State v. Head

2000 WI App 275, 622 N.W.2d 9, 240 Wis. 2d 162, 2000 Wisc. App. LEXIS 1107

Opinions

DEININGER, J.

¶ 1. Debra Ann Head appeals a judgment convicting her of first-degree intentional homicide. She claims the trial court erred in (1) refusing to allow testimony regarding the victim's prior specific violent acts, (2) declining to instruct the jury on self-defense and mitigation, and (3) depriving her of her constitutional right to testify on her own behalf and confront the evidence against her. We are not persuaded that the trial court erred in any of these regards, and accordingly, we affirm.

BACKGROUND

¶ 2. Debra was arrested and tried for fatally shooting her husband, Harold Head. Debra testified that about four months prior to the murder, Harold became angry when he found out that their older daughter was pregnant. He stormed into his bedroom and came out with two pistols, saying that he was going to look for the alleged father to shoot him. Over the next four months, her husband's threats against the alleged father continued, but Harold did not include Debra as a target of the threats. Harold said such things as: "Given the right opportunity, if I ever come across [the alleged father], he's dead; they'll pick him up in a body bag."¹

¶ 3. Debra testified that on the morning of the shooting, she woke Harold to discuss financial issues. She asked if he was mad, to which he responded, "What do you think?" They discussed and resolved some financial matters. At that point, Harold was lying on the bed and she was next to the bed at his feet. Debra then changed the topic of conversation to their pregnant daughter, which, according to Debra, "lit that fuse" in Harold. He responded with a stream of epithets directed against the alleged father and said that he was "so sick of him." He also blamed Debra for their daughter's becoming pregnant. When Debra asked Harold to reason with her about "the kids," she testified that he replied, "I'm so sick of hearing about this. . . . Maybe I should just take care of you guys and just get on with my life."

¶ 4. Debra interpreted Harold's statement that he would "take care of you guys" to mean he would do bodily harm to her. She described what happened next as follows: "And with that he whipped the covers aside and rolled across with his fist. . . like he was going to reach for something, and that's when I reached for the gun ..." which was on his side of the bed on the floor. Debra testified that she then stepped back a couple of steps and told Harold, "[yjou're wrong about this situation, you're wrong." She held the gun up and pointed it at Harold. Her testimony at trial regarding what happened next is as follows:

Q What did he [Harold] do [after you got the gun]?

A He just sat there at first realizing that — that I had — -had the gun, and—

Q How did he look?

A I don't really remember. Terrified.

Q What was his emotional state?

A He was — He knew I was in control. He was terrified.

¶ 5. Debra claimed that she thought her husband would try to take the gun away from her and kill her. Debra fired the gun when he made a "roll to sit up move." Debra testified that about six feet separated her from her husband when he made the move to sit up. According to her testimony, "he had fists; just sat up more in the bed and made that move like he was — I knew he was coming after me, so I fired the shot not aiming the gun anywhere just to stop him, and he flew back in the bed ...." After the first shot, Harold "made another move like he was going to get up . . . toward [Debra]," and she fired a second shot. When the police arrived, Harold's left leg was still on the bed under the covers, and his right leg was hanging off of the bed.

¶ 6. Prior to her jury trial on the charge of first-degree intentional homicide, Debra filed a motion in limine to admit character evidence about her husband, to admit evidence regarding prior specific violent episodes involving her husband, and to permit her to discuss this testimony in her opening statement.² The trial court ruled that Debra could discuss her self-defense theory in her opening statement and, with one exception, describe expected testimony in support of it.³ The court warned Debra, however, that it would wait until hearing the evidence before determining whether there was a factual basis for self-defense, and any discussion by her counsel in opening statements of her theory of self-defense and the victim's prior acts would thus be at her own risk. Subsequently, the court concluded that the evidence presented at trial, including Debra's testimony regarding what transpired immediately prior to the shooting, was insufficient to establish self-defense. As a result, the court refused to admit testimony regarding the victim's character and prior specific violent acts, and it denied Debra's request for jury instructions on self-defense and mitigation.

¶ 7. The jury found Debra guilty, and she appeals the judgment convicting her of first-degree intentional homicide.

ANALYSIS

¶ 8. The basic question which underlies all of the issues Debra raises on appeal is whether there was a sufficient factual basis for Debra's theory of self-defense to permit her, first, to introduce evidence of Harold's prior violent acts, and then to have the jury instructed on either "perfect" or "imperfect" self-defense, or both. The trial court concluded that Debra had not established a factual basis for self-defense. Although the analysis we apply varies slightly in the separate inquiries, we conclude that the trial court did not err in concluding that Debra should not be permitted to introduce so-called McMorris evidence,⁴ or in declining to instruct the jury on self-defense and mitigation.

