State v. Coleman

• Decision Date: 20 December 1996
• Docket Number: No. 95-0917-CR,95-0917-CR
• Citation: 206 Wis.2d 199,556 N.W.2d 701
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Terrell A. COLEMAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 701

556 N.W.2d 701

206 Wis.2d 199

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Terrell A. COLEMAN, Defendant-Appellant.

No. 95-0917-CR.

Supreme Court of Wisconsin.

Argued Oct. 30, 1996.

Decided Dec. 20, 1996.

For the plaintiff-respondent-petitioner the cause was argued by Sharon Ruhly, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by Thomas E. Harris, Waukesha.

N. PATRICK CROOKS, Justice.

The State of Wisconsin seeks review of a published decision of the court of appeals, ¹ which reversed a judgment of the circuit court for Milwaukee County, Judge Jeffrey A. Kremers, convicting Terrell A. Coleman of one count of felon in possession of a firearm, contrary to Wis.Stat. § 941.29(2) (1989-90). ² Two issues are before this court. First, under what circumstances does a defense of privilege exist to a charge of felon in possession of a firearm? Second, did the circuit court commit error by denying Coleman's request to instruct the jury on privilege, and, if so, is the error harmless? We hold that a narrow defense of privilege, which originates from United States v. Gant, 691 F.2d 1159 (5th Cir.1982), and United States v. Newcomb, 6 F.3d 1129 (6th Cir.1993), exists to a charge of felon in possession of a firearm. We further hold that the circuit court erred by refusing to instruct the jury on privilege, and that this error is not harmless. We therefore affirm the decision of the court of appeals.

I.

The pertinent facts are not in dispute. On October 21, 1992, between 8:30 a.m. and 9:00 a.m., Terrell A. Coleman arrived at the residence of Tanisha Evans and Camille Mason to pick up his niece and nephew. ³ While Coleman was waiting in the living room for the children, he heard what he thought was kicking at the door. Coleman testified: "I thought it was somebody to come up in there and try and rob it again." (R. 25 at 3.)

Both Coleman and Evans testified that four men had robbed the residence approximately one month earlier. One of the men had put a gun to Evans' head, in the presence of her children. Coleman, who was in Mason's bedroom at the time, jumped out of the window, ran to the corner, and called the police. ⁴ Evans also testified that her brother purchased a rifle for her because of this incident. Evans kept the rifle in a closet in Mason's bedroom, because Evans' bedroom did not have a closet.

Coleman testified that he therefore was scared when he heard the noise at the door because he thought "[s]omebody was going to rob the house again." (R. 25 at 6.) He further testified that he panicked, ran into Mason's bedroom, grabbed the rifle, went into the living room, and pointed the rifle at the door "to defend [him]self." (R. 25 at 7.) Much to Coleman's surprise, when the door opened, uniformed members of the Milwaukee County Sheriff's Tactical Squad entered the residence.

The officers were executing a "no knock" search warrant at the residence. They used a "hooligan," which is a bar-type tool, to pry open the screen door. They also breached the inner door by hitting it two to three times with a large "ram" to push it in, which took about five to six seconds. One officer testified that this process would make a noise that definitely would be heard. In addition, since the officers were executing a "no knock" search warrant, they did not announce "police--search warrant" until they had broken down the doors.

One officer testified that after they breached the doors and saw Coleman pointing the rifle at them, everyone experienced an extremely intense moment. Another officer testified that Coleman looked frightened. Within a matter of seconds, Coleman lowered the rifle, ran into Mason's room, threw the rifle onto the bed, and turned around to face the officers with his hands raised in what one officer viewed as an effort to surrender. Coleman testified that he ran into the room because he was afraid the officers were going to shoot him.

On October 22, 1992, the State filed a criminal complaint, charging Coleman with one count of felon in possession of a firearm, contrary to Wis.Stat. § 941.29(2). ⁵ A preliminary hearing was held on November 2, 1992. The circuit court concluded that probable cause existed and therefore held Coleman for trial. On the same day, the State filed an information against Coleman, again charging him with one count of felon in possession of a firearm. Coleman pled not guilty.

Following several continuances, a jury trial was held on May 31 and June 1, 1994. The parties stipulated that Coleman was a convicted felon within the meaning of § 941.29(2). Coleman also conceded at trial that he had actual possession of the rifle when the officers entered Evans' residence. Thus, the main issue at trial was whether Coleman's possession of the rifle was privileged.

