State v. Seifert

Wisconsin, STATE of Plaintiff-Respondent,

v. SEIFERT, Ronald E. Defendant-Appellant.

Supreme Court Argued May 3, No. 88-1297-CR. November 1989.—Decided

1990. (Also reported 346.) in 454 N.W.2d For defendant-appellant by there were briefs Bolgert, by James Sheboygan argument and oral James Bolgert.

For plaintiff-respondent was argued cause Sally Wellman, attorney L. general, assistant with Hanaway, on J. attorney whom the briefs was Donald general.

CALLOW, G., WILLIAM J. This case is before on appeals pur- this court certification from the court of (Rule) 809.61, to sec. The defendant-appel- suant Stats. (Seifert) appeals lant Ronald E. Seifert from a commit- County, Sheboygan Court for order of the Circuit ment Seifert The order committed Gary Langhoff. Judge Social Services to of Health and Department the State care, custody, for appropriate in an institution placed be and treatment. appeal. on four issues before this court

There are First, self- whether the crime in Wisconsin under secs. manslaughter defense exists Second, 939.32, (1985-86).1 if that 940.05(2) and Stats. exists, whether, in trial for Seifert's bifurcated crime murder, instruction on the attempted first-degree jury attempted imperfect self- lesser-included offense of Seifert, manslaughter was available to who defense actual, belief in evidence of an unreasonable presented entirely from mental need to use force that stemmed Third, circuit court paranoia. whether the delusions jury instruct that Seifert must be refusing erred attempted guilty first-degree of the crime of found not proves beyond the State a reasonable murder unless force used actually Seifert did not believe the doubt that Fourth, necessary in self-defense. whether the cir- was refusing to reinstruct cuit court erred may psy- it consider Seifert's closing instructions personal history determining his intent chiatric and of mind at the time of the incident. or state that the crime of We conclude does exist under secs. 940.05(2) 939.32, that a Stats. We further conclude recently, statutes were revised and

1 The Wisconsin homicide January 1989. In the revised the revised version took effect on version, manslaughter in is set forth sec. (1987-88). 940.01(2)(b), the trial in this case took Stats. Because here, 1, 1989, January apply place the 1985-86 statutes before and, indicated, statutory in this all references unless otherwise opinion be to the 1985-86 statutes. will jury instruction on the lesser-included offense of was not available to Seifert because Seifert presented evidence of actual, an in unreasonable belief the need to use force that entirely stemmed from para- mental delusions and noia. Since instruction, Seifert was not entitled to this we conclude that the trial court did not err refusing to instruct the jury that a third element of the crime of attempted first-degree murder is that the defendant did actually not believe the necessary force used was self- finally defense. We conclude that it proper was for the trial court to refuse to reinstruct closing may instructions it psychiatric consider Seifert's personal history determining intent or state of mind at the time of the incident. 28,1987,

The facts July are as follows. On a criminal complaint filed, was charging Seifert with two counts of attempted first-degree murder. At appearance, the initial court, finding circuit that there was reason to doubt competency proceed, Seifert's committed Seifert Winnebago Mental Health Institute for (Winnebago) competency of his August examination to stand trial. On 17, 1987, reviewing report after psychologist from a from Winnebago, the circuit court determined that Sei- competent was not fert and committed Seifert to Winne- treatment, bago competent for until he was to stand trial. The circuit court this commitment on continued 13, 1987. November examination, preliminary

At the which was held on 1,1987, the court determined Sei- December circuit trial, competent probable to stand cause fert was felony found to had been committed was believe that a plea of not by guilty Seifert. Seifert entered a and not of mental disease defect to the two guilty reason murder. first-degree counts of on trial commenced of Seifert's phase The guilt case-in-chief, 22, State's During February 1988. 1987, 27, uniformed that, July two on testimony showed officers, Tetzlaff James Sheboygan police city of response Jordan, to Seifert's home went Dwain Wayne Boyce a disturbance. regarding call emergency the front door. The the officers at dogs met large and two and remained Boyce dogs to confine the ordered officers front appeared at the door. Seifert then the front outside right with his in his left hand and a can of beer door with asked Seifert Officer Jordan twice his back. hand behind his refused and turned right his hand. Seifert to show looking behind his the officers from body prevent pointed his service point, this Officer Jordan back. At his Seifert, commanding right Seifert to show at revolver hand, said, Seifert showing right hand. Instead me, Dewey [(Officer Jordan's nick- and shoot "Go ahead then you past." shot me Seifert name)], have Sensing danger, the officers closed the front door. as Seifert fired stepped just to the side of the front door the front door. The officers received through shots superficial injuries. thereafter,

