*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant-Petitioner. Debra Ann Head,
Supreme Court
4,
argument
No.
October
2001.—Decided
99-3071-CR. Oral
July
For the the cause was by Christopher attorney general, Wren, G. assistant Doyle, attorney whom on with the brief was James E. general. *10 by
An amicus curiae filed brief was Katherine R. Dickey Remington Kruse, Walter J. and the Frank University Center, School, Madison, Law Wisconsin of Remington on of the Frank behalf J. Center. PROSSER, 1. DAVIDT. J. a This is review of a
published appeals1 decision of the court of which af- judgment County firmed a of the Rock Circuit Court. (Debra), petitioner, Debra Head was convicted jury first-degree shooting of intentional homicide for (Harold). killing husband, and her Harold Head She support claimed that she had acted in self-defense. To attempted assertion, her Debra to introduce evidence of alleged and Harold's threats acts of violence towards past, knowledge her in the her as well as of Harold's argued and of threats acts violence towards others. She explained that her these incidents mental state at the justified shooting theory time of the and her of self- defense. proof,
¶ 2. After an Debra made offer Circuit Judge T. Richard Werner denied her motion to intro- proffered finding evidence,
duce most of the that the provide evidence did not a sufficient factual basis to theory. support a self-defense The court ruled that required showing that, Debra was to make a threshold objectively, viewed she had a "reasonable belief that she preventing terminating or interfer- unlawful 1 Head, State v. 162, App 240 Wis. 2d 622 WI N.W.2d 9. person actually
ence her or believed that... with necessary prevent ... to imminent death force used was great bodily harm to her." The court determined that showing Debra had not made such and excluded past evidence of Harold's of Debra in the and of abuse knowledge her of Harold's violent acts towards others. request The court also denied Debra's that it instruct (1) jury perfect gives self-defense, as to both: which (2) jury guilty; the imperfect a basis to find a defendant not permits jury self-defense, which to find guilt charge second-degree on the lesser intentional homicide. appeals
¶ 3. The court of affirmed Debra's convic- accepted petition tion, and this court her for review. At appeal raising perfect issue in are the this standards for complete self-defense as a charge affirmative to a defense imper- homicide, intentional force) (unnecessary fect self-defense defensive to miti- gate charge. requires examine This case us to *11 governing the of of a standards admission evidence prior victim's character and violence, violent acts of and jury the standards for instructions on self-defense. seeking jury First, we hold that a defendant a perfect charge instruction on a self-defense to of first- degree objective satisfy intentional homicide must an showing reasonably threshold that she believed that she preventing terminating was an interfer- unlawful person reasonably ence with her believed that the necessary prevent force she used to was imminent great bodily death or A harm.2 defendant is entitled to perfect an instruction on self-defense when the trial pronouns throughout opinion We use female this to avoid wordy repetition phrases as "he in such or she" a case involving a female defendant. places in Perfect self- self-defense issue.
evidence placed a when, in issue under reasonable defense is jury evidence, a could conclude that the of the trial view disprove to one of the failed to meet its burden state has beyond a reasonable doubt. We elements of self-defense judgment Head entitled to no whether Debra was make perfect in this case. We instruction on an on court, circuit which will hear the case defer to the apply for a self- remand, to the correct standards upon presented evidence at defense instruction based trial. seeking a a Second, we hold that defendant unnecessary (imper-
jury force on defensive instruction self-defense) charge intentional fect to objective required satisfy an thresh- homicide is not showing acting was under a reasonable old she danger in imminent of death or that she was bodily belief great used was harm or that force she necessary Rather, the defendant must to defend herself. actually that she some evidence that she believed show bodily danger great harm of death or in imminent actually force she used was believed that necessary A defendant is entitled to defend herself. unnecessary defensive force when the on instruction places mitigation defense in issue. evidence this trial placed Unnecessary when, in force is issue defensive jury evidence, of the trial under a reasonable view meet its has failed to conclude that the state could actually disprove the defendant either that burden great danger imminent death or believed she was actually bodily the force she that she believed harm or necessary if herself, even both to defend used was beliefs were unreasonable. *12 claims who Third, hold that defendant we charge first-degree ho- of intentional to a may
micide use evidence of a victim's violent character past satisfactory and acts of violence to show a factual actually basis that she she was in imminent believed danger great bodily actually harm of death and necessary believed that the force used to defend was if herself, even both beliefs were unreasonable.
¶ 7. We conclude in this case that Debra's offer of proof established a sufficient factual for a claim of basis self-defense) unnecessary (imperfect force defensive present and that she should have been allowed to past evidence of violent character Harold's and acts of mitigate charge violence at trial in an effort to first-degree Moreover, homicide. intentional she was jury second-degree entitled to a instruction on inten- tional homicide on the basis the evidence that was introduced at trial. Because evidence that should have been admitted was excluded and because an instruction given that should have denied, been we conclude Accordingly, that Debra Head is to a entitled new trial. appeals we reverse the decision of the court of remand this to the case circuit court. Finally,
¶ 8. we conclude that Wis JI —Criminal jury involving mitigation 1014, the instruction first-degree second-degree intentional homicide to in- unnecessary tentional homicide based on defensive accurately force, does not reflect the law as set forth in opinion. request this therefore We that the Wisconsin Jury Criminal Instructions Committee revisit amend Wis JI —Criminal 1014 and other relevant in- opinion. structions accordance with this I. FACTUAL BACKGROUND objective opinion ¶ 9. Our in this is not to deter- mine whether the State adduced sufficient evidence to sustain Debra Head's conviction for inten- *13 objective is to determine whether Our tional homicide. factual basis for offered a sufficient the defendant required to admit court was self-defense, so that the required proffered at trial and of her evidence some theory go permit of the case to to the or all of her some appeal, purposes jury. Consequently, of this we for proffered present evidence and trial defendant's testimony light the defendant most favorable to in the acknowledge perspective of this one-sided and that story. represent not the full events does ¶ convicted 10. Debra Head was killing shooting and her hus- for intentional homicide May in the 29, 1998, at their home Harold on band County. The Heads had in Rock of Johnstown Town years daughters. 22 and had two married for been 17-year-old January ¶ 1998 the Heads' In late daughter mother that she was Brenda informed her 21-year-old pregnant Chad was and that Graves Day week- On her unborn child. Valentine's father of preg- about the Brenda told Harold end, Debra and enraged. nancy, into the He went and he became came out with two he with Debra. He shared bedroom guns, look for house, and drove off to out of the stormed driveway. squealing in the Harold his tires Graves, He returned if found him. to kill threatened Graves he night brother, who his mother home later that with billy away guns that as well as a club his had taken kept in his vehicle. Harold months, Harold con- next several 12. Over the claiming against Graves, once to make threats
tinued they'll pick dead; Graves, "he's if he encountered body bag." up of their to avoid talk Debra tried him in a daughter's pregnancy mere mention of because you "It like lit Harold off. was name would set Graves' bomb," of a she said. the fuse evening May 28, 1998, 13. On the Debra and argued argument Harold about their finances. The not heated. morning, May overslept. 14. The next Debra
Knowing work, that she be late for she would decided to stay again home and talk Harold their about finances apologize telling for not him the truth about not paying certain overdue bills. She testified that she had *14 lied to her husband because she was afraid of his asleep, lying side, reaction. Harold was on his left on the half of the bed to the closest bedroom door.When Debra by shaking foot, woke Harold his he rolled on his over right side, back and then to his to face her. She was standing bed, next to the at his feet. Debra asked upset Harold if he were still about the events of the previous night. He said that he was. The two on to went problems discuss and work out some of the with their finances.
¶ 15. Debra then turned the conversation towards upset began Brenda and Harold, Graves. This who yelling that Graves had ruined his life and ruined telling life. Harold, Brenda's Debra tried to reason with him that he mistaken, was that he would have to come daughter around, that he could not disown his and accept grandchild. refuse to or his Graves unborn angry your Harold became and said: "It's been all fault got pregnant. your since. Your ever fault Brenda It's happened." fault that this all He continued, "Fuck Chad you, "Maybe and fuck too. I'm sick of Then it." he said: just you guys get my I should take care and on with life." threat, Debra understood this to be a that Harold thought thought of her the same as he of Graves. She thought going Harold was to kill her and then kill Graves.
210 ¶ that Harold clenched his Debra testified 16. and rolled across the bed covers, fists, threw back something." going knew to reach for Debra "like he was handgun kept of the under his side that Harold standing. now She on she was bed—the side which gun, knowing grabbed that "that's what he was going for." first afraid. "Harold made the Debra was coming and I reacted to me, he after
move like protect was gun myself." pointed at her husband. She telling briefly, They spoke him that he was with Debra thinking wrong way about Brenda in the he was Chad. big tall, feet Harold, 43, man, was they spoke appeared
pounds. terrified, but as At first he got he made the more furious" and "that's when "he eyes a fire in his me." "There was move to come toward was afraid. At before," and Debra that I had never seen weapon, I like he was instant, "it was move; reacted," I she said. had made that victim, and he getting he was fists, into hands were clenched "His *15 coming me." bed, at out of in
¶ twice, once then shot her husband 19. Debra eight-year-old An chest, once in his midsection.3 his neighbor and heard the shots at trial that she testified elapsed the first and between or two that a second shots. second operator
¶ that She told the 20. Debra called 911. fight he that, after had a and and her husband she 3 killed fired or which shot shot was first It is unclear which at autopsy testified performed Head. The doctor who Harold him, to kill chest sufficient the shot to Harold's was trial that to kill him without sufficient to his midsection was and the shot medical attention. near-immediate threatened to kill him. her, she shot She said that she did not mean to her shoot husband and did not know gun that the was loaded. police arrived, 21. When officers Debra went crying.
outside, She told the officers "that her husband threatening had been her him; friends gun that she shot didn't know the she was loaded." ¶ 22. Detective David E. Bier entered the house body and found Harold's in the bedroom "on back on his right leg hanging edge the bed. His was over the of the leg bed his left still under covers, and he upper had blankets over his torso and head." Blood splattered covered the floor and was walls, on the ceiling, filing and the cabinet. Police officers found 26 guns, counting not the one Debra, used in the guns bedroom. All 26 unloaded, were but ammunition many for of them was also found the bedroom. The firearms, ammunition, officers found or knives in each of the other rooms of the house. gave
¶ 23. Debra officers two oral and two written police repeatedly statements at the station. She told physically officers that Harold had not abused her but verbally that he had abused her. charged 24. Debra Head was with pursuant homicide,
intentional to Wis. Stat. 940.01 (1997-1998).4 She admitted that Harold, she had killed but claimed that she did so in self-defense. Prior to her jury seeking trial, Debra filed a in limine, motion assert self-defense and to admit "McMorris evidence" concerning prior Harold's violent character and his subsequent All references to the Wisconsin Statutes are to the 1997-98 versions unless otherwise indicated.
