Green argues that the evidence was insufficient to convict him of first degree reckless homicide because it didn’t prove he acted with utter regard for human life. He also argues for a new trial in the interest of justice on the grounds that: 1) the jury wasn’t fully instructed about the interaction between self-defense and the utter disregard element; and 2) important facts were not introduced or placed in proper context. The court of appeals rejects Green’s claims in a decision heavy on facts and light on analysis.
Green’s sufficiency argument relies on State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, but the court of appeals concludes the evidence in this case (¶¶2-18) and the facts in Miller “differ dramatically”:
¶33 First, … Miller was not charged with a homicide. Second, the incident in Miller lasted almost an hour, whereas here, the incident from the time the car was stopped to the shooting lasted one minute twenty-two seconds. During the time of the incident in the Miller case, Miller called for help by dialing 911 twice. Green asked no one for help or assistance. As a matter of fact, there was testimony that he resisted his friends’ attempt to break up the fight. Miller tried to placate Nakai with the promise of a ride home and an offer for a place to sleep, and Miller never responded when he was slapped across the face by Nakai three times. Here, Green continued to engage Banks after the physical fight started. Moreover, Green never attempted to leave the area or enlist the help of his friends to end the fight. Indeed, when asked why he did not run away, Green said “Why would I run? I don’t think I did anything wrong.” Miller only armed himself after Nakai repeatedly ignored Miller’s pleas to leave the trailer. In contrast, Green never warned Banks that he had a gun and was prepared to shoot him.
¶34 Miller was confronted by an angry, menacing, bizarre-acting, and unknown man. Contrast this with Green, who was in a fist fight for less than a minute and a half with Banks, whom he knew, when he decided to shoot him.
¶36 This scenario supports the charge of first-degree reckless homicide. Green was engaged in a brief fist fight, with his friends trying to intercede, including one of the friends protecting Green by placing himself between Green and Banks, when Green, without retreating and without warning, pulled out his gun and shot Banks in the head from a relatively short distance. These circumstances support a finding of “utter disregard for human life,” as death was a near certainty given the locations of Green and Banks, and the fact Green shot Banks in the head. That Green called 911 and remained at the scene was commendable, but does not erase Green’s earlier conduct.
There’s conflicting evidence about what happened, as the court acknowledges; but applying the sufficiency standard that looks at the evidence in the light most favorable to the verdict, State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990), the court discounts evidence favorable to Green on the ground the jury was free to discount it. (¶35).
The court also rejects Green’s interest of justice arguments. His argument that the jury instruction didn’t properly explain the relationship between utter disregard and self-defense is dismissed because “[t]he instructions given by the court were approved by Green’s attorney and they correctly set forth the law concerning first-degree and second-degree reckless homicide. The instruction on self-defense correctly put the burden on the State to disprove Green’s affirmative self-defense claim.” (¶41). The court likewise cursorily dismisses his argument that key testimony and a key fact relevant to his self-defense claim—namely, that the victim, Banks, was driving Green against his will to a remote place to do him harm—wasn’t introduced or properly contextualized. (¶43).
The court doesn’t engage (one might say: utterly disregards) the salient point made by Green’s jury instruction argument, which is that the jury was told only that it “should consider evidence relating to self-defense in deciding whether the defendant’s conduct showed utter disregard for human life” (¶24) but was given no real guidance about how to do that. The only issues the court mentions—that the instructions correctly set forth the elements of first- and second-degree reckless homicide and put the burden of proof on the state to disprove self-defense—don’t address this point.
The problem here was that the court and trial counsel used Wis. J.I.—Criminal 805 as the model for the instructions. That instruction deals with self-defense for intentional crimes. Because intentional acts and self-defense can co-exist (the defendant intentionally caused bodily harm, for instance, when acting in self-defense) it is appropriate to have the jury decide whether the elements of the intentional crime have been proven before considering self-defense. But that’s not the case for reckless or negligent crimes. And that’s why there’s Wis. J.I.—Criminal 801, the self-defense instruction for reckless and negligent crimes, which integrates the self-defense standard into the discussion of the recklessness and utter disregard elements because, as the Jury Instruction Committee explains, both recklessness and negligence:
require that conduct create an unreasonable risk of death or great bodily harm. A risk is not unreasonable if the conduct undertaken is a reasonable exercise of the privilege of self-defense. Because criminal recklessness or criminal negligence and lawful actions in self-defense cannot coexist [unlike with intentional crimes, where intent to harm and self-defense do coexist], it is best to advise the jury to consider the law relating to self-defense when considering those elements.
Wis. J.I.—Criminal 801 (2014), at 3, n.1 . The Committee makes the same point for the utter disregard element. Id. at 5, n.7. So why didn’t the trial court and trial counsel use Wis. J.I.—Criminal 801? According to the state (brief at 32), it was because State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, held the instruction was flawed for not making it clear the burden to disprove self-defense was on the state, and the instruction hadn’t yet been revised in light of that decision. (A new version was approved in February 2014, shortly after Green’s trial. Wis. J.I.—Criminal 801 (2014), Comment, at 3).
So, instead of trying to revise the instruction in light of Austin the judge and lawyers relied on an inapt model and ended up with an instruction that, as Green asserts, didn’t much help the jury apply self-defense to the elements of the offense. As to whether that matters: the court did instruct the jury that it could not find Green guilty of first-degree reckless homicide unless it was satisfied that his conduct showed utter disregard for human life, taking into account a number of factors including “why the defendant was engaged in that conduct.” Given that the parties argued the question of self-defense, that the instruction on the charged offense directed the jury to take the reason for the defendant’s conduct into account, and that the court separately instructed the jury on what constituted self-defense, it might be that the real controversy was fully tried. But before it reaches that conclusion, the court should actually consider the problem with the instruction, something it failed to do.