State v. Debra Ann Head

REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.

¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals[1] which affirmed a judgment of the Rock County Circuit Court. The petitioner, Debra Head (Debra), was convicted by a jury of first-degree intentional homicide for shooting and killing her husband, Harold Head (Harold). She claimed that she had acted in self-defense. To support her assertion, Debra attempted to introduce evidence of Harold's alleged threats and acts of violence towards her in the past, as well as her knowledge of Harold's threats and acts of violence towards others. She argued that these incidents explained her mental state at the time of the shooting and justified her theory of self-defense.

¶2 After Debra made an offer of proof, Circuit Judge Richard T. Werner denied her motion to introduce most of the proffered evidence, finding that the evidence did not provide a sufficient factual basis to support a self-defense theory. The court ruled that Debra was required to make a threshold showing that, viewed objectively, she had a "reasonable belief that she was preventing or terminating an unlawful interference with her person or actually believed that . . . the force used was necessary . . . to prevent imminent death or great bodily harm to her." The court determined that Debra had not made such a showing and excluded evidence of Harold's abuse of Debra in the past and of her knowledge of Harold's violent acts towards others. The court also denied Debra's request that it instruct the jury as to both: (1) perfect self-defense, which gives the jury a basis to find a defendant not guilty; and (2) imperfect self-defense, which permits the jury to find guilt on the lesser charge of second-degree intentional homicide.

¶3 The court of appeals affirmed Debra's conviction, and this court accepted her petition for review. At issue in this appeal are the standards for raising perfect self-defense as a complete affirmative defense to a charge of first-degree intentional homicide, and imperfect self-defense (unnecessary defensive force) to mitigate that charge. This case requires us to examine the standards governing the admission of evidence of a victim's violent character and prior acts of violence, and the standards for jury instructions on self-defense.

¶4 First, we hold that a defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that she reasonably believed that she was preventing or terminating an unlawful interference with her person and reasonably believed that the force she used was necessary to prevent imminent death or great bodily harm.[2] A defendant is entitled to an instruction on perfect self-defense when the trial evidence places self-defense in issue. Perfect self-defense is placed in issue when, under a reasonable view of the trial evidence, a jury could conclude that the state has failed to meet its burden to disprove one of the elements of self-defense beyond a reasonable doubt. We make no judgment whether Debra Head was entitled to an instruction on perfect self-defense in this case. We defer to the circuit court, which will hear the case on remand, to apply the correct standards for a self-defense instruction based upon evidence presented at trial.

¶5 Second, we hold that a defendant seeking a jury instruction on unnecessary defensive force (imperfect self-defense) to a charge of first-degree intentional homicide is not required to satisfy an objective threshold showing that she was acting under a reasonable belief that she was in imminent danger of death or great bodily harm or that the force she used was necessary to defend herself. Rather, the defendant must show some evidence that she actually believed that she was in imminent danger of death or great bodily harm and actually believed that the force she used was necessary to defend herself. A defendant is entitled to an instruction on unnecessary defensive force when the trial evidence places this mitigation defense in issue. Unnecessary defensive force is placed in issue when, under a reasonable view of the trial evidence, a jury could conclude that the state has failed to meet its burden to disprove either that the defendant actually believed she was in danger of imminent death or great bodily harm or that she actually believed the force she used was necessary to defend herself, even if both beliefs were unreasonable.

¶6 Third, we hold that a defendant who claims self-defense to a charge of first-degree intentional homicide may use evidence of a victim's violent character and past acts of violence to show a satisfactory factual basis that she actually believed she was in imminent danger of death or great bodily harm and actually believed that the force used was necessary to defend herself, even if both beliefs were unreasonable.

¶7 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.

¶8 Finally, we conclude that Wis JI——Criminal 1014, the jury instruction involving the mitigation of first-degree intentional homicide to second-degree intentional homicide based on unnecessary defensive force, does not accurately reflect the law as set forth in this opinion. We therefore request that the Wisconsin Criminal Jury Instructions Committee revisit and amend Wis JI——Criminal 1014 and other relevant instructions in accordance with this opinion.