Shortly Seifert exited his residence raised, me, yelling, both hands "Shoot unarmed and with shoot me." The officers were able to arrest Seifert at this charged shooting. Seifert was as a result of this point. rested, presented After the State the defense its emphasized The defense Seifert's mental condition case. history the time of the incident and Seifert's at close to him mental illness as revealed both those him.2 those who had to treat Robert Schmidt argument, 2 At oral the State conceded that the admission of requirements comported this evidence with the of this court's State, (1980), Steele v. decisions 97 Wis. 2d N.W.2d Flattum, (1985). and State v. 122 Wis. 2d 361 N.W.2d 705 of Sheboygan Department the Police testified that he was summoned to Seifert's day residence the of the shooting transport to holding Seifert to a In cell. the cell, holding according Schmidt, to Seifert stated that Schmidt had gunned him, "machine the hell out of" that mortician, he wanted to call his that he get wanted to to died, Madison he before he to that wanted talk to Ken- Castro, nedy or Kennedy and that had come to town to Eichman, shoot him. Detective William who some at point was also in the holding Seifert, cell with testified him that Seifert told he that had shot been below the belt, that he in already dead, had been shot was and and man dead could not be killed.

Seifert's mother testified history about Seifert's of mental illness day and about his mental condition the on of shooting. the Seifert's mother testified that Seifert had in of psychiatric hospitals many been and out for that, years. twenty years, She for he stated had held the belief that he invented the neutron the bomb and that implanted CIA or KGB had bugging body. devices his Seifert, According to stopped Mrs. when Seifert taking 1987, his in the summer of his medication mental condi- deteriorate; began tion to he saw out snakes of coming brother, the walls and believed that father both many years, of whom had been dead for were alive. With shooting, July respect day the Mrs. began fighting and his sister Seifert testified that Seifert family's recently-pur- over the remote control for Apparently, thought Seifert were chased television. there devices" the remote control. "transmitter for Several of Seifert's friends testified the defense. police Seifert was officers They testified that afraid police he he would hide from whenever saw friends, According thought to several Seifert also them. KGB, CIA, mafia, and "the Greeks" were following him. One friend testified that Seifert was afraid to take the medication for his mental illness thought bugs because he there were electronic in it. Uhler, Patricia a member of the forensic evaluation Winnebago, team at testified about Seifert's numerous hospitalizations Winnebago, occurring at first 1966. Uhler further testified about her examinations of purpose determining him for the whether he was com- petent According to stand trial the case at hand. day shooting, Uhler, that, Seifert told her on the of the thought enemy agents he the officers were that wanted development himsee about his of the neutron bomb. gun Seifert also told Uhler that he shot the with the hope prompt that the shots would in snakes his base- ment to attack the officers. testify

Seifert did not on his own behalf. guilt phase At the trial, conclusion of the of Seifert's requests regarding jury Seifert's counsel made three requested First, instructions. counsel the circuit give given instruction, court introductory similar to one in the jury may

instructions, that consider psychiatric personal history determining Seifert's in Seifert's intent or state of mind at the time of the shoot- ing. request, The circuit court denied this but told coun- argue jury closing sel he could this matter to the in his argument. requested Second, counsel an instruction on attempted imperfect manslaughter. The cir- request, reasoning cuit court denied this as follows: First, attempted the court does not believe that self- 940.05(2), defense Stats.,] under [sec. However, a crime or a criminal defense Wisconsin. assuming arguendo crime, that it is a the court denies requested the defendant's instruction on the follow- ing grounds. one,

Number the court finds that the facts of this basis, case do not form the or a sufficient basis for giving such jury. instruction to the Secondly, the court finds proposed instruc- law, tion attempted mischaracterizes degree first 940.05(2), murder and Section thirdly, the court finds that such only instruction given should be where a valid and bona fide claim of self-defense is made the defendant. Such is not the case in the instant action.3 requested jury

Third, counsel that the be instructed that guilty Seifert must be found not first- degree proves beyond murder unless the State a reasona- actually ble doubt that Seifert did not believe the force necessary he used was in self-defense. The circuit court request denied this for the same reasons it denied coun- request sel's for an instruction on manslaughter. jury guilty found Seifert of both counts of attempted first-degree murder. right phase