¶ 9. In order to establish the absolute privilege of self-defense which could result in her acquittal ("perfect self-defense"), Debra needed to show that: (1) she reasonably believed that she was preventing or terminating an unlawful interference with her person; (2) she reasonably believed that force or the threat thereof was necessary to prevent or terminate the interference; and (3) she reasonably believed that the actual amount of force used was necessary to prevent or terminate the interference. WlS. STAT. § 939.48(1) (1997-98);⁵ State v. Camacho, 176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993). The supreme court held in McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), that "[wjhen the issue of self-defense is raised in a prosecution for assault or homicide and there is a factual basis to support such defense, the defendant may, in support of the defense, establish what the defendant believed to be the turbulent and violent character of the victim by proving prior specific instances of violence within his knowledge at the time of the incident." Id. at 152 (emphasis added). Whether to admit such evidence "rests in the exercise of sound and reasonable discretion by the trial court." Id.

¶ 10. The supreme court cautioned in McMorris that "[i]n those instances in which the defendant failed to establish a factual basis to raise the issue of self-defense, prior specific acts of violence by the victim would have no probative value." Id. at 152.⁶ The court did not further elucidate the threshold showing required of a defendant in order to introduce evidence of a victim's reputation and prior violent acts.⁷ Subsequently, however, in Bedford v. State, 65 Wis. 2d 357, 222 N.W.2d 658 (1974), the court affirmed a trial court's exclusion of a defendant's proffered testimony regarding a victim's prior acts of violence. It noted that the "only basis for the defendant's claim of self-defense is the defendant's own testimony," and even that testi mony indicated "that the victim was the only one in the position of a self-defender." Id. at 361-62. The court also found it significant that, "[f]rom the defendant's own testimony it is established that defendant could have withdrawn from the scene prior to the fatal stabbing but chose not to do so." Id. at 362. Thus, the court concluded:

Under the circumstances, we are of the opinion that the testimony failed to provide the "sufficient factual basis" required by McMorris as a prerequisite to the admission of testimony regarding the defendant's personal knowledge of prior specific instances of violence on the part of the victim. Therefore, the trial court was correct in excluding such testimony.

Id. 8

¶ 11. Here, the trial court came to a similar conclusion. In its ruling denying Debra the opportunity to admit testimony regarding Harold's reputation and past violent acts, the court cited the requirement in McMorris that a factual basis for self-defense must be present before such evidence may be admitted. It also noted, correctly, that the elements of both "perfect self-defense" and "imperfect self-defense" (mitigation) have objective as well as subjective components. The court then reviewed the fact patterns in a number of cases in which appellate courts have concluded that a factual basis for self-defense had been established, and it reviewed in detail Debra's testimony during her offer of proof regarding the events and circumstances on the morning of the shooting. The court concluded:

[Tjhere was not a weapon in Mr. Head's hand [and] he was not making a specific threat to Miss Head that I'm going to get you. I'm going to kill you. There is no testimony from Miss Head that Mr. Head made a move to go down to all these weapons that were at the foot of the bed that we heard about, but that he made a move to come after her and that move was simply throwing the covers back. Bottom line is it was a threat not accompanied by any use of weapons at that time, not accompanied by any violence at that time.

¶ 12. It is not clear from these comments whether the trial court determined that Debra had not established that she actually believed that, when she shot Harold, she was preventing or terminating an unlawful interference with her person, or whether the court concluded that even if Debra so believed, the belief could not be deemed an objectively reasonable one under the circumstances.⁹ If she failed to establish either the subjective (actual belief) or objective (reasonableness of the belief) component, however, she failed to provide "a factual basis to support" self-defense. See McMorris, 58 Wis. 2d at 152. We conclude that the trial court did not erroneously exercise its discretion in ruling that the requirements for admitting other acts and reputation evidence relating to the victim had not been met. The trial court applied the correct law to the relevant facts, and through a well-articulated rational process, reached a conclusion which a reasonable judge could reach. See Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). We do not deem it fatal to the trial court's evidentiary ruling that it did not articulate the precise deficiency in Debra's showing. See, e.g., Bedford v. State, 65 Wis. 2d 357, 222 N.W.2d 658 (1974).

¶ 13. As in Bedford, the only basis for Debra's claim of self-defense was her own uncorroborated testimony, and that testimony does not support her claim that she reasonably believed that she was acting in self-defense when she shot Harold. She 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. Her testimony that she could not leave the bedroom was undermined by her statements that she was six feet from her husband, that he was lying down on the bed, and that she had a gun trained on him for several moments before she shot him.