212 sought specific violent acts.5 She also to her discuss theory proposed supporting of defense and the evidence opening in her The circuit court statement. allowed opening to in her Debra to allude state- delayed ruling disputed ment, but whether to admit the evidence. presented case, 25. After the State its the court proof regarding
allowed Debra to an offer of make sought jury to out, evidence she admit. With the Debra testified about a 1991 incident in their house in which threatening Harold to kick a stuffed and mounted was stop "got really animal. him. She went over Harold physically picked up, throwing mad" and her her off the get up, hack, arm of a couch. Debra hurt her could not emergency and had to be taken to a local room for x-rays. you're gonna everybody suppose I tell "Now quoted saying. replied, did," Iwhat she Harold as She just up story," people I "[n]o, won't. make and tell We'll "I fell out in the woods." ¶ 26. Debra described an incident in 1996 when angry Harold her and chased her in their with hallway house. "He chased me down the towards our "grabbed bedroom." He me and then we flew on to the frame, and broke the bed she said. bed" past Evidence of a violent character violent victim's McMorris is often referred to as evidence. The term acts State, v. 'McMorris evidence" refers McMorris 2d 58 Wis. 150, 205 (1973), a court ruled that N.W.2d 559 case which this a defendant who had established a "sufficient factual basis to be raise the issue of self-defense" should allowed submit personal knowledge prior specific evidence of her acts of her violence the victim of assault.
¶ a at how Harold once threw wrench 27. She told routinely arms, her sometimes her and how he twisted armpits up picked up off the the and lifted her her ground repeatedly twisted her cried, until she and breasts. filing
¶ had considered for 28. Debra said she to kill her if she in but Harold threatened divorce throughout actually repeated He that threat filed. ever stayed partly marriage. said she with him their She of fear. because
¶ a of inci- 29. Debra also testified about number For or threats of violence to others. dents of violence supervisor Harold a at the instance, in 1995 threatened plant worked, he and was sus- General Motors where undergo counseling pended days. for 30 He had [a drug began taking prescription Paxil used to treat panic generalized depression, disorder, and mental anxiety stopped taking drug disorder]. He the in 1997. rage"
¶ Debra described a "road incident in September thought in Harold a woman had 1997 which yelled driveway. cut him off as she out of a He at backed pulling woman, vehicle, then accelerated his in they light. of her car as came to a red Then he front stopped, jumped truck, woman, cursed at the out his and kicked off the side mirror of her car.
¶ in 31. Debra also noted two incidents the 1990s involving neighbor. argu- incident, a In one after an punched neighbor ment, in the face. At a Harold neighbor complained date, Harold later about shooting yard. pistol a in the back Harold walked over neighbor, gonna pistol hand, "and hit him to the was gun it. then hit him hit him with But didn't with but instead," with his fist Debra said. referred an incident in 1996 or 32. Debra also against six-year-old
1997, in which Harold retaliated vulgar boy had called him a name. Harold twisted who hurting go boy's him, and had to arm, to court as example was offered as an result. incident temper. short Harold's "always thought Debra said that Harold pound
everyone against him." he would Sometimes things table, on the or throw across the room. One time pushed floor, a microwave off the counter to the he all off another time he broke the buttons the VCR. proof, *18 ¶ In her offer of Debra also testified in night that occurred the before detail about the events shooting, day and the anger of the as well as Harold's intense daughter's pregnancy. his about proof, her 35. After Debra made offer a court determined that she had not established suffi- support to a claim of self-defense. cient factual basis present not allowed to evidence Therefore she was regarding prior and character Harold's violent conduct argue trial that she for violence6 and she could not at The court based its decision had acted self-defense. following exchanges The two illustrate how the court's during the defendant's tes ruling excluding evidence surfaced timony explained at the events that occurred after trial. Debra pregnant. daughter and her told Harold that Brenda was she night reported home that She discussed Harold's return away guns billy and his that brother had taken Harold's his club. billy always police like a club. I believe he
DEBRA HEAD: It was across, just he it in his in case he came as would carried vehicles say always say [interruption]. always in case he came ... He would pissed .. some little fucker that him off. across . object I to that. That's DISTRICT ATTORNEY: ASSISTANT ruling. scope I of the move to strike. also within granted. That answer is stricken. THE COURT: That motion is gentlemen, you disregard are to that answer. Ladies and precedent and its under- on review of Wisconsin its only contemporaneous standing that it could consider determining made to the defendant in whether threats a factual basis to raise self-defense. she had sufficient May Harold's threat to Debra on noted that court accompanied by violence, and that 29, 1998, was not weapon. possess not a The court therefore Harold did not a that Harold's threat did constitute concluded for her to assert self-defense. sufficient factual basis evidence, At Head's de- the close Debra jury requested the court fense counsel submit instructing jury JI —Criminal instruction Wis perfect complete de- on self-defense as affirmative imperfect intentional homicide and fense mitigating first-degree inten- self-defense as factor second-degree intentional homicide. tional homicide testify The court had allowed Debra to as what morning night occurred the before and the Harold's death and the events that had unfolded on and after the day daughter's pregnancy. learned of his It
that Harold "subjectively she's met whatever she would found that meet, need to I don't believe that she's met the but *19 instance, shooting, In another as she described the Debra n testified as follows: weapon? DEFENSE COUNSEL: Did he have a weapon. weapons. DEBRA HEAD: He was the His hands were past experience, capable From the I knew what he was of. Objection, judge. ASSISTANT DISTRICT ATTORNEY: We have hearings point. had hours worth of on this Yes, THE COURT: sustained.
ASSISTANT DISTRICT ATTORNEY: Motion to strike. portion THE will COURT: That answer be stricken. The jury disregard part is to that of the answer.
216 objective equation." Consequently, half of the the court ruled that because Debra had failed to establish a self-defense, sufficient factual basis to assert she was any jury not entitled to instruction on self-defense. The jury only first-degree court instructed the on inten- tional homicide. jury guilty
¶ 37. The returned a verdict of homicide, intentional and the circuit court mandatory prison. sentenced Debra to term of life in Department The court allowed the of Corrections to parole. ap- determine the date of defendant's Debra pealed, appeals scholarly and the court affirmed in a by Judge Deininger. Head, decision written State v. App Judge 162, 2000 WI 240 2dWis. 622 N.W.2d9. Roggensack strong wrote a and effective dissent. appeals
¶ 38. The court of determined that refusing permit circuit court did not err in Debra to Citing ¶ introduce McMorris evidence. Id. at 1. State v. (1993), Camacho, 860, 869, 176 2dWis. 501 N.W.2d380 perfect imperfect the court concluded that both objective subjective compo- self-defense have as well as Id. nents. at 20. It said that Debra's claim of self- solely testimony her defense was based on and that her testimony support "does not her claim that she reason- ably acting believed that in she was self-defense when she shot Harold." Id. at 13.7 appeals The court of wrote: testify She did not that her husband made a direct threat verbal her, against engaged any overtly that he violent acts or gestures, leading up shooting. in the moments to the Her testi- mony she couldnot leave the bedroom was undermined her that husband, statements she was six feet from her that he was lying bed, gun down on the and that she had a trained on him for several moments before she shot him. *20 Having ¶ not ad- that Debra had found 39. equately court self-defense, the issue raised past violent of Harold's that the evidence concluded ¶ Id. at character was inadmissible. and behavior appeals ¶ that also determined 40. The court declining err in to instruct court did not the circuit mitigation. ¶ jury 20. The Id. at on self-defense again on its conclusion its decision court based showing that she failed to make threshold Debra had reasonably an unlaw- was threatened with believed she required Camacho. Id. at interference, as ful ¶¶ because Debra had The court found that 20-21. showing required therefore and was failed to make the subjective present belief that of a evidence unable acting self-defense, was not entitled to she she was perfect imperfect self-defense. on either instructions ¶ Id. at 21.
II.
OF REVIEW
STANDARD
interpret
requires
¶
court to
This case
940.01(2)
(3),
939.48(1),
§§
and 940.05.