Seifert waived his to a trial two. psychiatrist, only Fosdal, Dr. Frederick was the wit- phase ness who testified the second of Seifert's trial. opinion Dr. Fosdal testified that Seifert was suf- fering paranoid schizophrenia chronic at the time of the shootings. that, Dr. Fosdal further testified because Sei- suffering disease, fert was from this mental he lacked the capacity appreciate wrongfulness mental of his conduct and to conform his conduct to the mandates of opinion, shooting In Dr. law. Fosdal's occurred schizophrenia because of Seifert's and delusional think- attempted 3 The was instructed on the crimes of first- degree endangering safety by regardless murder and conduct life.

ing. medication, Seifert Were to discontinue his Dr. Fos- asserted, dal by risk violent acts Seifert would Dr. increase. Fosdal recommended further institutionalization. the conclusion of Dr. testimony,

At Fosdal's Sei- requested fert's counsel that the circuit court find Seifert not guilty reason of mental disease or defect. The State conceded that be guilty by Seifert should found not reason of mental disease defect. The circuit court agreed parties, with the finding Seifert guilty by not reason of mental disease or on defect both counts of first-degree February murder. On the circuit court ordered Seifert committed to the Department of placed Social Services to be in an institu- care, custody, tion for and treatment discharged until 971.17, pursuant to sec. Stats. appealed

Seifert from the commitment order. After briefs, receiving parties' the court of appeals sched- arguments uled Dickey, oral profes- invited Walter sor University School, at the of Wisconsin Law par- ticipate argument oral and to file an amicus brief. Dickey apparently accepted Professor the invitation. After argument, appeals oral the court of certified one of court, on appeal issues to this and this court accepted jurisdiction of the case. entire

Because the issues this primarily case concern the imperfect crime of manslaughter, begin we with history a discussion of the of that crime Wiscon- 940.05, Stats., sin. Section which sets forth the crime of provides self-defense manslaughter, as follows: Whoever causes the being death of another human any following under of the guilty circumstances is felony: a Class C

(2) Unnecessarily, privilege of the exercise of or privilege defense of others or the to prevent or felony. terminate the of commission Imperfect self-defense manslaughter mitigates murder. See, e.g., Legislative (Judiciary Council Comment Com- mittee) Report, reprinted Resource Materials on Code, Wisconsin Criminal 57, (1983). at U. Wis. Ext.

The crime of has origins. law, common-law At common there were various of types manslaughter. type One of common-law manslaughter was the killing opponent of an "[n]eedless or assailant for of purpose self-defense." Also considered " manslaughter at [njeedless common law killing was prevent perpetration felony act, of or other unlawful York, effect arrest of a felon." State of New Report Commission, Law Revision Study "Communication and Homicide," Relating (702-03) (1937). at 188-89 early statutes, The law, Wisconsin like the common degrees manslaughter. contained various The crime of second-degree manslaughter following included the offense:

Every person unnecessarily another, kill who shall resisting attempt by per- either while such other felony, any any son to commit or to do other unlawful act; attempt failed, or after such shall have be shall guilty manslaughter degree. the second Í849, 133, Wisconsin Revised Statutes of ch. 13. sec. language second-degree manslaughter of this variant of See, e.g., virtually unchanged remained until 1955. Wis 1858, 164, 13; consin Revised Statutes of ch. sec. Wis 1878, 181, 4351; consin Revised Statutes of ch. sec. Wis 4351; consin Ch. Statutes of sec. Wisconsin 340.15; of sec. Statutes Wisconsin Statutes of 1953, sec. 340.15. process substantially

In revising the of the Wisconsin Criminal began. process Code This in of culminated the creation a new criminal code that Platz, was enacted 1955 and took that effect 1956. Code, The Criminal 1956 L. 350. According Wis. Rev. to 940.05(2) code, sec. of 1955 revised it was man- slaughter for one to cause the death of another under the following circumstances:

Unnecessarily, in the exercise of privilege of [one's] privilege or defense of others or the to felony. terminate the commission of a provision here, This is the at issue the language not having changed since The legislative history 1955. sur- rounding the provision enactment of this in 1955 shows provision that this was intended to restate the aforemen- manslaughter. tioned crime of second-degree Legislative (Judiciary Committee) Council Comment Report, 58; supra, at Legislative Council (Judiciary Comment Committee) Report, supra, at 61-62.4

Having provided background this information on development self-defense man- slaughter provision appears involved here —which to be nothing more than a restatement of the aforementioned second-degree manslaughter provision pre- found

4 group Advisory A to as referred the Criminal Code Commit study tee formed was 1953 draft and make amendments legislature. to the be draft would considered the 1955 The 3,1954, meeting of the June minutes this committee also show provision merely at issue here was intended to restate the second-degree provision. aforementioned These Library can minutes be found at the Criminal Justice Reference University at the Wisconsin Law School.

