State v. Harp, 87-0212-CR
| Decision Date | 11 May 1989 |
| Docket Number | No. 87-0212-CR,87-0212-CR |
| Citation | 150 Wis.2d 861,443 N.W.2d 38 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Rowland L. HARP, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Donald J. Hanaway, Atty. Gen., and Daniel J. O'Brien, Asst. Atty. Gen., on the briefs, for plaintiff-appellant.
Glenn L. Cushing, Asst. State Public Defender, on the briefs, for defendant-respondent.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
The state appeals from an order granting defendant Rowland Harp a new trial. Defendant was charged with first-degree murder, sec. 940.01, Stats. 1985-86, 1 in the stabbing death of Rodney Michaels. Defendant claimed he acted in self-defense. The jury found him guilty of second-degree murder, sec. 940.02(1), Stats. The court granted a new trial because of unobjected-to instructional errors.
The state contends that the trial court abused its discretion. The state argues that defendant waived the claimed errors, the instructions were sufficient, and if they were not, the errors were harmless. Defendant contends that the instructions violated his constitutional rights to trial by jury and to present a defense, the errors were not harmless, the fundamental nature of the errors warrants a new trial notwithstanding his failure to object, and in any event the court of appeals should grant a new trial under sec. 752.35, Stats.
We hold that by failing to object to the instructional error, defendant waived the right to review of the claimed errors. Sec. 805.13(3), Stats. Because the common-law exceptions to the waiver rule no longer exist, State v. Schumacher, 144 Wis.2d 388, 402, 424 N.W.2d 672, 677 (1988), the trial court erred if it relied on those exceptions to review the claimed errors and to order a new trial on the basis of errors disclosed by such a review. The trial court possesses a statutory power, however, to order a new trial in the interest of justice. Sec. 805.15(1). It may exercise that power if it correctly concludes that instructional error, even though unobjected-to, had occurred and the error was such as to justify the court's ordering a new trial in the interest of justice.
The trial court may have intended to order a new trial in the interest of justice. We therefore review the court's conclusion that instructional error occurred. We confine our analysis to the court's reasoning, since we may not otherwise review unobjected-to instructional errors.
We agree with the trial court's reasons for concluding that the instructions were erroneous. First, the instructions failed to advise the jury that it could not convict defendant of either first-degree or second-degree murder if it also found the elements of manslaughter/imperfect self-defense existed, in which event it should have found defendant guilty of manslaughter. The second error was the failure to instruct the jury that before it could find defendant guilty of first-degree or second-degree murder, the state had to show that defendant did not actually believe the force he used was necessary in self-defense and that therefore his act did not constitute either perfect self-defense or manslaughter/imperfect self-defense.
We reverse and remand for the trial court to clarify whether it intended to order a new trial in the interest of justice under sec. 805.15(1), Stats., and, if so, to state its reasons. If that was the court's intent, it should order a new trial. If not, the judgment of conviction and sentence stand unaffected.
Defendant admits he stabbed Michaels. He claims he and Michaels had a sexual encounter in an adult book store in Madison during the early hours of October 18, 1984, during which Michaels picked his pocket, taking defendant's wallet and one of the two knives defendant was carrying. Michaels left the store, defendant followed him, and they walked to an alley where defendant demanded his property. Michaels threatened him with the knife. Defendant stabbed Michaels in self-defense. Michaels died from his wound.
The trial court instructed the jury on first-degree and second-degree murder, self-defense and manslaughter/imperfect self-defense. The jury found defendant guilty of second-degree murder, and he was convicted and sentenced.
Defendant filed a postconviction motion for a new trial under sec. 974.02, Stats., and sec. [Rule] 809.30, Stats. Defendant's motion asserted that the jury instructions were constitutionally defective in three respects. None of the defects were raised by objection during the instruction conference.
