State v. Johnson, No. 2018AP2318-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBRIAN HAGEDORN, J.
Citation2021 WI 61
PartiesState of Wisconsin, Plaintiff-Respondent-Petitioner, v. Alan M. Johnson, Defendant-Appellant.
Decision Date16 June 2021
Docket NumberNo. 2018AP2318-CR

2021 WI 61

State of Wisconsin, Plaintiff-Respondent-Petitioner,
Alan M. Johnson, Defendant-Appellant.

No. 2018AP2318-CR


ORAL ARGUMENT: January 19, 2021
June 16, 2021


For the defendant-appellant, there was a brief filed by Catherine E. White, Stephen P. Hurley, Jonas B. Bednarek, Marcus J. Berghahn and Hurley Burish, S.C., Madison. There was an oral argument by Catherine E. White.

For the plaintiff-respondent-petitioner, there were briefs filed by Timothy M. Barber, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Timothy M. Barber.

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This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

(L.C. No. 2016CF422)

HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK, J., joined, and in which KAROFSKY, J., joined ¶¶1-3, 5-23, and 30-48.

REVIEW of a decision of the Court of Appeals. Affirmed in part, reversed in part.

¶1 BRIAN HAGEDORN, J. In the middle of the night, Alan M. Johnson snuck into the home of his brother-in-law (K.M.) seeking evidence of child pornography. Johnson brought a gun. After searching K.M.'s computer for more than two hours, K.M. appeared in the doorway and saw Johnson. K.M. shut the door, as Johnson described it, and then burst through the door and attacked. The

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ensuing altercation left K.M. dead; he was shot five times. A jury found Johnson guilty of first-degree reckless homicide. Johnson appealed his conviction, and the court of appeals ruled in his favor and ordered a new trial.1

¶2 Three issues are presented for our review. First, did the circuit court2 err in failing to instruct the jury on perfect self-defense? Second, did the circuit court err in failing to instruct the jury on the lesser included offense of second-degree reckless homicide? And finally, did the circuit court err in precluding Johnson from offering evidence regarding what he found on K.M.'s computer the night of K.M.'s death? The court of appeals ruled in Johnson's favor on all three questions.

¶3 We agree the circuit court erred in failing to instruct the jury on perfect self-defense and second-degree reckless homicide. When determining whether these instructions should be provided, the evidence is viewed in the light most favorable to the defendant, and the instruction must be provided if evidence is presented from which a reasonable jury could find in the defendant's favor on the instructed elements. The evidence presented at trial was sufficient to satisfy this low evidentiary bar. We affirm the decision of the court of appeals on these grounds and remand for a new trial.

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¶4 However, we conclude the circuit court properly exercised its discretion in precluding Johnson from testifying regarding what he found on K.M.'s computer that night. The circuit court concluded this other-acts evidence was not relevant, and even if it was, the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice. While another court might see it differently, this was a permissible and reasonable conclusion, particularly since Johnson was permitted to testify regarding why he was at K.M.'s house and that he "found" what he was looking for. Accordingly, we reverse the decision of the court of appeals on this ground.


¶5 Johnson testified in his own defense at trial. His testimony is the only narrative the jury heard of what happened the night K.M. died. Since our review is largely centered on a view of the evidence most favorable to Johnson, his testimony forms the substantial basis of our analysis. The following is Johnson's side of the story.

¶6 Johnson's oldest sister married K.M. when Johnson was a child; his relationship with K.M. was strained from the beginning. Johnson feared K.M. from the age of ten onward. Repeatedly, K.M. verbally and physically abused Johnson, and on one occasion, sexually abused him. Johnson also witnessed K.M. physically abuse his youngest sister and K.M.'s son.

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¶7 Years prior to K.M.'s death, Johnson discovered what he believed was child pornography on K.M.'s computer.3 Eventually, Johnson reported this to the authorities, but was told that the evidence was "stale." Johnson then told his father, who confronted K.M. K.M. told Johnson's father the pornography was "moved." Despite several requests by Johnson's father to attend therapy, K.M. never went. This caused Johnson to fear for the safety of his nieces.