Wis. Stat.
question
Statutory interpretation presents of law
benefiting
novo,
from the
de
which this court reviews
appeals.
analyses
the court of
of the circuit court and
441,
Busch,
429,
2d
circuit court's to submit certain instructions to and its decision not jury. testimony, "in own she was control" of Based on Debra's situation. Head, 13-14. App 2000 WI *21 ¶ 43. The decision whether to admit or exclude evidence lies within sound discretion of the circuit Kokemoor, 615, court. Johnson v. 199 635-36, Wis. 2d (1996). reviewing discretionary- 545 In N.W.2d 495 decision, we examine the record to determine if the logically interpreted circuit court facts, State v. (Ct. Rogers, App. 817, 196 2d 829, Wis. 539 N.W.2d897 1995), applied proper legal standard, and used a process demonstrated rational to reach a conclusion judge Glassey that a reasonable could reach. v. Cont'l (1993). Co., 587, Ins. 176 2d 608, Wis. 500 N.W.2d295 properly To discretion, exercise its a circuit court must "apply the correct standard of law to the facts at hand." Margaret H., State v. 42, 2000 32, 606, WI 234 Wis. 2d discretionary 610 N.W.2d475. This court will reverse a if decision the circuit court's exercise of discretion "is Transport on an based Specialty, error law."Marten v. Hartford (1995). 1, 194 2d 13, Wis. 533 N.W.2d452 In discretion, its exercise of the circuit court's decisions great admit or exclude evidence are entitled to defer Ripp, ence, 113, 29, Martindale v. 2001 WI 246 Wis. 67, 2d 690, 629 N.W.2d but we will reverse the circuit applied legal if court we determine that it an incorrect standard. Ultimately, willingness
¶ 44. the court's to enter- theory tain a defendant's of defense and re- submit quested jury grounded instructions to the on the presented evidence to the trier of fact. there Whether giving are sufficient an facts allow instruction question is a of law which we review de novo. State v. (1995). Mayhall, 2d A 53, 57, 195 Wis. 535 N.W.2d473 give court errs when it an fails to instruction on (citing issue raised the evidence. Id. at 57-58 Lutz v. Shelby Co., 743, 750, 2d 235 N.W.2d Ins. 70 Wis. Mut. (1975)). has that a circuit court If we determine jury failing give instruction, an error committed rights of the the substantial whether we must assess 805.18(2). An affected. Wis. Stat. have been defendant rights of a defen affect the substantial error does not beyond that a a reasonable doubt if it is clear dant guilty jury defendant have found the rational would Harvey, ¶93, 49, 254 2002 WI the error. State v. absent 2d 647 N.W.2d Wis.
III. ANALYSIS *22 for in this case are the standards 45. At issue charge raising perfect to a as a defense unnecessary de- homicide and intentional self-defense) (imperfect as a factor miti- force fensive gating first-degree homicide to second- intentional degree homicide. A related issue involves intentional governing the admission McMorris the standards concerning charac- a homicide victim's violent evidence Presenting prior a defendant's ter and theory acts of violence. jury depends upon the evidence of the case to admitted at trial. above, the circuit court in this case 46. As noted any Head to self-defense in
did not allow Debra assert including McMorris evi- evidence, form or to submit emphasized supporting The dence, such claims. court unnecessary as a that in order to show defensive force mitigating first-degree homicide, a intentional factor required a defendant is to show that she had "reason- preventing terminating or able belief that she was actually person interference with her be- unlawful necessary to that force—that the force used was lieved great bodily prevent.. . imminent death or harm." pursuant Camacho, that 176 Wis. court determined subjective objective 2d "there is a facet as well as facet to the defendant's actions and how the court must person person particu- view facts and a in those —the Clearly subjective lar circumstances. facts are as by thought testified Miss Head as to what in she her objective basically own head and facts are what sur- rounded the event."
¶ 47. The court further stated that it had consid- precedent, ered relevant and "all of that relevant case law describes facts with simultaneous violence or im- weapon minent threats of harm with a in the hand of predicates type testimony the victim as this coming in." The court concluded that this case: court it
[T]he feels has to look at... whether there is a basis, basis, [relying] strictly a factual on the threats that were made to Miss Head.... [T]here was not a weapon in Mr. making [H]e Head's hand. was not specific going get you. threat to Miss Head . . . I'm I'm going you to kill .... Bottom line is it was a threat not by time, accompanied any weapons use of at that not accompanied by violence at that time.
¶ 48. The court added: "I think that the Court has any to find a factual basis to let of this evidence in that concerning neighbor, was testified to Miss Head concerning rage, concerning things road these *23 resulting [and in occurred the '80s the 1991 incident in injury]. I Debra's back have not found that factual basis, I will not so admit the same."
¶ 49. The court later stated that: juncture at in [A]t least this the trial there has been at it from the Camacho looking aspect no—I'm of the objective subjective facet, concerning Miss Head's Clearly subjec- conduct at the time. the court feels that meet, tively she's met whatever she would need to but objective half of that met the I believe she's don't basis, factual there wasn't that sufficient equation. And at this basis, read that instruction to objective factual in time. point argues court
¶ that circuit now the 50. Debra by requiring act of a simultaneous her to show erred weapon, presence in order to raise of a violence, or the pre- the evidence claims that She also self-defense. proof to raise of was sufficient in her offer sented making argument, In this’ she anas issue. self-defense attempting dispute to raise that a defendant not does charge perfect of first- of the issue objec- degree an must meet initial intentional homicide that her offer of She asserts instead tive threshold. proof objective meet the threshold. sufficient to requirement dispute of an she the 51. Nor does objective for a claim of unneces- reasonable threshold self-defense) (imperfect sary or ask that defensive force holding In an amicus in overruled. Camacho be Remington Center however, the Frank J. brief, curiae validity question the Camacho deter- calls into imperfect self- that to raise issue mination objective an rea- must first meet defense, a defendant pursuant that to Wis. Stat. It asserts sonable threshold. objective 940.01(2)(b), § thresh- as revised mitigation required not for the old is legislative his- It claims that intentional homicide. conclusively tory of 940.01 shows of the 1988 revision require legislature a defen- did not intend objective imperfect meet an threshold assert dant to self-defense. reject any suggestion asks us to State raising requirements of misstates the
that Camacho imperfect establish a It contends that to self-defense. self-defense, a defendant to raise sufficient factual basis *24 Camacho, must, pursuant objective meet an thresh- hy old belief that showing reasonable she was pre- or venting terminating unlawful interference with the defendant's The State asserts person. that this threshold is same whether a defendant claims self-defense, or perfect imperfect that to assert either type self-defense, a defendant must make an initial threshold showing objective The reasonableness. State contends that Debra Head failed to meet this objective threshold and therefore was not entitled to assert or perfect imperfect self-defense. 53. The initial questions for this court concern
¶ the standards for either or raising perfect imperfect self-defense, both, to a charge of inten- first-degree tional homicide. To resolve these questions, we must examine the law of homicide in Wisconsin both before and after the 1988 revision of the homicide statutes and this court's decision in Camacho. We begin with revisit in law of homicide Wisconsin. A. Wisconsin's Law of Homicide law of homicide in Wisconsin was re- vised revision, 1987 Wis. Act 399. Prior to the Chapter offenses, listed nine homicide including first-degree murder, murder, and second-degree man- slaughter. 940.01, §§ Wis. 940.02, Stat. 940.05 (1985-86). 940.01(1), murder, 55. Section read
as follows: "Whoever causes the death of another hu- man with intent to kill being or another person (1985-86). A guilty of Class felony." Wis. Stat. 940.01 (2) Subsection defined kill" "intent to mean "the mental purpose to take the life of another human *25 (1985-86). This § 940.02 two-element Wis. Stat.
being." Stat. by life Wis. imprisonment. offense was punishable (1985-86). 939.50(3)(a) § murder, 940.02, second-degree pro- 56. Section
¶ of causing hibited the death: (1) to By imminently dangerous another conduct life; mind, of or evincing depraved regardless a human (2) probable consequence the As a natural and of attempt felony. commit a commission of or to (1985-86). § Stat. 940.02 murder Second-degree Wis. B not to felony punishable by imprisonment was Class 939.50(3)(b) (1985-86). § exceed 20 Stat. years. Wis. 940.05, manslaughter, prohibited 57. Section the of death: causing
(1) in intent to kill and while the heat of Without passion; or
(2) Unnecessarily, privilege in the of his of exercise privilege self-defense or defense of others or of a prevent felony; terminate the commission or or (3) by by person Because such is coerced threats made coconspirator someone other than his which cause reasonably only him to believe that his act is means another; preventing imminent to himself or death (4) physical forces pressure Because the of natural reasonably causes believe that act is person such his only public preventing means of imminent disaster or imminent death to himself or another. (1985-86). § Stat. 940.05 Manslaughter
Wis. not Class C felony punishable by imprisonment 939.50(3)(c) (1985-86). § exceed 10 Wis. Stat. years. categorizes 58. The 1988 homicides revision involved, re- upon degree based as culpability for flected the mental element each offense. required Three of the framers of the revision —Walter Dickey, Schultz, David L. Fullin, and James Jr. —describe four of mental element as follows: gradations (1) The mental element is intentional when the purpose actor has the to cause is death or aware that practically death is certain to be caused the conduct 939.23]; [Wis. Stat.
(2) aggravated The mental element is recklessness when the actor aware that conduct creates an great unreasonable and substantial risk death or bodily harm to under another circumstances which show disregard utter for human life [Wis. Stat. 939.24, 940.02]; §§
(3) The simple mental element is recklessness when the actor aware that the is conduct creates an unreasonable great and substantial risk of death or bodily 939.24]; [Wis. § harm to another Stat.
(4) element negligence The mental when the actor that should realize the conduct creates a substan- tial great bodily and unreasonable risk of death or § harm to Stat. [Wis. 939.25]. another Dickey, Fullin, Jr., Walter David Schultz & James L. Importance The in the Clarity Law Homicide: The of of Revision, Wisconsin 1323,1330 Wis. L. Rev. [here- Importance Clarity]. inafter of 59. These different mental elements are now in embodied different homicide statutes differ- carrying ent penalties. 60. This concerns an alleged case intentional divided
homicide. Intentional homicides are into two categories, First-degree second-degree. homicide, 940.01, § intentional Wis. Stat. replaced first- (1985-86). murder, Stat. 940.01 It degree pro- Wis. in vides relevant part: (a)
(1)OFFENSES, (2), Except in provided as sub. being the of another human with whoever canses death person guilty of a kill that or another is Class intent to felony. A
(2) follow- MITIGATING CIRCUMSTANCES. The ing prosecution under this are affirmative defenses 2nd-degree mitigate the inten- section which offense to 940.05: tional homicide under s.
