State v. Paulson

Decision Date02 February 1982
Docket NumberNo. 80-1708-CR,80-1708-CR
Citation106 Wis.2d 96,315 N.W.2d 350
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Robert PAULSON, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Donna L. Hintze, Asst. State Public Defender, for defendant-petitioner.

David J. Becker, Asst. Atty. Gen., argued; Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent.

COFFEY, Justice.

This is a review of a decision of the court of appeals affirming a judgment of conviction of the defendant, Robert Paulson, and an order of the circuit court for Ozaukee county denying Paulson's post-conviction motion for a new trial, Hon. WALTER J. SWIETLIK presiding. Robert Paulson was convicted of injury by conduct regardless of life, contrary to sec. 940.23, Stats., and subsequent thereto filed the post-conviction motion for a new trial based upon an alleged error in the self-defense jury instruction. The appellate court affirmed the trial court judgment and order holding that Paulson's failure to object to the self-defense instruction at the jury instruction conference (sec. 805.13(3)) constituted a waiver of the objection to the instruction.

Paulson's conviction arose out of a tavern fight in which one Jack Garbarek was stabbed outside of a Port Washington tavern on February 19, 1979. The stabbing followed an argument between Paulson and Garbarek.

The victim, Jack Garbarek, testified that while he was in the tavern he accidentally spilled a drink at the bar and an argument ensued when he refused to pay for another drink as Paulson suggested. The argument lasted only a few minutes and immediately thereafter Garbarek prepared to leave the bar. On his way to the door, he passed Paulson and the two exchanged words again. Garbarek stated that during this verbal exchange, he grabbed Paulson by the collar and pushed him aside. At this time, Paulson followed him out of the tavern and within seconds, stabbed him in the stomach. Garbarek stated that as far as he knew no one witnessed the actual stabbing. A conflicting version of the incident was presented by the defense witnesses.

Paulson, the defendant, testified that shortly before the incident, he was "pretty well drunk" and decided to put on his jacket and leave the tavern. While preparing to leave, he noticed an argument between two men and Garbarek, concerning a spilled drink. During the argument, Garbarek turned to him and made a snide comment regarding the trouble Paulson was having zipping his jacket. Paulson stated that he replied to this comment and an argument followed. At this time, some ladies came over and informed Garbarek that they were leaving and Garbarek proceeded to follow them out and, according to Paulson, Garbarek changed his mind, turned around, grabbed Paulson by the collar of his jacket and pulled him out of the bar, down the steps and onto the ground.

Paulson stated that Garbarek struck him twice in the face as they exited the tavern, once in the cheek as he was being dragged out of the bar and then again as he attempted to get up from the ground. Paulson further recounted that while on the ground, he removed a pocket knife from his pants and opened the blade. Paulson stated that as he began to get up he again saw Garbarek come at him, attempting to throw a third punch and at this time he swung the knife at Garbarek and injured him.

Paulson's trial testimony was inconsistent with a prior statement he gave to the police in that there is no mention in the police report of Garbarek's striking Paulson prior to the stabbing. Also, Paulson's statement to the police reflects that he (Paulson) warned Garbarek that if he "came at" him he would stab him.

Paulson's trial testimony that he was struck by Garbarek prior to the stabbing was corroborated in part by the testimony of other defense witnesses.

Paulson's defense theory at trial was that he only stabbed Garbarek in self-defense. In a conference held to discuss instructions, the defendant's attorney requested that the court give "Privilege: Self-Defense: Force Less Than Likely to Cause Death or Great Bodily Harm." Wis. J I-Criminal, Part I, 800. The prosecution did not object to the defendant's request for this instruction and the court informed counsel on the record that he would read that instruction to the jury. After the close of testimony, among the other instructions, the trial court read Wis. J I-Criminal, Part I, 800 and neither during the reading, nor upon the completion thereof did the defense attorney or the district attorney enter any objection.

The jury returned a verdict finding Paulson guilty of injury by conduct regardless of life as charged in the information and the court entered a judgment of conviction and sentenced the defendant to a three year term of confinement.

Approximately five months after trial, the defendant filed a post-conviction motion requesting a new trial and alleging for the first time that the self-defense jury instruction he requested of the court was "erroneous, misleading, and deprived the defendant of his defense." The defendant's alleged error in the instruction was the inclusion of the word "intentionally" in the portion of the instruction set out below:

"If you find that the defendant did intentionally cause injury by conduct regardless of life to Jack Garbarek, as charged in the Information, but that he (did) so under the circumstances that under the law of self-defense as it has been explained to you, such use of force was privileged, then you must find the defendant not guilty, giving him the benefit of any reasonable doubt as to whether his conduct was privileged under the law of self-defense." (Emphasis supplied.)

The defendant argued that the word "intentionally" as recited in the instruction required the jury to find that Paulson "intentionally" caused injury by conduct regardless of life prior to considering whether the conduct was privileged under the law of self-defense. Since intent is not an element of the offense of injury by conduct regardless of life and there had been no proof of intent at trial, Paulson argued that a requirement that the jury find intent made the instruction erroneous.

After a hearing, the trial court denied the motion ruling that the instructions were fair and did not mislead the jury, that the verdict was supported by the evidence and if, in fact, the instruction was erroneous, it did not constitute reversible error. The trial court pointed out that self-defense constitutes an intentional act. The trial court also noted that the defense counsel not only failed to object to the wording of the instruction at the jury instruction review conference but, in fact, had requested the instruction.

Paulson appealed from the judgment of conviction and the order denying his post-conviction motion regarding the allegedly improper jury instruction. The court of appeals affirmed the trial court holding that Paulson's failure to object at the jury instruction conference waived any objection he had to the instruction, pursuant to sec. 805.13(3), Stats. The court further declined to exercise its discretion to consider whether the erroneous instruction required a new trial in spite of the defendant's waiver of any objection to the instruction.


1. Did the defendant waive any objection to the jury instruction when he failed to object to and requested the standard instruction given although he was not informed of the alternate language chosen by the trial court?

2. Does allegedly erroneous language of the self-defense jury instruction constitute plain error when the instruction is read in its entirety?


The requirement that counsel object to proposed jury instructions at the instruction and verdict conference or be deemed to have waived any error in the proposed instruction is stated in sec. 805.13(3), Stats.:

"(3) INSTRUCTION AND VERDICT CONFERENCE. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularlity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict."

The requirements of sec. 805.13(3), Stats., are applicable to criminal cases by virtue of sec. 972.11(1), which provides as follows:

"972.11 Evidence and practice; civil rules applicable. (1) Except as provided in sub. (2), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction...." Sec. 972.11(1), Stats.

See also: State v. Dix, 86 Wis.2d 474, 485-86, 273 N.W.2d 250 (1979), in which this court approved the application of sec. 805.13(3), Stats., in a criminal case.

On this appeal, the defendant acknowledges that he failed to object to the jury instruction, either at the time that the court reviewed the proposed jury instructions, or at the time the instruction was read to the jury, or at any time before the entry of judgment in the case, but only raised his objection some five months after the entry of the jury verdict. He contends, however, that sec. 805.13(3), Stats., requires that the court advise counsel of the precise language to be used in the instructions and that a failure to object to a proposed instruction does not constitute a waiver of any objection to the precise language of the instruction where the trial...

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