I. FACTUAL BACKGROUND

¶9 Our objective in this opinion is not to determine whether the State adduced sufficient evidence to sustain Debra Head's conviction for first-degree intentional homicide. Our objective is to determine whether the defendant offered a sufficient factual basis for self-defense, so that the court was required to admit some of her proffered evidence at trial and required to permit some or all of her theory of the case to go to the jury. Consequently, for purposes of this appeal, we present the defendant's proffered evidence and trial testimony in the light most favorable to the defendant and acknowledge that this one-sided perspective of events does not represent the full story.

¶10 Debra Head was convicted of first-degree intentional homicide for shooting and killing her husband Harold on May 29, 1998, at their home in the Town of Johnstown in Rock County. The Heads had been married for 22 years and had two daughters.

¶11 In late January 1998 the Heads' 17-year-old daughter Brenda informed her mother that she was pregnant and that 21-year-old Chad Graves was the father of her unborn child. On Valentine's Day weekend, Debra and Brenda told Harold about the pregnancy, and he became enraged. He went into the bedroom he shared with Debra. He came out with two guns, stormed out of the house, and drove off to look for Graves, squealing his tires in the driveway. Harold threatened to kill Graves if he found him. He returned home later that night with his mother and brother, who had taken away his guns as well as a billy club that Harold kept in his vehicle.

¶12 Over the next several months, Harold continued to make threats against Graves, once claiming that if he encountered Graves, "he’s dead; they’ll pick him up in a body bag." Debra tried to avoid talk of their daughter's pregnancy because the mere mention of Graves' name would set Harold off. "It was like you lit the fuse of a bomb," she said.

¶13 On the evening of May 28, 1998, Debra and Harold argued about their finances. The argument was not heated.

¶14 The next morning, May 29, Debra overslept. Knowing that she would be late for work, she decided to stay home and talk to Harold again about their finances and apologize for not telling him the truth about not paying certain overdue bills. She testified that she had lied to her husband because she was afraid of his reaction. Harold was asleep, lying on his left side, on the half of the bed closest to the bedroom door. When Debra woke Harold by shaking his foot, he rolled over on his back and then to his right side, to face her. She was standing next to the bed, at his feet. Debra asked Harold if he were still upset about the events of the previous night. He said that he was. The two went on to discuss and work out some of the problems with their finances.

¶15 Debra then turned the conversation towards Brenda and Graves. This upset Harold, who began yelling that Graves had ruined his life and ruined Brenda's life. Debra tried to reason with Harold, telling him that he was mistaken, that he would have to come around, that he could not disown his daughter and refuse to accept Graves or his unborn grandchild. Harold became angry and said: "It's been all your fault ever since. Your fault Brenda got pregnant. It's your fault that this all happened." He continued, "Fuck Chad and fuck you, too. I'm sick of it." Then he said: "Maybe I should just take care of you guys and get on with my life." Debra understood this to be a threat, that Harold thought of her the same as he thought of Graves. She thought Harold was going to kill her and then kill Graves.

¶16 Debra testified that Harold clenched his fists, threw back the covers, and rolled across the bed "like he was going to reach for something." Debra knew that Harold kept a handgun under his side of the bed——the side on which she was now standing. She grabbed the gun, knowing that "that's what he was going for."

¶17 Debra was afraid. "Harold made the first move like he was coming after me, and I reacted to protect myself." She pointed the gun at her husband. They spoke briefly, with Debra telling him that he was wrong in the way he was thinking about Brenda and Chad.

¶18 Harold, 43, was a big man, 6 feet tall, 278 pounds. At first he appeared terrified, but as they spoke "he got more furious" and "that's when he made the move to come toward me." "There was a fire in his eyes that I had never seen before," and Debra was afraid. At that instant, "it was like he was the weapon, I was the victim, and he had made that move; I reacted," she said. "His hands were clenched into fists, and he was getting out of bed, coming at me."

¶19 Debra then shot her husband twice, once in his chest, once in his midsection.[3] An eight-year-old neighbor testified at trial that she heard the shots and that a second or two elapsed between the first and second shots.

¶20 Debra called 911. She told the operator that she and her husband had a fight and that, after he threatened to kill her, she shot him. She said that she did not mean to shoot her husband and did not know that the gun was loaded.

