2021 WI 61
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2318-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Alan M. Johnson,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 393 Wis. 2d 688, 948 N.W.2d 377
PDC No:2020 WI App 50 - Published
OPINION FILED: June 16, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 19, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Kristine E. Drettwan
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET,
JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which
ROGGENSACK, J., joined, and in which KAROFSKY, J., joined ¶¶38-
40, 42-60, and 67-85.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there was a brief filed by
Catherine E. White, Stephen P. Hurley, Jonas B. Bednarek, Marcus
J. Berghahn and Hurley Burish, S.C., Madison. There was an oral
argument by Catherine E. White.
For the plaintiff-respondent-petitioner, there were briefs
filed by Timothy M. Barber, assistant attorney general; with whom
on the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Timothy M. Barber.
2021 WI 61
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2318-CR
(L.C. No. 2016CF422)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JUN 16, 2021
Alan M. Johnson, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
HAGEDORN, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK,
J., joined, and in which KAROFSKY, J., joined ¶¶1-3, 5-23, and 30-
48.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part.
¶1 BRIAN HAGEDORN, J. In the middle of the night, Alan M.
Johnson snuck into the home of his brother-in-law (K.M.) seeking
evidence of child pornography. Johnson brought a gun. After
searching K.M.'s computer for more than two hours, K.M. appeared
in the doorway and saw Johnson. K.M. shut the door, as Johnson
described it, and then burst through the door and attacked. The
No. 2018AP2318-CR
ensuing altercation left K.M. dead; he was shot five times. A
jury found Johnson guilty of first-degree reckless homicide.
Johnson appealed his conviction, and the court of appeals ruled in
his favor and ordered a new trial.1
¶2 Three issues are presented for our review. First, did
the circuit court2 err in failing to instruct the jury on perfect
self-defense? Second, did the circuit court err in failing to
instruct the jury on the lesser included offense of second-degree
reckless homicide? And finally, did the circuit court err in
precluding Johnson from offering evidence regarding what he found
on K.M.'s computer the night of K.M.'s death? The court of appeals
ruled in Johnson's favor on all three questions.
¶3 We agree the circuit court erred in failing to instruct
the jury on perfect self-defense and second-degree reckless
homicide. When determining whether these instructions should be
provided, the evidence is viewed in the light most favorable to
the defendant, and the instruction must be provided if evidence is
presented from which a reasonable jury could find in the
defendant's favor on the instructed elements. The evidence
presented at trial was sufficient to satisfy this low evidentiary
bar. We affirm the decision of the court of appeals on these
grounds and remand for a new trial.
State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948
1
N.W.2d 377.
The Honorable Kristine E. Drettwan, Walworth County Circuit
2
Court, presiding.
2
No. 2018AP2318-CR
¶4 However, we conclude the circuit court properly
exercised its discretion in precluding Johnson from testifying
regarding what he found on K.M.'s computer that night. The circuit
court concluded this other-acts evidence was not relevant, and
even if it was, the probative value of the evidence would be
substantially outweighed by the danger of unfair prejudice. While
another court might see it differently, this was a permissible and
reasonable conclusion, particularly since Johnson was permitted to
testify regarding why he was at K.M.'s house and that he "found"
what he was looking for. Accordingly, we reverse the decision of
the court of appeals on this ground.
I. BACKGROUND
¶5 Johnson testified in his own defense at trial. His
testimony is the only narrative the jury heard of what happened
the night K.M. died. Since our review is largely centered on a
view of the evidence most favorable to Johnson, his testimony forms
the substantial basis of our analysis. The following is Johnson's
side of the story.
¶6 Johnson's oldest sister married K.M. when Johnson was a
child; his relationship with K.M. was strained from the beginning.
Johnson feared K.M. from the age of ten onward. Repeatedly, K.M.
verbally and physically abused Johnson, and on one occasion,
sexually abused him. Johnson also witnessed K.M. physically abuse
his youngest sister and K.M.'s son.
3
No. 2018AP2318-CR
¶7 Years prior to K.M.'s death, Johnson discovered what he
believed was child pornography on K.M.'s computer.3 Eventually,
Johnson reported this to the authorities, but was told that the
evidence was "stale." Johnson then told his father, who confronted
K.M. K.M. told Johnson's father the pornography was "moved."
Despite several requests by Johnson's father to attend therapy,
K.M. never went. This caused Johnson to fear for the safety of
his nieces.
¶8 Around 11:45 p.m. on the night of October 24, 2016,
Johnson went to K.M.'s home intending to discover "fresh pictures"
of child pornography on K.M.'s computer to deliver to the police.
Johnson believed that K.M. could overpower him if anything
happened, so he brought a gun to protect himself. He entered
through the unlocked back door and proceeded to the computer room.
Johnson closed the door and searched K.M.'s computer for over two
hours. As a result of his search, Johnson intended to turn what
he discovered over to the police because he "found what they
needed."
¶9 After the calendar flipped to October 25, at around 2:00
a.m., Johnson heard a "scuff" from somewhere in the house. Then,
in Johnson's words: "I closed the Windows that I had opened on
the computer . . . and I got up, I grabbed the gun. I got
everything that I had with me." As he was leaving, the door opened
Johnson testified that his sister, KM's wife, asked him to
3
find a file she downloaded on KM's computer. While attempting to
locate the missing file, Johnson found what he believed was child
pornography.
4
No. 2018AP2318-CR
and Johnson saw K.M. standing in the doorway without a shirt. K.M.
then closed the door, leaving Johnson alone in the room. Johnson
was afraid. When K.M. opened the door, "[h]e looked right at me,
and he knew why I was there. I knew that he knew." Johnson wanted
to leave, but the only exit was the door K.M. had just shut. He
did not believe the windows in the room opened either, leaving him
no way to escape. Then, Johnson explained, "the door flew open
and [K.M.] attacked me. He just came right at me." And upon
further probing, Johnson said, "[K.M.] lunged at me. I saw him
come at me." When all was said and done, K.M. sustained five
gunshot wounds and died. Exactly how this transpired was unclear
even to Johnson. While he knew he shot K.M., Johnson did not
remember seeing or hearing his gun fire and does not remember how
he left the house.
¶10 Johnson denied knowing how K.M. died when questioned on
two occasions later that day. But before the day ended, he
confessed to killing K.M. Johnson was charged with first-degree
intentional homicide, use of a dangerous weapon, and armed
burglary.
¶11 During pretrial, Johnson moved to admit other-acts and
McMorris evidence4 regarding K.M.'s past actions to support his
4 "Evidence of a victim's violent character and past violent
acts is often referred to as McMorris evidence." State v. Head,
2002 WI 99, ¶24 n.5, 255 Wis. 2d 194, 648 N.W.2d 413. The phrase
refers to McMorris v. State, where this court noted when "the issue
of self-defense is sufficiently raised" evidence of the victim's
"dangerous character or reputation" "is relevant in determining
whether the victim or the accused was the aggressor." 58
Wis. 2d 144, 149, 205 N.W.2d 559 (1973).
5
No. 2018AP2318-CR
claim of self-defense. The circuit court permitted Johnson to
introduce evidence of K.M.'s past abusive conduct and evidence
that Johnson previously found what he believed was child
pornography on K.M.'s computer. However, the court prohibited
Johnson from presenting evidence of precisely what he believed he
found on K.M.'s computer the night K.M. died: images of naked
underage girls and over 5,000 images of neighborhood girls.5 The
court ruled that such evidence, regardless of whether it was child
pornography, "is not relevant to the homicide, to any claim of
self-defense or to the burglary charge." Furthermore, the court
noted that even if this evidence was relevant, "it would fail under
[Wis. Stat. §] 904.03" because "[i]t would be completely and
unfairly prejudicial with little to no probative value other than
to try and paint the victim in a bad light, and it certainly would
not . . . substantially outweigh that unfair prejudice."
¶12 At the close of evidence, the circuit court instructed
the jury on burglary, first-degree intentional homicide, second-
degree intentional homicide, first-degree reckless homicide, and
imperfect self-defense. Johnson also requested, without success,
instructions on perfect self-defense, second-degree reckless
homicide, and homicide by negligent use of a firearm. The circuit
court refused to instruct on perfect self-defense because it
Johnson made an offer of proof that he would testify to this
5
effect, providing more specifics with respect to the images he
viewed that night. Johnson made an additional offer of proof that
a computer analyst would testify to discovering images on the
computer that to a lay person would appear to be child pornography.