¶ 14. Based on Debra's own testimony, she was "in control" of the situation. It is undisputed that Harold did not have a weapon when he was shot. We agree with the State that, even if Debra could be said to have been acting in self-defense when she preemptively picked up the gun, it is much harder to accept that she was acting in self-defense when she subsequently fired it. Although the potential for an unlawful interference may have once existed, it was no longer actual or imminent when she fired. We therefore conclude that the trial court did not err in determining that Debra had not established a sufficient factual basis that, in shooting Harold, she reasonably believed she was acting to prevent or terminate an unlawful interference with her person. Cf. Shawn B.N. v. State, 173 Wis. 2d 343, 369-70, 497 N.W.2d 141 (Ct. App. 1992) (a trial court must apply the objective "reasonable view of the evidence" test in deciding whether a mitigational defense should be submitted to the jury).

¶ 15. Debra argues, however, that "the presentation of subjective testimony by an accused, going to a belief that she had to take steps in self-defense, ought be all that is required for the admission of self-defense evidence,"¹⁰ and that Bedford actually supports this view. We disagree. Contrary to Debra's assertion, the supreme court in Bedford did not imply that it was affirming the trial court's exclusion of McMorris evidence only because the defendant had failed to establish the subjective component of self-defense. The court in Bedford simply reviewed the facts of record, with particular emphasis on the defendant's own testimony, and concluded the McMorris standard of a "sufficient factual basis" had not been met. Moreover, we are not convinced that a trial court is precluded from evaluating the objective reasonableness of a proffered belief when conducting the necessary inquiry, and in fact, conclude that it must do so. We thus reject Debra's attempt to distinguish Bedford, and we conclude that its holding supports rather than undermines the trial court's evidentiary ruling in this case.

¶ 16. Debra also argues that the trial court committed an error of law by divining a "rule" from prior appellate decisions that, in order to establish a factual basis for self-defense, a defendant must show that there was "simultaneous violence or imminent threats of harm with a weapon in the hand of the victim." We agree with Debra that the trial court did note that "all of the relevant case law" it had consulted contained one of these two circumstances. We will also assume, without deciding, that a factual basis for self-defense may be established with neither "simultaneous violence or imminent threats of harm with a weapon in the hand of the victim" being present. We reject, however, Debra's claim that the trial court committed an error of law in its evidentiary ruling. We read the trial court's remarks as simply finding it significant that the present record lacks any evidence of either of two circumstances commonly found in cases where a factual basis for self-defense is deemed established.¹¹

¶ 17. We conclude that the trial court did not commit an error of law by noting the absence of two circumstances under which the privilege of self-defense commonly arises. The court implicitly concluded that no other facts were present that would engender a reasonable belief on Debra's part that she was preventing or terminating an unlawful interference at the time of the shooting. The facts related by Debra in her offer of proof that are most favorable to her claim of self-defense, are these: (1) during the four months prior to the shooting, Harold had made specific threats of violence toward the man who had impregnated his daughter; (2) he became upset when Debra brought up the topic of the daughter's pregnancy on the morning of the shooting ("the fuse had lit"); (3) he made an ambiguous statement that could be interpreted as a threat against Debra on the morning of the shooting ("Maybe I should just take — get—take care of you guys and get on with my life."); and (4) he made a "move to sit up" in bed "and come toward" Debra while she was pointing a gun at him. We conclude that the trial court did not err in determining that these facts, unaccompanied by a violent act, overt threat, or possession of a weapon on Harold's part, fail to establish a sufficient factual basis for a claim of self-defense.

¶ 18. Having concluded that the trial court did not err in excluding Debra's proffered McMorris evidence, we turn now to whether it erred in refusing to give the self-defense instructions she requested. A trial court has broad discretion in determining which instructions to give to the jury. State v. Turner, 114 Wis. 2d 544, 551, 339 N.W.2d 134 (Ct. App. 1983). The supreme court has explained the inquiry which must be made when a defendant requests a "theory of defense" instruction:

A defendant is not automatically entitled to a jury instruction on an offered defense. The defendant has the initial burden of producing evidence to establish a statutory defense to criminal liability. . . . The rule generally applied to instructions is "that a trial court is not required to give requested instructions unless the evidence reasonably requires it. However, a defendant in a criminal case, when he properly requests, is entitled to have the jury consider any defense which is supported by the evidence. Ultimate resolution of the issue of the appropriateness of giving [a] particular instruction turns on a case-by-case review of the evidence, with each case necessarily standing on its own factual ground.... [W]here the defendant appeals from the denial of a request instruction, 'the evidence is to be viewed in the most favorable light it will reasonably admit from the standpoint of the accused.'"