(a) provocation. was caused under Adequate Death provocation as defined in s. adequate the influence 939.44. (b) Death Unnecessary was caused force. defensive in the actor believed he or she or another was
because great bodily harm danger imminent death or necessary endangered was used force defend person, either was unreasonable. if belief (c) felony. Death caused Prevention of because necessary force believed that the used was actor prevent of the or terminate the privilege exercise if that felony, belief was unreasonable. commission (d) Coercion; necessity. Death was caused in the 939.45(1). privilege under s. exercise of (3) PROOF. BURDEN OF When existence of *27 (2) placed in under sub. has been affirmative defense evidence, prove trial the by beyond issue the state must cl constituting reasonable doubt that the the facts defense finding guilt did in under not exist order sustain a of (1). sub. added). § Wis. Stat. 940.01 (emphasis homicide, intentional Second-degree Wis. 940.05, § Stat. replaced manslaughter, Wis. Stat. (1985-86). § in 940.05 It provides relevant part: (1) death Whoever causes the of human another being with intent to kill person guilty that or another felony of a B if: Class
(a) 940.01, In prosecutions under s. fails state prove beyond mitigating reasonable doubt that the 940.01(2) specified circumstances in s. did not exist as required 940.01(3); s. or
(b) state prove The it is concedes that unable to beyond a the mitigating reasonable doubt that circum- 940.01(2) specified By stances in s. did not exist. section, charging under this the state so concedes. (2) (1), prosecutions In sub. under it is sufficient to allege prove that the defendant death of caused the being another kill person human with intent to another. (3)The mitigating in specified circumstances s.
940.01(2) prosecution not are defenses to for this of- fense.
Wis. Stat. 940.05. intentional First-degree homicide sec- ond homicide have two degree-intentional elements (1) (2) common: causing of death with intent to kill. The difference between the of homicide is degrees two or absence presence mitigating circumstances. when presence circumstances, not mitigating state, disproved by culpability reduces degree involved, and likewise reduces the potential punish- First-degree ment. punished intentional homicides are *28 940.01(1). § A Stat. Second- as Class felonies. Wis. degree punished as B are Class intentional homicides 940.05(1). 940.01(2), §§ felonies. Wis. Stat. attempted case, Debra Head to raise In this complete as a defense to the the issue first-degree charge of intentional homicide. She also (imper- attempted unnecessary force to raise defensive self-defense) mitigating fect as a circumstance that charge from intentional would reduce the second-degree. homicide to statute, Wis. Stat. 64. Wisconsin's self-defense § provides person if 939.48, an to affirmative defense person reasonably that another is unlaw- believes interfering person, person fully if with her and the uses necessary reasonably person as is such force believes prevent interference. to or terminate unlawful 939.48(1) Section reads: of others.
Self-defense defense (1) A person privileged is to threaten or intention- ally against purpose of pre- use force another for person reasonably venting terminating or what believes to interference his or her be unlawful with may actor person person. such other intention- ally as the only use such force or threat thereof actor reasonably believes necessary prevent or terminate intentionally may the interference. The actor not use great likely or cause death or force which is intended reasonably believes bodily harm actor unless the necessary prevent imminent death such force is great bodily harm to himself or herself. 939.48(1) added). (emphasis
Wis. Stat. key ¶ 65. This subsection in the self-defense stat- *29 stating has three sentence, ute sentences. first general principles, adequate by not itself to is address charge perfect a self-defense to of intentional homicide. complete 66. Self-defense can be a affirmative variety charges, defense to a quirements of criminal but the re- perfect for self-defense are increased for an Implicitly, provides intentional homicide. perfect the statute a person charged defense to a an with intentional person reasonably homicide when the believed that an person danger interference with her of involved great bodily reasonably imminent death or harm and necessary that believed it was to use force which was likely great bodily intended or to cause death or harm to prevent or terminate that interference. speaking
¶ 67. We are here in the context of killings killings, negligent intentional killings, or reckless —not killings. or accidental In these intentional privileged deadly homicides, a defendant is not to use likely is, force—that force which is or to intended cause great bodily person death or harm —unless the reason- ably believes level of that the unlawful interference is prevent necessary that the is to immi- such force used bodily great person Hence, if nent death or reasonably harm. a preventing believed that she was or termi- nating person interference her unlawful with reasonably necessary that the believed force used bodily prevent great harm, death imminent she is guilty second-degree first- or intentional not either homicide. Imperfect component self-defense was pre-revision manslaughter statute, Wis. Stat.
§ § imperfect The former 940.05 940.05. referenced causing "unnecessarily, in self-defense as the of death privilege person's] [the of self-defense." exercise of 940.05(2) (1985-86). § Wis. Stat. Unnecessary force, codified defensive 940.01(2)(b), equivalent the current Stat.
Wis. applies imperfect in which to situations It self-defense. intentionally person did so because a death but caused in imminent that she was an actual she had belief bodily great danger harm and an actual of death or necessary deadly force she used was belief danger, against if of these beliefs either her this defend circumstances, Under these reasonable. was not mitigated homicide is intentional crime of second-degree intentional homicide. *30 present up, statutes, ¶ the To sum under 70. first-degree prove homicide, must the state intentional prove another the death of defendant caused that the 940.01(1). § perfect If Stat. intent to kill. Wis. with by placed evidence, the trial in issue beyond prove that one of a reasonable doubt state must Stat. reasonable. Wis. was not the defendant's beliefs 939.48(1). unnecessary force is been If defensive by placed must evidence, the state in the trial issue prove beyond did the defendant a doubt that reasonable terminating preventing actually or she was not believe person did not her interference with an unlawful necessary actually used was that the force she believe bodily great prevent if harm —even death or imminent a convic- sustain were unreasonable —to those beliefs homicide. intentional tion for require- brings ¶ and to the standards This us 71. imperfect raising perfect and self-defense. ments for B. State v. Camacho In 1993 this court determined the standards raising
for Camacho, self-defense in 2d 860, Wis. involving attempted first-degree case the crime of mur- pre-revision der under the homicide statutes.8 Camacho deputy deputy shot a stopped sheriff four times after the had highway.
his vehicle as it traveled on the Id. at illegal deputy Camacho, alien, informed the that he did not have driver's license. Id. at 865-66. deputy squad returned to his car and verified that again ap- Camacho license, had no driver's and then proached According Camacho's car. Id. at 866. to the deputy, open when he leaned towards Camacho's grabbed weapon window, Camacho an automatic shot him four times. Id.
¶ 73. Camacho's version of the events differed significantly deputy's. from the He testified that deputy approached gun had car his with his drawn, through grabbed reached the window and Camacho pointed gun the hair, and his at Camacho's face. Id. pulled away deputy Camacho asserted that he from the grabbed gun. his own Id. He admitted that he then deputy. shot the Id. impeached testimony 74. The State Camacho's by presenting prior
at trial evidence of his statements to angry deputy the effect that he was with because deputy allegedly crazy, had called him but that deputy pointed gun had not his at Camacho. Id.
8Although Supreme the Wisconsin opinion Court in Cama 1993, cho was issued in the events at issue in the case occurred 3, 1988, 1, on March January before the 1989 effective date of Camacho, the to the revisions homicide statutes. State v. 176 (1993). n.3, 501 Wis. 2d 871 N.W.2d 380 Therefore the court applied pre-revision the deciding homicide statutes in the case.
231 jury ¶ on circuit instructed the 75. The court first-degree attempted self-defense, and at- murder, manslaughter. tempted The did not Id. at 867. court jury in- instead instructions but read the standard jury perfect if self-defense, that, the as structed the was in self-defense or "conduct not Camacho's and the not entitled to use self-defense defendant was he was entitled to use the defendant that belief unreasonable, then the defendant was self-defense attempted degree guilty murder." of first of the crime jury "attempted the Id. The court also instructed on manslaughter," stating imperfect that self-defense guilty in- it find that Camacho find Camacho must deputy, kill "was entitled to believe tended to acting he in this case that was under facts of force used was unneces- but amount self-defense, added). sary (emphasis Id. or excessive." guilty attempted jury ¶ of 76. The found Camacho first-degree appeals murder. Id. at court of concluding reversed, that submitted the instructions jury by "seriously misstated the the circuit court prejudicial (quoting error." Id. law" and "constituted (Ct. Camacho, 53, 59, State v. 170 Wis. 2d 487 N.W.2d 1992)). App. appeals, the’ 77. This court reversed court charged
holding "a with defendant belief that he was murder must show reasonable terminating preventing an unlawful interference or person his before can obtain conviction with he manslaughter." imperfect Id. "the 78. The Camacho court stated that abso- perfect applicable privilege self-defense" is when
lute following all of the elements: a defendant shows three (1) he reasonably believed that defendant preventing terminating an unlawful interference *32 (2) person; with the reasonably his- defendant believed necessary that force or threat thereof prevent was to or (3) interference; the terminate the defendant rea- sonably believed that the amount actual of force used necessary prevent was or terminate the interference. acquit grounds Id. Therefore, at 869. on the of perfect jury self-defense, a must be able to believé that all three beliefs were reasonable. according The court 79. stated that to Wis. Stat.
§ (1985-86), "imperfect manslaugh- 940.05 self-defense applies ter when a defendant causes the death of being privilege another human 'in the exercise of his of Noting Id. at self-defense.'" § that Wis. Stat. 939.48(1) (1985-86) provided part person "[a] that privileged intentionally is to threaten use or force against purpose preventing another the or termi- for of nating reasonably he what believes to be an unlawful person by person," with his such other the interference person privileged court that determined "a to act in only person reasonably if that self-defense believes that preventing terminating he is an unlawful interfer- person." ence with his Id. at 871-72. court con- The § reading cluded, after former Wis. Stat. 940.05 to- gether killing 939.48, with that for intentional imperfect manslaughter, constitute self-defense a de- exercising privilege fendant must show that he his jury of Id. Thus, self-defense. could not convict a charge imperfect defendant on lesser manslaughter finding without first that the defendant showing had met the threshold the defendant's belief in the existence of an unlawful interference was Id. reasonable. on Camacho decision was based Id.