6
No. 2018AP2318-CR
determined no reasonable person could conclude that Johnson
satisfied either prong of the perfect self-defense standard. And
the court did not instruct on second-degree reckless homicide on
the grounds that Johnson's actions conclusively showed an utter
disregard for human life.6
¶13 The jury found Johnson guilty of first-degree reckless
homicide while armed with a dangerous weapon and not guilty of
burglary. Johnson was sentenced to 25 years of confinement and 10
years of extended supervision.
¶14 Johnson appealed, and the court of appeals reversed and
remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52,
393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded
"the circuit court erred in denying Johnson's request to instruct
the jury on perfect self-defense and second-degree reckless
homicide and failed to allow into evidence that child pornography
was found on K.M.'s computer."7 Id. We granted the State's
petition for review.
II. DISCUSSION
¶15 This case presents three issues. Two concern
instructions not provided to the jury, and the third considers the
6The circuit court reasoned that Johnson "brought the loaded
gun there, and that he was aware that his conduct created that
unreasonable and substantial risk of death or bodily harm."
7The court of appeals affirmed the circuit court's decision
not to instruct on homicide by negligent handling of a dangerous
weapon. Johnson, 393 Wis. 2d 688, ¶42. This issue is not before
us.
7
No. 2018AP2318-CR
other-acts evidence Johnson sought to introduce regarding the
contents of K.M.'s computer on the night of his death. We begin
with the jury instructions.
A. Jury Instructions
1. Standard of Review
¶16 "A circuit court has broad discretion in deciding
whether to give a requested jury instruction." State v. Coleman,
206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). The circuit court's
charge is "to fully and fairly inform the jury of the rules of law
applicable to the case and to assist the jury in making a
reasonable analysis of the evidence." State v. Vick, 104
Wis. 2d 678, 690, 312 N.W.2d 489 (1981) (quoting another source).
But circuit court discretion is far more limited in some
circumstances——including determining whether the evidence
presented supports instructing the jury on either perfect self-
defense or a lesser-included offense; these are questions of law
we review de novo.8 State v. Peters, 2002 WI App 243, ¶12, 258
Wis. 2d 148, 653 N.W.2d 300; State v. Fitzgerald, 2000 WI App 55,
¶7, 233 Wis. 2d 584, 608 N.W.2d 391.
¶17 "A jury must be instructed on self-defense when a
reasonable jury could find that a prudent person in the position
of the defendant under the circumstances existing at the time of
the incident could believe that he was exercising the privilege of
8To the extent any statutes are interpreted and applied to
this end, that review is also de novo. Quick Charge Kiosk LLC v.
Kaul, 2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598.
8
No. 2018AP2318-CR
self-defense." State v. Stietz, 2017 WI 58, ¶15, 375 Wis. 2d 572,
895 N.W.2d 796. We recently described this benchmark as a low bar
which only requires the accused to produce some evidence to support
the proposed instruction. Id., ¶16. This standard is met even if
the evidence is "weak, insufficient, inconsistent, or of doubtful
credibility." Id., ¶17 (quoting another source). Furthermore,
circuit courts must not weigh the evidence; rather, the evidence
must be viewed in the light most favorable to the defendant.
Id., ¶¶13, 18. The instruction should be given based on this low
modicum of evidence "unless the evidence is rebutted by the
prosecution to the extent that 'no rational jury could entertain
a reasonable doubt.'" State v. Schuman, 226 Wis. 2d 398, 404, 595
N.W.2d 86 (Ct. App. 1999) (quoting another source).
¶18 Similarly, a lesser-included offense instruction should
be provided if "a jury giving the evidence full credence could
reasonably return a verdict of guilt on the lesser included
offense." Ross v. State, 61 Wis. 2d 160, 173, 211 N.W.2d 827
(1973). In making this determination, "all relevant and
appreciable evidence is viewed in a light most favorable to the
defendant." State v. Davis, 144 Wis. 2d 852, 855, 425 N.W.2d 411
(1988). Failure "to instruct on an issue which is raised by the
evidence" is error. State v. Weeks, 165 Wis. 2d 200, 208, 477
N.W.2d 642 (Ct. App. 1991) (quoting another source).
2. Perfect Self-Defense
¶19 The statutes define two types of self-defense: perfect
and imperfect. Imperfect self-defense is an affirmative defense
9
No. 2018AP2318-CR
to first-degree intentional homicide. Wis. Stat. § 940.01(2)(b)
(2019-20).9 It is aptly named because, when successful, it reduces
a charge of first-degree intentional homicide to second-degree
intentional homicide and therefore does not function as a complete
(perfect) defense to a homicide charge. Id. The circuit court
gave an imperfect self-defense instruction here.
¶20 Johnson contends the circuit court should have given a
perfect self-defense instruction as well. Wisconsin Stat.
§ 939.48(1) provides the requirements:
A person is privileged to threaten or intentionally use
force against another for the purpose of preventing or
terminating what the person reasonably believes to be an
unlawful interference with his or her person by such
other person. The actor may intentionally use only such
force or threat thereof as the actor reasonably believes
is necessary to prevent or terminate the interference.
The actor may not intentionally use force which is
intended or likely to cause death or great bodily harm
unless the actor reasonably believes that such force is
necessary to prevent imminent death or great bodily harm
to himself or herself.
Thus, to receive this instruction, Johnson had to make an objective
threshold showing that (1) he reasonably believed he was preventing
9 Under Wis. Stat. § 940.01(2)(b), imperfect self-defense is
available when, "Death was caused because the actor believed he or
she or another was in imminent danger of death or great bodily
harm and that the force used was necessary to defend the endangered
person, if either belief was unreasonable." § 940.01(2)(b). If
these conditions are met, the defendant could be convicted of
second-degree, rather than first-degree, intentional homicide.
§ 940.01(2); see also Wis. Stat. § 940.05(3) (noting imperfect
self-defense is not an affirmative defense to second-degree
intentional homicide).
All subsequent references to the Wisconsin Statutes are to
the 2019-20 version.
10
No. 2018AP2318-CR
or terminating an unlawful interference with his person, and (2)
he intentionally used only the force he reasonably believed was
necessary to terminate that interference. State v. Head, 2002
WI 99, ¶4, 255 Wis. 2d 194, 648 N.W.2d 413. Additionally, because
he intentionally used force intended or likely to cause great
bodily harm or death, Johnson needed to also show he reasonably
believed the force he used was necessary to prevent great bodily
harm or imminent death to himself. "Unlawful" in § 939.48 is
defined as conduct that is "either tortious or expressly prohibited
by criminal law or both." § 939.48(6).
¶21 The question here is whether "a reasonable jury could
find that a prudent person in the position of [Johnson] under the
circumstances existing at the time of the incident could believe"
these conditions were met. Stietz, 375 Wis. 2d 572, ¶15. If some
evidence from which a jury could so find was presented, the
instruction should have been given.10
¶22 First, Johnson must show some evidence that he
reasonably believed he was preventing or terminating an unlawful
interference with his person. Stated another way, we must
determine if some evidence was presented from which a jury could
find that Johnson reasonably believed he was preventing K.M. from
10The dissent states we apply an incorrect standard of law
by examining the reasonableness of Johnson's beliefs. Dissent,
¶59 & n.6. However, that is exactly what the statute says to do,
and exactly what our cases confirm——including those cited by the
dissent. See State v. Stietz, 2017 WI 58, ¶68, 375 Wis. 2d 572,
895 N.W.2d 796 (discussing the defendant's reasonable belief);
Head, 255 Wis. 2d 194, ¶¶66-67 (same).
11
No. 2018AP2318-CR
harming him without lawful authority to do so. We agree with the
court of appeals that the evidence could support such a conclusion.
¶23 Johnson testified that he was not looking for a
confrontation with K.M. But when K.M. showed up and closed the
door to the computer room, Johnson was left alone in the room with
no means of escape, believing K.M. knew precisely why he was there.
K.M. then flung the door open and attacked, lunging at Johnson.
