State v. Gomaz

• Decision Date: 04 November 1987
• Docket Number: No. 86-0933-CR,86-0933-CR
• Citation: 141 Wis.2d 302,414 N.W.2d 626
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Frances GOMAZ, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 626

414 N.W.2d 626

141 Wis.2d 302

STATE of Wisconsin, Plaintiff-Respondent, v.Frances GOMAZ, Defendant-Appellant.

No. 86-0933-CR.

Supreme Court of Wisconsin.

Argued Sept. 15, 1987.

Opinion Filed Nov. 4, 1987.

Mark Lukoff, First Asst. State Public Defender, for defendant-appellant.

Sally L. Wellman, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent.

CECI, Justice.

This appeal is before this court on certification from the court of appeals pursuant to section(Rule) 809.61, Stats.The appeal is from a judgment of conviction of the defendant for first-degree murder while using a dangerous weapon, under sections 940.01(1)and939.63(1)(a)2, in the circuit court for Kenosha county, Judge David M. Bastian.The substance of this appeal was the defendant's claim that the trial court erred in refusing to instruct the jury as to imperfect self-defense while finding reasonable grounds to exist in the evidence to instruct the jury as to perfect self-defense.The question specifically presented on certification concerned the application of State v. Sarabia, 118 Wis.2d 655, 348 N.W.2d 527(1984), where a defendant requests instructions on both the perfect self-defense privilege under section 939.48, and the lesser-included offense of imperfect self-defense under section 940.05(2).

The act which formed the basis of the first-degree murder charge was a stabbing incident involving the deceased, Edward Coffey, and the defendant, Frances Gomaz.The issue ultimately certified by the court of appeals developed as a result of the state's position that since the stabbing was allegedly unintentional, an instruction of self-defense, which requires an intentional act, would be inappropriate under principles most recently articulated in State v. Johnnies, 76 Wis.2d 578, 251 N.W.2d 807(1977).The state subsequently retracted its earlier position that the defendant's claim was exculpatory and inconsistent with self-defense, ¹ maintaining, however, that the objection which the defendant could have made as to the trial court's failure to instruct the jury regarding imperfect self-defense was withdrawn or waived.To the extent that the state now concedes the substance of the challenged omission in the jury instructions, the facts of this case may be stated as follows.

I.

It is undisputed that Edward Coffey died in the defendant's apartment on September 15, 1985, as the result of a "double-struck" stab wound ² to the heart, inflicted by the defendant.It was uncontroverted that the defendant was a 51-year-old woman, four feet eleven and one-half inches tall, and weighed between 130 and 140 pounds at the time of this stabbing incident.The deceased was 36 years old, six feet and one-half inch tall, and weighed approximately 220 pounds.

At trial, the defendant testified that the deceased had physically abused her and had severely beaten her the day preceding his death.There was testimony from a physician who had examined the defendant on September 16, 1985, offered to substantiate the claim that the defendant had sustained injuries.The physician testified that he had observed multiple bruises, at least one day old, indicating a blunt type of trauma consistent with the defendant's description of having been beaten.There was further expert medical testimony offered to corroborate the claim that she had sustained soft-tissue trauma restricting the movement of her arm.Additionally, the defendant claimed the deceased had a violent disposition and introduced testimony of several witnesses in support of this reputation.The proffered testimony described the deceased's reputation for violence as being generally associated with intoxication.Autopsy samples, however, did not detect the presence of alcohol or drugs in the deceased's blood or urine.The defendant admitted that she had been drinking alcohol prior to the stabbing incident of September 15.

On the day that Coffey was killed, the defendant claimed that she had taken a knife from a kitchen drawer and was holding it in front of herself when Coffey approached her with his hands outstretched toward her neck, in what she perceived to be a life-threatening manner.The defendant further testified that she told Coffey to stay away from her.The defendant claimed that when Coffey approached her, she froze, and he pushed himself upon her.She maintained that although she had threatened Coffey with the knife in order to protect herself, she did not thrust the knife and was not, in fact, even aware that it had penetrated his body.Specifically, the defendant stated that "[h]e got to me and he put both of his hands on my shoulders and he as I still held the knife in my right hand, he seemed to make this quick move at me and he went into the knife which I held in my hand."The defendant additionally stated that she was not aware that Coffey had been injured as a result of this encounter because she observed him walk to a kitchen table and sit down.Coffey's body was later found on the floor, adjacent to the defendant's bed.

