State v. Jones
| Decision Date | 20 January 1989 |
| Docket Number | No. 86-1559-CR,86-1559-CR |
| Citation | 434 N.W.2d 380,147 Wis.2d 806 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Patrick JONES, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
David J. Becker, Asst. Atty. Gen., (argued), with whom on the briefs was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.
William J. Tyroler, and Richard J. Johnson (argued), Asst. State Public Defenders, on the brief, for defendant-appellant.
The state seeks review of an unpublished decision of the court of appeals filed May 11, 1988, 145 Wis.2d 895, 428 N.W.2d 561, reversing the defendant's conviction in the circuit court for Racine county, Stephen A. Simanek, circuit judge, of second degree murder by use of a dangerous weapon, in violation of secs. 940.02(1) and 939.63(1)(a)2, Stats. 1985-86. 1
The question presented on review is whether the circuit court erred in refusing to instruct the jury on the "defense of others" privilege set forth in sec. 939.48(1) and (4), Stats. 1985-86. 2
The court of appeals held that the circuit court committed reversible error by refusing to instruct the jury on the defense of others privilege. We agree with the court of appeals that, under the facts of this case, the defendant was entitled to the jury instruction, and we therefore affirm the decision of the court of appeals.
In determining whether the circuit court should have given the defense of others instruction, this court must view the evidence in the light most favorable to the defendant. State v. Mendoza, 80 Wis.2d 122, 152-53, 258 N.W.2d 260 (1977). Accordingly we summarize the evidence in the light most favorable to the defendant.
On the afternoon of April 25, 1985, the defendant's sister Eunice Jones and Donald Price were standing outside the defendant's home, arguing about some keys. Price and Eunice lived together, and Price had on previous occasions beaten Eunice, "to the point of being bloody," according to the record.
Price was known to be violent when drunk, and on that day he was "quite drunk," in the opinion of the state's expert pathologist. His blood alcohol content was .316, a level that required up to 15 drinks in a two-hour period.
On a prior occasion, Price had threatened the defendant with a rifle for intervening on Eunice's behalf. Another time, Price put his fist through a window in his efforts to break into the Jones family's home, where Eunice had taken refuge from him.
Price was 38 years old, close to 6 feet tall and described as being "well-muscled." The defendant was 17 years old and approximately 5 feet 4 inches to 5 feet 6 inches tall.
In the course of the argument with Eunice, Price began "cursing, talking crazy talk" and hitting Eunice. The defendant, his mother, and others were standing nearby.
The defendant's mother told Price to stop hitting her daughter. Price pushed the defendant's mother away and threatened to kill her. The defendant then intervened, telling Price to stop hitting his mother. Price's response was to push the defendant down several porch steps. During his exchange with the defendant and the defendant's mother, Price continued to hold onto Eunice. The defendant told Price to release Eunice, and Price responded by striking the defendant with his fist.
The defendant said he viewed Eunice as "badly bruised" and he was fearful for Eunice's safety because Price refused to let her go. The defendant testified that he thought that if he did not stop Price, Price might kill her. The defendant ran into the house, grabbed a butcher knife and ran back outside. Price was still holding Eunice, twisting her arm and hitting her in the face. The defendant approached Price and swung at him with the knife. The swing did not connect.
The defendant testified that, after his first swing missed, 3 The defendant denied that he intended to stab Price. His motive in getting the knife and confronting Price was to stop Price.
The defendant does not dispute that Eunice had broken free from Price before the stabbing occurred. The defendant testified that he didn't know where Eunice had gone when she broke free. The defendant testified on cross-examination that if Eunice said she had gone in the house, he "guessed" she was telling the truth. 4
The defendant described what happened between Eunice's breaking free and the stabbing as follows:
Q. Why don't you step down. Use this pen as the knife.
* * *
A. Yes, sir. Came with the knife like this. I brought it over and did like this, but I didn't hit him. I stood there for about two minutes, and I asked him to let go of my sister, and she finally broke loose. He came walking towards me, and he swung, and he bumped on it like that, and he just--he just fell backwards on his back.
* * *
A. I just swung it, but it didn't--it didn't come near him no part [sic].
Q. Was that when you for two minutes about told him to just go about his business?
A. Yes, sir.
Q. And he still had Eunice, right?
A. Right.
Q. And--And was he still hitting Eunice?
A. Yes.
Q. Okay. Then she broke free?
A. Yes.
Q. And then Donald [Price] swung at you?
A. Right.
Q. Did you move the knife?
A. No, I did not....
Q. Did you mean for that to happen?
A. No, I was just--I was just trying to get him to go--to go cool off and come back later on, but when my sister broke free, when I had the knife like this, he just swung at me, and it just happened so fast, and he just fell on his back. He swung. (Emphasis added)
The defendant again described the timing of the events on cross-examination as follows:
Q. And you swung the knife over your shoulder and forward, is that correct?
A. Yes.
Q. And then you stood there you say for two minutes, is that correct?
A. Minute or so, yes I did.
Q. A minute or so. So he was standing facing you for a minute or so.
A. No, he was--he had my sister by that time. When I swung the knife, she broke free from him, and he started walking towards me and swung at me.