¶8 Around 11:45 p.m. on the night of October 24, 2016, Johnson went to K.M.'s home intending to discover "fresh pictures" of child pornography on K.M.'s computer to deliver to the police. Johnson believed that K.M. could overpower him if anything happened, so he brought a gun to protect himself. He entered through the unlocked back door and proceeded to the computer room. Johnson closed the door and searched K.M.'s computer for over two hours. As a result of his search, Johnson intended to turn what he discovered over to the police because he "found what they needed."

¶9 After the calendar flipped to October 25, at around 2:00 a.m., Johnson heard a "scuff" from somewhere in the house. Then, in Johnson's words: "I closed the Windows that I had opened on the computer . . . and I got up, I grabbed the gun. I got everything that I had with me." As he was leaving, the door opened

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and Johnson saw K.M. standing in the doorway without a shirt. K.M. then closed the door, leaving Johnson alone in the room. Johnson was afraid. When K.M. opened the door, "[h]e looked right at me, and he knew why I was there. I knew that he knew." Johnson wanted to leave, but the only exit was the door K.M. had just shut. He did not believe the windows in the room opened either, leaving him no way to escape. Then, Johnson explained, "the door flew open and [K.M.] attacked me. He just came right at me." And upon further probing, Johnson said, "[K.M.] lunged at me. I saw him come at me." When all was said and done, K.M. sustained five gunshot wounds and died. Exactly how this transpired was unclear even to Johnson. While he knew he shot K.M., Johnson did not remember seeing or hearing his gun fire and does not remember how he left the house.

¶10 Johnson denied knowing how K.M. died when questioned on two occasions later that day. But before the day ended, he confessed to killing K.M. Johnson was charged with first-degree intentional homicide, use of a dangerous weapon, and armed burglary.

¶11 During pretrial, Johnson moved to admit other-acts and McMorris evidence4 regarding K.M.'s past actions to support his

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claim of self-defense. The circuit court permitted Johnson to introduce evidence of K.M.'s past abusive conduct and evidence that Johnson previously found what he believed was child pornography on K.M.'s computer. However, the court prohibited Johnson from presenting evidence of precisely what he believed he found on K.M.'s computer the night K.M. died: images of naked underage girls and over 5,000 images of neighborhood girls.5 The court ruled that such evidence, regardless of whether it was child pornography, "is not relevant to the homicide, to any claim of self-defense or to the burglary charge." Furthermore, the court noted that even if this evidence was relevant, "it would fail under [Wis. Stat. §] 904.03" because "[i]t would be completely and unfairly prejudicial with little to no probative value other than to try and paint the victim in a bad light, and it certainly would not . . . substantially outweigh that unfair prejudice."

¶12 At the close of evidence, the circuit court instructed the jury on burglary, first-degree intentional homicide, second-degree intentional homicide, first-degree reckless homicide, and imperfect self-defense. Johnson also requested, without success, instructions on perfect self-defense, second-degree reckless homicide, and homicide by negligent use of a firearm. The circuit court refused to instruct on perfect self-defense because it

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determined no reasonable person could conclude that Johnson satisfied either prong of the perfect self-defense standard. And the court did not instruct on second-degree reckless homicide on the grounds that Johnson's actions conclusively showed an utter disregard for human life.6

¶13 The jury found Johnson guilty of first-degree reckless homicide while armed with a dangerous weapon and not guilty of burglary. Johnson was sentenced to 25 years of confinement and 10 years of extended 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 self-defense and second-degree reckless homicide and failed to allow into evidence that child pornography was found on K.M.'s computer."7 Id. We granted the State's petition for review.


¶15 This case presents three issues. Two concern instructions not provided to the jury, and the third considers the

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other-acts evidence Johnson sought to introduce regarding the contents of K.M.'s computer on the night of his death. We begin with the jury instructions.

A. Jury Instructions
1. Standard of Review

¶16 "A circuit court has broad discretion in deciding whether to give a requested jury instruction." State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). The circuit court's charge is "to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence." State v. Vick, 104 Wis. 2d 678, 690, 312 N.W.2d 489 (1981) (quoting another source). But circuit court discretion is...

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