Even granting the unusual circumstance of seeing an unwelcome
family member in one's home in the middle of the night, a
reasonable jury could conclude that K.M. engaged in an unprovoked
physical attack on his brother-in-law to harm and possibly kill
him. The jury knew that K.M. had previously been physically
violent with Johnson, and that past history could lend credibility
to Johnson's version of events, especially a need to defend himself
with lethal force. A reasonable jury could conclude that Johnson
reasonably believed K.M.'s attack on him was an unlawful
interference with his person.11
Our
11 self-defense laws also establish a statutory
presumption that a homeowner may use lethal force against unlawful
or forcible entry into the home, commonly called the castle
doctrine. Wis. Stat. § 939.48(1m)(ar). The dissent concludes the
castle doctrine should apply to KM's actions, meaning KM lawfully
attacked Johnson. Dissent, ¶69. However, we need not determine
the scope and meaning of the castle doctrine to rule on the issues
before us because we are examining Johnson's, not KM's, actions.
Rather, we conclude there is some evidence from which a jury could
find that Johnson reasonably believed he was being unlawfully
interfered with. The substance and applicability of the castle
doctrine does not change or alter that conclusion, and therefore
exploring it is unnecessary to decide this case. Nothing in this
opinion interprets, applies, or limits the castle doctrine in any
way.
12
No. 2018AP2318-CR
¶24 Next, Johnson must also present some evidence from which
a reasonable jury could conclude he intentionally used only the
force he reasonably believed was necessary to terminate the
interference with his person. Because Johnson used force intended
or likely to cause death or great bodily harm——he shot K.M. five
times——he must present some evidence that he reasonably believed
this force was necessary to prevent great bodily harm or imminent
death to himself. "[T]he personal characteristics and histories
of the parties" are relevant to this determination. State v.
Jones, 147 Wis. 2d 806, 816, 434 N.W.2d 380 (1989).
¶25 As we've discussed, Johnson testified that K.M.
physically, verbally, and sexually abused him, and physically
abused his younger sister, starting when they were both young.
And Johnson testified that on the night in question, K.M. opened
the door, recognized him, and knew why he was there. He then
closed the door, and then reopened the door to lunge at Johnson
and attack him. From this, the jury could conclude K.M. initiated
a violent altercation with Johnson, possibly because he knew
Johnson was looking for evidence of child pornography. These facts
could be read to provide a motive and historical pattern to
substantiate a conclusion that Johnson reasonably believed his
life was in danger from K.M.'s attack. Even though Johnson did
not recall the details of the physical altercation that led to
K.M.'s death, a jury could infer that Johnson intentionally used
only the force he reasonably believed would prevent an unlawful
interference with his person and that deadly force was necessary
13
No. 2018AP2318-CR
to prevent great bodily harm or imminent death.12 Even though
Johnson was not able to describe what happened in detail and why
he made the decisions he did when the attack began, a reasonable
jury could still infer that Johnson responded with the level of
force necessary to stop the attack.
¶26 In sum, we conclude the circuit court erred by declining
to instruct on perfect self-defense. Viewing the evidence in the
light most favorable to Johnson, there is some evidence from which
a reasonable jury could conclude he had an objectively reasonable
belief that he was preventing an unlawful interference with his
person and that he used only force which was necessary to prevent
imminent death or great bodily harm. Because Johnson was entitled
to receive the perfect self-defense instruction, we affirm the
court of appeals' decision on this issue.13
3. Second-Degree Reckless Homicide
¶27 With respect to the homicide charge against Johnson, the
circuit court instructed the jury on first-degree intentional
homicide, second-degree intentional homicide, and first-degree
reckless homicide. The court of appeals concluded that the circuit
12 We reiterate that a jury could also reach the opposite
result. Our focus is merely on whether a jury could conclude
Johnson acted in perfect self-defense, not that it would or should
reach that conclusion.
13The privilege of self-defense may also be limited when the
person claiming self-defense provoked the initial attack. See
Wis. Stat. § 939.48(2)(a). The circuit court instructed the jury
on provocation, a decision not challenged before us.
14
No. 2018AP2318-CR
court should also have instructed the jury on second-degree
reckless homicide, and the State challenges that conclusion before
us. If a party requests submission of a lesser included offense,
as Johnson did here, the court should instruct the jury if "there
are reasonable grounds in the evidence both for acquittal on the
greater charge and conviction on the lesser offense." Fitzgerald,
233 Wis. 2d 584, ¶7 (quoting another source).
¶28 A person who "recklessly causes the death of another
human being under circumstances which show utter disregard for
human life" is guilty of first-degree reckless homicide. Wis.
Stat. § 940.02(1). Second-degree reckless homicide, meanwhile,
occurs when someone "recklessly causes the death of another human
being." Wis. Stat. § 940.06(1). The only difference is that
"utter disregard for human life" is a required element for first-
degree, but not second-degree, reckless homicide. The parties
agree that second-degree reckless homicide is a lesser-included
offense of first-degree reckless homicide. This means that someone
who commits first-degree reckless homicide commits the second-
degree offense as well. See State v. Weso, 60 Wis. 2d 404, 408,
210 N.W.2d 442 (1973) (noting that an offense is lesser-included
when the defendant "could be convicted of the lesser crime even
though he had been charged with and pleaded not guilty to the
greater crime").
¶29 "[U]tter disregard for human life is measured
objectively, on the basis of what a reasonable person in the
defendant's position would have known." State v. Jensen, 2000
WI 84, ¶17, 236 Wis. 2d 521, 613 N.W.2d 170. "A person acting
15
No. 2018AP2318-CR
with utter disregard must possess 'a state of mind which has no
regard for the moral or social duties of a human being.'" State
v. Miller, 2009 WI App 111, ¶33, 320 Wis. 2d 724, 772 N.W.2d 188
(quoting Wagner v. State, 76 Wis. 2d 30, 45, 250 N.W.2d 331
(1977)). Utter disregard for human life is interpreted
"consistent[ly] with previous interpretations of the 'depraved
mind' element that it replaced." Jensen, 236 Wis. 2d 521, ¶18.
This court has explained:
To constitute a depraved mind, more than a high degree
of negligence or recklessness must exist. The mind must
not only disregard the safety of another but be devoid
of regard for the life of another. . . . A depraved
mind lacks a moral sense, an appreciation of life, is
unreasonable and lacks judgment. A depraved mind has a
general intent to do the acts and the consciousness of
the nature of the acts and possible result but lacks the
specific intent to do the harm.
Weso, 60 Wis. 2d at 411-12. In analyzing whether the defendant
acted with utter disregard for human life, the factfinder examines
the "totality of the circumstances" including the time before,
during, and after the crime.14 State v. Burris, 2011 WI 32, ¶¶38-
39, 41, 333 Wis. 2d 87, 797 N.W.2d 430.
14When examining the totality of the circumstances, factors
that may be considered include:
the type of act, its nature, why the perpetrator acted
as he/she did, the extent of the victim's injuries and
the degree of force that was required to cause those
injuries. We also consider the type of victim, the
victim's age, vulnerability, fragility, and relationship
to the perpetrator. And finally, we consider whether
the totality of the circumstances showed any regard for
the victim's life.
16
No. 2018AP2318-CR
¶30 Here, evidence was presented that could lead a
reasonable jury to conclude that Johnson's actions did not
constitute utter disregard for human life. In his telling, Johnson
brought a gun with him for his protection——not to attack K.M. And
Johnson combed through K.M.'s computer for two hours without
alerting the occupants of the home to his presence. A jury could
conclude that Johnson brought the gun intending to use it only if
necessary for self-defense, and that his intent was to obtain the
evidence he was looking for and leave without K.M. ever knowing he
was there. And again, a jury could conclude it was K.M. that
instigated a life or death situation by commencing a surprise
attack.15
¶31 Reading the evidence in the light most favorable to
Johnson, there is evidence that he acted in fear for his own life,
not necessarily with utter disregard for K.M.'s life.16 Based on
State v. Jensen, 2000 WI 84, ¶24, 236 Wis. 2d 521, 613 N.W.2d 170
(quoting another source).
15Certainly there is evidence that could cause a jury to
conclude otherwise——Johnson does not recall how he left the
computer room or bypassed KM, or the details of how he shot KM
five times.