Prior to the instructions conference, the defense counsel had submitted a written request for several jury instructions, including instructions regarding the absolute self-defense privilege, section 939.48, and the lesser offenses of second-degree murder, section 940.02; manslaughter in heat of passion, section 940.05(1); imperfect self-defense, section 940.05(2); and homicide by negligent use of a weapon, section 940.08.The court, however, gave instructions on first-degree murder; second-degree murder; manslaughter while in heat of passion; and the absolute privilege of perfect self-defense under section 939.48.The defendant's request for an instruction on imperfect self-defense manslaughter was denied and forms the basis of this appeal.

II.

The state has, as discussed above, retracted its initial position, now conceding that the defendant should have been given both perfect and imperfect self-defense instructions, but maintaining that any objection to the failure to instruct has been waived.However, the issue of whether or not a jury should be instructed on a lesser-included offense is a question of law.State v. Williford, 103 Wis.2d 98, 112, 307 N.W.2d 277(1981), petition for habeas corpus denied sub nom. Williford v. Young, 604 F.Supp. 1173(E.D.Wis.), aff'd779 F.2d 405(7th Cir.1985), cert. denied--- U.S. ----, 106 S.Ct. 1982, 90 L.Ed.2d 664(1986).As such, the state's retraction of its position as to whether the defendant was entitled to an instruction on imperfect self-defense is a concession regarding a question of law which this court is not bound to accept.Liberty Homes, Inc. v. Department of Industry, Labor and Human Relations, 125 Wis.2d 492, 502, 374 N.W.2d 142(Ct.App.1985)(citingSwift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed.2d 722(1917)), aff'd136 Wis.2d 368, 401 N.W.2d 805(1987).The trial court's failure to instruct the jury as to imperfect self-defense constitutes the only error alleged as grounds requiring a new trial.Thus, regardless of whether the objection as to the omission of this instruction was properly preserved, unless this objection articulated a prejudicial error, a new trial would not be required.Because of the significance of this issue both as to this matter and with respect to the more general need for its resolution, we have examined the state's acquiescence regarding the propriety of the trial court's exclusion of the imperfect self-defense instruction.

The state's initial position, and the issue certified by the court of appeals, addressed the proper application of Sarabia and the Johnnies line of cases.This court's decision in Johnnies restated a proposition articulated in several earlier decisions: ³ since self-defense is premised upon an intentional act, an assertion of accidental or unintentional killing is inconsistent with a claim that use of force is necessary for self-defense.Alternatively stated, Johnnies held that an exculpatory defense cannot provide the basis for submitting a self-defense instruction.

In Sarabia, this court held that in its determination of whether to submit a lesser-included offense instruction, the trial court must recognize the fact that a jury could disbelieve the defendant's version of the facts.Specifically, despite a defendant's exculpatory testimony, Sarabia held that a seemingly contradictory request for an imperfect self-defense instruction should not be denied where evidence "other than that part of the defendant's testimony which is exculpatory supports acquittal on the greater charge and conviction on the lesser charge."Sarabia, 118 Wis.2d at 663, 348 N.W.2d 527(emphasis added).The court of appeals apparently gleaned an inconsistency between Sarabia and Johnnies and, thus, sought a determination of whether Sarabia, which was determined with respect to imperfect self-defense, applied where both perfect and imperfect self-defense instructions were requested.

The standard to be applied in a determination of whether an instruction should be given to a jury has been consistently stated to require submission of a lesser-included offense instruction only where " 'under a different, but reasonable view,' the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower...."State v. Bergenthal, 47 Wis.2d 668, 675, 178 N.W.2d 16(1970)(quotingZenou v. State, 4 Wis.2d 655, 668, 91 N.W.2d 208(1958)), cert. denied402 U.S. 972, 91 S.Ct. 1657, 29 L.Ed.2d 136(1971).However, if in the present case the jury was correctly instructed, as the state now concedes, as to perfect self-defense, an independent analysis of the propriety of an imperfect self-defense as a lesser-included offense is not required since under Ross v. State, 61 Wis.2d 160, 211 N.W.2d 827(1973), it is...