99-3071 State v. Head

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“We conclude in this case that Debra’s offer of proof established a sufficient factual basis for a claim of unnecessary defensive force (imperfect self-defense) and that she should have been allowed to present evidence of Harold’s violent character and past acts of violence at trial in an effort to mitigate the charge of first-degree intentional homicide. Moreover, she was entitled to a jury instruction on second-degree intentional homicide on the basis of the evidence that was introduced at trial. Because evidence that should have been admitted was excluded and because an instruction that should have been given was denied, we conclude that Debra Head is entitled to a new trial. Accordingly, we reverse the decision of the court of appeals and remand this case to the circuit court. …

“Based on the plain language of Wis. Stat. sec. 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide. …

“We conclude that evidence of a victim’s violent character and of the victim’s prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense. Such evidence may be probative of a defendant’s state of mind and whether she actually believed that an unlawful interference was occurring, that danger of death or great bodily harm was imminent, or that she needed to use a given amount of defensive force to prevent or terminate the unlawful interference. In determining any of these issues, the circuit court should consider all the evidence proffered. …

“Because the circuit court did not correctly apply the law to the admission of trial evidence to support the two defense theories of self-defense as well as the submission of her requested jury instruction on unnecessary defensive force, we reverse the decision of the court of appeals which affirmed the defendant’s conviction of first-degree intentional homicide, and remand the case to the circuit court.”

CONCURRING OPINION: Abrahamson, Ch. J., with whom Bradley, J., joins. “I join the majority opinion, but write separately because I disagree with the statement of the harmless error standard set forth in ¶¶44 and 138 for the reasons set forth in my dissents in State v. Harvey, 2002 WI 93, ___ Wis. 2d ___, ___ N.W.2d ___, and State v. Tomlinson, 2002 WI 91, ___ Wis. 2d ___, ___ N.W.2d ___.”

Court of Appeals, Prosser, J.

Attorneys:

For Appellant: John D. Hyland, Marcus J. Berghahn, Madison,

For Respondent: Christopher G. Wren, James E. Doyle, Madison