16The court of appeals reached the same conclusion, but
reasoned that Johnson's conduct searching for child pornography
for the safety of his nieces demonstrates "a regard for the life,
safety, and well-being of others." Johnson, 393 Wis. 2d 688, ¶40.
In our view, however, the proper inquiry is whether a defendant
showed regard for human life with respect to those present during
the events in question. See, e.g., Balistreri v. State, 83
Wis. 2d 440, 457-58, 265 N.W.2d 290 (1978) (determining the
defendant did not have a "depraved mind" where he attempted to
avoid a collision by swerving his car, honking his horn, and
braking); State v. Miller, 2009 WI App 111, ¶42, 320 Wis. 2d 724,
17
No. 2018AP2318-CR
this evidence, we conclude that the circuit court should have
instructed the jury on second-degree reckless homicide as well.
We affirm the decision of the court of appeals on this issue.17
B. Other-Acts Evidence
¶32 Finally, the court of appeals held that the circuit court
impermissibly excluded other-acts evidence of what Johnson found
on K.M.'s computer on the night of K.M.'s death. Under the rules
of evidence, "evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that the person acted in conformity therewith." Wis. Stat.
772 N.W.2d 188 (determining there was no utter disregard for human
life when the defendant did not engage physically after being
struck, offered help, fired a shot only after the threats became
imminent, and called 911 to report the shooting and asked if the
victim would be okay).
17 The State does not argue that the circuit court's failure
to instruct on perfect self-defense and second-degree reckless
homicide was harmless. We agree that it was not. The jury
convicted Johnson of first-degree reckless homicide but acquitted
him on charges of first-degree intentional homicide, second-degree
intentional homicide, and burglary. This suggests the jury
believed at least some of Johnson's testimony. Had the perfect
self-defense and second-degree reckless homicide instructions been
given, the jury might have concluded either of these standards
applied and reached a different outcome. Therefore, the circuit
court's decision not to provide these instructions was not
harmless, and Johnson is entitled to a new trial on remand. See
Wis. Stat. § 805.18(2) (directing the court to determine if the
error "affected the substantial rights of the party"); Stietz, 375
Wis. 2d 572, ¶63 ("A defendant's substantial rights remain
unaffected (that is, the error is harmless) if it is clear beyond
a reasonable doubt that a rational jury would have come to the
same conclusion absent the error or if it is clear beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.").
18
No. 2018AP2318-CR
§ 904.04(2)(a). We use a three-step analytical framework to
ascertain the admissibility of other-acts evidence:
(1) Is the other acts evidence offered for an acceptable
purpose under Wis. Stat. § (Rule) 904.04(2), such as
establishing motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident?
(2) Is the other acts evidence relevant, considering the
two facets of relevance set forth in Wis. Stat. § (Rule)
904.01? The first consideration in assessing relevance
is whether the other acts evidence relates to a fact or
proposition that is of consequence to the determination
of the action. The second consideration in assessing
relevance is whether the evidence has probative value,
that is, whether the other acts evidence has a tendency
to make the consequential fact or proposition more
probable or less probable than it would be without the
evidence.
(3) Is the probative value of the other acts evidence
substantially outweighed by the danger of unfair
prejudice, confusion of the issues or misleading the
jury, or by considerations of undue delay, waste of time
or needless presentation of cumulative evidence? See
Wis. Stat. § (Rule) 904.03.
State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)
(footnote omitted).
¶33 Johnson contends this evidentiary decision should be
reviewed de novo because it implicates his constitutional right to
present a defense. We disagree. Outside of certain constitutional
commands,18 a circuit court's day-to-day decisions applying the
rules of evidence will only rarely contain a constitutional
dimension. "The rights to confront witnesses and to defend
18The prohibition against unreasonable searches and seizures,
for example, raises different questions than ordinary decisions
under the rules of evidence to admit or exclude evidence.
19
No. 2018AP2318-CR
are . . . not absolute and may bow to accommodate other legitimate
interests in the criminal trial process," including the rules of
evidence. State v. DeSantis, 155 Wis. 2d 774, 793, 456 N.W.2d 600
(1990). As the United States Supreme Court has explained:
State and federal rulemakers have broad latitude under
the Constitution to establish rules excluding evidence
from criminal trials. Such rules do not abridge an
accused's right to present a defense so long as they are
not "arbitrary" or "disproportionate to the purposes
they are designed to serve."
United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting
another source); see also State v. St. George, 2002 WI 50, ¶¶50-
51, 252 Wis. 2d 499, 643 N.W.2d 777 (explaining the "accused's
right to present evidence is subject to reasonable restrictions"
under the rules of evidence). Evidentiary questions of the type
raised here——whether evidence is relevant or prejudicial under an
other-acts inquiry——are therefore almost always properly reviewed
for an erroneous exercise of discretion. DeSantis, 155 Wis. 2d at
793-94. We see no reason to depart from this longstanding
appellate rule in this case.
¶34 Under this manner of review, we examine whether "the
circuit court applied the proper legal standard to the relevant
facts and reached a reasonable discretionary decision." State v.
Gutierrez, 2020 WI 52, ¶27, 391 Wis. 2d 799, 943 N.W.2d 870. If
it did so, its decision is upheld. Id. And while the court of
appeals clearly believed the evidence cut the other way, an
appellate court "may not substitute its discretion for that of the
circuit court." Id. (quoting another source). Rather, we "look
20
No. 2018AP2318-CR
for reasons to sustain a trial court's discretionary decision."
Id. (quoting another source).
¶35 The circuit court excluded this evidence on the grounds
that it was not relevant and that its probative value would be
substantially outweighed by its prejudicial effect under Wis.
Stat. § 904.03.19 Putting aside the circuit court's conclusion
that what was found that night was not relevant, it was certainly
within the circuit court's discretion to conclude the danger of
unfair prejudice substantially outweighed any possible relevance.
The circuit court expressed its concern that introduction of this
evidence could mislead the jury or cause them to focus on K.M.'s
potential criminal behavior related to child pornography rather
than the circumstances surrounding his death. Moreover, the court
was worried about a trial within a trial regarding whether certain
pictures constituted child pornography or not, possibly
distracting the jury from the real issues in the case. And while
Johnson was not permitted to present direct evidence of what he
found on K.M.'s computer, Johnson did testify that he went to the
house to look for child pornography and that he believed he found
what the police needed.
¶36 This evidentiary decision was a quintessential judgment
call of the type we rely on circuit courts to make every day. And
whether we would have made the same decision or not, it was a
19 Wis. Stat. § 904.03 provides: "Although relevant, evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence."
21
No. 2018AP2318-CR
reasonable call within the bounds of the law. The court of
appeals' decision on this issue is reversed.
III. CONCLUSION
¶37 We conclude the circuit court erred by failing to
instruct the jury on perfect self-defense and second-degree
reckless homicide. We affirm the court of appeals on these issues,
and agree that Johnson is entitled to a new trial on remand.20
However, the circuit court properly exercised its discretion in
denying the admission of the other-acts evidence; we reverse the
court of appeals' decision on this issue.
By the Court.—The decision of the court of appeals is affirmed
in part and reversed in part, and the cause is remanded to the
circuit court for further proceedings consistent with this
opinion.
20The jury found Johnson guilty of first-degree reckless
homicide, acquitted Johnson of burglary, and did not return a
verdict on first- and second-degree homicide, greater offenses of
first-degree reckless homicide, which served as an "implicit
acquittal" on those charges. See Green v. United States, 355
U.S. 184, 190 (1957). Accordingly, on remand the State is
precluded from trying Johnson for burglary and first- and second-
degree homicide under the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution. Id. at 190-91; Price
v. Georgia, 398 U.S. 323, 329 (1970) ("[T]his Court has
consistently refused to rule that jeopardy for an offense continues
after an acquittal, whether that acquittal is express or implied
by a conviction on a lesser included offense when the jury was
given a full opportunity to return a verdict on the greater
charge." (footnote omitted)).
22
No. 2018AP2318-CR.akz
¶38 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). It is
amongst many people's worst fears to be asleep with your family in
your own home and realize that someone may have broken in and is
in your house. Some might go armed to assess the situation. In
this case, the homeowner did not go armed, he was not even dressed.
