State v. Scott A. Walker, 2019AP1138, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
A jury found Walker guilty of intentionally pointing a firearm at a person contrary to Wis. Stat. § 941.20(1)(c). He claims his trial lawyer was ineffective for failing to raise a defense under Wis. Stat. §§ 939.45(2) and 939.49(1), which provide a privilege “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 the person’s property.” The court of appeals has some doubt that Walker adequately raised this claim at the Machner hearing, ¶¶6-7, but decides it anyway on the merits, holding there was no prejudice because the facts couldn’t possibly make out the defense.
In fact, the court says Walker “fails to point to even a hint of an evidentiary basis” for the defense-of-property defense, which requires a showing of “specific and imminent” concerns about interference with property “that could reasonably justify the threat represented by the pointed firearm.” (¶10 (citing State v. Dundon, 226 Wis. 2d 654, 668, 594 N.W.2d 780 (1999))).
The facts at trial were that the victim went to Walker’s house because, she believed, he owed her money for house cleaning services. After the two talked outside for a bit Walker told her to leave and said he was going to get his gun. She got in her car and he did in fact come out with the gun, pointing it either at the car or at her. Per the court:
[E]ven by Walker’s own account, he emerged from his house and allegedly pointed the firearm at the victim’s car when there was not any reason “to point it at her or at her car or raise it in any kind of hostile manner. She was leaving.” Walker fails to point to any evidence that the victim was threatening, armed or possibly armed, or disruptive at any time. She confronted him at his residence, which might reasonably have irritated him. But Walker does not identify evidence that she did so in a physically aggressive or noisily defiant manner. More important, Walker identifies no evidence that the victim presented any threat to his property at the critical moment when he decided, according to the jury, to level his firearm at or toward her. He does not dispute that the only evidence at trial pertinent to the timing of events was that he pointed the firearm at her or her vehicle while she was sitting in the vehicle. Walker does not explain how the victim’s sitting in her car could reasonably have meant anything to him other than that she was attempting to depart after he ordered her to leave and said that he was going to get his firearm. Nor does he more specifically explain how she could have reasonably appeared to be a threat to any of his property while seated in her car.
(¶11 (emphasis in original)).