State v. Stoehr, 134 Wis. 2d 66, 87, 396 N.W.2d 177 (1986) (citations omitted).

¶ 19. Thus, a trial court is justified in declining to give a requested instruction in a criminal case if it is not "reasonably required" by the evidence. State v. Hilleshiem, 172 Wis. 2d 1, 9-10, 492 N.W.2d 381 (Ct. App. 1992). The test for the sufficiency of evidentiary support for a requested jury instruction is whether "a reasonable construction of the evidence will support the defendant's theory, 'viewed in the most favorable light it will reasonably admit from the standpoint of the accused.'" State v. Coleman, 206 Wis. 2d 199, 213, 556 N.W.2d 701 (1996) (citation emitted). In determining whether there is sufficient evidentiary support, "neither the trial court nor the reviewing court may weigh the evidence, but instead may only ask whether a reasonable construction of the evidence, viewed favorably to the defendant, supports the alleged defense." Id. at 213-14.

¶ 20. As with its ruling on McMorris evidence, we conclude that the trial court did not err in denying Debra's requests that the jury be instructed on the absolute defense of self-defense and on "imperfect self-defense," which would permit the jury to conclude that she was guilty of second-degree homicide in lieu of first-degree.¹² The latter also requires a threshold showing that Debra, at the time of the offense, "pos sessed a reasonable belief that [s]he was threatened with an unlawful interference" with her person. See State v. Camacho, 176 Wis. 2d 860, 873, 501 N.W.2d 380 (1993). Imperfect self-defense as mitigation differs from the absolute defense in that actual, but unreasonable, beliefs as to the necessity of the use of force or the amount thereof, permits mitigation of the homicide. Id.

¶ 21. Debra concedes that her testimony before the jury regarding the events on the morning of the shooting did not differ materially from that given during her earlier offer of proof. We have reviewed this testimony above in concluding that it did not provide a sufficient factual basis to require the trial court to admit evidence of Harold's prior violent acts. We similarly conclude, that "a reasonable construction of the evidence, viewed favorably to the defendant," see Coleman, 206 Wis. 2d at 213-14, does not require that the proffered instructions on either perfect or imperfect self-defense be given. Accordingly, we conclude that the court did not erroneously exercise its discretion in declining to do so.

¶ 22. Finally, Debra claims that the trial court erred by "infringing on [her] constitutional right to testify in her own behalf, and confront the evidence used against her." At trial, through the testimony and records of police officers who interviewed her following the shooting, the State introduced statements by Debra that Harold had never physically abused her. Debra requested permission from the court to testify that there had been physical abuse. The trial court decided that she was seeking to introduce evidence that it had already ruled inadmissible for lack of a factual basis to support a theory of self-defense, and it denied the request. We conclude that the court committed no constitutional error in so ruling.

¶ 23. In support of her constitutional claim, Debra cites State v. Boykins, 119 Wis. 2d 272, 277, 350 N.W.2d 710 (Ct. App. 1984), where we held that the trial court had deprived the defendant of his right to present a defense and call witnesses on his own behalf when it precluded him from presenting his own and other testimony regarding the victim's violent reputation and acts. But in Boykins, the defendant had clearly established a factual basis for his claim of self-defense — he and other witnesses testified that the victim lunged at him, had a gun and threatened to shoot the defendant. Id. at 275. The trial court evidently agreed that there was a factual basis for self-defense, inasmuch as it instructed the jury on self-defense. It had excluded the proffered testimony on "remoteness" grounds, a determination we found to be erroneous. Id. at 276-78.

¶ 24. Here, however, as we have discussed, a sufficient factual basis for a self-defense claim was lacking, and thus "prior specific acts of violence by the victim would have no probative value." McMorris, 58 Wis. 2d at 152. The proffered evidence was therefore irrelevant, and there is no constitutional right to present irrelevant evidence. State v. Jackson, 188 Wis. 2d 187, 196, 525 N.W.2d 739 (Ct. App. 1994). We acknowledge that Debra was deprived of the opportunity to rebut or explain the statements she made to police that Harold had verbally but not physically abused her in the past. These statements were also largely irrelevant given the lack of a viable self-defense claim, but Debra did not object to them at trial, and she does not claim error on appeal stemming from their introduction, except insofar as the court precluded her from refuting them. Accordingly, we conclude the trial court did not err in affirming its prior decision that Debra's proffered testimony regarding her husband's abusive acts was irrelevant and inadmissible.

