in sexual activity. When Johnson offered a table from his experts report, the circuit court observed it did not appear Johnson accessed those images in that table on the night K.M. was killed. This factual record was an entirely sufficient basis upon which the circuit court made its decision. The circuit court was not required to view all the images to determine whether they constituted child pornography.
¶35 In any event, the record reflects the circuit court excluded the evidence on the ground that any probative value would be substantially
III. Provocation jury instruction
¶36 Finally, Johnson argues the circuit court erred when it instructed the jury on provocation. We begin by putting Johnsons argument into context.
¶37 In Johnson I, Johnson argued the circuit court erred by failing to instruct the jury on perfect self-defense. Id., ¶20. Perfect self-defense is a privilege that is codified in
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful
interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
¶38 As the court in Johnson I observed, “the privilege of self-defense may also be limited when the person claiming self-defense provoked the initial attack.” Johnson I, 397 Wis. 2d 633, ¶26 n.13.
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the persons assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
....
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
¶39 Here, Johnson requested an instruction on perfect self-defense. The State requested an instruction on provocation that included an optional pattern jury instruction paragraph:
A person who provokes an attack whether by lawful or unlawful conduct with intent to use such an attack as an excuse to cause death or great bodily harm to another
person is not entitled to use or threaten force in self-defense.
¶40 On appeal, Johnson argues the circuit court erred by instructing the jury on this optional paragraph. He asserts that because the optional paragraph includes an intent element (“intent to use such attack as an excuse to cause death or great bodily harm“) and because he was acquitted of first-degree intentional homicide, second-degree intentional homicide, and burglary, the circuit courts instruction violated his right to be free from double jeopardy.
¶41 We disagree. Johnson is not being put in jeopardy a second time. The Double Jeopardy Clause applies in three situations. State v. Henning, 2004 WI 89, ¶16, 273 Wis. 2d 352, 681 N.W.2d 871. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Id. (citation omitted). Here, Johnson was acquitted of first-degree intentional homicide, second-degree intentional homicide, and burglary. The State did not try him a second time for those offenses.
¶42 On remand, and before his second trial, Johnson requested the following perfect self-defense instruction:
The Criminal Code of Wisconsin provides that a person is privileged to intentionally use force against another for the purpose of preventing or terminating what he reasonably believes to be an unlawful interference with his person by the other person. However, he may intentionally use only such force as he reasonably believes is necessary to prevent or terminate the interference. He may not intentionally use force which is intended or likely to cause death unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.
Self-defense is an issue in this case. The law of self-defense allows the defendant to threaten or intentionally use force against another only if:
- the defendant believed that there was an actual or imminent unlawful interference with the defendants person; and
- the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and
- the defendants beliefs were reasonable.
The defendant may intentionally use force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.
The circuit court gave the instructions. Because Johnson put intent at issue through his perfect self-defense instruction, the circuit court did not err by including in the provocation instruction a paragraph that accurately reflected the law but referenced the word “intent.”
By the Court.—Judgment affirmed.
This opinion will not be published. See