¶21 When police officers arrived, Debra went outside, crying. She told the officers "that her husband had been threatening her friends and that she shot him; that she didn’t know the gun was loaded."

¶22 Detective David E. Bier entered the house and found Harold's body in the bedroom "on his back on the bed. His right leg was hanging over the edge of the bed and his left leg was still under the covers, and he had blankets over his upper torso and head." Blood covered the floor and was splattered on the walls, the ceiling, and the filing cabinet. Police officers found 26 guns, not counting the one used by Debra, in the bedroom. All 26 guns were unloaded, but ammunition for many of them was also found in the bedroom. The officers found firearms, ammunition, or knives in each of the other rooms of the house.

¶23 Debra gave officers two oral and two written statements at the police station. She repeatedly told officers that Harold had not physically abused her but that he had verbally abused her.

¶24 Debra Head was charged with first-degree intentional homicide, pursuant to Wis. Stat. § 940.01 (1997-1998).[4] She admitted that she had killed Harold, but claimed that she did so in self-defense. Prior to her jury trial, Debra filed a motion in limine, seeking to assert self-defense and to admit "McMorris evidence" concerning Harold's violent character and his prior specific violent acts.[5] She also sought to discuss her theory of defense and the proposed supporting evidence in her opening statement. The circuit court allowed Debra to allude to self-defense in her opening statement, but delayed ruling whether to admit the disputed evidence.

¶25 After the State presented its case, the court allowed Debra to make an offer of proof regarding the evidence she sought to admit. With the jury out, Debra testified about a 1991 incident in their house in which Harold was threatening to kick a stuffed and mounted animal. She went over to stop him. Harold "got really mad" and physically picked her up, throwing her off the arm of a couch. Debra hurt her back, could not get up, and had to be taken to a local emergency room for x-rays. "Now I suppose you're gonna tell everybody what I did," she quoted Harold as saying. She replied, "[n]o, I won't. We'll just make up a story," and tell people that "I fell out in the woods."

¶26 Debra described an incident in 1996 when Harold was angry with her and chased her in their house. "He chased me down the hallway towards our bedroom." He "grabbed me and then we flew on to the bed" and broke the bed frame, she said.

¶27 She told how Harold once threw a wrench at her and how he routinely twisted her arms, sometimes picked her up by the armpits and lifted her up off the ground until she cried, and repeatedly twisted her breasts.

¶28 Debra said she had considered filing for divorce in 1982, but Harold threatened to kill her if she ever actually filed. He repeated that threat throughout their marriage. She said she stayed with him partly because of fear.

¶29 Debra also testified about a number of incidents of violence or threats of violence to others. For instance, in 1995 Harold threatened a supervisor at the General Motors plant where he worked, and was suspended for 30 days. He had to undergo counseling and began taking Paxil [a prescription drug used to treat mental depression, panic disorder, and generalized anxiety disorder]. He stopped taking the drug in 1997.

¶30 Debra described a "road rage" incident in September 1997 in which Harold thought a woman had cut him off as she backed out of a driveway. He yelled at the woman, then accelerated his vehicle, pulling in front of her car as they came to a red light. Then he stopped, jumped out of his truck, cursed at the woman, and kicked off the side mirror of her car.

¶31 Debra also noted two incidents in the 1990s involving a neighbor. In one incident, after an argument, Harold punched the neighbor in the face. At a later date, the neighbor complained about Harold shooting a pistol in the back yard. Harold walked over to the neighbor, pistol in hand, "and was gonna hit him with it. But then didn't hit him with the gun but hit him with his fist instead," Debra said.

¶32 Debra also referred to an incident in 1996 or 1997, in which Harold retaliated against a six-year-old boy who had called him a vulgar name. Harold twisted the boy's arm, hurting him, and had to go to court as a result. The incident was offered as an example of Harold's short temper.

¶33 Debra said that Harold "always thought everyone was against him." Sometimes he would pound on the table, or throw things across the room. One time he pushed a microwave off the counter to the floor, and another time he broke all the buttons off the VCR.

¶34 In her offer of proof, Debra also testified in detail about the events that occurred the night before and the day of the shooting, as well as Harold's intense anger about his daughter's pregnancy.