1985-86 version of the Wisconsin Statutes. at 871 decision, however, n.3. In court its Camacho also concluding statutes, addressed the 1988 revision imperfect legislature not alter crime that the did manslaughter, which of an "still consists self-defense objective *33 subjective ele- element and two threshold changed though Legislature lan- the the ments even guage The Id. at 882-83. court con- of the statute."9 statutes, revised a defendant cluded that under the objectively an belief that she must first show reasonable terminating preventing interfer- or an unlawful was person. at ence with her Id. hurdle, he passes defendant this first is then
Once a imperfect to a of self-defense man- entitled conviction (1) unreasonable, actual, slaughter if: he had but necessary the belief force was because unlawful that danger in interference resulted an imminent death (2) great bodily harm; possessed he or or reasonable necessary belief force because the unlawful that danger in an of death interference resulted imminent great bodily regarding harm but his belief necessary of force was unreasonable. amount Id. Although that the Camacho decision states raising imperfect requirements
the old for self-defense applicable statutes, are to the revised homicide these play in new statutes were not before the court.10 9 940.05(2) pre-revision § We Wis. Stat. note while in "unnecessarily, causing (manslaughter) referred to death privilege self-defense," [the] exercise of the current Wis. 940.05(2) homicide) § (second-degree Stat. intentional refers "[u\nnecessary causing with Stat. death Wis. defensive force." added). 940.05(2) statute eliminates (emphasis current any "privilege reference to the of self-defense." 10 the Camacho decision's extension critique of of an For a objective unnecessary force under element defensive Lieser, Note, State statutes, revised Heather Ann homicide see 234 Therefore, to determine whether a defendant must still objective imperfect meet the threshold to same assert after the revision, 1988 we will re-examine interpret question. the statutes in Interpretation Statutory C. goal interpreting
¶ 82. Our in statute give legislature. discern and effect to the intent of the County Renz, 293, 301, v. 231 Wis. 2d Jefferson (1999). plain language N.W.2d541 We first examine the clearly unambigu of the statute to determine if it ously legislative Setagord, sets forth the intent. State v. (1997). 397, 406, If does, Wis. 2d 565 N.W.2d506 it go interpreting no we need further statute. statutory language However, if the or am is unclear *34 biguous, may scope, history, look context, we to the subject object matter, and the of statute to determine legislative Teague the v. intent. Bad River Band the of Superior Chippewa Indians, 79, Lake Tribe 2000 WI of Statutory ¶ 17, 2d N.W.2d 236 Wis. 612 709. ambiguous being language capable if is is it of under ways stood in or more or in or more two different two by reasonably persons. different senses well-informed Setagord, Id.; 211 2d Wis. at again language
¶ 83. look of the rel- We at § 939.48, evant statutes. Wisconsin Stat. Self-defense perfect others, and of referred to as self- defense also provides part: defense, in relevant (1) person privileged A is to threaten or intention- ally against purpose pre- another for the use force Objective v. an Element to Camacho: The Judicial Creation of Homicide, Imperfect Wisconsin's Law Wis. Self-Defense L. Rev. 741-764. terminating reasonably venting person or what her believes be an unlawful interference with his or to may person. The actor intention- person by such other thereof as actor ally only use such force or threat necessary prevent to or termi- reasonably believes may intentionally The not nate the interference. actor likely to or use force which is intended or cause death great bodily reasonably unless believes harm the actor necessary prevent imminent death such force is great bodily harm to or herself. himself 939.48(1). § Stat. Wis. self-defense, a 84. To raise the issue of perfect a objective
defendant must meet threshold. reasonable (1) trial evidence must show: reasonable belief (2) interference; the existence of unlawful reasonable belief that amount force the person necessary prevent used was or termi- intentionally 939.48(1). § nate the Wis. Stat. interference. defen- (unnecessary Imperfect force) inten-
sive the crime of mitigates 940.01(2) (3) tional homicide. Wisconsin Stat. in relevant part: provide
(2) MITIGATING CIRCUMSTANCES.The follow- ing prosecution are under this affirmative defenses to mitigate 2nd-degree section which inten- offense tional s. homicide under 940.05:
(b) Unnecessary Death defensive force. was caused *35 believed in because the actor he or she another was danger bodily great imminent of death or harm and necessary that the used was to defend the endan- force gered person, either was unreasonable. if belief
(3) OF PROOF. When the existence of an BURDEN (2) placed affirmative defense under sub. has been in evidence, by prove beyond the trial issue state must constituting a reasonable doubt the facts finding defense did not exist in order to sustain- a (1). guilt under sub. 940.01(2) (3) added). § (emphasis Stat.
Wis. § Second-degree 940.05, in- 86. Wisconsin Stat. provides part: in homicide, tentional relevant (1) Whoever causes the death of another human being person guilty with intent to kill that or another is felony of a B if: Class
(a) 940.01, prosecutions In under s. state fails prove beyond mitigating a reasonable doubt that (2) in specified circumstances s. 940.01 did not exist as (3). required s. 940.01 §
Wis. Stat. 940.05. ambiguous. are 87. These statutes not Wiscon- 939.48(1) § requires for sin Stat. reasonable beliefs every By perfect contrast, case. Wis. 940.01(2)(b) require not reasonable beliefs. Stat. does only they requires It if are unrea- actual beliefs even mitigates only Unnecessary force sonable. defensive crime, one intentional homicide. First-degree ¶ 88. intentional homicide is miti- gated second-degree person if a intentional homicide intentionally causes death because of an actual belief person danger great in imminent of death or that the bodily deadly harm, that the actual belief use *36 necessary if of these herself, to defend even both
force is 940.01(2)(b). § Stat. beliefs are not reasonable.11 Wis. prevail in this 89. A defendant is entitled mitigation first-degree defense to inten- affirmative disprove part is able to tional homicide unless the state beyond of mind a reasonable of the defendant's state requires that the state show that doubt. This in or defendant did not have an actual belief one both elements. an unreason- If a defendant had actual but danger in imminent of death or
able belief that she was great bodily harm and an actual but unreasonable necessary that the force she used was to defend belief may prevail imperfect herself, the defendant on self- perfect perfect defense, self-defense, but not because objective requires reasonableness. self-defense imperfect ¶ 91. The self-defense statute does not objectively require showing an an initial threshold in inter- reasonable belief the existence of unlawful can ference before this defense requirement be asserted. Such directly language contravenes Wis. 940.01(2)(b), § explicitly provides that Stat. which first- degree mitigated intentional homicide is to second degree if: "Death the actor was caused because believed danger or he or she another was imminent of death terms, Using may imperfect different a defendant claim intentional homicide if the defen subjective danger dant has a belief that she is in imminent great bodily subjective death or harm and a that she must belief danger, if deadly prevent use force to or terminate this even actually both of these held —are unreasonable. beliefs — bodily great harm and that the force used was endangered necessary person, to defend either if 940.01(2)(b) (em- was unreasonable." Wis. Stat. belief added). phasis *37 Although usually ¶ we do not extrin 92. consider interpretation aid of a sic sources to our statute when statutory language unambiguous, we find we are mind interpretation that our is at the ful odds with court's determination in Camacho. We therefore consider ex interpretation trinsic sources to ensure that our of the gives the homicide statutes effect to legislature. Perez, 79, intent of the See State v. 2001 WI legislative ¶ 36, 582, 244 2d 628 The Wis. N.W.2d820. history of of the revision Wisconsin's homicide statutes compelling support interpreta
offers evidence to our tion.
¶ above, 93. As discussed Wisconsin's homicide revision, in 1988. The which statutes were revised took January largely the of a 1, 1989, effect on was work Special Committee on Homicide and Lesser Included (Committee), by appointed the Ju- Offenses Wisconsin The draft dicial Council 1982.12 Committee's was upon It not but introduced as 1985 S.B. 279. was acted 12 by The 17-member Committee was chaired Professor Dickey. Supreme The other members Wisconsin Walter were Abrahamson; Barron; Shirley Judge Michael J. Court Justice S. Becker; Burke; Atty. David J. U. William M. Asst. Gen. William Fox; Coffey; Croak; Jerome L. State Sen. Donald Francis R. Malmstadt; Hanaway; Atty. Judge Michael Gordon Asst. Dist. Prestegard; Remington; J. Asst. Myse; Orlan L. Prof. Frank Rutkowski; Rosborough; Rep. Def. Michael J. James A. Pub. Fullin, Jr. Janet and Prof. David E. Schultz. James L. Schipper; Dickey, & L. reporter. the Walter David Schultz James was Clarity in Law Homicide: Importance The Fullin, Jr., of following session as 1987 S.B. reintroduced was provisions the 1988 inserted into its were budget Act 399. review bill. Wis. original proposal drafted, and After the was by by
approved Council, it was reviewed the Judicial Department Justice, the Dis- Wisconsin Wisconsin Attorneys Defender, Association, the State Public trict by Bar of created the State Wisconsin. and committee Clarity, supra Importance The at 1328. The See it recommendations considered the Judicial Council proposed an amendment received and debated (WDAA). Attorneys Association Wisconsin District objected unnecessary de- WDAA Apr. Council Minutes of force statute. Judicial fensive amending proposed It the statute 19, 1985, at 9. provide intentional homicide is miti- "[d]eath gated second-degree caused when be- *38 privilege the actor, the in the exercise cause of of others, he or she or believed the defense of great danger of death or another was imminent (em- bodily unreasonable" Id. harm, if that belief was added). phasis Attorney
¶ Becker, David J. 96. Assistant General explained proposed Committee, the a member of the stating in reference to a amendment, that it was raised psychotic hypothetical paranoid a situation in which delivering girl because he unrea- killed a scout cookies carrying sonably not cookies believed she was but explained that "under the bomb. Id. at 10-11. Becker escape liability proposal, for first one could still WDAA believing danger, degree one's life to be in murder regardless However, of that of the reasonableness belief. Revision, The L. Rev. 1326 n.7 Wisconsin 1989 Wis. Importance Clarity]. The [hereinafter of that the there must be a reasonable belief victim has unlawfully person." interfered with his Id. at 11. Becker manslaugh- expressed then-current his that the belief applied only to actions undertaken "in the ter statute privilege of Id. exercise of the self-defense." The Judicial Council entertained a motion privilege "in the exercise of the of to insert the words second-degree the inten- self-defense" into the draft of defeated, homicide statute. The motion was 6 to tional Id. at 13. 5 with abstention. again was raised in a letter from issue
Attorney La Follette to Senator General Bronson C. Lynn supported S. Adelman. La Follette that he wrote "comprehensive of homicide revision Wisconsin's prepared by from statutes the Judicial Council." Letter Lynn Attorney La General Bronson C. Follette to S. Chairperson Adelman, of the Senate Committee on 1985). Judiciary (August 16, Affairs Consumer Adelman's commit- However, La Follette asked Senator phrase privilege "in the exercise of the tee restore La wrote: self-defense or defense of others." Follette of concern about suggestion I make that because objective person having kills another no basis who any (e.g., para- resorting for to self-defense of sort ap- psychotic girl who shoots down the scout noid door, believing front the box of cookies proaching his him). destroy carrying to intended to she is be bomb proposal appear The Judicial Council's would to allow first-degree inten- person escape such a conviction murder). Applica- (present tional homicide unnecessary mitigating circumstance tion of *39 conditioned on a ought defensive force at least be unlawful interference with reasonable belief that some justifying resort person, though perhaps not one the force, The of the deadly threatened. restoration was
241 words, privilege "in the exercise of the of self-defense or others," designed require- impose defense of ment.