1955 code—we turn to a discussion of the issues presented appeal. on whether, first issue must we address is under Stats, 940.05(2), (the

sec. imperfect self-defense man- Stats, provision), 939.32, slaughter (the sec. attempt provision), is, fact, there of attempted imper- crime fect self-defense manslaughter in Wisconsin. One of the given by reasons circuit court for denying Seifert's requested attempted imperfect manslaugh- exists, ter instruction was that no such apparently crime the attempt legally because element was inconsistent with crime of imperfect manslaughter. self-defense court, In this parties are agreement that the crime imperfect of attempted manslaughter self-defense exists. We conclude attempted that there is a crime of imperfect self-defense manslaughter. gov- statute attempt erning attempt crimes states that to com- "[a]n requires perform mit a crime ... an intent acts and which, if accomplished, attain a result would constitute 939.32(3), such . . .." a crime Section Stats. We note proper give imperfect that is not it self-defense manslaughter instruction unless the evidence shows that "person exercising privilege of self-defense intended to use force or to against to use threaten force v. Men- self-defense." State for of purpose another doza, 122, (1977) 151-52, Wis. 2d 258 N.W.2d 260 80 added). man- (emphasis imperfect Because self-defense intent, showing is a there slaughter requiring crime man- attempted imperfect is a crime of self-defense Oliver, 25, See v. also State 108 321 slaughter. Wis. 2d (1982) (concluding the crime N.W.2d exists). manslaughter attempted heat-of-passion attempted Our conclusion there the crime of manslaughter in Wisconsin allows primary appeal: us to address the issue raised this Whether, in Seifert's bifurcated trial for first- degree murder, a on instruction the lesser-included manslaugh- offense of guilt phase Seifert, ter trial, was available to at the of the presented actual, he when evidence of an unreasonable entirely belief in the need to use force that stemmed paranoia. examining from mental delusions and After authority subject, the case law and the other on this we requested conclude that Seifert was not entitled to the instruction. State,

In the 276, case Terrill v. 95 Wis. 70 N.W. (1897), grounds, Perugi overruled State, on other v. (1899), 230, 240, 104 Wis. 80 N.W. 593 this court inter- preted 4351, sec. ch. Revised Statutes of second-degree provision that is the fore- provision recog- runner to the at issue here. This court provision mitigate nized that this was intended to criminality of the defendant's actions where human infirmity or weakness caused the to in defendant kill assaultive situation: law, having regard infirmity, to human goes

upon ground party the a thus assailed and cir- cumstanced, fear, from judgment, weakness of or may intentionally other cause unnecessarily kill in resisting attempt his any assailant to commit felony, act; any do criminality to unlawful and the killing, by statute, of such the is therefore to reduced manslaughter in degree. the second Terrill, 95 Wis. at 289. from jurisdictions

Courts other have interpreted doctrine of imperfect self-defense manslaughter simi- larly. Powell, In State v. 84 N.J. 419 A.2d 406 (1980), the Jersey Supreme New Court stated that imperfect doctrine of self-defense manslaughter is prop- erly applied where a defendant under attack mis- perceives the nature of the situation: imperfect claim of justified] where

[A] [is provoked exercise of by any 'self-defense' was act perceptions clouded the defendant's as to the danger, imminence of danger, extent of the or the amount of force called for to danger. eliminate the Certainly, if perception danger [the defendant's] was unreasonable in because he was a state fear or agitation because he had been attacked [the deceased], recognition mitigation of this fact of the offense would likewise be a 'fair concession to the frailties of man.'