¶35 After Debra made her offer of proof, the court determined that she had not established a sufficient factual basis to support a claim of self-defense. Therefore she was not allowed to present evidence regarding Harold's prior violent conduct and character for violence[6] and she could not argue at trial that she had acted in self-defense. The court based its decision on its review of Wisconsin precedent and its understanding that it could consider only contemporaneous threats made to the defendant in determining whether she had a sufficient factual basis to raise self-defense. The court noted that Harold's threat to Debra on May 29, 1998, was not accompanied by violence, and that Harold did not possess a weapon. The court therefore concluded that Harold's threat did not constitute a sufficient factual basis for her to assert self-defense.

¶36 At the close of evidence, Debra Head's defense counsel requested that the court submit jury instruction Wis JI——Criminal 1014, instructing the jury on perfect self-defense as a complete affirmative defense to first-degree intentional homicide and imperfect self-defense as a factor mitigating first-degree intentional homicide to second-degree intentional homicide. The court had allowed Debra to testify as to what occurred the night before and the morning of Harold's death and the events that had unfolded on and after the day that Harold learned of his daughter's pregnancy. It found that "subjectively she's met whatever she would need to meet, but I don't believe that she's met the objective half of the equation." Consequently, the court ruled that because Debra had failed to establish a sufficient factual basis to assert self-defense, she was not entitled to any jury instruction on self-defense. The court instructed the jury only on first-degree intentional homicide.

¶37 The jury returned a verdict of guilty of first-degree intentional homicide, and the circuit court sentenced Debra to a mandatory term of life in prison. The court allowed the Department of Corrections to determine the defendant's date of parole. Debra appealed, and the court of appeals affirmed in a scholarly decision written by Judge Deininger. State v. Head, 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9. Judge Roggensack wrote a strong and effective dissent.

¶38 The court of appeals determined that the circuit court did not err in refusing to permit Debra to introduce McMorris evidence. Id. at ¶1. Citing State v. Camacho, 176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993), the court concluded that both perfect and imperfect self-defense have objective as well as subjective components. Id. at ¶20. It said that Debra's claim of self-defense was based solely on her testimony and that her testimony "does not support her claim that she reasonably believed that she was acting in self-defense when she shot Harold." Id. at ¶13.[7]

¶39 Having found that Debra had not adequately raised the issue of self-defense, the court concluded that the evidence of Harold's past violent behavior and character was inadmissible. Id. at ¶17.

¶40 The court of appeals also determined that the circuit court did not err in declining to instruct the jury on self-defense and mitigation. Id. at ¶20. The court again based its decision on its conclusion that Debra had failed to make a threshold showing that she reasonably believed she was threatened with an unlawful interference, as required by Camacho. Id. at ¶¶20-21. The court found that because Debra had failed to make the required showing and was therefore unable to present evidence of a subjective belief that she was acting in self-defense, she was not entitled to instructions on either perfect or imperfect self-defense. Id. at ¶21.

II. STANDARD OF REVIEW

¶41 This case requires the court to interpret Wis. Stat. §§ 939.48(1), 940.01(2) and (3), and 940.05. Statutory interpretation presents a question of law which this court reviews de novo, benefiting from the analyses of the circuit court and the court of appeals. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 904 (1998).

¶42 This case also requires us to review the circuit court's decision to exclude proffered evidence and its decision not to submit certain instructions to the jury.

¶43 The decision whether to admit or exclude evidence lies within the sound discretion of the circuit court. Johnson v. Kokemoor, 199 Wis. 2d 615, 635-36, 545 N.W.2d 495 (1996). In reviewing a discretionary decision, we examine the record to determine if the circuit court logically interpreted the facts, State v. Rogers, 196 Wis. 2d 817, 829, 539 N.W.2d 897 (Ct. App. 1995), applied the proper legal standard, and used a demonstrated rational process to reach a conclusion that a reasonable judge could reach. Glassey v. Cont'l Ins. Co., 176 Wis. 2d 587, 608, 500 N.W.2d 295 (1993). To properly exercise its discretion, a circuit court must "apply the correct standard of law to the facts at hand." State v. Margaret H., 2000 WI 42, ¶32, 234 Wis. 2d 606, 610 N.W.2d 475. This court will reverse a discretionary decision if the circuit court's exercise of discretion "is based on an error of law." Marten Transport v. Hartford Specialty, 194 Wis. 2d 1, 13, 533 N.W.2d 452 (1995). In its exercise of discretion, the circuit court's decisions to admit or exclude evidence are entitled to great deference, Martindale v. Ripp, 2001 WI 113, ¶29, 246 Wis. 2d 67, 629 N.W.2d 690, but we will reverse the circuit court if we determine that it applied an incorrect legal standard.

