State v. Camacho

• Decision Date: 16 June 1993
• Docket Number: No. 91-0770-CR,91-0770-CR
• Citation: 176 Wis.2d 860,501 N.W.2d 380
• Parties: STATE of Wisconsin, Plaintiff-Re spondent-Petitioner, d v. Alfredo H. CAMACHO, Defendant-Appellant. dd
• Court: Wisconsin Supreme Court

Page 380

501 N.W.2d 380

176 Wis.2d 860

STATE of Wisconsin, Plaintiff-Re spondent-Petitioner,^d v. Alfredo H. CAMACHO, Defendant-Appellant. ^dd

No. 91-0770-CR.

Supreme Court of Wisconsin.

Argued March 9, 1993.

Decided June 16, 1993.

For the defendant-appellant there was a brief by Michael D. Dean and Aul, McKoy, Aschenbrener & Dean, Ltd., Milwaukee and oral argument by Michael D. Dean.

DAY, Justice.

This is a review of a published decision by the court of appeals ¹ reversing a judgment of conviction and an order of the circuit court for Waukesha County, Honorable Roger P. Murphy, Judge. At issue are the elements of the crime of imperfect self-defense manslaughter. This case presents the issue of whether a criminal defendant charged with first-degree murder is entitled to a conviction of the lesser offense of imperfect self-defense manslaughter in every case where the defendant actually believed he needed to act in self-defense. We hold that a defendant charged with first-degree murder must show a reasonable belief that he was preventing or terminating an unlawful interference with his person before he can obtain a conviction of imperfect self-defense manslaughter. We therefore reverse the court of appeals.

The parties do not dispute that Alfredo Camacho, an illegal alien from Mexico, shot Waukesha County Deputy Sheriff Richard Bach four times from a distance of approximately two feet, causing injuries which would have resulted in Deputy Bach's death had he not received prompt and effective medical treatment. Nor do the parties dispute the events which led to the confrontation between Deputy Bach and Camacho.

Shortly after 4:00 a.m. on March 3, 1988, Deputy Bach stopped Camacho's vehicle after witnessing Camacho make an illegal U-turn on Interstate I-94. Camacho, who was alone, exited the vehicle and began walking toward Deputy Bach's squad car. Deputy Bach exited his vehicle and was forced to tell Camacho to stop approaching three times before Camacho complied. Deputy Bach patted Camacho down ² and requested his driver's license. After Camacho replied "me no got," Deputy Bach instructed Camacho to sit in his vehicle. Deputy Bach then approached Camacho's vehicle to inquire about the spelling of Camacho's name and his date of birth. Upon receiving this information, Deputy Bach returned to his squad car and called in to verify whether Camacho possessed a valid driver's license. Deputy Bach learned that Camacho did not have a driver's license and returned to Camacho's vehicle.

At this point in the story, there are three different versions of the events which took place, two of which are supplied by Camacho. According to the testimony of Deputy Bach, he approached Camacho's vehicle on the driver's side without drawing his gun. As he leaned in the open window to speak with Camacho, Camacho suddenly spun, grabbed an automatic weapon, and, while smiling, shot Deputy Bach four times from close range.

According to Camacho's testimony at trial, Deputy Bach pulled his gun out of his holster as he approached Camacho's vehicle. Deputy Bach then reached in the open window, grabbed Camacho's hair and pointed his gun at Camacho's face. Camacho pulled away from Deputy Bach and heard a shot fired outside of the car. He then pulled his own unregistered gun out from under the car rug and shot Deputy Bach.

After Camacho's testimony, the State presented rebuttal evidence in the form of prior inconsistent statements made by Camacho. Shortly after his arrest, Camacho stated that Deputy Bach never pointed a gun at him. Camacho also stated that he was angry at Deputy Bach because Deputy Bach called him crazy.

Additionally, Camacho stated at trial that he was searching for State Trooper Camacho so that he could give Trooper Camacho a present of some tacos. Trooper Santiago Camacho, who is not related to the defendant, testified that he pulled the defendant over and gave him a ticket for speeding and driving without a license on February 28, 1988. At that time, the defendant commented on Trooper Camacho's gun and said that he also had a gun. Shortly after Camacho shot Deputy Bach, Trooper Camacho arrived on the scene and asked the defendant whether he had a gun, the defendant replied, "yeah, that's the present for you. It's under the seat." The defendant also stated that he bought the gun because he was angry with Trooper Camacho for giving him and his friend a citation and he thought it was unfair for a Hispanic to give another Hispanic a citation.