Powell, (footnote omitted). Moreover, 419 A.2d at 410 State, (1904), Allison v. 74 Ark. 86 S.W. 409 Supreme Arkansas Court stated that the doctrine of applies where possesses defendant negligently-formed, a but honest belief the need to use force in self-defense: slayer acts from an honest belief that it is [I]f himself, necessary protect and not from malice or revenge, though he even formed such conclusion care, hastily and without due and when the facts did it, still, case, justify although such such not under him, may part fully justify go belief will on his not it crime, mitigation of the reduce the homicide manslaughter. from murder Moreland, Allison, Law at 413. See also 86 S.W. (1952) (recognizing Homicide that a defendant imperfect guilty manslaughter self-defense where interpreted contrary defendant has the situation to what reasonable). foregoing imperfect shows that the doctrine of manslaughter apply self-defense was meant to to the sit- unnecessarily uation where the defendant has or unrea- sonably killing killed self-defense. The was unneces- sary according unreasonable, authorities, or to these because a defendant's actions such a situation stem causing weakness, from human the defendant to make judgment perception, possess negli- an error in or or to a gently-formed belief about the situation. light why

In discussion, of this it is evident Seifert was not entitled to an self-defense case, instruction or In conviction. this record shows that Seifert's actual belief in the to need entirely by use force was caused his insane delusions. Clearly, judgment Seifert did not make an error of or perception interpreting pos- situation, his nor did he negligently-formed situation, sess a rendering belief his about thus objective,

his actions unreasonable under the prudent-person propelled Rather, actions, standard. display incapability delusions, his insane an utter comprehend judge reason or or the nature of his situa- imperfect manslaugh- tion. The doctrine simply ter was never intended to cover situations such as entirely this one where is it the defendant's mental dis- judgment perception defect, or ease not an error or negligently-formed perspective situation, of the motivates defendant's actions.5 5 Nothing we have said here is inconsistent with what we said Gomaz, v. State in cases as such 141 Wis. 2d N.W.2d 626 State, (1987), or Ross v. (1973), 61 Wis. 2d 211 N.W.2d 827 interpreted scope where this court of the doctrine of Gomaz, manslaughter. example, In for this court being Instead of relevant to the affirmative defense of self-defense manslaughter, Sei- fert's mental illness is relevant to the affirmative defense of mental disease or defect. The affirmative defense of defect, mental disease or which is the subject of the phase trial, second of a bifurcated recognizes that it unjust person would be to hold a criminally responsible for product conduct that was the insanity: of mentally person

When a ill engages in offensive con- punishable law, by society duct made is faced with question whether at engaging the time of in the offensive conduct the accused was dominated or affected the mental illness to so substantial a cannot, degree society conscience, good in hold responsible crime, i.e., him pun- for the conduct as a ish him. Esser, 567, 585,

State v. 16 Wis. 2d 115 N.W.2d 505 (1962). State, 72, 96, See also Steele v. 97 Wis. 2d (1980). In N.W.2d the second phase, defendant responsibility absolved of for his or her criminal conduct defendant, if the court finds because of mental illness, lacked the capacity appreci- substantial either to wrongfulness ate the of such conduct or to conform such requirements conduct to the of the law. Section 971.15(1), (1987-88). Thus, Stats. when a defendant's imperfect manslaughter applies stated that where the defendant has an to use in self- actual belief the need force defense but the belief or the amount of force was unreasonable. Gomaz, Here, explain merely

141 Wis. 2d at 310. we that unnec- essary or unreasonable acts the context of self- resulting defense refer to from an error acts judgment perception person to the acts of a of contrast ordinary prudence, intelligence resulting not to acts from a complete thought. and rational absence reason

unlawful totally product actions are defen- illness, dant's mental the law relieves the defendant of responsibility criminal for those actions. In the case at hand, police Seifert's belief that the had officers come to kill him clearly product delusions, was of his insane he was therefore entitled to the finding not guilty by reason of or mental disease defect.

We next address Seifert's claim the that circuit in refusing court erred to the jury instruct that a third element of the crime of first-degree murder is actually that the defendant did not believe the force used necessary was in self-defense. already Because we have attempted imperfect concluded that self-defense man- slaughter case, not in at issue this the circuit court was in give not error when it to refused such an instruction. See State Harp, v. 861, 884-85, 150 2dWis. 443 N.W.2d (Ct. 1989). 38 App.