The defendant further testified on cross-examination about the time between Eunice's breaking free and the stabbing as follows:
Q. And it's your statement today that how many minutes passed before the stabbing occurred after she left?
A. Approximately about one or two minutes.
According to one witness, Price still had Eunice in his grasp "just before" the knifing. The jury could conclude from the examination of this witness that when the defendant came at Price with the knife, Eunice broke free "[j]ust then" and Price got in a fighting stance and "was getting ready to swing at" the defendant; Price then swung at the defendant and landed on the knife which was being held "still." 5
The circuit court concluded that there was evidence arguably supporting a defense of others instruction, but denied the defendant's request for the instruction for two reasons. First, the circuit court ruled, a defense of others justification (an intentional act) was inconsistent with the defense's argument that the killing was unintentional or accidental. Second, the circuit court ruled, the record was, as a matter of law, insufficient to raise the issue of whether the defendant reasonably acted in defense of others, because Eunice, the person being defended, was out of danger at the time the stabbing occurred.
The state concedes, and we agree, that the circuit court's first reason for refusing to give the instruction is erroneous. In 1987 this court held that a defendant's testimony that the act that caused a death was unintended does not necessarily preclude an instruction on the privilege of self-defense. State v. Gomaz, 141 Wis.2d 302, 311, 414 N.W.2d 626 (1987).
The state further argues, however, that the circuit court's second reason for refusing to give the instruction is correct, because the person whom the defendant assertedly was defending was out of danger when the stabbing occurred.
The privilege of defense of others is set forth in sec. 939.48(1) and (4), Stats. 6 The statute provides that an actor is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions and by the same means as he is privileged to defend himself from real or apparent unlawful interference. The statute further states that the actor must reasonably believe that the facts are such that the third person would be privileged to act in self-defense and that the actor's intervention is necessary for the protection of the third person. 7 The actor may intentionally use only such force or threat of force as he or she reasonably believes is necessary to prevent or terminate the interference. Before force which is likely to cause death or great bodily harm can be used, the actor must reasonably believe that such force is necessary to prevent imminent death or great bodily harm to the third person.
The key question is whether, when Price was stabbed, the defendant reasonably believed that his sister faced imminent death or great bodily harm or whether, instead, the threat of imminent death or great bodily harm to the defendant's sister had passed by the time of the stabbing. See, Thomas v. State, 53 Wis.2d 483, 488, 192 N.W.2d 864 (1972).
This court has recognized that the determination of reasonableness is "peculiarly within the province of the jury." State v. Mendoza, 80 Wis.2d 122, 156, 258 N.W.2d 260 (1977). The question for the court is not what the totality of the evidence reveals. Rather, this court must ask only "whether a reasonable construction of the evidence ... 'viewed in the most favorable light it will "reasonably admit of from the standpoint of the accused" ' " will support the defendant's theory...
To continue reading
Request your trial
-
State v. Johnson
...to himself. "[T]he personal characteristics and histories of the parties" are relevant to this determination. State v. Jones, 147 Wis. 2d 806, 816, 434 N.W.2d 380 (1989).¶25 As we've discussed, Johnson testified that K.M. physically, verbally, and sexually abused him, and physically abused ......
-
State v. Stietz
...the weight and credibility of the evidence is traditionally a task reserved to the jury.).14 See also State v. Jones , 147 Wis. 2d 806, 816, 434 N.W.2d 380 (1989) (citing State v. Mendoza , 80 Wis. 2d 122, 156, 258 N.W.2d 260 (1977) ).15 "If perfect self-defense is placed in issue by the tr......
-
State v. Hobson
...victim and two others in an altercation, victim allegedly threatened defendant who shot him with victim's own gun); State v. Jones, 147 Wis.2d 806, 434 N.W.2d 380 (1989) (victim hit and threatened several family members, pushed defendant down steps, then came toward defendant and took a swi......
-
State v. Coleman
...rejecting another--and thus invade the province of the jury.... Mendoza, 80 Wis.2d at 153, 258 N.W.2d 260; accord State v. Jones, 147 Wis.2d 806, 816, 434 N.W.2d 380 (1989). Thus, neither the trial court nor the reviewing court may weigh the evidence, but instead may only ask whether a reas......