He went without any clothing or weapons to find an armed and
dangerous man in his house. When the homeowner confronted the
criminal invader, the criminal invader shot the unarmed, naked
homeowner dead with his family asleep upstairs. Now the home
invader claims he was justified in shooting the homeowner, killing
him because the home invader was afraid.
¶39 Today, the court endows the person wrongfully in the
home with a jury instruction for perfect self-defense to homicide.
I fear that the teaching from the majority's opinion is that
criminal home invaders should go armed, shoot first, and later
claim to be afraid so to avoid conviction. Every home invader
should be afraid——afraid of detection, afraid of confrontation,
afraid of being shot by the homeowner, afraid of the police, afraid
of being convicted for the crime committed. But being afraid does
not mean that the home invader can shoot first in "self-defense."
The majority opinion creates a limitless loophole for those who
invade another's home so long as they claim to be afraid. The
majority opinion unleashes this perfect defense on the innocent
public at great cost. This cannot be the law.
¶40 The majority justifies its reasoning, claiming to cabin
this perfect defense to this unique group of facts. However, this
is unsupported in the law. In fact, the law prohibits anyone from
1
No. 2018AP2318-CR.akz
trespassing into another's home. It was the defendant who claimed
to be afraid of the homeowner but chose to put himself in closer
proximity to the homeowner by breaking into his home. It was the
defendant who put himself at risk by wrongfully entering another
person's home in the middle of the night. Here, the defendant was
not randomly confronted with the need to exercise self-defense——
he broke into another's home! Most typically, self-defense is the
answer to an unexpected confrontation such that the person is
permitted to use the amount of force necessary to escape and
retreat. To allow the criminal home invader under these facts the
opportunity to claim perfect self-defense is previously unknown in
Wisconsin law.
¶41 And what of the Castle Doctrine?1 The majority dispenses
with a homeowner's presumptive right to attack a home invader,
stating that it is irrelevant to the analysis. But the law rebuts
this claim. To receive the perfect self-defense jury instruction,
Johnson had to believe that K.M.'s lunge was unlawful. However,
the Castle Doctrine makes clear that K.M. was legally permitted to
lunge at——and even possibly kill——Johnson. But the majority balks
at the Castle Doctrine, claiming that the Castle Doctrine does not
impact this case because Johnson presented "some evidence" of
unlawful interference. If the Castle Doctrine does not apply when
a homeowner lunges at a home invader who is carrying a gun, then
when does it apply? Such ignorance of the purpose underlying the
Castle Doctrine is astonishing.
1 The Castle Doctrine, as codified in Wis. Stat. § 939.48(1m),
provides a presumptive right for a homeowner to use deadly force
against a home invader.
2
No. 2018AP2318-CR.akz
¶42 The majority's conclusions cannot be the law. It
unwittingly instructs criminals to go armed and shoot to kill
during a home invasion, so the invader can claim perfect self-
defense and escape criminal liability. The majority green lights
vigilantes to break into suspected criminals' homes and take the
law into their own hands. The majority undermines a homeowner's
presumptive right to defend the home against invaders. Because
the law does not permit these unimaginable outcomes, I would hold
that Johnson is not entitled to jury instructions on either perfect
self-defense or second-degree reckless homicide. Accordingly, I
respectfully dissent.2
I. FACTUAL BACKGROUND
¶43 I begin by setting forth relevant facts as established
by Johnson's testimony.3 As will be shown, this case hinges in
large part on the testimony presented to the jury.
¶44 Johnson testified that many years before the home
invasion and shooting here, Johnson had found child pornography on
K.M.'s computer. Johnson stated that he filed a report with the
authorities stating that K.M.'s computer contained child
pornography. The sheriff's office informed Johnson that there was
"nothing [they] could do" about his report and tip because the
evidence was "stale." Disappointed that the police did not take
2 However, despite its errors and faults, the majority
correctly determined that the circuit court did not err when it
excluded certain other-acts evidence.
3 Johnson's testimony is the only evidence in the record about
what occurred on the night Johnson shot and killed K.M.
3
No. 2018AP2318-CR.akz
action, Johnson informed his father about the child pornography
and the report. Johnson's father confronted K.M. about the child
pornography, and K.M. stated that he had "moved" the child
pornography.4
¶45 Upset that no one had taken any action against K.M.,
Johnson decided to take the law into his own hands. On the night
of October 24, 2016, around 11:45 p.m., Johnson decided he would
break into K.M.'s house and obtain "fresh" pictures of child
pornography from K.M.'s computer. He decided to break in so late
at night "because [he] figured everyone would be asleep." Johnson
left to go to K.M.'s house, arming himself with his father's
handgun and gloves. Johnson testified that he brought the gloves
because he "didn't want to fry any of the equipment" because of
static electricity. He also testified that he brought the gun
because "[he] wouldn't be able to go in [K.M.'s house]" without it
as he needed to feel safe in case K.M. found him after breaking
in.
¶46 Johnson arrived at K.M.'s house and parked around the
corner. He then proceeded to break into K.M.'s house using the
back door. After invading K.M.'s house, Johnson went to K.M.'s
computer, with his gun and gloves, to search for what he believed
would be child pornography.
4According to the defendant, Johnson and K.M. had a poor
relationship. K.M. was married to Johnson's older sister. Johnson
testified that for many years K.M. was physically abusive to him,
his younger sister, and his nephew——K.M.'s son. Johnson also
testified that on one occasion K.M. put his hands down Johnson's
pants. He claimed to be afraid of K.M.
4
No. 2018AP2318-CR.akz
¶47 After searching for over two hours, at around 2:00 a.m.
on October 25, 2016, Johnson heard a "scuff" outside of the
computer room. Johnson exited out of the programs on the computer,
closed it, grabbed the gun, stood up, and walked towards the door.
As Johnson was walking towards the door, a naked K.M. opened the
door, peered into the darkened room, and saw Johnson. K.M.
immediately shut the door while Johnson stood still, gun in hand.
Johnson testified that he felt like he had no means to escape the
room other than through the door that K.M. just shut. During this
standstill, Johnson's sister and nephew were asleep upstairs.
¶48 After a few moments, the door flew open, and K.M. lunged
at Johnson. Johnson testified that he did not recall what happened
after the lunge, but it is clear what happened based on the
evidence. Johnson shot the semi-automatic handgun five times,
thus pulling the trigger five individual times, hitting K.M. with
each shot. Johnson testified that he did not feel K.M. touch him
at any time during this interaction. K.M. died from these gunshot
wounds.
¶49 Although he does not remember how he left the room, it
is clear that Johnson had to step over K.M.'s body to exit the
room. When he exited the room, Johnson was covered in blood. At
no time did Johnson call out to his sister or nephew, nor did he
render aid to the shot K.M. Instead, Johnson next recalled being
several blocks away in the truck he came in, soaked in blood.
¶50 Later the same day, still October 25, 2016, the police
began investigating K.M.'s death. The police questioned Johnson
twice regarding K.M.'s death. Both times, Johnson lied to the
5
No. 2018AP2318-CR.akz
police, stating that he did not know how K.M. died. However, later
in the day, Johnson confessed: "Arrest me, I killed him."
II. STANDARD OF REVIEW
¶51 This case asks the court to determine whether Johnson is
entitled to jury instructions for both perfect self-defense and
second-degree reckless homicide. "A circuit court has broad
discretion in issuing jury instructions based on the facts and
circumstances of the case and in deciding whether to give a
specific jury instruction requested by the parties." State v.
Neumann, 2013 WI 58, ¶89, 348 Wis. 2d 455, 832 N.W.2d 560.
"Whether there are sufficient facts to warrant the circuit court's
instructing the jury on self-defense is a question of law that the
court decides independently of the circuit court and court of
appeals, but benefiting from their analyses." State v. Stietz,
2017 WI 58, ¶14, 375 Wis. 2d 572, 895 N.W.2d 572. Similarly, the
court decides independently "whether the evidence adduced at trial
permits the giving of a lesser-included offense instruction," as
this is a question of law. State v. Kramar, 149 Wis. 2d 767, 792,
440 N.W.2d 317 (1989).
¶52 This case also requires the interpretation and
application of statutes, which this court does independent of the
circuit court and court of appeals. State v. Trammell, 2019 WI
59, ¶16, 387 Wis. 2d 156, 928 N.W.2d 564.