Id. Tellingly, though
¶ 99. even both the Wisconsin Attorneys Department District Association and the of specifically proposed Justice the asked to amend second-degree by intentional homicide revision insert- ing a "reasonable belief of an unlawful interference" legisla- threshold, neither the Judicial Council nor the requirement. Instead, ture a inserted such the Judicial language Council's bill was introduced without estab- lishing legislature threshold, a reasonableness the legislature effect, enacted it in the same form. In accepted the Judicial Council's bill in toto. Special
¶ 100. The of the intent Committee on Importance Clarity, Homicide is illuminated The of published nearly contemporaneously which was with by the effective date of the revision and authored committee, chair of the another member of the commit- (Walter reporter Dickey, tee, and the committee's David respectively). Schultz, Fullin, Jr., and James L. The Importance Clarity, supra at In 1393 n.7.13 of Importance Clarity, the writers state:
13 recognized by This court has that articles drafters of statutes, contemporaneously authored with the enactment statutes, may be viewed as "authoritative statement[s] Genova, intention." State v. legislative 141, 151, 77 2dWis. 252 (1977) (quoting Hoyt, State v. N.W.2d 380 21 Wis. 2d (1964)). 299-300, 128 N.W.2d645 The court has also stated that principal law review article drafter of the 1956 revised code, published contemporaneously criminal with enactment of code, "persuasive authority construing particu when lar statute." State v. Williquette, 129 Wis. 2d 239, 254, (1986). N.W.2d 145 *40 circumstance identified in mitigating section
940.01(2)(b) "unnecessary referred to as defensive is equivalent force" and is the of what became known as prior defense" under The basis for "imperfect self law. (subjective) mitigation the is the defendant's actual necessary to to defend belief that it was use force another) (or great from imminent death or herself held, bodily actually mitigates is it harm. such belief If second-degree intentional homicide to inten- homicide, the is tional even unreasonable. belief if added). (emphasis at Id. 1333 objective ¶ Thus, our determination that required imperfect threshold is not raise public policy is consistent with the articulated behind statutory revisions. The homicide revision "ad- degrees culpability principle that should vances the required for each reflect the different mental states clearly that have offense. The revision created offenses assigned penalties defined mental elements and based Id. at of the conduct." on the relative blameworthiness later in Camacho: As Justice Bablitch observed the victim of a previously has been person [a] who crime an unreason- panics later under violent who takes the life of another because able but actual belief actually person that his or her is he or she believes in cold-blood danger culpable not as as one who kills than to murder another. These two for no reason other should not be treated the same. people (Bablitch, dissenting). Camacho, J.,. 2d at 887 Wis. contemplates that a statute 102. The revised actually person believes who causes a death because she bodily danger great of death or that she is in imminent unreasonable, is less cul- harm, pable if that belief is even simply kill, kills, with the intent than one who mitigating circumstances. without plain language 103. Based on of Wis. Stat. 940.05(2), by legislative history supported public policy statute, articulated behind the we con- imperfect placed clude that when self-defense is in issue prove evidence, trial state has the burden to person that the had no actual belief that she inwas *41 danger great bodily harm, imminent of or death or no actual belief that the amount force of she used was necessary prevent or terminate this interference. If jury person concludes that the an had actual but danger unreasonable belief that was in imminent of she great bodily person guilty harm, death or not is first-degree intentional homicide but should be found guilty second-degree intentional homicide. light analysis, modify
¶ In 104. of this we must Camacho to the extent that § it states Wis. Stat.
940.01(2)(b) objective contains an threshold element requiring a defendant to a have reasonable belief that preventing terminating she was or an unlawful inter- person ference with her in order to raise the issue of self-defense). unnecessary (imperfect defensive force Placing Imperfect D. Self-Defense and Self-Defense in
Issue Having "objective
¶ determined that no rea- required imper- sonable" threshold to raise a claim of question self-defense, fect we turn to the of how to raise the issue of self-defense at trial. privilege recog 106. Perfect self-defense ais 939.45(2). § privilege may
nized in
Stat.
Wis.
Before a
by
be considered
fact-finder,
the defendant must
privilege
raise the
an
as
affirmative defense. State v.
(Ct.
Trentadue,
670, 674,
180 Wis. 2d
¶ 109. In a nature, case of this in which the charged defendant is with intentional ho- potential micide, the defendant will consider each de- theory may For instance, fense. defense be that defendant did not intend to kill. defense This could lead charge, penalty. to conviction of a lesser with a reduced may emphasize The defense one of the factors under 940.01(2), § adequate provocation Wis. Stat. such as mitigate unnecessary the offense to force, to defensive second-degree carries homicide, also which intentional may perfect penalty. self- claim The defense a reduced 939.48(1), per- § would which defense under Wis. Stat. any guilty jury not to find the defendant mit the offense. Raising of unneces- affirmative defense difficulty. present great
sary not force should defensive already not that the defendant is determined haveWe objective required threshold. an reásonable to meet unnecessary Consequently, have a force must defensive admissibility than of evidence for the lower threshold perfect objective rea- have an self-defense, which does Unnecessary force also has defensive threshold. sonable "adequate provocation," because than a lower threshold "provocation" "something which the defen- defined as reasonably has done the intended victim dant believes lack com- the defendant to self-control causes which pletely causing Stat. the time of death." Wis. at added). 939.44(l)(b) (emphasis argues at- Head that a defendant 111. Debra tempting place re- in issue should be production, quired not a burden to meet a burden proce- agree. persuasion. This court addressed the We mitigating raising circumstance with for dure objective Felton, 2d v. 110 Wis. threshold State (1983), in which a defendant a case 329 N.W.2d "heat of her husband in the that she had killed claimed passion." The court stated that: where a heat-of- upon the defendant burden *43 merely the burden of projected is
passion defense
It is
persuasion.
burden of
production
opposed
as
to the
246
the accused to come
with some evidence in
for
forward
rebuttal of the state's case —evidence sufficient
to raise
provocation
the issue of the
defense. The burden of
persuasion,
course, always
upon
remains
the state.
Felton,
added).14
14Barbara
killing
Felton admitted to
her husband while he
slept, but
spouse
claimed that she was a battered
acted
had
Felton,
in self-defense. State v.
485, 488,
110 Wis. 2d
329 N.W.2d
(1983).
appeal
161
She claimed on
that her trial counsel was
asserting
ineffective in not
had
she
acted in the "heat-of-
passion,"
qualified
manslaughter
pre-
which
as
under
940.05(1).
Id.
revision Wis. Stat.
15
Schulz,
see State v.
discussion,
For additional
2dWis.
(1981).
423,
The of ¶ in Felton 114. The standard established determining a defendant is en whether Mendoza for jury based on of a instruction titled to submission than the for cannot be lower standard purpose raising admit trial for the this issue before appeals, ting case, in this wrote court evidence. State, 483, 2d to Thomas v. 53 Wis. that our citation (1972), implied case, in the McMorris 864 192 N.W.2d question of a to admit evidence "whether knowledge prior on the acts of violence defendant's part decided on the same of the victim should be determining applied whether the as that when standard may jury instructed on the issue of self-defense." be App Head, 10 n.7. WI giving a think that the standard for 115. We may, jury circum- on self-defense some instruction admitting higher stances, than the standard for be trial, at because defendant's self-defense evidence may thoroughly be so discredited claim of self-defense jury that no reasonable could the end of the trial disproved any it. In that the state had not conclude admitting for at trial is event, the threshold evidence giving for either lower or the same as threshold jury trial, if, This means that before instruction. support proffers her de- defendant "some" evidence theory evidence, favor- and if that viewed most fense jury ably that her her, allow a to conclude would theory disproved beyond doubt, not a reasonable theory has been for her defense the factual basis satisfied. Logically, perfect
¶ the threshold for self- higher defense evidence is than the threshold for im- perfect objective self-defense evidence because of the required perfect reasonableness for self-defense and consequences disproving because the perfect for the state of not greater self-defense are much than the conse- *45 quences disproving imperfect of not self-defense. None- theless, the elements of the two affirmative defenses so overlap very challenging it that would be for the court to exclude evidence that could in come for one affirma- tive defense but not for the other. These issues should be clearer at the close of trial after all the evidence has Although may difficult, come in. suggests, it be as the State "unring
to the bell" after a defendant has perfect throughout alluded to trial, self-defense the the perfect defendant is not entitled to a in- self-defense perfect struction unless self-defense has a reasonable in the basis evidence.
