State v. Head

ROGGENSACK, J.

¶ 26. (dissenting). This case involves the exclusion of testimony regarding two types of conduct: (1) prior specific threats and acts of violence by Harold (the victim) against Debra (the defendant who attempted to raise self-defense to a charge of first-degree intentional homicide); and (2) prior specific threats and acts of violence by Harold against others. The circuit court and the majority opinion lump both types of testimony together as McMorris1 evidence and utilize neither type of conduct when analyzing whether Debra sufficiently raised the issue of self-defense to have the jury decide it. Because I have concluded they used an erroneous analysis of both the controlling case law relative to the admissibility of specific threats and acts of violence by a victim against a defendant and evidence which is properly within the scope of McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), which prejudiced Debra's right to raise a *183defense to the charges against her, I must respectfully dissent.

¶ 27. Debra was not allowed to present evidence of Harold's specific acts of violence and threats against her. The following are examples of testimony the circuit court excluded:

Q. When was the first time you remember Mr. Head twisting your arms?
A. From the mid '80s all the way through.
Q. How frequently would he do this to you?
A. Weekly.
Q. What would he do?
A. [I]f he were to like ask me to do something or . . . say something if I didn't agree he'd walk over and twist my arm or pick me up by my arm and my armpit until I'd give in to him.
Q. For the record, you were indicating putting his hands underneath your arms pits and lifting you up?
A. Yes.
Q. Did that hurt?
A. Yes, it did.
Q. Did it make you cry?
A. Yes, it did.
Q. Did he ever leave bruises?
A. Sometimes.
Q. Is that something that happened throughout your marriage?
*184A. Yes.
Q. Were there times that he twisted other parts of your body?
A. Yes.
Q. What parts did he twist?
A. My breasts.
Q. When did that start?
A. [A]bout the same timeframe, mid or the late '80s all the way through to the end in '98.
Q. How would he do that?
A. Just reach over and grab my breast and twist it until I would cry or haul off and bat his hand away . . .

Additionally, if permitted, she would have explained how one of Harold's attacks sent her to the emergency room:

[W]e were in the house ready to go out into the woods and cut wood. And I don't remember what we were discussing. And he got mad. And he was gonna kick something in the living room. There was a mounted raccoon or a fox that was there and I didn't want him to kick it because I didn't want it to go-fly all over. So I went over to stop him. And when I went over to stop him from kicking it, he picked me up and said, "Don't do that." And he got really mad and . . . threw me, well, when he threw me I went back off the arm of the couch. And I hurt in my lower back and I couldn't get up and so I cried. And then he left the room. And then he came back and I was still laying there. And he said, well, can't hurt that bad. Why don't you get up? And then I started to cry *185and I told him I couldn't. So he said, well, I suppose we should go and get it checked out. And he said, "Now I suppose you're gonna tell everybody what I did." And I said, "No, I won't. We'll just make up a story and tell 'em that I fell out in the woods." And so that's what I had told the people at the emergency room....

And finally, Harold's repeated threats to kill Debra were also excluded, as were his prior specific acts of violence against others.

Standard of Review.

¶ 28. The exclusion or admission of evidence is a discretionary decision of the circuit court. State v. Edmunds, 229 Wis. 2d 67, 74, 598 N.W.2d 290, 294 (Ct. App. 1999). However, because the test for whether a defendant reasonably believed that she was preventing an unlawful interference with her person contains an objective component, we review whether evidence is sufficient to support that component de novo. Shawn B.N. v. State, 173 Wis. 2d 343, 370, 497 N.W.2d 141, 151 (Ct. App. 1992).

Self-defense.

¶ 29. Self-defense may be an available defense for a defendant who is charged with first-degree intentional homicide when some overt act of possible aggression on the part of the victim occurred immediately before the defendant's act. WlS. STAT. § 939.48 (1997 — 98);2 State v. Mendoza, 80 Wis. 2d 122, 156, 258 N.W.2d 260, 274-75 (1977). To prevail on the issue of *186self-defense, a defendant must show all three of the following elements:

(1) the defendant reasonably believed that he was preventing or terminating an unlawful interference with his person; (2) the defendant reasonably believed that force or threat thereof was necessary to prevent or terminate the interference; and (3) the defendant reasonably believed that the actual amount of force used was necessary to prevent or terminate the interference.

State v. Camacho, 176 Wis. 2d 860, 869, 501 N.W.2d 380, 383 (1993). The first element of the three-part test for self-defense has two components: a subjective component (what the defendant believed from the defendant's perspective) and an objective component (what a reasonable person, similarly situated, would have believed). Id. at 873, 501 N.W.2d at 384. Imperfect self-defense3 also requires proof of the first element. Id. at 865, 501 N.W.2d at 381.

