State v. Camacho
| Decision Date | 07 January 1992 |
| Docket Number | No. 91-0770-CR,91-0770-CR |
| Citation | 170 Wis.2d 53,487 N.W.2d 67 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Alfredo H. CAMACHO, Defendant-Appellant. d/d . Oral Argument |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Michael D. Dean of Aul, McKoy, Aschenbrener & Dean, Ltd. of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Sally L. Wellman, Asst. Atty. Gen. Oral argument by Sally L. Wellman.
Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.
Among the issues Alfredo H. Camacho raises in this appeal is a challenge to the substantive jury instructions given by the trial court. We conclude that the trial court's substantive instructions seriously misstated the law of attempted first-degree murder and the lesser included crime of attempted manslaughter/imperfect self-defense, and constituted prejudicial error. Therefore, we reverse Camacho's conviction on the charge of attempted first-degree murder and remand for a new trial. 1
Camacho admits that he shot Waukesha County Deputy Sheriff Richard Bach but claims he acted in self-defense. There is no material dispute about the events that led to the confrontation between Deputy Bach and Camacho on Interstate 94 in Waukesha county. Deputy Bach stopped Camacho on I-94 for a traffic violation. Camacho got out of his vehicle and walked back toward the squad car. Because of a language problem, Deputy Bach did not understand Camacho and ordered him against the hood of the squad. When Camacho did not respond, Deputy Bach pushed him onto the hood of the squad and conducted a pat-down search. Deputy Bach then radioed for a back-up and told Camacho to return to his vehicle.
From this point, Deputy Bach's and Camacho's versions of the ensuing events diverge. Deputy Bach testified that he went to his squad and made a "wants and warrants" call and requested that a state trooper fluent in Spanish come to the scene. Deputy Bach then exited his squad and approached Camacho sideways so Camacho could not see that Deputy Bach had his hand on his gun. As Deputy Bach bent down to look into the window, Camacho turned and began to fire an automatic pistol. Deputy Bach heard four shots and was hit by three. He ran back to his squad and returned fire. Deputy Bach called for assistance and Camacho was arrested a short distance from the scene by another officer.
Camacho's testimony contradicted Deputy Bach's version of what happened and was consistent with his claim of self-defense. After the pat-down search, Camacho returned to his car. A short time later Deputy Bach approached the car with his hand on his gun. The deputy reached into the car and tried to pull Camacho out through the open window by pulling on his hair. Camacho, who was holding onto the steering wheel, was able to break free. He then heard a shot go off above his car. He became scared, grabbed his gun and loaded the action. Deputy Bach called him a "son of a bitch;" the deputy brought his revolver down, and Camacho ducked and fired out of the car window. Camacho lost sight of Deputy Bach and again ducked down; a number of shots were fired into his car and he drove off when the shooting stopped.
The trial court instructed the jury on attempted first-degree murder and the lesser included crime of attempted manslaughter/imperfect self-defense. 2 The jury convicted Camacho of attempted first-degree murder while armed with a dangerous weapon, secs. 940.01, 939.32 and 939.63(1)(a), Stats. (1987-88), 3 and he was sentenced to an indeterminate term of not more than twenty-five years.
Camacho filed a postconviction motion for a new trial under Rule 809.30, Stats., and sec. 974.02, Stats. The motion asserted that the trial court erred in failing to suppress precustodial and custodial statements made by Camacho and misstated the law in the substantive instructions given to the jury. In the alternative, Camacho maintained that if trial counsel had not properly preserved an objection to the jury instructions, he had been denied effective assistance of trial counsel. Camacho also claimed that the prosecutor engaged in misconduct in the closing argument and in deliberately misleading the trial court on the law of attempted manslaughter/imperfect self-defense during the conference on jury instructions. The trial court denied the motion for a new trial.
Before addressing the accuracy of the jury instructions, we first consider whether Camacho's trial counsel properly objected to the proposed instructions. The state argues that the objection to the instructions was waived. The state concedes that trial counsel participated in extensive discussions on the jury instructions in unrecorded conferences. The state stresses that trial counsel did not register any specific complaints with the instruction on attempted manslaughter/imperfect self-defense after being given several opportunities to do so.