¶44 Ultimately, the court's willingness to entertain a defendant's theory of defense and submit requested instructions to the jury is grounded on the evidence presented to the trier of fact. Whether there are sufficient facts to allow the giving of an instruction is a question of law which we review de novo. State v. Mayhall, 195 Wis. 2d 53, 57, 535 N.W.2d 473 (1995). A court errs when it fails to give an instruction on an issue raised by the evidence. Id. at 57-58 (citing Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743, 750, 235 N.W.2d 426 (1975)). If we determine that a circuit court has committed an error in failing to give a jury instruction, we must assess whether the substantial rights of the defendant have been affected. Wis. Stat. § 805.18(2). An error does not affect the substantial rights of a defendant if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, ¶49, ___ Wis. 2d ___, ___ N.W.2d ___.

III. ANALYSIS

¶45 At issue in this case are the standards for raising perfect self-defense as a defense to a charge of first-degree intentional homicide and unnecessary defensive force (imperfect self-defense) as a factor mitigating first-degree intentional homicide to second-degree intentional homicide. A related issue involves the standards governing the admission of McMorris evidence concerning a homicide victim's violent character and prior acts of violence. Presenting a defendant's theory of the case to the jury depends upon the evidence admitted at trial.

¶46 As noted above, the circuit court in this case did not allow Debra Head to assert self-defense in any form or to submit evidence, including McMorris evidence, supporting such claims. The court emphasized that in order to show unnecessary defensive force as a factor mitigating first-degree intentional homicide, a defendant is required to show that she had a "reasonable belief that she was preventing or terminating an unlawful interference with her person or actually believed that force——that the force used was necessary to prevent . . . imminent death or great bodily harm." The court determined that pursuant to Camacho, 176 Wis. 2d 860, "there is a subjective facet as well as objective facet to the defendant's actions and how the court must view a person——the facts and a person in those particular circumstances. Clearly the subjective facts are as testified by Miss Head as to what she thought in her own head and objective facts are basically what surrounded the event."

¶47 The court further stated that it had considered relevant precedent, and "all of that relevant case law describes facts with simultaneous violence or imminent threats of harm with a weapon in the hand of the victim as predicates to this type of testimony coming in." The court concluded that in this case:

[T]he court feels it has to look at . . . whether there is a basis, a factual basis, [relying] strictly on the threats that were made to Miss Head . . . . [T]here was not a weapon in Mr. Head's hand. [H]e was not making a specific threat to Miss Head . . . I'm going to get you. I'm going to kill you . . . . Bottom line is it was a threat not accompanied by any use of weapons at that time, not accompanied by violence at that time.

¶48 The court added: "I think that the Court has to find a factual basis to let any of this evidence in that was testified to by Miss Head concerning the neighbor, concerning road rage, concerning these things that occurred in the '80s [and the 1991 incident resulting in Debra's back injury]. I have not found that factual basis, so I will not admit the same."

¶49 The court later stated that:

[A]t least at this juncture in the trial there has been no——I'm looking at it from the Camacho aspect of the objective and subjective facet, concerning Miss Head's conduct at the time. Clearly the court feels that subjectively she's met whatever she would need to meet, but I don't believe she's met the objective half of that equation. And there wasn't that sufficient factual basis, objective factual basis, to read that instruction at this point in time.

¶50 Debra now argues that the circuit court erred by requiring her to show a simultaneous act of violence, or the presence of a weapon, in order to raise self-defense. She also claims that the evidence presented in her offer of proof was sufficient to raise self-defense as an issue. In making this argument, she does not dispute that a defendant attempting to raise the issue of perfect self-defense to a charge of first-degree intentional homicide must meet an initial objective threshold. She asserts instead that her offer of proof was sufficient to meet the objective threshold.

