State v. Johnson, Appeal No. 2018AP2318-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtREILLY, P.J.
Citation393 Wis.2d 688,2020 WI App 50,948 N.W.2d 377
Docket NumberAppeal No. 2018AP2318-CR
Decision Date08 July 2020
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Alan M. JOHNSON, Defendant-Appellant.

393 Wis.2d 688
948 N.W.2d 377
2020 WI App 50

STATE of Wisconsin, Plaintiff-Respondent,
v.
Alan M. JOHNSON, Defendant-Appellant.

Appeal No. 2018AP2318-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: February 6, 2020
Opinion Filed: July 8, 2020


On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen P. Hurley, Jonas B. Bednarek, and Marcus J. Berghahn of Hurley Burish, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Hannah S. Jurss, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

REILLY, P.J.

393 Wis.2d 697

¶1 Alan M. Johnson appeals from a judgment convicting him following a jury trial of first-degree reckless homicide with use of a dangerous weapon. Johnson shot and killed his brother-in-law, K.M., on October 25, 2016, in K.M.’s home. Johnson claimed self-defense in killing K.M. and requested a jury instruction on perfect self-defense. The court refused. Johnson also requested the lesser-included offenses of first-degree reckless homicide, second-degree reckless homicide, and negligent homicide with a dangerous weapon to the State's charges of first-degree intentional homicide and burglary. The court refused to give the lesser-included offenses of second-degree reckless homicide and negligent homicide. Johnson was acquitted of first and second-degree intentional homicide and burglary but found guilty of first-degree reckless homicide.

¶2 This case involves whether the privilege of perfect self-defense exists in the factual context of a trespasser (Johnson) who kills a homeowner (K.M.) to allegedly thwart an attack by the homeowner. This factual scenario brings into play Wisconsin's so-called "castle doctrine" under WIS. STAT. § 939.48(1m) (2017-18)1 and specifically raises the question of whether a trespasser can have a "reasonable belief" of an "unlawful interference" by a homeowner.

393 Wis.2d 698

¶3 Johnson claims that the circuit court (1) erred in refusing to instruct the jury on perfect self-defense,2 (2) erred in refusing to give lesser-included offenses, (3) erred by requiring Johnson to establish a factual basis for self-defense through his own testimony before allowing supporting evidence of self-defense, and (4) erred in refusing to allow other-acts evidence that Johnson found child pornography on K.M.’s computer on October 25, 2016. As the jury was presented with evidence supporting both perfect self-defense and second-degree reckless homicide and the other-acts

948 N.W.2d 383

evidence was improperly excluded, we reverse and remand for a new trial.

¶4 We begin with a discussion of the pertinent facts, then analyze the law of perfect self-defense as impacted by the castle doctrine when a trespasser claims the privilege of self-defense for killing a homeowner, then address the court's refusal to instruct on the lesser-included homicide charges, and conclude by analyzing the court's refusal to allow into evidence K.M.’s possession of child pornography.

I. Factual Background

¶5 K.M. was married to Johnson's second oldest sister, Kim, who is eleven years older than Johnson. Johnson testified that going back to his youth, he was

393 Wis.2d 699

repeatedly physically abused by K.M. and on one occasion was sexually abused. Johnson also witnessed K.M. physically abuse his youngest sister, Nicole, as well as Kim and K.M.’s son, Tyler. Years prior to K.M.’s death, Johnson found child pornography on K.M.’s computer and later reported it to the police, but Johnson was told the evidence was "stale" and that police would need recent evidence of K.M.’s possession of child pornography to do anything. Johnson told his father, a retired sheriff/police chief, about K.M. having child pornography, and his father confronted K.M. about the child pornography and told K.M. that he was no longer welcome at family events. K.M. did not deny that he had child pornography and told his father-in-law he would "move[ ]" it and get counseling. K.M. never got counseling, and Johnson believed that K.M. never "moved" or destroyed the child pornography. Johnson was fearful that K.M. would abuse Nicole's two young daughters.

¶6 Nicole testified that she was eight years old when her sister married K.M. She explained that K.M. was violent with her beginning at that age, and when she was fourteen, K.M. "choked me until I blacked out." On other occasions, K.M. would pull her into his lap and rest his head on her chest: "He would pull me onto the couch and basically be on top of me and not let me up. He would tickle me and his hand would go up my shirt." Nicole testified that K.M. was a violent man that she feared, and she was concerned to have her two daughters, ages one and six at the time of trial, around K.M.

¶7 Johnson's oldest sister, Christina, testified that she met K.M. in high school and that K.M. "was a violent person." According to Christina, Johnson was afraid of K.M., and Nicole feared K.M. Christina testified that Nicole kept her children away from K.M.

393 Wis.2d 700

¶8 Johnson testified that on October 24, 2016, he decided to go to K.M.’s home to see if child pornography was still on the computer so as to notify police. Johnson went "uninvited" to K.M.’s home at approximately 11:45 p.m. Johnson testified that he brought a loaded gun with him for protection as he knew that if K.M. discovered him looking at the computer "[t]hat he was going to come after me, he was going to make sure that no one ever found out about what was on there." Johnson knew that K.M. did not lock his home, so he entered through a back door and worked quietly in the dark in K.M.’s computer room for approximately two and one-half hours. Johnson found child pornography on K.M.’s computer.