¶ 30. To be permitted to present evidence supportive of self-defense to the jury when the right to present such a defense is challenged, a defendant first must present the circuit court with a factual basis for raising the defense. Id. at 871, 501 N.W.2d at 383. Here, in making this threshold determination, the circuit court and the majority opinion focused on Harold's conduct on the morning he died, rather than also considering how the years of Harold's violence against Debra affected an objective belief that she had to act to *187defend herself that morning. Thereafter, they concluded that Debra did not meet the threshold of providing a factual basis to support her assertion of self-defense because, as a matter of law, she did not have a reasonable belief (objective component) that she was preventing Harold from harming or killing her (an unlawful interference with her person) when she shot him.

¶ 31. Although the circuit court did not specifically state that its conclusion rested on the objective component of the first element of Camacho, it could not have found that Debra lacked an actual belief (subjective component) because factual findings belong exclusively to the jury. However, if no jury could have found she reasonably believed that she was attempting to prevent harm to herself, that is a question of law which a circuit court can address. State v. Seifert, 155 Wis. 2d 53, 68, 454 N.W.2d 346, 352 (1990). However, unless the facts relevant to what constitutes a reasonable belief will permit only one conclusion, the reasonableness of a defendant's belief is a jury question. Mendoza, 80 Wis. 2d at 156, 258 N.W.2d at 275.

¶ 32. This appeal turns on whether the circuit court erroneously limited the facts that Debra could use to make a prima facie showing that her belief was reasonable and, by that limitation, erred in taking the question of reasonableness from the jury. I conclude that it did because Harold's threats and violence against Debra were repetitive events throughout their twenty-two-year marriage. They are highly relevant to Debra's state of mind on the morning of Harold's death and also to whether her belief that she was trying to prevent an imminent attack by him was a reasonable belief. Testimony of their previous encounters should have been admitted as Debra attempted to establish all *188three Camacho elements before the jury. (See discussion below). Additionally, evidence of Harold's prior specific threats and acts of violence against Debra should not have been excluded under McMorris, because McMorris does not address specific threats and acts of violence by the victim against the defendant.

1. Victim’s history of violence against the defendant.

¶ 33. Wives who eventually kill the men who batter and threaten them have been the subject of many law review articles over recent years. Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter, Men Who Kill, 2 S. Cal. Rev. Rev. L. & Women's Stud. 71 (1992); Misty Murray, People v. Humphrey: The New Rules of Self-defense for Battered Women Who Kill, 27 Sw. U. L. REV. 155 (1997); Rachel A. Van Cleave, A Matter of Evidence or of Law? Battered Women Claiming Self-defense in California, 5 UCLA WOMEN'S L.J. 217 (1994). No Wisconsin appellate case has discussed the admissibility of the threats and violence perpetrated against a domestic partner in the context of self-defense. However, numerous Wisconsin cases, which both precede and postdate McMorris, have addressed this evidence in the context of a heat-of-passion defense.

¶ 34. Self-defense and the heat-of-passion defense differ in several respects, one of which is that self-defense requires an immediate act which triggered the defendant's response and a heat-of passion defense does not. However, there are significant similarities in the proof required for each defense. For example, a defendant in a heat-of-passion case must demonstrate what a reasonable defendant would have done given *189the circumstances that resulted in the murder, and a defendant raising self-defense must show that she acted reasonably in taking immediate action against the victim. Both defenses rely heavily on the state of mind of the defendant at the time of the murder and whether the defendant held a reasonable belief that she had to act. Therefore, I conclude that the cases which explain how to evaluate whether to admit evidence of a defendant's reasonable belief in a heat-of-passion defense are controlling on the evaluation to be used in determining the admissibility of evidence relevant to a defendant's reasonable belief that she had to act to protect herself, when self-defense is raised.

¶ 35. To explain further, the heat-of-passion cases have concluded that when there is a history of violence between the victim and the defendant, a jury is to consider what a reasonable person would have believed under the circumstances from the perspective of a defendant who has been the subject of violence inflicted by the victim. State v. Hoyt, 21 Wis. 2d 284, 128 N.W.2d 645 (1964); State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161 (1983). In Hoyt, the court reviewed the murder of a husband by his wife, who admitted that she shot and killed him with his own gun. The wife was convicted of second-degree homicide, and the appeal turned on whether the circuit court erred in refusing to give a manslaughter instruction. In concluding that the circuit court did err, the supreme court's decision was driven by the victim's history of violence toward the defendant, which it concluded was relevant to the objective test that must be satisfied before sufficient provocation could be shown to warrant a manslaughter instruction. Hoyt, 21 Wis. 2d at 291, 128 N.W.2d at 648. The court reasoned that, in examining the defendant's conduct under the objective *190standard in a case where there was a long history of violence between the victim and the defendant, it was important to examine more than the victim's actions in the last few minutes before the defendant responded. It instructed:

If we look solely at the action of Mr. Hoyt in the last few minutes before the shooting, it seems clear that such actions would not be sufficient to produce the required degree of disturbance in an ordinarily constituted person not previously subjected to the treatment visited upon Mrs. Hoyt by her husband and disclosed by the record. On the other hand, it seems reasonable that the treatment to which Mrs. Hoyt had been subjected for a long period of time, and the public humiliation of her within the previous hour would have a cumulative effect upon any ordinary person so that the provocation just before the shooting would be greatly magnified.