¶51 Nor does she dispute the requirement of an objective reasonable threshold for a claim of unnecessary defensive force (imperfect self-defense) or ask that the holding in Camacho be overruled. In an amicus curiae brief, however, the Frank J. Remington Center calls into question the validity of the Camacho determination that to raise the issue of imperfect self-defense, a defendant must first meet an objective reasonable threshold. It asserts that pursuant to Wis. Stat. § 940.01(2)(b), as revised in 1988, an objective threshold is not required for the mitigation of first-degree intentional homicide. It claims that the legislative history of the 1988 revision of § 940.01 shows conclusively that the legislature did not intend to require a defendant to meet an objective threshold to assert imperfect self-defense.

¶52 The State asks us to reject any suggestion that Camacho misstates the requirements of raising imperfect self-defense. It contends that to establish a sufficient factual basis to raise self-defense, a defendant must, pursuant to Camacho, meet an objective threshold by showing a reasonable belief that she was preventing or terminating an unlawful interference with the defendant's person. The State asserts that this threshold is the same whether a defendant claims perfect or imperfect self-defense, that to assert either type of self-defense, a defendant must make an initial threshold showing of objective reasonableness. The State contends that Debra Head failed to meet this objective threshold and therefore was not entitled to assert perfect or imperfect self-defense.

¶53 The initial questions for this court concern the standards for raising either perfect or imperfect self-defense, or both, to a charge of first-degree intentional homicide. To resolve these questions, we must examine the law of homicide in Wisconsin both before and after the 1988 revision of the homicide statutes and revisit this court's decision in Camacho. We begin with the law of homicide in Wisconsin.

A. Wisconsin's Law of Homicide

¶54 The law of homicide in Wisconsin was revised in 1988. 1987 Wis. Act 399. Prior to the revision, Chapter 940 listed nine homicide offenses, including first-degree murder, second-degree murder, and manslaughter. Wis. Stat. §§ 940.01, 940.02, 940.05 (1985-86).

¶55 Section 940.01(1), first-degree murder, read as follows: "Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony." Wis. Stat. § 940.01 (1985-86). Subsection (2) defined "intent to kill" to mean "the mental purpose to take the life of another human being." Wis. Stat. § 940.02 (1985-86). This two-element offense was punishable by life imprisonment. Wis. Stat. § 939.50(3)(a) (1985-86).

¶56 Section 940.02, second-degree murder, prohibited the causing of death:

(1) By conduct imminently dangerous to another and evincing a depraved mind, regardless of human life; or

(2) As a natural and probable consequence of the commission of or attempt to commit a felony.

Wis. Stat. § 940.02 (1985-86). Second-degree murder was a Class B felony punishable by imprisonment not to exceed 20 years. Wis. Stat. § 939.50(3)(b) (1985-86).

¶57 Section 940.05, manslaughter, prohibited the causing of death:

(1) Without intent to kill and while in the heat of passion; or

(2) Unnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony; or

(3) Because such person is coerced by threats made by someone other than his coconspirator and which cause him reasonably to believe that his act is the only means of preventing imminent death to himself or another; or

(4) Because the pressure of natural physical forces causes such person reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another.

Wis. Stat. § 940.05 (1985-86). Manslaughter was a Class C felony punishable by imprisonment not to exceed 10 years. Wis. Stat. § 939.50(3)(c) (1985-86).

¶58 The 1988 revision categorizes homicides based upon the degree of culpability involved, as reflected in the mental element required for each offense. Three of the framers of the revision——Walter Dickey, David Schultz, and James L. Fullin, Jr.——describe four gradations of mental element as follows:

(1) The mental element is intentional when the actor has the purpose to cause death or is aware that death is practically certain to be caused by the conduct [Wis. Stat. § 939.23];

(2) The mental element is aggravated recklessness when the actor is aware that the conduct creates an unreasonable and substantial risk of death or great bodily harm to another under circumstances which show utter disregard for human life [Wis. Stat. §§ 939.24, 940.02];

(3) The mental element is simple recklessness when the actor is aware that the conduct creates an unreasonable and substantial risk of death or great bodily harm to another [Wis. Stat. § 939.24];

(4) The mental element is negligence when the actor should realize that the conduct creates a substantial and unreasonable risk of death or great bodily harm to another [Wis. Stat. § 939.25].