III. ANALYSIS
¶53 This analysis centers on the majority's erroneous
conclusion that the circuit court should have provided a perfect
6
No. 2018AP2318-CR.akz
self-defense jury instruction and a second-degree reckless
homicide jury instruction. I begin with a discussion of the
perfect self-defense jury instruction before turning to the
second-degree reckless homicide jury instruction.
A. Perfect Self-Defense
¶54 Johnson argues that he was entitled to receive the
perfect self-defense jury instruction. The circuit court
correctly concluded that Johnson was not entitled to receive the
perfect self-defense jury instruction.
¶55 In Wisconsin, there are two types of self-defense a
defendant can claim: imperfect self-defense and perfect self-
defense. Imperfect self-defense is an affirmative defense to
first-degree intentional homicide, which is available when
"[d]eath was caused because the actor believed he or she or another
was in imminent danger of death or great bodily harm and that the
force used was necessary to defend the endangered person, if either
belief was unreasonable." Wis. Stat. § 940.01(2)(b). If found by
a jury, imperfect self-defense mitigates first-degree intentional
homicide to second-degree intentional homicide. See Wis. Stat.
§§ 940.01(2), 940.05(3). The circuit court instructed the jury on
imperfect self-defense in this case.
¶56 Unlike imperfect self-defense, which merely mitigates a
conviction, perfect self-defense is an affirmative defense that
completely bars conviction for certain crimes. See Wis. Stat.
§§ 939.45, 939.48(1). Wisconsin codified perfect self-defense in
§ 939.48(1), which provides:
A person is privileged to threaten or intentionally use
force against another for the purpose of preventing or
7
No. 2018AP2318-CR.akz
terminating what the person reasonably believes to be an
unlawful interference with his or her person by such
other person. The actor may intentionally use only such
force or threat thereof as the actor reasonably believes
is necessary to prevent or terminate the interference.
The actor may not intentionally use force which is
intended or likely to cause death or great bodily harm
unless the actor reasonably believes that such force is
necessary to prevent imminent death or great bodily harm
to himself or herself.[5]
Distilling this statute down, perfect self-defense has two
elements when the defendant uses deadly force: (1) a reasonable
belief in the existence of an unlawful interference that is likely
to cause imminent death or great bodily harm; and (2) a reasonable
belief that the amount of force the person intentionally used was
necessary to prevent imminent death or great bodily harm to the
defendant. See State v. Head, 2002 WI 99, ¶84, 255 Wis. 2d 194,
648 N.W.2d 413. However, when determining whether a particular
defendant is entitled to a perfect self-defense jury instruction,
the "reasonable belief" articulated is from the perspective of a
prudent person. Stietz, 375 Wis. 2d 572, ¶15. Phrased another
way, to receive the perfect self-defense jury instruction, a
defendant had to produce "some evidence" that "a reasonable jury
could find that a prudent person in the position of the defendant
under the circumstances at the time of the incident could believe
that he was exercising the privilege of self-defense." Id., ¶¶15,
16.
¶57 Accordingly, to receive the perfect self-defense jury
instruction, Johnson must present some evidence that a reasonable
5"In this section 'unlawful' means either tortious or
expressly prohibited by criminal law or both." Wis. Stat.
§ 939.48(6).
8
No. 2018AP2318-CR.akz
jury could find that (1) a prudent person in Johnson's position
would reasonably believe that K.M. was unlawfully interfering in
such a way that would cause imminent death or great bodily harm to
Johnson, and (2) a prudent person in Johnson's position would
reasonably believe that shooting K.M. was necessary to prevent
imminent death or great bodily harm to Johnson.
¶58 This is no ordinary self-defense case. This is a case
where the defendant used "force which is intended or likely to
cause death or great bodily harm." Consequently, the interference
must have been the type that is likely to cause "imminent death or
great bodily harm" to Johnson. See Wis. Stat. § 939.48(1).
¶59 Moreover, the majority erroneously focuses on whether
Johnson, and not a prudent person in Johnson's position, possessed
a reasonable belief. Majority op., ¶20.6 This restatement of the
test impermissibly injects Johnson's subjective beliefs at the
time of the incident into an inquiry that focuses on what a
reasonable jury could find based on what a prudent person in
Johnson's position would reasonably believe. See Steitz, 375
6 Although the majority purports to be applying the objective
test, it continually restates that it is looking at what Johnson
believed and not what a prudent person in Johnson's position would
have believed. See majority op., ¶22 ("we must determine if some
evidence was presented from which a jury could find that Johnson
reasonably believed . . . ."); id., ¶23 ("A reasonable jury could
conclude that Johnson reasonably believed . . . ."); id., ¶24
("Johnson must also present some evidence from which a reasonable
jury could conclude he intentionally used only the force he
reasonably believed . . . ."); id., ¶25 ("[A] jury could infer
that Johnson intentionally used only the force he reasonably
believed . . . .") (Emphases added.)
9
No. 2018AP2318-CR.akz
Wis. 2d 572, ¶15. This flawed understanding of the objective test
colors the majority's entire analysis.
¶60 When we apply the correct, objective standard, it is
clear that Johnson has presented no evidence from which a
reasonable jury could find that a prudent person in Johnson's
position could reasonably believe that K.M. was unlawfully
interfering in such a way that would cause imminent death or great
bodily harm to Johnson. Similarly, it is clear that Johnson
presented no evidence from which a reasonable jury could find that
a prudent person in Johnson's position could reasonably believe
that shooting K.M. was necessary to prevent imminent death or great
bodily harm to Johnson.
1. No objective, reasonable belief in the existence
of unlawful interference
¶61 For two independently sufficient reasons, Johnson cannot
show that he provided sufficient evidence of K.M.'s alleged
unlawful interference that was likely to cause imminent death or
great bodily harm to Johnson. First, K.M. was not acting
unlawfully because his conduct was protected by the Castle
Doctrine. Second, Johnson has provided no objective facts that
demonstrate that a reasonable jury could find that a prudent person
in Johnson's position would reasonably believe that K.M. was
unlawfully acting in such a way that would cause imminent death or
great bodily harm to Johnson.
a. Castle Doctrine
¶62 K.M.'s alleged interference was not unlawful because it
was protected by the Castle Doctrine. The Castle Doctrine extends
the self-defense privilege in the context of the home to include
10
No. 2018AP2318-CR.akz
the presumptive right to use deadly force. See Wis. Stat.
§ 939.48(1m); see also State v. Christen, 2021 WI 39, ¶44, 396
Wis. 2d 705, 958 N.W.2d 746. When a homeowner uses deadly force
against a person that the homeowner reasonably believed unlawfully
and forcibly entered the homeowner's dwelling, "the court may not
consider whether the actor had an opportunity to flee or retreat
before [the homeowner] used force and shall presume that the
[homeowner] reasonably believed that the force was necessary to
prevent imminent death or great bodily harm to himself or herself."
Wis. Stat. § 939.48(1m)(ar). This means that when a homeowner
finds someone in their home and the homeowner reasonably believes
that person broke into the home, the homeowner has the presumptive
right to use deadly force against the invader.
¶63 The Castle Doctrine intersects with this case because
Johnson was just such an invader in K.M.'s home. Johnson broke
into K.M.'s home in the middle of the night, and K.M. found him as
an invader——satisfying the first aspect of the Castle Doctrine.
Consequently, the court must presume that any force K.M. was going
to use was necessary, even if it was deadly force.
¶64 As relevant to the perfect self-defense jury
instruction, Johnson had to reasonably believe that K.M. was acting
under the Castle Doctrine. "[E]very person is expected to know
the law." Neumann, 348 Wis. 2d 455, ¶50 n.29; see also Byrne v.
State, 12 Wis. 519 (1860) ("[D]efendants are presumed to know the
law . . . ."). As such, we presume that Johnson knows the Castle
Doctrine. Because Johnson is presumed to know of the Castle
Doctrine, it is clear that an objective, prudent person in
11
No. 2018AP2318-CR.akz
Johnson's position would know that the homeowner——here, K.M.——
could legally use deadly force on the person when found after a
break-in. Accordingly, Johnson cannot show that K.M.'s lunge was
an unlawful interference because K.M. was presumptively permitted
to lunge at and attack Johnson as an invader in his home.
