State v. BoykinsState v. Boykins
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Chаrles Edward Boykins (Boykins) appeals from a judgment convicting him of attempted murder in violation of secs. 940.01(1) and 939.32(1) (a), Stats., and from an order denying his motion for post-conviction relief. Boykins raises four issues on appеal: (1) whether he was denied his constitutional rights to present a defense and call witnesses in his own behalf when the court precluded him from testifying as to specific acts of violence toward him by the victim and precluded defense witnesses from testifying about the victim’s reputation for being a violent man; (2) whether Boykins was denied his constitutional right to assistance of counsel when he was penalized for speaking with his attorney while en route to an in-chambers conference by being forbidden to testify about the victim’s previous acts of violence toward him; (3) whether the trial court erred in refusing to instruct the jury on endangering safety by conduct regardless of life; and (4) whether Boykins was denied due process of law when the trial court commented to the jury that a defense witness might have violated a sequestration order without specifically finding that such a violation had, in fact, occurred and that the witness’ testimony was substantially affected by the violation. Because Boykins was denied his constitutional right to present a defense and call witnesses in his own behalf when the triаl court precluded him from testifying about specific violent acts by the victim towards Boykins and precluded defense witnesses from testifying concerning the victim’s reputation as a violent man, we reverse the judgment оf conviction and order denying postconviction relief and remand for a new trial.
The state’s version of what hapрened is that, as Brown exited the Chez 21, Boykins pulled a .38 pistol from his waistband, fired a shot which hit Brown in the left elbow while Brown’s back was toward Boykins, fired a second shot which did not hit Brown, fired a third shot hitting Brown in the neck and sending him to the ground, firеd fourth and fifth shots which did not hit Brown, and fired a sixth shot which struck Brown in the small of the back, resulting in his paralysis and confinement to a wheelchair.
Boykins’ version of the event is that Brown was the aggressor in the argument and challenged Bоykins to settle the matter outside. Boykins claims he declined but that, because his girlfriend, Mona Walls, wished to go home, they left the tavern right after Brown. When they got outside, Brown was screaming, spitting at Boy-kins’ car, and stomping on thе car with his shoe. According to Boykins, Brown lunged at Boykins, reached behind his back for a gun and said he was going to shoot. It was then, according to Boykins, that Boykins pulled out his own gun and fired several shots in a panic, not intending to kill Brown, but only to defend himself. Boykins then took Brown’s gun and fled the scene. Testimony was adduced at trial corroborating Boykins’ contention that Brown had a gun and threatened to shoot Boykins.
At trial, the court refused to allоw defense witnesses Marion Allison, Marilyn Walker, and Tammy Brown to testify as to their opinions about the victim Brown’s
Boykins took the stand on his own behalf and was asked by his counsel about previous encounters he had had with Brown in which Brown exhibited violence toward him. Boykins testified that in 1982 he had been attacked bodily by Brown at the Interns tavern and that Brown had pulled a gun on him at a bar called Cal’s. Boykins could not remember in what month (s) of 1982 these encounters took place. Boykins was next asked whether there were any other such encounters, and he began to testify about an event that took place in the “spring” of 1982. The state objected to the testimony on the grounds of “remotеness,” and the court sustained the objection. Boykins then proceeded to testify about another violent encounter “three weeks later” which the state also objected to on grounds that the event was remote and, thus, irrelevant. Boykins’ counsel requested
The jury was instructed оn attempted murder and self-defense, and it returned a verdict finding Boykins guilty of attempted murder. Boykins moved for a new trial on the same grounds as those raised here. The trial court denied the motion.
Boykins claims he was denied his basic constitutional right to present a defense and call witnesses in his own behalf when the trial court excluded his testimony concerning specific violent acts by Brown toward him and excluded the testimony of defense witnesses concerning Brown’s reputation for being a violent person. This court agrees.
When self-defense is raised in a prosecution for assault or homicide and there is a factual basis to supрort such a defense, the defendant may establish what the defendant believed to be the violent character of the victim by proving prior specific instances of violent conduct by the victim within the defendant’s knowledge at the time of the incident.
1
The admission of such evidence rests within the sound exercise of discretion by the trial court.
2
Here, the trial court excluded evidence of prior
We conclude, in the instant case, that a lapse of time of less than one year was not so grеat as to negative all rational connection between the victim’s alleged threat to Boykins’ life on the night of the shooting and evidence of his prior violent conduct toward Boykins. 5 The trial court abused its discretion in excluding Boykins’ testimony on the ground of remoteness.
The trial court further impinged on Boykins’ attempt to establish the victim Brown’s violent character when it excluded reputation evidence in the form of oрinions by three witnesses as to Brown’s reputation for violence. The state objected to the proffered testimony on the ground of relevance, and the court sustained the objec
The exclusion of the above reputation evidence, as well as of Boykins’ aforementioned testimony regarding his personal knowledge of the victim’s prior violent conduct, was not only an abuse of discretion but was also error of a constitutional dimension. A fundamental element of due process of law is the accused’s right to present the testimony of witnesses in his or her own defense. 7 The accused also has a constitutional right to testify in his or her own behalf. 8 In cutting off Boykins’ own testimony concerning prior violent confrontations with the victim and in refusing to permit three defense witnesses to give reputation testimony concerning the victim, the trial court prevented Boykins from fully presenting his case as to the reasonableness of the actions he claimed to have taken in self-defense. Thus, Boykins’ constitutional rights to present a defense and to testify in his own behalf were infringed upon.
Before a constitutional error can be held harmless, a reviewing court must be able tо declare a belief that it was harmless beyond a reasonable doubt.
9
Because the jury was denied the opportunity to evaluate Boykins’ asserted defense in light of all relevant evidence, we arе
Because we are reversing Boykins’ сonviction and ordering a new trial based on the improper exclusion of testimony, we find it unnecessary to reach the other claimed errors.
By the Court. — Judgment and order reversed and cause remanded for new trial.
Notes
McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559, 563 (1973). See also secs. 904.04(1) (b) and 904.05(2), Stats.
McMorris, id.
70 Wis. 2d 807, 814-15, 235 N.W.2d 534, 538 (1975).
76 Wis. 2d 72, 82, 250 N.W.2d 348, 352 (1977).
See id. at 81, 250 N.W.2d at 352.
See McMorris, supra note 1, at 149-50, 205 N.W.2d at 562. See also secs. 904.04(1) (b) and 904.05(1), Stats.
See
U.S. Const, amends. VI and XIV;
Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir. 1982).
Chapman v. California, 386 U.S. 18, 24 (1967); State v. Zellmer, 100 Wis. 2d 136, 150, 301 N.W.2d 209, 216 (1981).