Walter Dickey, David Schultz & James L. Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1330 [hereinafter The Importance of Clarity].

¶59 These different mental elements are now embodied in different homicide statutes carrying different penalties.

¶60 This case concerns an alleged intentional homicide. Intentional homicides are divided into two categories, first-degree and second-degree. First-degree intentional homicide, Wis. Stat. § 940.01, replaced first-degree murder, Wis. Stat. § 940.01 (1985-86). It provides in relevant part:

(1) OFFENSES. (a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

. . . .

(2) MITIGATING CIRCUMSTANCES. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:

(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.

(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.

(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.

(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45(1).

(3) BURDEN OF PROOF. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).

Wis. Stat. § 940.01 (emphasis added).

¶61 Second-degree intentional homicide, Wis. Stat. § 940.05, replaced manslaughter, Wis. Stat. § 940.05 (1985-86). It provides in relevant part:

(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:

(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01(2) did not exist as required by s. 940.01(3); or

(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01(2) did not exist. By charging under this section, the state so concedes.

(2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.

. . . .

(3) The mitigating circumstances specified in s. 940.01(2) are not defenses to prosecution for this offense.

Wis. Stat. § 940.05.

¶62 First-degree intentional homicide and second degree-intentional homicide have two elements in common: (1) the causing of death (2) with intent to kill. The difference between the two degrees of homicide is the presence or absence of mitigating circumstances. The presence of mitigating circumstances, when not disproved by the state, reduces the degree of culpability involved, and likewise reduces the potential punishment. First-degree intentional homicides are punished as Class A felonies. Wis. Stat. § 940.01(1). Second-degree intentional homicides are punished as Class B felonies. Wis. Stat. §§ 940.01(2), 940.05(1).

¶63 In this case, Debra Head attempted to raise the issue of self-defense as a complete defense to the charge of first-degree intentional homicide. She also attempted to raise unnecessary defensive force (imperfect self-defense) as a mitigating circumstance that would reduce the charge from first-degree intentional homicide to second-degree.

¶64 Wisconsin's self-defense statute, Wis. Stat. § 939.48, provides an affirmative defense to a person if the person reasonably believes that another is unlawfully interfering with her person, and if the person uses such force as the person reasonably believes is necessary to prevent or terminate the unlawful interference. Section 939.48(1) reads:

Self-defense and defense of others.

(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

Wis. Stat. § 939.48(1) (emphasis added).

¶65 This key subsection in the self-defense statute has three sentences. The first sentence, stating general principles, is not adequate by itself to address perfect self-defense to a charge of intentional homicide.

¶66 Self-defense can be a complete affirmative defense to a variety of criminal charges, but the requirements for perfect self-defense are increased for an intentional homicide. Implicitly, the statute provides a perfect defense to a person charged with an intentional homicide when the person reasonably believed that an interference with her person involved the danger of imminent death or great bodily harm and reasonably believed that it was necessary to use force which was intended or likely to cause death or great bodily harm to prevent or terminate that interference.

¶67 We are speaking here in the context of intentional killings——not reckless killings, or negligent killings, or accidental killings. In these intentional homicides, a defendant is not privileged to use deadly force——that is, force which is intended or likely to cause death or great bodily harm——unless the person reasonably believes that the level of unlawful interference is such that the force used is necessary to prevent imminent death or great bodily harm. Hence, if a person reasonably believed that she was preventing or terminating an unlawful interference with her person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm, she is not guilty of either first- or second-degree intentional homicide.

¶68 Imperfect self-defense was a component of the pre-revision manslaughter statute, Wis. Stat. § 940.05. The former § 940.05 referenced imperfect self-defense as the causing of death "unnecessarily, in the exercise of [the person's] privilege of self-defense." Wis. Stat. § 940.05(2) (1985-86).

