By Rox Laird | Courthouse News
(CN) — A Wisconsin man who shot and killed his brother-in-law when caught searching the victim’s computer for evidence of child pornography is entitled to have jurors consider his claim of self-defense, the Wisconsin Supreme Court held Wednesday.
Alan M. Johnson was convicted by a Walworth County jury of first-degree reckless homicide for the shooting death of his sister’s husband, identified as K.M. in court documents. Johnson had broken into K.M.’s home to search his computer for child pornography. Johnson said he shot K.M. five times to protect himself after K.M. discovered him in the house and physically attacked him.
Johnson appealed his conviction, arguing that the jury should have been given instructions on his claim of “perfect self-defense” – which under Wisconsin law is a complete defense to a homicide charge, unlike “imperfect self-defense,” which can only reduce a charge of first-degree intentional homicide to second-degree intentional homicide. He also argued the jury should have been instructed on the lesser included offense of second-degree reckless homicide.
After hearing oral arguments in January, the state’s highest court ruled 4-3 Wednesday to affirm the decision of the Wisconsin Court of Appeals that the trial court erred in failing to instruct the jury on perfect self-defense and the lesser-included charge.
“Even granting the unusual circumstance of seeing an unwelcome family member in one’s home in the middle of the night, a reasonable jury could conclude that K.M. engaged in an unprovoked physical attack on his brother-in-law to harm and possibly kill him,” Justice Brian Hagedorn wrote for the majority.
As a result, on the question of Johnson acting in self-defense, Hagedorn said “a reasonable jury could conclude he had an objectively reasonable belief that he was preventing an unlawful interference with his person and that he used only force which was necessary to prevent imminent death or great bodily harm.”
On the lesser-included charge issue, the court said evidence was presented at trial that could lead a reasonable jury to conclude that Johnson’s actions did not constitute “utter disregard for human life,” and that “Johnson brought the gun intending to use it only if necessary for self-defense, and that his intent was to obtain the evidence he was looking for and leave without K.M. ever knowing he was there.”
The high court, however, disagreed with the appeals court on a separate question of whether evidence of child pornography found on the computer should have been admitted in court. The four justices in the majority agreed with the trial court’s decision to block that evidence.
Hagedorn was joined in the majority by Justices Ann Walsh Bradley, Rebecca Grassl Bradley and Rebecca Dallet.
Chief Justice Annette Kingsland Ziegler filed a dissenting opinion that was joined by Justices Patience Drake Roggensack and Jill J. Karofsky.
In her dissent, Ziegler said the court should have applied the so-called “castle doctrine,” a homeowner’s right to attack an invader.
“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,” she wrote. “Every home invader should be afraid – afraid of detection, afraid of confrontation, afraid of being shot by the homeowner, afraid of the police, afraid of being convicted for the crime committed. But being afraid does not mean that the home invader can shoot first in ‘self-defense.’“
The majority opinion, Ziegler wrote, “unleashes this perfect defense on the innocent public at great cost. This cannot be the law.”
The Wisconsin Attorney General’s Office, which argued the case for the state, did not respond to a request for comment Wednesday. Neither did Johnson’s attorney, Catherine White of the Madison firm Hurley Burish.
