State v. Nicholson

• Decision Date: 22 December 1988
• Docket Number: No. 87-2190,87-2190
• Citation: 435 N.W.2d 298,148 Wis.2d 353
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Howard NICHOLSON, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 298

435 N.W.2d 298

148 Wis.2d 353

STATE of Wisconsin, Plaintiff-Respondent, v. Howard NICHOLSON, Defendant-Appellant. ^d

No. 87-2190.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 2, 1988.

Opinion Released Dec. 22, 1988.

Opinion Filed Dec. 22, 1988.

Jack Longert and Legal Assistance To Institutionalized Persons Program, Madison, for defendant-appellant.

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

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

GARTZKE, Presiding Judge.

Howard Nicholson appeals from an order denying his postconviction motion under sec. 974.06, Stats. He seeks relief from his 1983 conviction for attempted first-degree murder of John Sawle. ¹ He asserts a right to a second trial because the court refused to submit to the jury the lesser-included offense of imperfect self-defense, sec. 940.05(2), Stats. The state agrees that because the trial court properly instructed the jury on perfect self-defense, refusal to instruct on imperfect self-defense was reversible error and an appeal would have resulted in a new trial. But Nicholson did not appeal his conviction, and the state contends that because the error is not constitutional, relief is unavailable under sec. 974.06. We agree with the state's position and affirm.

First-degree murder is the intentional killing of a human being. Sec. 940.01(1), Stats. Self-defense is a privilege but is limited to the intentional use of such force as the actor reasonably believes is necessary. The privilege does not include the use of force intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. Sec. 939.48(1), Stats. To cause the death of another person "unnecessarily, in the exercise of [the] privilege of self-defense" is a felony. Sec. 940.05(2). This felony is often described as "imperfect self-defense," sometimes as manslaughter self-defense or simply as manslaughter. We refer to it as imperfect self-defense. First-degree murder includes the lesser crime of imperfect self-defense. State v. Gomaz, 141 Wis.2d 302, 303, 414 N.W.2d 626, 627-28 (1987).

The case was tried to a jury in early 1983. The evidence showed that in August 1982 Nicholson's wife left him and went to her parents' farm near Arena, Wisconsin, taking with her their minor child. On October 30, 1982 Nicholson went to the farm. His wife and child were not there. While Nicholson was in the farmhouse, his father-in-law, John Sawle, arrived with Nick Olson. Sawle feared that Nicholson was in the house, and entered the house carrying a shovel for protection. Sawle and Olson discovered Nicholson coming out of the bathroom. Nicholson explained why he was at the house and asked Sawle where his child was. Sawle replied only that the child was at the babysitter and would not give a more specific location. The phone rang and Sawle answered it. Olson and Nicholson went outside, but after a few minutes Nicholson went back inside.

Sawle testified that when he finished the call he turned to find Nicholson holding a pistol. Sawle ran for the door and heard gunfire. According to Sawle, when he was in the house he kept the shovel in his right hand down at his side and had done nothing to provoke Nicholson.

Nicholson testified that when Sawle finished his telephone call, Nicholson told him he would wait for his wife to return from work because she would bring the child with her. Sawle angrily advanced toward Nicholson, holding the shovel in the air with both hands as if to hit Nicholson and began to swing it. Nicholson backed away into the kitchen table, pulled a pistol from his belt, told Sawle to stop, and fired when Sawle was about four feet away. He fired low and did not intend to kill Sawle.

Olson testified that shortly after Nicholson went into the house, Olson opened the kitchen door and saw Sawle crouched and running toward the door. Nicholson stood about two or three feet behind Sawle, pointed a pistol at him and fired it. Olson did not see where Sawle was holding the shovel. ²

Sawle ran to a cornfield where he stayed until the police found him. He had been shot once in the right lower quadrant of his abdominal cavity. The entry wound was next to his right hipbone.

After the instruction conference, the trial court concluded that it should submit only attempted first-degree murder, the lesser-included offense of endangering safety by conduct regardless of life, and the perfect self-defense instruction. Under Wisconsin law, if the charged crime includes a lesser uncharged crime, the court must, if requested, instruct the jury on both crimes if under a reasonable view of the evidence the defendant could be acquitted of the greater and found guilty of the lesser. State v. Muentner, 138 Wis.2d 374, 387, 406 N.W.2d 415, 421 (1987). By statute, first- degree murder includes the lesser crime of imperfect self-defense. Sec. 939.66(2), Stats. The court concluded that the evidence did not warrant an imperfect self-defense instruction. Nicholson objected to the court's refusal to instruct the jury on imperfect self-defense.