Defendant contended that the instructions relieved the state of its burden of proof because they did not advise the jury that the state must prove beyond a reasonable doubt that defendant did not actually believe his use of force was necessary in self-defense before the jury could convict him of either first-degree or second-degree murder. Second, the "bridging" or transitional instruction between second-degree murder and manslaughter prevented the jury from considering the lesser-included crime of manslaughter/imperfect self-defense. 2 Third, the manslaughter/imperfect self-defense instruction improperly stated the burden of proof by requiring the jury to find that defendant acted believing his use of force was necessary, rather than requiring the state to disprove this fact beyond a reasonable doubt.
The trial court agreed with defendant's first two contentions and ordered a new trial. The court did not reach the third contention, nor did it consider the constitutional argument.
Before discussing the trial court's reasoning, we briefly review the pertinent crimes, the self-defense privilege, and the jury instructions. First-degree murder is causing the death of another with intent to kill. Sec. 940.01(1), Stats. Second-degree murder, to the extent relevant, is causing the death of another by conduct imminently dangerous to another and evincing a depraved mind, regardless of life. Sec. 940.02(1).
The self-defense privilege is statutory. A person is privileged to use force to prevent what he or she reasonably believes is an unlawful interference with his or her person. A person may
intentionally use only such force or threat thereof as [the person] reasonably believes is necessary to prevent or terminate the interference. [A person] may not intentionally use force which is intended or likely to cause death or great bodily harm unless [the person] reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself [or herself].
Sec. 939.48(1), Stats. We refer to the proper exercise of the self-defense privilege as "perfect" self-defense. Perfect self-defense is an absolute defense to murder. Sec. 939.45.
So far as is material to this appeal, "imperfect" self-defense resulting in the death of another is the felony of causing a death "unnecessarily, in the exercise of [a person's] privilege of self-defense." Sec. 940.05(2), Stats. This crime has three elements: (1) the statutory elements of either first-degree or second-degree murder are present; (2) the defendant's act was not privileged under the law of self-defense; and (3) while the defendant believed the force used was necessary in self-defense, the defendant's belief was unreasonable because (a) a reasonable person would not have believed, under the circumstances, that he or she was privileged at all to use force or (b) a reasonable person would not have used that degree of force. State v. Kelley, 107 Wis.2d 540, 547, 319 N.W.2d 869, 873 (1982); Mitchell v. State, 47 Wis.2d 695, 702, 177 N.W.2d 833, 837 (1970). We refer to this crime as "manslaughter/imperfect self-defense." We do so only for convenience, since sec. 940.05(2) does not contain the word "manslaughter" or the term "imperfect self-defense." 3
When first-degree murder is charged, it includes the lesser crimes of second-degree murder and manslaughter/imperfect self-defense. Sec. 939.66(2), Stats.
The trial court instructed the jury that if it was satisfied beyond a reasonable doubt that defendant intended to kill Michaels and his conduct was not privileged under the law of self-defense, it should find him guilty of first-degree murder. A bridging instruction from first-degree to second-degree murder was given.
After setting out the elements of second-degree murder, the instruction continued:
If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant killed Rod J. Michaels, Jr., by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, and that the conduct of the defendant was not privileged under the law of self-defense as defined later in these instructions, then you should find the defendant guilty of murder in the second-degree. [Emphasis added.]
The above instruction was immediately followed by this bridging instruction:
If you are not so satisfied, you must not find the defendant guilty of second-degree murder, and you should consider whether the defendant is guilty of manslaughter, in violation of sec. 940.05 of the Wisconsin statutes, which is a lesser included offense of first- and second-degree murder. You should make every reasonable effort to agree that the defendant is not guilty of first- or second-degree murder before considering the offense of manslaughter. However, if after full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the offenses of first- or second-degree murder, you should consider whether the defendant is guilty of manslaughter. [Emphasis added.]
The jury was next instructed on the privilege of perfect self-defense, concluding with the following:
[B]efore you can find the defendant guilty of any of the...
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