¶ 117. We next consider what evidence court determining should consider in whether "some" evi- place dence exists to in case, issue. In this seeking Head Debra filed a motion in limine to admit regarding McMorris evidence Harold Head's violent past character and acts of his violence. proof,
¶ 118. After Debra made her offer of the circuit court determined that she had not established support that a sufficient factual basis existed to a claim self-defense. court therefore did not Debra allow present McMorris evidence of Harold's char- violent past acter and acts of violence. determining
¶ 119. In whether Debra had estab- lished a sufficient self-defense, factual basis to raise the testimony regarding circuit court on the focused events night morning that occurred the before and the of the shooting. not of the evidence It excluded most including past shooting, contemporaneous with the physical herself. abuse to Debra of Harold's incidents asserted court, to this State In its brief considering was correct in not the circuit court that non-contemporaneous evidence of vio- evidence and sufficiency evaluating the of Debra's in lence to others showing essence, In of self-defense. of "some" evidence wishing to intro- a defendant asserted that State objec- required make an McMorris evidence duce showing a self- of a factual basis for tive threshold using the McMorris evidence. claim without defense According brief, if a defendant made an State's objective showing separate from the McMor- threshold proba- evidence would be evidence, ris the McMorris sepa- could not make however, if the defendant tive; showing, have no McMorris evidence would rate support position probative has some textual value. This question McMorris, that the the court said where establishing a defendant, was whether "after factual *46 may introduce self-defense, the issue basis to raise knowledge prior personal acts of violence evidence prove part what the defendant on the of the victim to of the and violent character to be the turbulent believed State, 144, 147, 205 58 2d McMorris v. Wis. victim." added). (1973) (emphasis N.W.2d argument, however, the State 121. Prior to oral "acced[ing] position, that a to the view altered its to establish the can use McMorris evidence defendant and can use it for a claim of self-defense factual basis objective prongs subjective satisfy of the both the Christopher Wren, As- Letter from G. Camacho test." Attorney Supreme Court General, to Wisconsin sistant 2001). (October 4, accept
¶ 122. We the State's concession that Mc- may Morris evidence be used to establish a factual basis support may a self-defense claim. McMorris evidence not, McMorris, as we held in be admitted if a sufficient factual a basis for claim of self-defense is not estab- lished, but the McMorris decision does not mandate that a defendant establish her sufficient factual basis wholly separate proffered for self-defense from the McMorris evidence.
¶ 123. We conclude that evidence of a victim's prior violent character and of the victim's acts of knowledge violence of which a defendant has should be determining considered in whether a sufficient factual basis exists to raise a claim of self-defense. Such evi- may probative dence be of a defendant's state of mind actually and whether she believed that an unlawful occurring, danger interference was that of death or great bodily harm imminent, or that she needed given prevent use a amount of defensive force to determining terminate the unlawful interference. In any issues, of these the circuit court should consider all proffered. the evidence summary,
¶ 124. In we conclude that a defendant objective need not meet an reasonable threshold to imperfect assert Rather, self-defense. the defendant must show evidence of actual beliefs that she inwas danger great bodily imminent of death or harm necessary force she used was to defend herself. place imperfect In order to issue, self-defense in present only defendant need "some" evidence of self- determining defense. In whether the defendant has established sufficient factual for defense, basis circuit court should consider all hand, the evidence at
251 any presented including the state evidence proffered. that is evidence McMorris charged second- ¶ with were 125. If a defendant first-degree in- degree instead of homicide intentional speci- mitigating homicide, circumstances tentional 940.01(2) § as not be available would in Stat. fied Wis. 940.05(3). circumstances, In these defenses. Wis. Stat. claiming perfect has to meet self-defense a defendant her evidence standard, but "some"-evidence the same objective against reasonable measured would be threshold. McMorris Evidence
E. Admission asserts in a defendant In a case which present evidence, McMorris and wishes to self-defense the defendant has whether must determine the court McMorris, sufficiently placed into issue. the defen- determines that at If the court 2d Wis. presented for a claim factual basis a sufficient dant has any to admit whether self-defense, it must determine proffered Id. McMorris evidence. or all of wrongs, crimes, or acts is of other 127. Evidence generally ac- in criminal and inadmissible irrelevant tions:
(2) WRONGS, CRIMES, ACTS. Evidence OR OTHER crimes, acts is not admissible wrongs, or of other in to show that person of a order prove the character conformity This subsec- therewith. person acted for the evidence when offered does not exclude tion motive, proof opportunity, purposes, such as other identity, or ab- intent, knowledge, preparation, plan, of mistake or accident. sence *48 904.04(2). § However, Wis. Stat. when a defendant sufficiently raises the issue of in a trial for may assault, homicide or such evidence be relevant and admissible. Admissibility
¶ gen 128. is not automatic. aAs may sup rule, eral McMorris evidence not be used to port an inference about the victim's actual conduct during State, the incident. Werner v. 66 Wis. 2d (1975). 743, 226 N.W.2d402 testimony
[T]he relates to the defendant's state of mind, showing what concerning [her] beliefs were victim's character. Such helps jury evidence deter- mine whether defendant "acted a reasonably as prudent person would under similar beliefs and circum- stances" in the privilege exercise of the of self-defense theory perfect [if the defense self-defense]. may "bear[s]
Id. It be admitted because it on the apprehension reasonableness of the defendant's of dan- ger McMorris, at the time of the incident." 2dWis. at impli- 129. The admission of McMorris evidence by cates the exercise of sound and reasonable discretion the circuit court. Id. at 152. The evidence should be probative of the defendant's beliefs relation to her If defense. the court determines that the evidence is any relevant, the court should admit it as it would other excluding only "probative evidence, relevant it if its substantially outweighed by danger value is prejudice, misleading issues, unfair confusion of the or jury, delay, considerations of undue waste of presentation time, or needless of cumulative evidence." Wis. Stat. 904.03. Application
F. to this Case court the circuit To determine whether properly McMor- Head's motion to admit denied Debra properly allow Debra to refused to evidence ris apply the standards we self-defense, we must assert look first to facts of the case. We articulated to the have along proof it, to determine whether offer of Debra's during any case, the State's introduced evidence with *49 making sufficiently placed In in issue. this McMorris evidence determination, will consider the we offered. that Debra proof, to her Debra testified In her offer danger and she in imminent that that she was
belief prevent necessary force to amount of defensive used bodily great harm. death temper. Harold's also testified about 132. Debra through- very short-fused and claimed that he was She losing temper. after his 1990s became violent out the subjects during 1997-98, she avoided stated that She being "light to "avoid hit." She would his fuse" on the afraid of Harold further asserted that she was morning history of her with him. of his death because story of her 133. Debra recounted f leading up shooting. daughter's pregnancy to the Debra preg- Brenda's that Harold found out about claimed "very nancy in 1998 and was weekend on Valentine's angry." came out with into the bedroom and He stormed gonna pistols, "he was uncased. He stated that two one meaning go fucker, [Graves]," for that little out and look kill claimed that she "would him." Debra and that he safety her as that of for her as well was concerned daughters incident, Debra was and Graves. After this going knowing egg Harold was not when "on shells" "explode."Debra asserted that she was afraid of Harold bigger because he was than she was and because she ability people. knew of his to hurt Finally, ¶ 134. she testified in detail about the shooting. She claimed that she awakened Harold after daughters They began their had left for school. to talk daughter's about financial matters and then about their pregnancy. they began discussing When Graves, Harold "pissed "instigat[ing] off." He accused her of this thing covering up being whole far as as for Brenda pregnant. teaching get preg- And not her how not to urged give nant." She Harold to a chance, Graves "[f]uck your Harold said that. It's been all fault ever got pregnant. your since. Your fault Brenda It's fault happened. you, that this all Fuck Chad and fuck too. I'm Maybe just get—take sick of it. I should care of take — you guys get my on with life." ¶ 135. Debra contended that she took his state- gonna threat, ment as a that "he was kill me... whenever he had the chance at that time." She stated put category" that his her "in comments the same as Graves. Debra claimed that Harold made a move throwing got aside, the covers so she reached down and *50 gun the from the floor at the side of the bed. She raised gun pointed the and like Harold, it at and he "made he going up," leg was to sit and then he moved his out from up under the covers. "He made that move to sit and pulled trigger." come towards me and that's I when the ¶ thought 136. Debra testified that she Harold going "try get gun away was to the from me and kill thought me." She felt threatened because she Harold "coming though gun, her, was after" even she had the gun away" and was "afraid he would take the and shoot her. Debra claimed that she shot Harold second time a move where his shot, he "made the first after
because up." getting upper like he was was torso part Virtually of the ¶ all this evidence 137. by proffered specific incidents The other trial record. if filed for kill she threats to Debra Debra—Harold's against throwing the couch Debra divorce, Harold's chasing the injuring Debra into back, Harold's her hurling breaking frame, Harold's the bed bedroom twisting breasts, arms and Debra's wrench, Harold's rage, supervisor, road Harold's to his Harold's threats neighbor, retaliation Harold's on a Harold's assaults boy against him—tend to illumi- at a little who cursed beliefs, and her of mind the defendant's state nate of the unreasonable, at the moment reasonable shooting. proffer totality of the defendant's imperfect
clearly self- to raise issue sufficient jury, requiring at court to admit defense for the and some of the character evidence least some specific Harold acts of violence McMorris evidence alone The admitted evidence and others. towards Debra jury require of a the submission was sufficient unnecessary force. The court's defensive on instruction excluding all evi- this self-defense erroneous decisions They went error. not constitute harmless dence did fundamentally impair beyond error to harmless Consequently, ability present a defense. defendant's beyond say a reasonable doubt that it is clear cannot we jury found the defendant would have that a rational guilty the error. absent assessing when itself, The circuit court "Subjectively proof, she's met stated: offer of
Debra's I meet, but don't believe she would need to whatever objective equation." half of the met the that she's *51 imperfect ¶ 140. Inasmuch as self-defense re- only they quires beliefs, even if are actual unreason- require able, the court's own statements reversal of the erroneously conviction. The court exercised its discre- based on an incorrect of the tion statement law as set opinion. in forth this
¶ 141. the We think defendant's version of events proof required and her offer of also the admission of including support evidence, evidence, to McMorris theory. perfect judgment no We make given whether perfect court should have an instruction on deliberately because self-defense, we have picture painted a one-sided of the facts and not de- expert testimony scribed the state's or the inconsisten- story. in cies the defendant's to the We defer circuit apply principles opinion on court remand to this requests jury for instructions. correctly the circuit did not Because court apply the law to the admission of trial evidence to support the two defense theories of as self-defense well requested jury her as submission of instruction on unnecessary force, defensive we reverse decision of appeals the court of which affirmed the defendant's homicide, conviction of intentional remand case to the circuit court.
