New trial ordered so killer can argue self-defense
A man convicted of killing his brother-in-law while trespassing in his house deserves a new trial because the trial judge refused to instruct the jury on self-defense, the Court of Appeals ruled Wednesday.
Alan M. Johnson, 35, admitted he sneaked into Ken Myszkewicz’s Whitewater house around midnight in 2016 hoping to find child porn on his computer so Myskewicz would be arrested. Johnson said he was worried that if Myskewicz was viewing child porn he might one day abuse Johnson’s other sister’s young daughters.
He said Myszkewicz, 43, caught him in the computer room around 2 a.m. and attacked him. Johnson shot Myszkewicz — who was unarmed — five times. A Walworth County jury found Johnson guilty of first-degree reckless homicide after the judge denied Johnson’s request for an instruction on selfdefense. Johnson is serving a 25-year prison sentence.
The Court of Appeals said the unusual facts in his case raise the question of whether under Wisconsin’s “castle doctrine” a homeowner can ever be unlawfully interfering with an intruder such that the intruder can raise self-defense.
The castle doctrine says someone in their home, car or business has no duty to retreat from an attack or intruder, and presumes the castle owner’s use of even deadly force is reasonable to prevent death or serious harm.
It would have aided Myzkewicz greatly if he had shot Johnson upon finding him in his home, uninvited, in the middle of the night.
But it was Johnson who used deadly force, and to be justified as self-defense he would have to show Myzkewicz unlawfully interfered with him, and that the force he used to repel Myzkewicz was reasonable.
It seems contradictory that someone with a presumed privilege to shoot an intruder could ever be unlawfully interfering with that person.
But the doctrine does not apply if the occupant is engaged in criminal activity. For instance, the doctrine wouldn’t protect a drug dealer selling from his home who shoots police who break in to serve a warrant.
Johnson had argued that exception applied to his brother-in-law, because he had child porn on his computer.
The trial judge rejected that theory, but the Court of Appeals said the jury should have made that decision.
Further, it found denying the selfdefense instruction was more than harmless error.
It noted the jury rejected verdict options of first-degree and second-degree intentional homicide, and burglary, suggesting “the jury believed all or some of Johnson’s testimony or resolved competing inferences in his favor,” and might have acquitted him entirely if they had been instructed about self-defense.
The appellate court also said the trial judge erred in not allowing Johnson to present evidence that there was, indeed, child porn on Myzkewicz’s computer. It would have helped a jury understand Myzkewicz’s state of mind, the court found, that he knew he would likely to go to prison if Johnson told police about the material.
“The existence of child pornography on (the) computer made Johnson’s claim of self-defense more probable than it would have been without the evidence,” the court found,
Judge Paul Reilly wrote the District II decision, joined by judge Lisa Neubauer and Jeffrey Davis.
Johnson’s father, Eric Johnson, served as Racine County Sheriff from 1992-94.