The jury found Nicholson guilty of attempted first-degree murder of Sawle. On April 22, 1983 the court entered a judgment of conviction. ³ Nicholson did not appeal, and the time to take an appeal has long expired. ⁴

On March 19, 1987, Nicholson moved for postconviction relief under sec. 974.06, Stats. The basis for the motion was the trial court's refusal to instruct the jury on the lesser-included offense of imperfect self-defense. The trial court denied the motion on grounds that the issue should have been raised by direct appeal, was not of constitutional or jurisdictional dimension and therefore could not be raised under sec. 974.06, and because the evidence did not warrant an instruction on imperfect self-defense.

After the trial court denied Nicholson's motion, the Gomaz court held that it was reversible error for a trial court to refuse a request to instruct the jury on imperfect self-defense when the evidence warranted instructing the jury on perfect self-defense. Gomaz, 141 Wis.2d at 309, 414 N.W.2d at 630. The Gomaz court explained:

[I]f 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 inconsistent and reversible error to deny the imperfect self-defense instruction where an instruction is given as to perfect self-defense. The privilege of self-defense under sec. 939.48(1), Stats., is the "right to use force against another to prevent what the actor reasonably believes to be an unlawful interference with his person." Ross, 61 Wis.2d at 166 . To be within the scope of the absolute privilege of sec. 939.48, however, both the actor's belief and the amount of force used must be reasonable. Manslaughter, under sec. 940.05(2), operates where the actor actually believed the force used was necessary for self-defense but the belief or amount of force used was unreasonable. Id. at 166-68 ; Roe v. State, 95 Wis.2d 226, 243-44, 290 N.W.2d 291 (1980). Thus, and as noted in Ross, since a self-defense instruction requires examination of "reasonableness," it is inconsistent and improper to deny a manslaughter self-defense instruction where the jury is properly, as the state concedes, instructed as to the privilege of complete self-defense.

Id. at 309-10, 414 N.W.2d at 630 (footnotes omitted, emphasis added). ⁵

The state concedes that Nicholson's own testimony warranted an instruction on perfect self-defense. Under Gomaz, an instruction on imperfect self-defense was therefore also warranted, and the trial court erred in refusing to instruct on imperfect self-defense. The state concedes that the error was reversible, had Nicholson appealed from his conviction, but contends that because the error was neither jurisdictional nor constitutional, Nicholson's sec. 974.06, Stats., motion does not reach it.

Section 974.06(1), Stats., allows a prisoner to seek postconviction relief on jurisdictional or constitutional grounds even if, as here, the time to appeal from a criminal conviction has expired. Such a motion cannot be used as a substitute for an appeal. Sass v. State, 63 Wis.2d 92, 95, 216 N.W.2d 22, 24 (1974). It cannot reach procedural errors which fail to reach constitutional or jurisdictional status. Peterson v. State, 54 Wis.2d 370, 381, 195 N.W.2d 837, 845 (1972).

Nicholson contends that the trial court's error is constitutional. He asserts that if a criminal defendant charged with a homicide or an attempted homicide is entitled to a perfect self-defense instruction, it is mandatory under Gomaz that the trial court submit the imperfect self-defense instruction. He claims that Gomaz suggests that the refusal amounted to a denial of his fifth amendment right to due process of law and to a fair trial, as well as the right to a trial by jury. He asserts that failure to give the lesser-included offense instruction sabotaged the integrity of the jury's factfinding and enhanced the likelihood of conviction on the greater offense and therefore the trial court's error in refusing to submit an imperfect self-defense instruction denied him due process. He also argues that failure to give the requested instruction relieved the state of its burden to prove all elements of a crime and thus violated due process. He relies upon the right to a trial by jury guaranteed by art. I, secs. 5 and 7, of the Wisconsin Constitution and the sixth and fourteenth amendments to the United States Constitution.

We agree that under Gomaz, if a criminal defendant is entitled to a perfect self-defense instruction when charged with a homicide or attempted homicide, the...