JuryG. Instructions Finally, jury we turn to the issue instruc- tions. circuit court this case denied Debra Head's request for of Wis submission JI —Criminal "First Degree Intentional Homicide: Self-Defense: Second De- *52 940.01(2)(b); § §
gree 940.05." Intentional Homicide— on the self-defense it had ruled stated that The court "[did not] throughout there's it think trial, issue on this self-defense basis to instruct factual sufficient n theory." any pursuant self-defense or other to 1014 to court declined that the circuit It is clear already jury had it on because self-defense instruct presented evi- had not Debra Head determined that place That issue. to self-defense dence sufficient Debra's offer erroneous because determination was place proof evidence to contained sufficient Debra to not to allow of its decision in issue. Because supporting present evidence or to assert self-defense properly not instruct self-defense, the court could (unnec- second-degree jury homicide intentional as to force) essary in- The court or self-defense. defensive jury only first-degree intentional as to structed second-degree 1010, not homicide, JI —Criminal Wis first-degree homicide, or homicide, reckless intentional only jury options— was left with two self-defense.16 homicide Head of intentional Debra convict openly any guilty offense without or find her not considering self-defense. Although Head conclude that Debra we second-degree jury on instruction
was entitled to note that Wis JI —Criminal homicide, we intentional Degree Homicide: Self Defense: Intentional 1014 "First 940.01(2)(b); § Degree Intentional Second Homicide.— accurately homi- reflect the law of 940.05," not does court's assert that the circuit appeal, Debra does not On first-degree reckless homicide not instruct on decision erroneous.
cide and self-defense set as forth in this In- opinion. struction Wis JI —Criminal 1014 provides in relevant part:
The Criminal Code of provides Wisconsin that a person privileged intentionally against use force another purpose for the preventing or terminating what reasonably [she] believes to be an unlawful inter- person ference with [her] such person. other How- ever, may intentionally [she] only use such force as reasonably [she] necessary believes is prevent terminate the may [She] interference. intentionally not use force which likely is intended or to cause death *53 reasonably [she] unless believes that such force is necessary to prevent great imminent death or bodily harm to [herself]. applied case,
As to this the effect of the law of self-defense is that if the defendant reasonably believed that [she] was preventing or terminating an unlawful interference person [her] with reasonably and believed the force necessary used was prevent to imminent great death or bodily [herself], harm to the defendant is guilty not of either degree first or second intentional homicide. (name If the defendant caused the death of of
victim) ldll, with the intent reasonably to believed that preventing [she] was terminating or an unlawful inter- ference with person, [her] actually but unreason- ably believed the force used necessary prevent was to great imminent death or bodily [herself], harm to the defendant guilty is of degree second intentional homi- cide. (name If the defendant caused the death of
victim) with the intent to kill reasonably and did not believe that [she] was preventing terminating or an unlawful interference with person [her] or did not actually believe necessary the force used prevent
259 [herself], bodily or harm to the great imminent death degree guilty of first intentional homicide. defendant is Wis JI —Criminal 1014 is inconsistent with 146. Wis JI —Criminal §§ interpretation 940.05,
our Wis. Stat. 940.01 no determination that threshold determination and our is belief in an unlawful interference of a reasonable required mitigate homicide intentional unnecessary The use of defensive force. based on the jury requires amendment. We therefore instruction request Jury that the Wisconsin Criminal Instructions Committee revisit Wis JI —Criminal making request note in this 147. We that 1014 and 1991 versions Wis JI —Criminal 1989 Jury [Criminal Instruction] Committee's "reflected any subjectively actual, is, held, conclusion that mitigated need to act in belief degree. Committee The intentional homicide to second had concluded that this was true whether not belief reasonable." Comment to Wis. JI —Criminal 1014. Comment further notes that: has Committee revised instructions requirement by adding reflect the Camacho threshold *54 equivalent in following phrase or its where needed degree the first intentional homicide instructions: "that reasonably prevent- the defendant believed that he was terminating ing with or an unlawful interference his person." empha- Because instructions are drafted to prove justify finding what the must a size state in guilt, requirement the addition of this "threshold" meeting gives option the state another effect its acting prove burden to defendant was not as mitigating under the circumstances referred to im- may disprove self-defense. The state the miti- perfect gation by showing that the defendant did not "reason- ably believe that he preventing terminating unlawful person." interference with his Id. We believe that the versions of Wis JI —Criminal place prior 1014 in reflecting to the revisions may accurately Camacho decision law, reflect the as we explained have it in this case. However, it is not the supreme jury court's role to draft instructions. Nom Ins., mensen v. Am. Cont'l 112, 2001 WI 40, 246 Wis. request 2d 629 N.W.2d301. We therefore that the Jury Wisconsin Criminal Instructions Committee re visit and amend Wis JI —Criminal 1014 in accordance opinion. with this
IV CONCLUSION imperfect 148. We hold that a claim of self- mitigates first-degree defense, which intentional homi- second-degree cide to intentional homicide, does not require showing person unnecessary a that a who used acting defensive force was with a reasonable belief of an person. unlawful interference with her We conclude proof that Debra Head's offer of established sufficient perfect imperfect factual basis for both self-defense. She was entitled at trial to submit some evidence past Harold's violent character acts of violence to support theory. her self-defense She should have been given unnecessary an instruction on defensive force. We therefore conclude that Debra Head is entitled to new Accordingly, trial. we reverse the decision of the court of appeals, and remand this case to the circuit court.
¶ 149. also We conclude that Wis JI —Criminal jury involving mitigation 1014, the instruction second-degree intentional homicide to unnecessary based on force, defensive not does accu- *55 opinion. rately the set forth in this We reflect law as Jury request Criminal the Wisconsin therefore revisit and amend Wis JI— Committee Instructions opinion. in with Criminal 1014 accordance this appeals By the Court.—The decision the court is remanded. reversed the cause ¶ ABRAHAMSON, CHIEF 150. SHIRLEY S. join majority opinion, (concurring). I the JUSTICE separately disagree I the because with state ¶¶ but write in 44 error standard set forth ment of the harmless my the forth in in for reasons set dissents State 138 Harvey, 2d 93, 442, 189, v. 2002 WI 254 Wis. 647 N.W.2d Tomlinson, 2d 91, 502, and State v. 2002 WI 254 Wis. 648 N.W.2d367.
¶ I am to authorized state that Justice ANN joins BRADLEY this concurrence. WALSH (concurring). WILCOX, J. 152. JON E The today goes further than court much it needs order only necessary I it to decide this case. would find circuit initial assess the court's determination ex- Still, I clude the McMorris evidence. because would find clearly respect court's in that the circuit decision erro- majority, I the same neous, would come to result as a new and remand case for trial. question of whether or not to admit
evidence is decision left to discretion of the circuit Cardenas-Hernandez, 516, State v. 219 2d court. Wis. (1998). 525, 579 N.W.2d We will sustain a 678 discre- tionary if act of the court it circuit assessed relevant applied proper facts, law, standard of and reached a on conclusion based the facts and the law. reasonable Sys., Sharp Packaging ¶28, 19, Lane v. 2002 WI 251 2d 788. Whether the circuit Wis. N.W.2d court *56 proper legal question the standard, used however, ais independently law we review of the court, circuit ben- efiting analysis. from its Id.
¶ 154. In I case, this would conclude that the application legal circuit court erred in its of the stan- present dard of whether or not to allow Debra Head to majority McMorris evidence. As the notes, the State has point may conceded the that McMorris evidence be used by support a defendant to a establish factual basis to a Majority op. agree self-defense claim. at I with 901.04(1) § this concession. Under Wis. Stat. (1997-98),1
Preliminary questions concerning the qualification of a
person
witness,
to be a
the existence of a privilege, or
admissibility
the
of evidence shall
by
be determined
the
judge
making
....
In
the
judge
determination
the
bound
the rules of
only
respect
evidence
with
privileges
provided
and as
in s. 901.05.2
making
admissibility
Thus, in
determination,
the
judge is not limited to evidence that would be admis-
present
sible at trial. In
sense,
this
the
case is not unlike
Bourjaily
the
States,
situation
v. United
the rule of Wis. Stat. when its 1 All subsequent references to the Wisconsin Statutes are to the 1997-98 version.
2 governs § Wis. Stat. 901.05 admissibility of certain medical test results.
admissibility
For
similar to
determination.
reasons
Felton,
2d
articulated in State v.
110 Wis.
those we
(1983),
Hoyt,
and State v.
509-10,
evidence as As limitation, this Debra was not allowed to result of present majority op. at at McMorris evidence trial. See explicit ¶¶ *57 failure to the 48-49. This consider other misapplication proper was a standard of evidence exclude law, and the circuit court's decision clearly therefore, was, evidence from trial McMorris clearly prejudi- Furthermore, the error erroneous. Debra cial to Head.
¶ find 156. I would that the circuit court Because considering erred in not the McMorris evidence itself Debra Head its determination of whether allow present imperfect perfect self-defense, a claim of I remand to the court for would the case circuit new allowing trial, introduction McMorris evidence. briefly Finally, separate ¶ I issue, on a note agree majority's I with articulation Majority op. ¶ harmless error rule. at 44. foregoing respectfully reasons, 158. For the I
concur. I am to state that Justice N. authorized joins opinion. PATRICK this CROOKS