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Jury Instructions

WI Supreme Court

Case Name: State of Wisconsin v. Alan M. Johnson

Case No.: 2021 WI 61

Focus: Jury Instructions

In the middle of the night, Alan M. Johnson snuck into the home of his brother-in-law (K.M.) seeking evidence of child pornography. Johnson brought a gun. After searching K.M.’s computer for more than two hours, K.M. appeared in the doorway and saw Johnson. K.M. shut the door, as Johnson described it, and then burst through the door and attacked. The ensuing altercation left K.M. dead; he was shot five times. A jury found Johnson guilty of first-degree reckless homicide. Johnson appealed his conviction, and the court of appeals ruled in his favor and ordered a new trial.

Three issues are presented for our review. First, did the circuit court err in failing to instruct the jury on perfect self-defense? Second, did the circuit court err in failing to instruct the jury on the lesser included offense of second-degree reckless homicide? And finally, did the circuit court err in precluding Johnson from offering evidence regarding what he found on K.M.’s computer the night of K.M.’s death? The court of appeals ruled in Johnson’s favor on all three questions.

We agree the circuit court erred in failing to instruct the jury on perfect self-defense and second-degree reckless homicide. 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. The evidence presented at trial was sufficient to satisfy this low evidentiary bar. We affirm the decision of the court of appeals on these grounds and remand for a new trial.

However, we conclude the circuit court properly exercised its discretion in precluding Johnson from testifying regarding what he found on K.M.’s computer that night. The circuit court concluded this other-acts evidence was not relevant, and even if it was, the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice. While another court might see it differently, this was a permissible and reasonable conclusion, particularly since Johnson was permitted to testify regarding why he was at K.M.’s house and that he “found” what he was looking for. Accordingly, we reverse the decision of the court of appeals on this ground.

Affirmed in part. Reversed in part.


Dissent: ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK, J., joined, and in which KAROFSKY, J., joined ¶¶1-3, 5-23, and 30- 48.

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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