At the close of the evidence, the circuit court instructed the jury on the elements of attempted first-degree murder, self-defense and attempted manslaughter. The portion of the circuit court's instruction regarding the interplay between attempted first-degree murder and attempted manslaughter provided:

As applied to this case, the effect of the law of self-defense is that if the defendant attempted to cause the death of Deputy Richard Bach with the intent to kill, but the defendant's conduct was not in self-defense or the defendant was not entitled to use self-defense and the belief by the defendant that he was entitled to use self-defense was unreasonable, then the defendant is guilty of the crime of attempted first degree murder.

Rather than giving the standard jury instruction regarding attempted imperfect self-defense manslaughter, the circuit court gave the following instruction:

Before you may find the defendant guilty of attempted manslaughter, you must find beyond a reasonable doubt that the defendant attempted to cause the death of Deputy Richard Bach with the intent to kill and was entitled to believe under the facts in this case that he was acting in self defense, but the amount of force used was unnecessary or excessive.

The jury returned a verdict finding Camacho guilty of attempted first-degree murder while armed with a dangerous weapon. Through a new attorney, Camacho brought a postconviction motion and asserted that: (1) the jury instructions given by the circuit court misstated the law pertaining to the crime of imperfect self-defense manslaughter; (2) either the prosecutor secretly changed the instructions without notifying Camacho's trial counsel or Camacho's trial counsel was ineffective if he knew of the instructions and did not object; (3) the circuit court erred in failing to suppress precustodial and custodial statements made by Camacho; and (4) the prosecutor engaged in misconduct during the closing argument.

The circuit court denied Camacho's motion for a new trial and Camacho appealed. The court of appeals affirmed the circuit court's evidentiary rulings concerning the precustodial and custodial statements made by Camacho. The court of appeals, however, concluded that the instructions given by the circuit court "seriously misstated the law of attempted first-degree murder and the lesser included crime of attempted manslaughter/imperfect self-defense, and constituted prejudicial error." Camacho, 170 Wis.2d at 59, 487 N.W.2d 67. Camacho conceded that his trial counsel did not properly object to the instructions and the court of appeals noted that "[t]he 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." Id. at 62, 487 N.W.2d 67. Nevertheless, the court of appeals concluded that "under our discretionary power of reversal we may consider the unobjected to jury instructions" because "the real controversy may not have been fully tried." Id. at 63, 487 N.W.2d 67. The court of appeals did not reach the issue of whether the prosecutor engaged in misconduct during the closing argument.

This court granted the State's petition for review of the portion of the court of appeals' decision which held that the instructions given by the circuit court constituted prejudicial error. This court denied Camacho's cross-petition for review of the portion of the court of appeals' decision which upheld the circuit court's evidentiary rulings. We reverse the portion of the court of appeals' decision which concluded that the instructions given by the circuit court constituted prejudicial error. Thus, we need not consider whether the court of appeals possessed the discretionary authority to review the instructions. Furthermore, we conclude that the circuit court did not erroneously exercise its discretion when it denied Camacho's motion for a new trial based on the alleged prosecutorial misconduct during the closing argument.

At issue are the elements of the crime of imperfect self-defense manslaughter. Imperfect self-defense manslaughter must be distinguished from the absolute privilege of self-defense, which is often referred to as perfect self-defense. The absolute privilege of perfect self-defense applies where a defendant shows 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. See sec. 939.48, Stats. 1991-92. Thus, the jury must find that all three beliefs were reasonable before acquitting the defendant on the grounds of perfect self-defense.

Camacho argues that a defendant is entitled to a conviction of imperfect self-defense manslaughter whenever the defendant shows an actual belief that force was necessary, regardless of whether that belief is reasonable. Under Camacho's theory, which the court of appeals adopted, a defendant is entitled to a conviction of manslaughter in every case where the jury finds: (1) the defendant had an actual, but unreasonable, belief that force was necessary; or (2) the defendant had a reasonable belief that force was necessary, but had an...