Id. at 291,128 N.W.2d at 649.

¶ 36. Felton, which postdates McMorris, also involved a heat-of-passion defense. It illustrates how the supreme court has consistently concluded that the history of violence by the defendant against the victim is relevant in evaluating the objective standard of what a reasonable person would have done under similar circumstances. As the court explained,

[wjhile it is true that a defendant's background is not in general relevant to the objective test for heat of passion, the question is how an ordinary person faced with a similar provocation would react. The provocation can consist, as it did here, of a long history of abuse. It is proper in applying the objective test, therefore, to consider how other persons similarly situated with respect to that type, or that history, of provocation would react....
*191Thus, this court has held that the objective test may be satisfied by considering the situation of an ordinary person who is a battered spouse.

Felton, 110 Wis. 2d at 509-10, 329 N.W.2d at 172-73 (emphasis added).

¶ 37. Underlying Hoyt and Felton is the premise that we all react to others in light of our past experiences with them, to some degree. We have apprehension and fear based on what our interactions have taught us about the particular person with whom we are confronted. Put into the context of a criminal trial, this evidence is highly relevant to explaining why a reasonable person in the position of the defendant would have acted as she did. Felton, 110 Wis. 2d at 509-10, 329 N.W.2d at 172; Hoyt, 21 Wis. 2d at 291, 128 N.W.2d at 648. Furthermore, there is no rational basis for keeping this information from the jury. It is not character evidence to show a victim acted in conformity therewith, but it is highly relevant state-of-mind evidence that, unless a defendant's testimony is inherently incredible, should be admitted. Therefore, under Hoyt and Felton, I conclude that the circuit court erred in excluding evidence of Harold's prior specific threats and acts of violence against Debra.

¶ 38. The next question is whether this ruling was prejudicial. McLemore v. State, 87 Wis. 2d 739, 757, 275 N.W.2d 692, 701 (1979). Generally, an error is harmless if there is ho reasonable possibility that it contributed to the conviction. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 231-32 (1985). A reasonable possibility is one that is sufficient to undermine confidence in the outcome of the proceeding. State v. Patricia A.M., 176 Wis. 2d 542, 556, 500 N.W.2d 289, 295 (1993). The burden of proof is on the beneficiary of *192the error to establish that the error was not prejudicial. Dyess, 124 Wis. 2d at 544 n.11, 370 N.W.2d at 232 n.ll.

¶ 39. At trial, in keeping with the circuit court's pretrial rulings which prevented Debra from testifying to Harold's specific threats and acts of violence toward her as well as his acts of violence toward others, Debra testified about what Harold did and said only on the morning of his death. She said that when she woke Harold he was lying on his side, on the side of the bed nearest the door, and that he rolled to his back to talk with her. When they began to discuss their teenage daughter's pregnancy, Harold became enraged and said, "I'm so sick of hearing about this. Maybe I should just take care of you guys and just get on with my life." Debra interpreted this as a threat to do her harm; however, the circuit court did not permit her to say why she believed that. Debra also testified that she backed into a corner, did not know where to go and was afraid when Harold's anger grew. However, again on the State's objection, she was not permitted to say why she was so afraid. She said that when Harold made his hands into fists and began to roll over on his side to get out of bed, she grabbed a loaded handgun that was under the edge of the bed where he was lying. She said she did so to get it before Harold did. She said when he made a move to sit up and come toward her, she shot him, and that she shot him a second time because he continued to try to get out of bed.

¶ 40. A jury that was permitted to know why Debra interpreted Harold's statement as a threat to harm her and his movements on the bed as a precursor of an assault could have concluded that Debra's belief that she was acting to prevent Harold from harming her was a reasonable belief. However, this jury judged her solely on Harold's conduct that morning. The lim*193ited facts the court permitted the jury to hear had the effect of sanitizing Harold's actions because it took them out of the context of the twenty-two years of physical abuse and threats he had inflicted on Debra.4 In so doing, it prejudiced Debra's constitutional right to raise a defense to the charges against her.5

2. McMorris evidence.

¶ 41. WiGMORE ON Evidence sets forth the general rule pertaining to evidence of a victim's known acts and. reputation for violence as:

[T]he deceased's reputation can have a bona fide bearing on the defendant's apprehension only where there occurs, at the time of the affray, some conduct of the deceased which might otherwise be colorless, but when interpreted by his known character becomes apparently an act of aggression.

