State v. Peters, 01-0555-CR.

• Decision Date: 18 September 2002
• Docket Number: No. 01-0555-CR.,01-0555-CR.
• Citation: 653 N.W.2d 300,2002 WI App 243,258 Wis.2d 148
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Shirley J. PETERS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 148

2002 WI App 243

653 N.W.2d 300

STATE of Wisconsin, Plaintiff-Respondent, v. Shirley J. PETERS, Defendant-Appellant.

No. 01-0555-CR.

Court of Appeals of Wisconsin.

Submitted on briefs August 8, 2002.

Decided September 18, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender, of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. BROWN, J.

Shirley J. Peters appeals both from a judgment of conviction for first-degree intentional homicide for shooting and killing her husband, Marvin Peters, and an order denying her postconviction motion. Peters argues on appeal that the trial court erred when it ruled that she failed to satisfy the objective threshold showing for both perfect and imperfect self-defense and refused to issue the self-defense jury instructions she requested.

¶ 2. In light of the supreme court's recent decision, State v. Head, 2002 WI 99, No. 99-3071-CR, we reverse and remand to the trial court for two reasons. First, based on the supreme court's holding in Head that a defendant need not satisfy an objective threshold showing for imperfect self-defense, we determine that the real controversy of imperfect self-defense was not fully tried. We, therefore, exercise our statutorily recognized power of discretionary reversal under WIS. STAT. § 752.35 (1999-2000)¹ to reverse the judgment and order. Second, applying the "some" evidence standard clarified in Head, we conclude that the trial court erred by refusing to instruct the jury on perfect self-defense and that this error was not harmless. We therefore reverse the judgment and order and remand the case to the trial court for a new trial. ¶ 3. Peters was charged with first-degree intentional homicide for shooting her husband, Marvin. Peters did not dispute that on the morning of Monday, October 5, 1998, she shot her husband six times and killed him. Rather, she claimed she acted in self-defense. The evidence proffered at trial pertinent to Peter's claim of self-defense can be summarized as follows.

¶ 4. Peters testified about the emotional and verbal abuse she suffered in the days and weeks before the shooting. According to Peters, Marvin would scream at her all of the time and shove her around, but he would not actually hit her. Marvin would not let Peters go anywhere on her own. Peters' son, Ed Zimmerman, testified that he had seen Marvin grab Peters and shove her around and yell at her.

¶ 5. Peters testified that the couple had guns in the house and that Marvin kept a gun within reach of the chair in which he usually sat in the dining room. Peters' neighbor, Paul Nord, and Zimmerman both testified that Marvin generally kept a loaded .22 rifle near the chair he normally sat in. Nord further testified that it would not be difficult for Marvin to reach over from his chair and grab the rifle. Peters also testified that in the ten days prior to the shooting, Marvin had been playing with his rifle and this frightened her.

¶ 6. Peters testified that on the day before the shooting she thought he was going to kill her. She stated that Marvin had pointed a .22 rifle at her while trying to install a scope on the rifle. Afterwards, she stated she was "to the point of where I was frightened that he was gonna shoot me." According to Peters, that same day Marvin also threatened her after the two discussed divorce. She stated that he brought bullets out of the bedroom, put them in his pockets and told her "there wouldn't be a divorce there. Somebody might die. But there wouldn't be a divorce." Zimmerman also testified that Peters had told him that Marvin had threatened her with the rifle.

¶ 7. Peters stated that on the morning of October 5, Marvin was sitting in his usual chair in the dining room and the two had been arguing. After Marvin stated that he was going to call his attorney, she testified that she had told Marvin that she wanted to leave and that she was going to call her son so she could have him come and pick her up. She testified that when she attempted to call her son, Marvin became angry, disconnected the phone and stated, "you're not going anyplace and you're not calling anybody."

¶ 8. Peters then left the dining room, went to her bedroom and retrieved a gun she purposefully had hidden in the headboard of her bed the night before. She testified that she then walked back to the dining room area and intended to frighten Marvin with the gun. According to Peters, when she walked back into the room

[Marvin] pushed the chair straight back. He stood up and he was if—because he was a big man, he pretty well blocked the door, and when he seen I had a pistol, he said, I believe he said, I'm sorry Shirley, don't, I'm sorry, and I seen his right hand where the gun was, I seen him start to drop his right hand that way to where he usually kept the rifle [over in the corner].²

She stated she thought that at the time he was going to get his rifle and shoot her. Peters testified that she then fired the gun.