¶65 Johnson attempts to circumvent this conclusion by
arguing that K.M. was actively engaged in a criminal activity;
namely, possession of child pornography. Johnson is correct that
a homeowner cannot rely on the Castle Doctrine when the homeowner
is "engaged in a criminal activity . . . at the time." Wis. Stat.
§ 938.48(1m)(b)1. However, mere speculation of criminal activity
cannot form the basis of overriding a homeowner's presumptive right
to use deadly force against a home invader; the homeowner must
actually be engaged in a criminal activity at the time. Id. There
is no evidence in the record that, at the time Johnson broke into
K.M.'s house, K.M. was engaged in any criminal activity. Johnson
alleges that he found child pornography on the computer that he
broke into the house to search; no such child pornography was
admitted into the record. Accordingly, K.M. was entitled to the
Castle Doctrine's presumption of the right to use deadly force.
Johnson failed to present any evidence that would overcome this
presumption.
¶66 The majority ignores the Castle Doctrine's impact on
this case, opening the door for vigilante justice and providing
motivation to home invaders to shoot to kill so they can claim
perfect self-defense. The law and its procedures not only protect
the accused, but also the victim. See Wis. Const. art. I, § 9m.
12
No. 2018AP2318-CR.akz
The majority ignores K.M.'s presumptive right to defend his home
and his family against a home invader. Instead, the majority green
lights a home invader's attempt to escape all liability and dilutes
a homeowner's presumptive right to protect the home against those
invaders. I would not allow such a green light, and I would apply
the Castle Doctrine to K.M.'s actions, meaning that K.M.'s actions
were lawful; and therefore, Johnson is not entitled to a perfect
self-defense jury instruction.
b. No evidence
¶67 The Castle Doctrine notwithstanding, Johnson did not
proffer any evidence from which a reasonable jury could find that
a prudent person in Johnson's position would reasonably believe
that K.M. was unlawfully acting in such a way that would cause
imminent death or great bodily harm to Johnson. Because the
analysis must be from the perspective of the objective, prudent
person, I begin by setting forth the facts, not Johnson's feelings
or characterizations, in the light most favorable to Johnson.7
¶68 Here, Johnson entered K.M.'s house in the middle of the
night. Johnson arrived with gloves, a gun, and a plan: to
investigate K.M. and discover what he thought was criminal
7 Included in these facts are "the personal characteristics
and histories of the parties" as those characteristics and
histories are part of the record. State v. Jones, 147 Wis. 2d 806,
816, 434 N.W.2d 380 (1989). In the context of claims of self-
defense, this type of evidence is commonly referred to as McMorris
evidence; that is, "evidence of violent acts the victim had
committed which [the defendant] knew about at the time of the
alleged crime, and which would bear on the reasonableness of the
claim of self-defense." State v. McClaren, 2009 WI 69, ¶1, 318
Wis. 2d 739, 767 N.W.2d 550 (citing McMorris v. State, 58
Wis. 2d 144, 205 N.W.2d 559 (1973)).
13
No. 2018AP2318-CR.akz
activity. After several hours of investigating on K.M.'s computer,
Johnson heard a noise, closed the computer, grabbed the gun, and
headed to the door. A naked K.M. opened the door, peered into a
darkened room, and saw Johnson. K.M. then immediately closed the
door. Johnson stood there, gun in hand, and did not make a move.
Johnson knew of K.M.'s history of choking people, pulling hair,
squeezing heads, and punching people, and that K.M. was much larger
than himself. K.M. then opened the door and lunged at Johnson.
In response, Johnson shot K.M. five times, killing K.M.
¶69 These are the objective facts, presented in the light
most favorable to Johnson, from his own testimony. Johnson had to
supply evidence that K.M.'s interference was likely to cause
imminent death or great bodily harm to Johnson. A mere lunge can
hardly be characterized as likely to cause imminent death or great
bodily harm. Simply put, Johnson presented no evidence that K.M.'s
alleged unlawful interference was likely to cause imminent death
or great bodily harm to Johnson. Accordingly, Johnson is not
entitled to receive the perfect self-defense jury instruction.
2. No objective, reasonable belief that killing
K.M. was necessary to prevent imminent death
or great bodily harm.
¶70 For two independently sufficient reasons, Johnson cannot
show that he provided sufficient evidence from which a reasonable
jury could conclude that a prudent person in Johnson's position
would reasonably believe that killing K.M. was necessary to prevent
imminent death or great bodily harm to Johnson. First, Johnson
was unlawfully in K.M.'s home, creating the danger by his own
wrongful conduct. As such, his force was legally not necessary
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because he unlawfully sought out the danger that caused him to
exercise "self-defense." Second, Johnson has provided no evidence
that shooting and killing K.M. was necessary to prevent imminent
death or great bodily harm to Johnson.
a. No perfect self-defense when creating the danger
¶71 Over a century ago, this court stated the rule of self-
defense generally requires a person to have the right to be in the
location where self-defense is exercised:
[The common law rule of retreat] has been superseded by
a doctrine in harmony with the divine right of self-
defense; the doctrine that when one is where he has a
right to be and does not create the danger by his own
wrongful conduct, he may stand his ground, if assailed
by another . . . .
Miller v. State, 139 Wis. 57, 75, 119 N.W. 850 (1909) (emphasis
added); see also State v. Watkins, 2002 WI 101, ¶¶91-94, 255
Wis. 2d 265, 647 N.W.2d 244 (explaining that the rule from Miller
must be considered when determining whether the force used was
necessary). Thus, a defendant generally cannot claim self-defense
if he or she was illegally in the place where self-defense was
used because this conflicts with the principle of retreat. Here,
the defendant did the opposite of retreat. Johnson broke into
K.M.'s home and placed himself in a situation where the reasonable
person would suspect that the homeowner may attack a home invader.
The logic of retreat and self-defense is to avoid possible
confrontation and use force only when necessary to protect oneself.
The majority does not address retreat, nor the fact that Johnson
broke into K.M.'s house while armed with the specific intention of
protecting himself against attack. Johnson's "self-defense" can
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hardly be called necessary when he sought out the situation where
he would have to use self-defense.
¶72 Allowing a defendant who seeks out life-threatening
danger by breaking into a home to claim self-defense also
fundamentally undermines a homeowner's Second Amendment right to
"possess and carry weapons in case of confrontation." Christen,
396 Wis. 2d 705, ¶43 (quoting District of Columbia v. Heller, 554
U.S. 570, 592 (2008)). Under the majority's logic, a domestic
abuser could know that his or her victim keeps a firearm in a
bedside drawer for defense, as is constitutionally permitted. The
abuser could then bring a gun to "defend themselves" because the
abuser knows of the victim's firearm. Then, the abuser could enter
the victim's home——under the pretenses of investigating alleged
criminal activity——shoot the domestic abuse victim, and claim that
he or she feared for his or her life because the victim had a gun.
Such backward logic transforms a homeowner's lawful right to
possess a firearm for home defense into the catalyst for a home
invader to shoot a homeowner and receive perfect self-defense.
This example of a domestic abuse situation is not alone. Consider
rival gang members who have bad blood, breaking and entering into
another's home with a gun, shooting another, claiming to be afraid
of another, and asserting perfect self-defense. And the examples
could go on and on without limitation. This is not, and cannot,
be the law.
¶73 Because Johnson unlawfully sought out the danger, by
breaking into K.M.'s home, that required him to exercise "self-
defense," Johnson cannot now claim that the amount of force he
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used was necessary. Johnson should never have been in K.M.'s home.
Accordingly, Johnson is not legally entitled to a perfect self-
defense jury instruction.
b. No evidence
¶74 Johnson also presented no evidence that shooting and
killing K.M. was necessary to prevent imminent death or great
bodily harm to Johnson. As I just discussed, there was no threat
of imminent death or great bodily harm. Even beyond that simple
fact, Johnson proffered no testimony that shooting and killing
K.M. was necessary. Johnson testified that he has no memory from
the time K.M. lunged at him until several minutes later when he
clearly recalls driving home with blood-soaked clothing. During
the critical period of when Johnson pulled the trigger, he recalls
nothing——not pulling the trigger, the sound of the gun, nor
stepping over K.M.'s body to exit the room.