*1942 Wigmore on Evidence, § 246 (rev'd. ed. 1979). McMorris addresses this type of evidence. As the supreme court stated, the issue it addressed was: "whether evidence of prior specific acts of violence by the victim of an assault, against others than the defendant, is admissible in a prosecution for injury by conduct regardless of life, when the defendant raises the issue of self-defense." McMorris, 58 Wis. 2d at 146, 205 N.W.2d at 560 (emphasis added). McMorris evidence is less probative of the victim's state of mind than the Hoyt and Felton evidence discussed above because a defendant who knows only of the victim's acts of violence against others would not have personally felt the effects of the defendant's violence. Therefore, her apprehension may be less immediate.

¶ 42. However, evidence of the victim's prior specific acts of violence toward others, if the defendant had knowledge of them, is admissible after a factual basis for self-defense has been presented. McMorris, 58 Wis. 2d at 147,205 N.W.2d at 560. The supreme court determined that "evidence of the turbulent and dangerous character or reputation of the deceased or the victim of the assault is relevant in determining whether the victim or the accused was the aggressor, and as bearing on the reasonableness of the defendant's apprehension of danger at the time of the incident." Id. at 149, 205 N.W.2d at 561-62. The court further explained that the defendant's knowledge of the past conduct of the victim "markedly affects what others may reasonably expect from him in the future." Id. at 151, 205 N.W.2d at 562. Therefore, a defendant ought to be allowed to prove every fact and circumstance known to that defendant and connected with the victim which was "fairly calculated to create an apprehension for [her] own safety." 2 Wigmore on Evidence § 248 (rev'd. ed. 1979).

*195¶ 43. Here, Debra had more than her own personal experience to inform her belief that Harold was a violent man. She knew that he had a significant history of violence against others. For example, he often bragged to Debra about fights he had with co-workers and the discipline he received for them. On one occasion, he threw a table when disciplined by a supervisor. He was required to go through an Employee Assistance Program for anger management in order to keep his job. He also punched a neighbor in the face and twisted the arm of a six-year-old child because the neighbor and the child irritated him. For a time, he took medication to control his temper; however, he had discontinued it.

¶ 44. If all the testimony about Harold's prior acts and threats to Debra had been taken into account by the circuit court, as I have concluded they should have been under Hoyt and Felton, the application of McMorris would have permitted the admission of Harold's prior specific threats and acts of violence against others as well. Therefore, the circuit court also erred in precluding that testimony. State v. Boykins, 119 Wis. 2d 272, 350 N.W.2d 710 (Ct. App. 1984).

¶ 45. • And finally, because a defendant is entitled to an instruction on any valid theory of defense the evidence supports if it is timely requested, Debra would have been entitled to an instruction on self-defense if the excluded evidence had been admitted. State v. Coleman, 199 Wis. 2d 174, 181, 544 N.W.2d 912, 915 (Ct. App. 1996). The denial of this requested instruction was also an error.

¶ 46. Based on the errors that occurred at trial, I conclude Debra's constitutional right to raise a defense to the charges against her was violated and that she did not have a fair trial. Therefore, I would reverse her *196conviction and remand for a new trial. Accordingly, I must respectfully dissent.

McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).

All references to the Wisconsin Statutes are to the 1997-98 version -unless otherwise noted.

The distinguishing factor between imperfect self-defense (intentional manslaughter) and self-defense is the reasonableness of a defendant’s belief that deadly force was necessary. State v. Mendoza, 80 Wis. 2d 122, 156, 258 N.W.2d 260, 275 (1977).

Here, the circuit court seemed to conclude that Harold's acts were insufficient because he did not have a weapon, he was not specifically threatening to harm Debra at that moment, and he was not involved in perpetrating physical violence upon her at that time. However, the victims did not possess a weapon, nor were they perpetrating acts of physical violence or threatening to do so when they were killed in either State v. Hoyt, 21 Wis. 2d 284, 128 N.W.2d 645 (1964), or State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161 (1983). One was lying on a couch, and the other was asleep.

The circuit court also found that Debra could have run away from Harold, but Debra denied this. Therefore, it was a question of fact for the jury and not a proper basis for the circuit court's decision. Mendoza, 80 Wis. 2d at 156, 258 N.W.2d 260 at 275.

State v. Boykins, 119 Wis. 2d 272, 279, 350 N.W.2d 710, 714 (Ct. App. 1984).