Accordingly, in his opening statement, Coleman's attorney said, "[I]n this particular case it will be proven beyond a reasonable doubt that [holding the rifle] was a reasonable action that was privileged--[Coleman] was privileged to take under the law." (R. 24 at 74.) Coleman also presented evidence, through his own testimony and that of Evans, in support of his claim that his possession of the gun was privileged. In addition Coleman asked the court to give the following pattern jury instructions: Wis JI--Criminal 790 (coercion); Wis JI--Criminal 800 (privilege: self-defense); Wis JI--Criminal 810 (privilege: self-defense: retreat); Wis JI--Criminal 825 (privilege: defense of others); Wis JI--Criminal 860 (privilege: defense of another's property). The State conceded that a defense of privilege exists to a charge of felon in possession of a firearm, but argued that Coleman was not entitled to such an instruction because he had not produced sufficient evidence in support of the defense of privilege.

The circuit court denied Coleman's request to instruct the jury on privilege, because he determined that Coleman had not produced sufficient evidence that the defense of privilege applied. ⁶ Similarly, the circuit court informed Coleman's attorney that he could not discuss self-defense in closing arguments. Immediately thereafter, Coleman's attorney moved for a mistrial. The circuit court denied the motion. Subsequently, the jury returned a verdict of guilty, and the circuit court entered a judgment of conviction. Coleman then appealed.

The court of appeals concluded that the circuit court had committed error by refusing to instruct the jury on privilege. The court further held that such error is not harmless, and thus ordered a new trial. ⁷

II.

We initially consider the issue of the applicability of a defense of privilege. The parties agree that a defense of privilege exists to a charge of felon in possession of a firearm contrary to Wis.Stat. § 941.29(2). We likewise agree with this conclusion. Although § 941.29(2) is a strict liability offense, State v. Phillips, 172 Wis.2d 391, 395, 493 N.W.2d 238 (Ct.App.1992), review denied, 497 N.W.2d 132 (1993), this court has determined that a strict liability offense is subject to a defense of privilege. State v. Brown, 107 Wis.2d 44, 53-57, 318 N.W.2d 370 (1982). ⁸ In addition, the applicable statute defining privilege provides: "The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to a prosecution for any crime based on that conduct." Wis.Stat. § 939.45 (emphasis added). There is no indication that the legislature intended to supersede § 939.45 when it enacted § 941.29(2), by entirely denying a felon in possession of a firearm the defense of privilege. Accordingly, we conclude that a defense of privilege applies to § 941.29(2).

The parties, however, disagree about the scope of this privilege. Coleman argues that the statutory defenses of coercion, self-defense, defense of others, and defense of property are applicable. ⁹ The State, on the other hand, contends that these statutory defenses are inapplicable because they do not address the purpose underlying the offense of felon in possession of a firearm, or the strict liability aspect of the offense. Accordingly, the State asks this court to recognize a narrow defense of privilege under § 939.45(6), as defined primarily in United States v. Gant, 691 F.2d 1159 (5th Cir.1982).

We therefore must determine under what circumstances a privilege exists to Wis.Stat. § 941.29(2). Although this is an issue of first impression in Wisconsin, courts in several other jurisdictions have considered whether a defense of privilege exists to a statute that prohibits a felon from possessing a firearm. These courts have overwhelmingly determined that a defense of privilege exists. ¹⁰ However, these courts have disagreed on the specific privilege that applies--coercion, necessity, duress, self-defense, or "justification" in general. ¹¹ Yet, regardless of the title, the vast majority of courts have defined the privilege narrowly, by either requiring the defendant to satisfy a multiple-part test, or prove certain elements in addition to the common law elements of the applicable privilege. ¹²

The State makes a compelling argument that, because of the underlying purpose of Wis.Stat. § 941.29(2), this court should also narrowly define any applicable privilege. This court has recognized that the legislative purpose behind § 941.29(2) is the protection of public safety. State v. Thiel, 188 Wis.2d 695, 706-08, 524 N.W.2d 641 (1994). Specifically, § 941.29(2) is aimed at keeping firearms away from felons, because the legislature has determined that felons are more likely to misuse firearms. Id.

We thus conclude that a narrow defense of privilege under Wis.Stat. § 939.45(6) exists to a charge of felon in possession of a firearm. In order to be entitled to the defense, the defendant must prove: (1) the defendant was under an unlawful, present, imminent, and impending threat of such a nature as...