¶ 9. After shooting Marvin, Peters reconnected the phone lines and called 911. She admitted shooting her husband to the 911 dispatcher and stated, "he's been so mean to me, I can't stand it anymore.... I had a pistol and I shot him." She also called Marvin's son, Stephen, who arrived at the home shortly thereafter and spoke with the 911 dispatcher. Stephen told the dispatcher that Marvin kept rifles in the home, including a .22 rifle, which he indicated was located near Marvin's body. The police dispatcher, the voice on the 911 tape, testified that Stephen did state to him that there was a .22 rifle in the room. The crime scene investigator, however, did not find a rifle lying in the area where Marvin was shot and killed. The crime scene investigator testified that they had only found a gun in the corner of the room behind a bookcase and covered in cobwebs.

¶ 10. Peters requested jury instructions on both perfect and imperfect self-defense. At the conclusion of the trial, the trial court determined that it had to evaluate whether or not Peters had a reasonable basis to believe that she faced unlawful interference. Based upon this standard, the court found that Peters had failed to establish a sufficient factual basis to warrant the submission of jury instructions on self-defense and denied her request. The jury convicted Peters of the first-degree intentional homicide charge.

¶ 11. The court sentenced Peters to life in prison without parole. Peters filed a postconviction motion arguing, in part, that the court's refusal to give jury instructions on self-defense constituted error requiring a new trial. The court denied the motion. [1-3]

¶ 12. This case requires the court to review the trial court's decision not to submit a jury instruction on self-defense. Whether there are sufficient facts to allow the issuing of an instruction is a question of law which we review de novo. State v. Mayhall, 195 Wis. 2d 53, 57, 535 N.W.2d 473 (Ct. App. 1995). A court errs when it refuses to give an instruction on an issue raised by the evidence. Id. If we determine that a trial court has committed an error in refusing to give a jury instruction, we must assess whether the substantial rights of the defendant have been affected. WIS. STAT. § 805.18(2).

¶ 13. Since the trial court's ruling, we have had the benefit of the Wisconsin Supreme Court's instruction on perfect self-defense and unnecessary defensive force, the equivalent of imperfect self-defense. The supreme court's detailed analysis of the law of self-defense in Head controls this case. The facts in this case closely resemble the facts in Head and we begin our analysis with a brief discussion of that recent decision.

¶ 14. Debra Head was convicted by a jury of first-degree intentional homicide for shooting and killing her husband. Head, 2002 WI 99 at ¶ 1. Head asserted claims of perfect and imperfect self-defense. Id. at ¶ 2. In her statements to the police, Head related that her husband had been verbally, but not physically, abusive. Id. at ¶ 23. In support of her defense, Head testified that her husband had threatened to kill her if she ever filed for divorce, the couple kept several guns in the house, and at the time she shot him, she and her husband had been arguing and she thought that he had been attempting to move towards her and grab the gun. Id. at ¶¶ 14-18, 22, 28. ¶ 15. The trial court ruled that Head had failed to satisfy the objective threshold for imperfect and perfect self-defense and refused to issue a jury instruction on self-defense. Id. at ¶ 36. Consequently, the court instructed the jury only on first-degree intentional homicide and Head was convicted of the charge. Id. at ¶¶ 36-37. We affirmed, citing State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993), for the proposition that imperfect and perfect self-defense both have objective and subjective components. Id. at ¶ 38. In affirming the conviction, we noted that "[Head] did not testify that her husband made a direct verbal threat against her, or that he engaged in any overtly violent acts or gestures, in the moments leading up to the shooting." Head, 2002 WI 99 at ¶ 38 n.7.

¶ 16. After analyzing the revised statutes governing imperfect and perfect self-defense, the supreme court announced a new standard for unnecessary defensive force (imperfect self-defense). The court modified Camacho to the extent that it contained an objective threshold element requiring defendants to have a reasonable belief that they were preventing or terminating an unlawful interference with their person in order to raise the issue of unnecessary defensive force. Head, 2002 WI 99 at ¶ 104. The court held that defendants seeking a jury instruction on unnecessary defensive force...