¶9 Shortly after 2:00 a.m. on October 25, 2016, Johnson heard a noise and turned and saw K.M. open the door to the computer room: "He looked right at me. He knew who I was." Johnson testified that K.M. knew that "I had the pornography, that I—that he was—he was going to prison,

948 N.W.2d 384

that I had him."3 K.M. closed the door to the computer room. Johnson, in fear and cognizant that he could not escape from the room, waited a brief time before "the door flew open and [K.M.] attacked me." Johnson testified that after K.M. "attacked"/"lunged" at him that he could not remember what happened thereafter.4 K.M. died of his injuries.

393 Wis.2d 701

¶10 Following receipt of Johnson's testimony, counsel asked, outside the presence of the jury, for a ruling that Johnson had met his burden of proof for self-defense. The circuit court ruled that Johnson had met his burden as to self-defense and allowed Johnson to admit McMorris5 evidence.

¶11 Despite ruling that Johnson presented sufficient evidence to assert self-defense, the court changed course at the close of evidence and refused to instruct the jury on perfect self-defense. The court noted that the castle doctrine was not directly applicable, as it would apply to K.M. had he used lethal force on Johnson, but was relevant for consideration of "self-defense" and "provocation." After considering the issue, the court found that no objective reasonable person would find that the victim did not have a lawful right to interfere, i.e., that Johnson did not have a reasonable belief that K.M. was unlawfully interfering with Johnson as a trespasser in his home, and therefore, it could not be said that the defendant was preventing an unlawful interference.6 The court additionally stated:

393 Wis.2d 702
[T]he question is would an objective person find that he reasonably believed that the force used was necessary to prevent imminent death or great bodily harm, and there's nothing in the record that supports that, especially because the force that was used was five shots from a gun when the victim was naked from the waist up and had no weapon. So I don't think a jury would conclude that the State had failed to meet its burden to disprove that element either. So for those reasons I will not allow those instructions that deal with perfect self-defense.

(Emphasis added.) For the reasons that follow, we conclude that the court erred.

II. Perfect Self-Defense

¶12 "To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold." State v. Head , 2002 WI 99, ¶84, 255 Wis. 2d 194, 648 N.W.2d 413. Sufficient evidence must show: "(1) a reasonable belief in the existence of an unlawful interference; and (2) a

948 N.W.2d 385

reasonable belief that the amount of force the person intentionally used was necessary to prevent or terminate the interference." Id. ; see also WIS. STAT. § 939.48(1).

¶13 The right to assert the privilege of perfect self-defense is a statutory right under WIS. STAT. § 939.48(1),...

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4 practice notes
  • State v. Johnson, No. 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...supervision.¶14 Johnson appealed, and the court of appeals reversed and remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded "the circuit court erred in denying Johnson's request to instruct the jury on perfect......
  • State v. Johnson, No. 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...¶14 Johnson appealed, and the court of appeals reversed and remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded "the circuit court erred in denying Johnson's request to instruct the jury on perfect self-defens......
  • Bohm v. Leiber, Appeal No. 2019AP728
    • United States
    • Court of Appeals of Wisconsin
    • July 8, 2020
    ..., 211 Wis. 2d 628, 645-46, 566 N.W.2d 158 (Ct. App. 1997). ¶17 While the Leibers quibble about whether a sixteen-foot-wide driveway 948 N.W.2d 377 technically constitutes a "roadway," and go even further in contending the only acceptable construction on the easement would be a ful......
  • State v. Coffee, 2019AP1821-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 31, 2021
    ...a lesser-included instruction is appropriate, a court should view the evidence in the light most favorable to the defendant. Johnson, 393 Wis.2d 688, ¶33. "A [trial] court commits reversible error where it refuses to submit an instruction on a lesser-included offense that is supported ......
4 cases
  • State v. Johnson, No. 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...supervision.¶14 Johnson appealed, and the court of appeals reversed and remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded "the circuit court erred in denying Johnson's request to instruct the jury on perfect......
  • State v. Johnson, No. 2018AP2318-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 2021
    ...¶14 Johnson appealed, and the court of appeals reversed and remanded for a new trial. State v. Johnson, 2020 WI App 50, ¶52, 393 Wis. 2d 688, 948 N.W.2d 377. The court of appeals concluded "the circuit court erred in denying Johnson's request to instruct the jury on perfect self-defens......
  • Bohm v. Leiber, Appeal No. 2019AP728
    • United States
    • Court of Appeals of Wisconsin
    • July 8, 2020
    ..., 211 Wis. 2d 628, 645-46, 566 N.W.2d 158 (Ct. App. 1997). ¶17 While the Leibers quibble about whether a sixteen-foot-wide driveway 948 N.W.2d 377 technically constitutes a "roadway," and go even further in contending the only acceptable construction on the easement would be a ful......
  • State v. Coffee, 2019AP1821-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 31, 2021
    ...a lesser-included instruction is appropriate, a court should view the evidence in the light most favorable to the defendant. Johnson, 393 Wis.2d 688, ¶33. "A [trial] court commits reversible error where it refuses to submit an instruction on a lesser-included offense that is supported ......

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