CONCLUSION

¶ 25. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

Footnotes

1

Debra's testimony regarding statements Harold had made in reference to the alleged father included his use of numerous epithets. Inasmuch as Harold's exact words, as related by Debra, are not critical to our analysis, we have paraphrased the statements she attributed to him.

2

Debra testified in an offer of proof that at various times during their twenty-one-year marriage, Harold had committed various acts of physical violence directed toward her and others.

3

The trial court concluded that testimony regarding one alleged incident would definitely not be permitted at trial because the incident was too remote in time to be relevant.

4

See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), which we discuss below.

5

All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

6

Generally, evidence of other crimes, wrongs, or acts is inadmissible to prove a person's character or to show that he acted in conformity therewith. WlS. STAT. § 904.04(2). Evidence of specific violent conduct by a homicide victim is not admissible to support an inference about the victim's actual conduct during the incident which resulted in death, but’ only to show the accused's state of mind about the danger the victim posed. Werner v. State, 66 Wis. 2d 736, 743, 226 N.W.2d 402 (1975). Such evidence helps the jury determine whether the defendant "acted as a reasonably prudent person would under similar beliefs and circumstances" in the exercise of a privilege of self-defense. McMorris, 58 Wis. 2d at 151.

7

The supreme court noted in McMorris that it was "undisputed that the defendant adduced at trial sufficient evidence to raise the issue of self-defense. The trial court so instructed the jury." McMorris, 58 Wis. 2d at 146 (footnotes omitted). This passage, and the court's citation of Thomas v. State, 53 Wis. 2d 483, 192 N.W.2d 864 (1972) in a footnote, implies that whether to admit evidence of a defendant's knowledge of prior acts of violence on the part of the victim should be decided on the same standard as that applied when determining whether the jury may be instructed on the issue of self-defense.

8

We note that, even though the trial court in Bedford excluded McMorris evidence, it did instruct the jury on self-defense, " 'because there was some testimony by the defendant, and frankly, the court thought it was leaning over when it ruled in favor of the defendant by including it.'" Bedford v. State, 65 Wis. 2d 357, 363, 222 N.W.2d 658 (1974). Be that as it may, the supreme court affirmed the trial court's refusal to instruct the jury on the lesser included offense of manslaughter after determining that the record did not "make[ ] reasonable a conclusion that the defendant here killed believing his act was necessary in self-defense." Id. at 364.

9

At a later point in the trial, when considering Debra's proposed self-defense and mitigation instructions, the court indicated: "Clearly the court feels that subjectively she's met whatever she would need to meet, but I don't believe she's met the objective half of that equation." We take this to mean that the court acknowledged that Debra testified that she believed Harold's statements and actions just prior to the shooting constituted an unlawful interference with her person which she needed to prevent or terminate.

10

The dissent's analysis appears to tacitly accept this argument. In the dissent's view, once a defendant who previously suffered violence at the hands of the victim testifies that she believed the victim was going to harm her, she must be allowed to testify to the defendant's past violent acts in order that the jury may evaluate the reasonableness of her belief. In support, the dissent borrows from cases which discuss the defense of provocation. See State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161 (1983); and State v. Hoyt, 21 Wis. 2d 284, 128 N.W.2d 645 (1964). Debra's arguments to this court, however, rely exclusively on the McMorris standard for determining the admissibility of evidence of Harold's past violent conduct toward both herself and others. She asserts in her brief that "[t]he discussion in Felton had no application to the present case as Felton involved the defense of provocation, not self-defense." The State agrees that Felton "applies only tangentially, if at all, to this issue." We thus confine our discussion to the application of the McMorris standard and the law of self-defense, as the parties have argued the case, and we do not attempt to develop an alternative analysis as does the dissent.

11

The cases cited by the trial court include State v. Boykins, 119 Wis. 2d 272, 275, 350 N.W.2d 710 (Ct. App. 1984) (witnesses testified that, prior to the defendant shooting the victim, the victim had lunged at the defendant, taken out his gun and threatened to kill the defendant); State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996) (defendant heard kicking at door and feared an imminent robbery attempt, which he had experienced previously and which had involved a gun); and State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App.), review denied, 228 Wis. 2d 168, 599 N.W.2d 409 (Wis. May 25, 1999) (No. 98-1739-CR) (defendant testified that, immediately prior to the shooting, victim had choked him and thrown him against a wall).

12

See WIS. Stat. § 940.01(2)(b):

(2) MITIGATING CIRCUMSTANCES. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:

(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.