Camacho concedes that his trial counsel did not properly object to the erroneous instruction on the record. Camacho contends, however, that the "strenuous" objections voiced by counsel during the unrecorded conferences were sufficient to put the trial court on notice. In the alternative, Camacho asks us to consider the objection to the instructions raised by the postconviction motion for a new trial as sufficient preservation of his objection. 4
The general rule requires that a party object to an improper jury instruction at the instruction conference or there is a waiver of the right to challenge the jury instructions on appeal. Section 805.13, Stats. There are no longer any judicially created exceptions to the waiver rule. See State v. Schumacher, 144 Wis.2d 388, 398-99, 424 N.W.2d 672, 676 (1988). However, under sec. 752.35, Stats., we have a broad discretionary power of reversal where we are satisfied that the real controversy has not been fully tried. See Vollmer v. Luety, 156 Wis.2d 1, 19, 456 N.W.2d 797, 805 (1990). In exercising this discretionary power of reversal it is not necessary to conclude that there is a probability of a different result on retrial. Id. We may use this discretionary power of reversal where there is a waiver of an error in the jury instructions. Id. at 20, 456 N.W.2d at 806.
Camacho did challenge the instruction in his motion for a new trial. He argued that the combined instruction on attempted first-degree murder and manslaughter/imperfect self-defense was erroneous. Camacho faults the trial court for omitting a critical portion of the jury instructions. He contends the jury should have been informed that the state must prove beyond a reasonable doubt that Camacho did not act with an actual belief that his use of force was necessary in self-defense before the jury could convict him of attempted first-degree murder. If the law of self-defense and manslaughter/imperfect self-defense requires such a finding before the jury can convict for attempted first-degree murder, and if the trial court did not include an explanation of this requirement in its instructions, then the real controversy may not have been fully tried. We conclude that Camacho's argument raises the specter of errors in the substantive jury instructions, and under our discretionary power of reversal we may consider the unobjected to jury instructions.
Camacho's chief issue on appeal challenges the substantive jury instructions. 5 A trial court has wide discretion in instructing the jury. State v. Waalen, 125 Wis.2d 272, 274, 371 N.W.2d 401, 402 (Ct.App.1985). The instructions chosen by the trial court must accurately and fairly state the law. Id.
Camacho argues prejudicial error in the jury instructions on attempted first-degree murder and the lesser included crime of manslaughter/imperfect self-defense, which omitted any reference to whether Camacho had an actual belief that the force used was necessary in self-defense. Case law compels the conclusion that the jury instructions misstated the law and constituted prejudicial error. Accordingly, we reverse on this ground.
This issue is governed by State v. Harp, 150 Wis.2d 861, 443 N.W.2d 38 (Ct.App.1989), and turns upon the distinction between actual belief and reasonable belief concerning the necessity of force used in self-defense. There, this court stated:
To secure a conviction on first-degree or second-degree murder when perfect self-defense and manslaughter/imperfect self-defense are submitted to the jury, the state must prove beyond a reasonable doubt (1) the existence of the statutory elements of first-degree or second-degree murder; and (2) that when the defendant caused the victim's death, the defendant did not actually believe that the force used was necessary in self-defense.
Id. at 885, 443 N.W.2d at 48 (emphasis added). The standard jury instruction in effect at the time, Wis J I--Criminal 1141 "First Degree Murder: Self-Defense Manslaughter," mirrored this requirement of an actual belief. 6 It stated in part:
Before you may find the defendant guilty of first degree murder, you must be satisfied beyond a reasonable doubt that he caused the death of (name of victim) with the intent to kill and that the defendant did not actually believe the force used was necessary in self-defense at the time he caused the death. When first degree murder is considered, the reasonableness of the defendant's belief is not an issue. You are to be concerned only with what the defendant actually believed.
Id. (emphasis added).
What both Harp and the former pattern jury instruction require is that, in order to convict on first-degree murder, the state must prove that the defendant had no actual belief that there was a necessity to use force in self-defense. Harp also dictates that the jury should be instructed that where the state...
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