Finally, Seifert contends that the circuit court erred in refusing to instruct the jury the closing instructions guilt phase at the of the trial that it could consider his psychiatric personal history and determining intent or state mind at the time the incident. This instruction was apparently given during general the therefore, introductory instructions; Seifert is claiming the circuit court in refusing was error rein- to struct jury point. the on this

The trial has judge broad discretion in issuing jury on instructions based the facts and circumstances of v. Kemp, State each case. 106 2dWis. 318 N.W.2d (1982). support position In of its the trial court within was its in refusing repeat discretion instruction, State cites decision of the court of Roubik, State v. appeals 137 Wis. 2d 404 N.W.2d (Ct. 1987). App. Roubik, In appeals the court of noted that the trial court does not abuse its broad discre- in issuing tion jury instructions when it to give refuses particular if instructions the general given instructions by the court adequately trial applicable cover law Roubik, the facts. 137 Wis. agree 2d at 308-09. We with the State that the reasoning of Roubik compels con- that, clusion already because this instruction had been given, it necessary was not to repeat it.

In summary, we conclude that there is crime self-defense manslaughter under 940.05(2) 939.32, secs. We Stats. further conclude that Seifert was not entitled to a instruction on the of attempted lesser-included offense self- defense manslaughter presented because Seifert evidence actual, of an unreasonable belief in the use need to force entirely para- that stemmed from mental delusions noia. A inmay, defendant's mental disease defect trial, phase second of a bifurcated relieve defendant responsibility of criminal for his her or conduct. Since instruction, not Seifert was entitled to this we conclude refusing that court not err in instruct the trial did to jury attempted of first- that a third element the crime actually is did not degree murder defendant necessary in force was self-defense. We believe the used proper was for the court to finally conclude that it trial closing in the instructions refuse to reinstruct may personal psychiatric it consider Seifert's state mind at the history in his intent or determining time of incident. the cir-

By Court —The commitment order of cuit court is affirmed. ABRAHAMSON, (dissent- J.

SHIRLEY S. least lends itself to at two ing). majority opinion The possible interpretations. reading One is that the crime of imperfect attempted manslaughter, self-defense sec. 940.05(2), (1985-86),1 Stats. does not include an actor actual, whose unreasonable belief the need use force entirely major- stems ity op. pp. from disease mental or defect. See reading n.5, A

67-68 69-70. second is that the attempted imperfect crime of encompasses objective element. Because neither read- majority ing opinion supported by of the the statutes law, or I our case dissent. majority opinion attempted imper-

If the holds that manslaughter may applied fect self-defense be not suffering defect, individuals from mental or disease it justification holding, holding offers no for this and the significant legal problems. creates majority's The distinction between those who are "normal" and have an unreasonable belief and those who suffer from mental disease or defect have an unrea- justified sonable is not belief the context of manslaughter. According to the majority opinion, person unreasonably per- if a rational person, ceives an unlawful threat to circuit court give will an instruction for self- manslaughter. majority explains defense this result by characterizing person's judg- the "normal" error causing weakness, ment as the result of "human judgment perception." defendant to make an Majority error p. op. person If, hand, 68. on the other suffer- 940.05(2), (1985-86), provides: 1 Section Stats. being Whoever causes the death another human under either following guilty felony:

of the circumstances is of a Class C (2) Unnecessarily, privilege in the exercise of his of self- privilege prevent defense or defense of others or the or terminate felony of a . commission . .. 72 mental ing unreasonably from disease or defect perceives person, unlawful threat to his the circuit court will give not majority opinion instruction. The offers no explanation why mental disease or defect should not be considered causing "a human weakness the defendant make an error in judgment perception." or majority The merely incapability concludes that "an utter to reason or comprehend or judge the nature of situation" does [the] not constitute an unreasonable belief under sec. 940.05(2). Majority op. p. 68.1 do think not the crime of imperfect and the defense of guilty by not reason of mental disease or defect are mutually exclusive. single

The case majority opinion, cited Ter State, rill v. (1897), 95 Wis. N.W. provides support proposition no for the that mental disease or mitigate defect should not simply homicide. The case states that regard the law will have infirmity for human and excuse stemming intentional acts from "weakness fear, judgment, or other cause" that result in homicide. Nothing the case suggests that courts should not con sider mental illness one of the human infirmities. The other cases the majority opinion cites establish that an "honest belief" or "hastily a conclusion formed qualify without due care" for the instruction. These support cases fail to majority opinion's contention may that mental disease or mitigate defect not homicide. majority's holding that the crime of apply self-defense does not to an individual suffering from signifi- mental disease or defect creates legal problems. cant How the circuit court to know phase the first of the trial whether the defendant has trial, mental In disease defect? a bifurcated the defen- dant's mental state is phase determined the second In appeal, phases trial. this both of the trial have completed; phase

been this reviews the court first know- ing phase. the result of the second appellate Unlike an court, the circuit court does not have the benefit of hindsight.

