Necessary instructions or ‘limitless loophole’?: Court splits on decision in break-in-gone-bad case

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A majority of justices on the Wisconsin Supreme Court has ruled in favor of a defendant who shot his brother-in-law after breaking into his house.

The decision drew a dissent warning that the majority was establishing a “limitless loophole” that would give home invaders the right to shoot first no matter the circumstances.

At the heart of the case is Alan M. Johnson’s decision in 2016 to sneak into his brother-in-law’s house in the middle of the night to look for evidence of child pornography on a computer. The brother-in-law, identified as K.M., spotted Johnson and attacked him. The resulting altercation left K.M. dead with five gunshot wounds. Johnson twice denied knowing how K.M. had died but later confessed to killing him, according to the state Supreme Court’s opinion in the case.

A jury found Johnson guilty of first-degree reckless homicide. Johnson appealed his conviction, and the Court of Appeals ordered a new trial. The appellate court ruled that the circuit court had erred in failing to instruct the jury on what is meant by the idea of “perfect self-defense,” failing to instruct the jury on the lesser included offense of second-degree reckless homicide and precluding Johnson from offering evidence of what he had found on K.M.’s computer.

Majority: Instruction on perfect self-defense, second-degree reckless homicide necessary

The state Supreme Court reviewed all three matters and released its decision on Thursday. The 4-3 majority — made up of Justices Brian Hagedorn, Ann Walsh Bradley, Rebecca Bradley and Rebecca Dallet — agreed that the circuit court had erred in failing to instruct the jury on the matters of perfect self-defense and second-degree reckless homicide. The jury was aware that K.M. had been physically violent with Johnson in the past, knowledge that could have lent credibility to the idea that Johnson had to defend himself, according to the opinion.

“When determining whether these instructions should be provided, the evidence is viewed in the light most favorable to the defendant, and the instruction must be provided if evidence is presented from which a reasonable jury could find in the defendant’s favor on the instructed elements,” Hagedorn wrote. “The evidence presented at trial was sufficient to satisfy this low evidentiary bar.”

The majority also decided the circuit court had properly precluded Johnson from testifying about what he found on K.M.’s computer. The opinion said this other-acts evidence wasn’t relevant and, even if it was, the circuit court had reached a permissible and reasonable conclusion.

“This evidentiary decision was a quintessential judgment call of the type we rely on circuit courts to make every day,” Hagedorn wrote. “And whether we would have made the same decision or not, it was a reasonable call within the bounds of the law.”

The high court, therefore, reversed the appellate court’s decision on this issue and remanded the cause to the circuit court for further proceedings.

Dissent: Majority created ‘limitless loophole’

Chief Justice Annette Ziegler and Justice Pat Roggensack, along with Justice Jill Karofsky in part, disagreed with the majority’s conclusion. In her dissent, Ziegler said the majority’s opinion establishes a “limitless loophole” for home invaders that “green lights” criminals taking the law into their own hands.

“I fear that the teaching from the majority’s opinion is that criminal home invaders should go armed, shoot first, and later claim to be afraid so to avoid conviction,” Ziegler wrote.

The dissent said the idea of the perfect defense is unsupported in the law, which prohibits trespassing and gives K.M. rights under the Castle Doctrine to fight off Johnson. Ziegler wrote that she would hold that Johnson wasn’t entitled to jury instructions on either perfect self-defense or second-degree reckless homicide. Follow @WLJReporter