¶69 Unnecessary defensive force, codified in Wis. Stat. § 940.01(2)(b), is the current equivalent of imperfect self-defense. It applies to situations in which a person intentionally caused a death but did so because she had an actual belief that she was in imminent danger of death or great bodily harm and an actual belief that the deadly force she used was necessary to defend her against this danger, if either of these beliefs was not reasonable. Under these circumstances, the crime of first–degree intentional homicide is mitigated to second-degree intentional homicide.

¶70 To sum up, under the present statutes, to prove first-degree intentional homicide, the state must prove that the defendant caused the death of another with intent to kill. Wis. Stat. § 940.01(1). If perfect self-defense is placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that one of the defendant's beliefs was not reasonable. Wis. Stat. § 939.48(1). If unnecessary defensive force is been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the defendant did not actually believe she was preventing or terminating an unlawful interference with her person or did not actually believe that the force she used was necessary to prevent imminent death or great bodily harm——even if those beliefs were unreasonable——to sustain a conviction for first-degree intentional homicide.

¶71 This brings us to the standards and requirements for raising perfect and imperfect self-defense.

B. State v. Camacho

¶72 In 1993 this court determined the standards for raising self-defense in Camacho, 176 Wis. 2d 860, a case involving the crime of attempted first-degree murder under the pre-revision homicide statutes.[8] Camacho shot a deputy sheriff four times after the deputy had stopped his vehicle as it traveled on the highway. Id. at 865. Camacho, an illegal alien, informed the deputy that he did not have a driver's license. Id. at 865-66. The deputy returned to his squad car and verified that Camacho had no driver's license, and then again approached Camacho's car. Id. at 866. According to the deputy, when he leaned in towards Camacho's open window, Camacho grabbed an automatic weapon and shot him four times. Id.

¶73 Camacho's version of the events differed significantly from the deputy's. He testified that the deputy had approached his car with his gun drawn, reached through the window and grabbed Camacho by the hair, and pointed his gun at Camacho's face. Id. Camacho asserted that he pulled away from the deputy and grabbed his own gun. Id. He admitted that he then shot the deputy. Id.

¶74 The State impeached Camacho's testimony at trial by presenting evidence of his prior statements to the effect that he was angry with the deputy because the deputy had allegedly called him crazy, but that the deputy had not pointed his gun at Camacho. Id.

¶75 The circuit court instructed the jury on attempted first-degree murder, self-defense, and attempted manslaughter. Id. at 867. The court did not read the standard jury instructions but instead instructed the jury that, as to perfect self-defense, if Camacho's "conduct was not in self-defense or the defendant was not entitled to use self-defense and the belief by the defendant that he was entitled to use self-defense was unreasonable, then the defendant is guilty of the crime of attempted first degree murder." Id. The court also instructed the jury on "attempted imperfect self-defense manslaughter," stating that to find Camacho guilty it must find that Camacho intended to kill the deputy, and "was entitled to believe under the facts in this case that he was acting in self-defense, but the amount of force used was unnecessary or excessive." Id. (emphasis added).

¶76 The jury found Camacho guilty of attempted first-degree murder. Id. at 868. The court of appeals reversed, concluding that the instructions submitted to the jury by the circuit court "seriously misstated the law" and "const


Case No.:		99-3071-CR
Complete Title:
		State of Wisconsin, Plaintiff-Respondent, v. Debra Ann Head, Defendant-Appellant-Petitioner.

		REVIEW OF A DECISION OF THE COURT OF APPEALS 2000 WI App 275 Reported at: 240 Wis. 2d 162, 622 N.W.2d 9 (Published)

Opinion Filed:		July 11, 2002
Submitted on Briefs:
Oral Argument:		October 4, 2001

Source of Appeal:
	Court:	Circuit
	County:	Rock-Janesville
	Judge:	Richard T. Werner

Justices:
	Concurred:	ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins concurrence. WILCOX, J., concurs (opinion filed). CROOKS, J., joins concurrence.
	Dissented:
	Not Participating:

Attorneys:

(L.C. No.	98 CF 1693)
STATE OF WISCONSIN :		IN SUPREME COURT

State of Wisconsin, Plaintiff-Respondent, v. Debra Ann Head, Defendant-Appellant-Petitioner.			FILED JUL 11, 2002 Cornelia G. Clark Clerk of Supreme Court