Moreover, if an does plea actor not enter a not defect, guilty reason of mental disease or is the actor entitled to instructions on lesser included offense of attempted imperfect manslaughter? Does majority opinion thus force defendant to elect between getting jury instructions on the lesser included pleading offense guilty by not reason of mental dis- or ease defect? Is such an forcing election lawful? possible

The second interpretation majority of the opinion adopts element, objective is it with along subjective two elements. The urges state's brief this interpretation 940.05(2), (1985-86). of sec. Stats. objective element, according brief, to the state's is that the actor must have a reasonable belief that some unlawful interference with or person her is In threatened. other words the objec- actor must have an tively rational basis for resorting to An self-defense. objectively stem, may assume, unreasonable belief I from causes, a number of including but not limited to mental disease or defect. (1)

The two subjective elements are: The actor sub- jectively believes that was necessary prevent force or interference, terminate but the belief is unreasona- ble; (2) subjectively the actor believes that the amount necessary of force used was to prevent or terminate the interference, but the belief unreasonable.

I support cannot objective find for the element statutory language or the cases of this court. While there has been disagreement some among commentators, after reviewing statutory formula- tions, law, public the case policy underlying defenses, crimes and the I conclude that the crime of self-defense under 940.05(2), (1985-86), sec. Stats. is based on the actor's subjectively held but unreasonable belief that the use of deadly necessary force was self-defense, for even when actual, the actor's unreasonable belief entirely stems from the defendant's mental disease or I defect.2 reach this conclusion on the basis of the text of the statute and legislative history 940.05(2), of sec. including its recent (2) (b), restatement sec. 940.01 Stats. (1987-88).3

2 For generally discussions of the supporting Wisconsin law see, position espouse, e.g., I Scott, 2 LaFave and Substantive Law, 272, p. (1986); Criminal Report n.6 Legislative 1950 of the Council, 56-58; pp. Judiciary Report 1953 Committee on the Code, 60-62; pp. Gomaz, 302, 310, Criminal State v. 141 Wis. 2d (1987), citing State, 414 N.W.2d 626 Ross v. 61 Wis. 2d 166-68, (1973); State, N.W.2d 827 Roe v. 95 Wis. 2d 243-44, (1980); Fullin, 290 N.W.2d 291 Revision the Criminal Code, Lawyer 10, (June 1989); 62 Wisconsin 12-13 1987 Senate 191; Bill Special Minutes of the Judicial Council Committee on (Sept. 1982-May 1983) Homicide and Lesser Included Offenses (1982-1987), (availa passim Minutes of the Judicial Council Council, Street, Madison, Wis.); ble at the Judicial 25 West Main Brief, 33, n.4; p. Brief, Appeals. State's Amicus Court of 940.01(2)(b), (1987-88), provides: 3 Section Stats. following prosecution are affirmative defenses to under this mitigate 2nd-degree section which the offense to intentional homi- cide under s. 940.05: (b) Unnecessary Death was caused because defensive force. danger the actor believed he or she or another was imminent great bodily necessary death or harm and that the force used was to endangered person, defend the if either belief was unreasonable. Prefatory The Judicial Council's Note to 1987 Bill Sen. part which was enacted as of the 1987 Acts ch. 399 states that preserves "the revised code the traditional elements of each bar, In the case at presented psychiat- defendant personal ric history phase evidence in the first of a attempted bifurcated trial on first degree murder charges actual, prove had an he unreasonable belief I need to use force. believe that the circuit court erred in

failing give on the instruction lesser included offense

manslaughter.4 forth,

For the I reasons set dissent. terminology." offense but modernizes I therefore conclude that setting new statute same as old in forth the ele- ments of manslaughter. majority opinion's 4 Ido not understand the discussion about the reinstruction. In this no given case instruction was on the subjective defendant's danger belief about imminent of death. Thus issue psychiatric to which evidence of the defendant’s personal history jury. was relevant was not before the

Case Details

Case Name: State v. Seifert

Court Name: Wisconsin Supreme Court

Date Published: May 3, 1990

Citation: 454 N.W.2d 346

Docket Number: 88-1297-CR

Court Abbreviation: Wis.