¶75 Johnson provided a complete dearth of evidence as to the
necessity. Because Johnson presented no evidence as to why or how
he pulled the trigger, killing K.M., a reasonable jury must look
at what was known up until the time of the lunge from the
perspective of an objective, prudent person, not Johnson's
statement of his own perspective. Johnson testified that he knew
that his sister and his nephew were sleeping in a room adjacent to
where the interaction occurred. He acknowledged that he could
have called out to them for assistance or to alert them to any
impendent threat to life and limb.
¶76 Johnson argues that K.M. knew he found evidence of
criminal activity, and so K.M. was attempting to kill him to
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prevent him from going to the police with the evidence.
Consequently, his force was necessary to prevent K.M.'s imminent
threat to life and limb. Despite Johnson's characterizations,
there is simply no evidence in the record that K.M. was engaged in
criminal activity, nor is there any evidence in the record from
which a reasonable jury could conclude that a prudent person in
Johnson's position would believe this.
¶77 In sum, there is a complete lack of evidence that K.M.'s
lunge was going to cause imminent death or great bodily harm and
that Johnson shooting K.M. was necessary to prevent imminent death
or great bodily harm. Consequently, Johnson was not entitled to
a perfect self-defense jury instruction.
B. Second-Degree Reckless Homicide
¶78 Johnson was not entitled to receive a jury instruction
on second-degree reckless homicide as a lesser-included offense to
first-degree reckless homicide. We have adopted a two-step process
to determine "whether a lesser included instruction should be
given." State v. Muentner, 138 Wis. 2d 374, 387, 406 N.W.2d 415
(1987). The first step of this process is to "determine, as a
matter of law, whether the offense was lesser included." Id.
"Wisconsin has adopted the 'elements only' test," which means that
a lesser included crime is "[a] crime which does not require proof
of any fact in addition to those which must be proved for the crime
charged." State v. Jones, 228 Wis. 2d 593, 598, 598 N.W.2d 259
(Ct. App. 1999) (alteration in original) (citation omitted). If
the offense was lesser included, "[t]he second step is to determine
whether there is a reasonable basis in the evidence for an
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No. 2018AP2318-CR.akz
acquittal on the greater charge and for a conviction on the lesser
charge." Muentner, 138 Wis. 2d at 386. "[T]he second step
involves a weighing of evidence which would be presented to the
jury. Thus, the court is assessing the likelihood that the jury
would find all the elements of the particular crime." Id.
¶79 Here, Johnson was charged, and convicted of, first-
degree reckless homicide. To be found guilty of first-degree
reckless homicide, a person must "recklessly cause the death of
another human being under circumstances which show utter disregard
for human life." Wis. Stat. § 940.02(1).8 Johnson is seeking to
receive a jury instruction on second-degree reckless homicide. To
be found guilty of second-degree reckless homicide, a person must
"recklessly cause the death of another human being."9
¶80 Applying the first step to determine whether a lesser-
included offense jury instruction is required, we must compare the
elements of first- and second-degree reckless homicide. Jones,
228 Wis. 2d at 598. When we compare the elements, every element
of second-degree reckless homicide must be proven for a person to
be convicted of first-degree reckless homicide. Accordingly,
second-degree reckless homicide is a lesser-included offense of
first-degree reckless homicide.
8 There are other circumstances under which an individual may
be found guilty of first-degree reckless homicide. Wis. Stat.
§ 940.02(1m), (2). However, these other circumstances are not at
issue in this case.
9 A person can also be found guilty of second-degree reckless
homicide if the person "recklessly causes the death of an unborn
child." Wis. Stat. § 940.06(2).
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¶81 Having determined that second-degree reckless homicide
is a lesser-included offense of first-degree reckless homicide, we
turn to step two: "whether there is a reasonable basis in the
evidence for an acquittal on the greater charge and for a
conviction on the lesser charge." Muentner, 138 Wis. 2d at 387.
Because "utter disregard for human life" is the only element that
is different between first- and second-degree reckless homicide,
we must weigh the facts of this case and determine whether Johnson
acted with an utter disregard for human life. Id. Accordingly,
if we weigh the evidence and determine that no reasonable jury
could determine that Johnson did not act with an utter disregard
for human life, Johnson would not be entitled to a jury instruction
on second-degree reckless homicide.
¶82 "[U]tter disregard for human life is measured
objectively, on the basis of what a reasonable person in the
defendant's position would have known." State v. Jensen, 2000 WI
84, ¶17, 236 Wis. 2d 521, 613 N.W.2d 170.10 If utter disregard for
human life is proven, "the offender is considered more culpable
because the conduct, according to the standards observed by the
great mass of mankind, went beyond simple criminal recklessness to
encompass something that, although falling short of an intentional
crime, still deserves to be treated more seriously under the law
and punished more severely." Id. "In evaluating the proof of
10 I agree with the majority that "the proper inquiry is
whether a defendant showed regard for human life with respect to
those present during the events in question" and not a general
regard for the wellbeing and safety of those not present. Majority
op., ¶31 n.16.
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utter disregard for human life, the factfinder is to consider all
the factors relating to the conduct including what the defendant
was doing; why he was doing it; how dangerous the conduct was; how
obvious the danger was and whether the conduct showed any regard
for human life." Id., ¶24 (cleaned up).11
¶83 Here, no reasonable jury could conclude that Johnson
acted without utter disregard for human life. Johnson carried a
gun and gloves to break into his brother-in-law's house in the
middle of the night. After spending several hours in the house as
an invader, Johnson heard a noise outside of the computer room.
Instead of calling out to his brother-in-law, his sister, or his
nephew, Johnson covered his tracks, closing the computer and
walking towards the door, gun in hand. After K.M. lunged into the
room, Johnson pulled the trigger of his gun five individual times
with each of the shots hitting K.M., including in his back and
head. Instead of alerting his sister or nephew that he just shot
K.M., Johnson stepped over K.M.'s body and fled the scene. At no
time did Johnson render aid to K.M. nor did he attempt to show any
regard for his callous act of shooting another man. Based on these
facts, no reasonable jury could conclude that Johnson acted without
utter disregard for K.M.'s life.
¶84 The majority ignores several key facts in its analysis
of the night in question. Namely, the majority ignores that
11The phrasing of these factors has changed over time.
Compare State v. Edmunds, 229 Wis. 2d 67, 77, 598 N.W.2d 290
(1999), with Wis JI——Criminal 1022 (2015). But the underlying
factors have remained unchanged——we must observe the totality of
the circumstances from the perspective of a reasonable person in
the defendant's position.
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No. 2018AP2318-CR.akz
Johnson shot K.M. five times, never called for assistance from his
nearby sister or nephew——either before the murder or after——never
rendered aid to K.M., then stepped over K.M.'s body, and fled the
scene. Instead of observing the "totality of the circumstances,"
the majority focuses on the fact that Johnson said that he brought
a gun with the intent of using it for self-defense. Majority op.,
¶30. The majority's cherry-picking of facts demonstrates that the
majority is not considering the totality of circumstances. When
we observe all of the facts and weigh them, it is clear that no
reasonable jury could conclude that Johnson acted without utter
disregard for K.M.'s life. Accordingly, Johnson is not entitled
to a second-degree reckless homicide jury instruction.
IV. CONCLUSION
¶85 The majority's conclusions cannot be the law. It
unwittingly instructs criminals to go armed and shoot to kill
during a home invasion, so the invader can claim perfect self-
defense and escape criminal liability. The majority green lights
vigilantes to break into suspected criminals homes and take the
law into their own hands. The majority undermines a homeowner's
presumptive right to defend the home against invaders. Because
the law does not permit these unimaginable outcomes, I would hold
that Johnson is not entitled to jury instructions on either perfect
self-defense or second-degree reckless homicide.
¶86 For the foregoing reasons, I respectfully dissent.
¶87 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this dissent.
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No. 2018AP2318-CR.akz
¶88 I am also authorized to state the Justice JILL J. KAROFSKY
joins ¶¶38-40, 42-60, and 67-85 of this dissent.
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