Defense Win: COA clarifies defense of others doctrine and holds erroneous instructions merit new trial
State v. Tommy Jay Cross, 2023AP2013-CR, 11/4/25, District III (recommended for publication); case activity
In an opinion that might remind some readers of their first year of law school, COA outlines the basic principles of Wisconsin’s self-defense doctrine and holds that the jury was given inaccurate instructions on the subject as it pertains to defense of others.
As with most cases involving self-defense, the case is fact-intensive and involves competing trial narratives. The underlying incident began as a fight between three coworkers–Shenelle McGrew (Cross’s girlfriend), “Aaron” and “Jennifer” (Aaron’s girlfriend)–in the parking lot outside their place of employment. (¶9). When Cross learned of the fight, he drove to the parking lot. (¶10). Arriving “approximately 15 seconds” after the fight stopped, Cross drove his car toward Aaron and may or may not have hit him with the car (this fact appears to have been disputed at trial.). (Id.). This was the basis for count two, which ultimately resulted in a guilty verdict for second-degree recklessly endangering safety with use of a dangerous weapon. (¶18).
After Cross attacked Aaron with his car, Aaron pulled out a gun and pointed it Cross. (Id.). Cross “backed his vehicle away from Aaron.” (Id.). McGrew and Jennifer then resumed fighting. (¶11). Aaron approached and, according to the defense, hit McGrew with his gun and pointed it at her head. (¶12). Cross drove his car at Aaron a second time, causing “significant” injuries to Aaron’s leg. (¶11). This was the basis for count one (the focus of much of this opinion), charged as first-degree reckless injury. (¶1).
During the jury instruction conference, there was significant debate with respect to the defense of others and provocation instructions. (¶13). During the conference, the court ultimately “stated that it did not believe Cross could defend McGrew from an attack by Aaron if Cross provoked Aaron into allegedly provoking McGrew.” (¶15). Defense counsel objected to the court’s proposed instruction but ultimately stated he would “accept” the court’s ruling. (Id.). Later, he appeared to assent to some other semantic modifications. (¶16).
The jury was ultimately instructed as follows with respect to count one, striking Aaron allegedly in defense of McGrew:
You should consider whether [McGrew] provoked an alleged attack of her. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack.
However, if the attack which follows causes the person reasonably to believe that the person is in imminent danger of death or great bodily harm, the person may lawfully act in self-defense. But the person may not use or threaten force intended or likely to cause death or great bodily harm unless the person reasonably believes every other reasonable means to escape from or otherwise avoid death or great bodily harm has been exhausted.
However, even if [McGrew] had provoked an alleged attack of her, the defendant would still be allowed to act in defense of [McGrew] if the defendant actually and reasonably believed that [McGrew] was entitled to act in her own defense.
You should also consider whether the defendant provoked an alleged attack of him. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense or defense of others against that attack.
….
If you are satisfied beyond a reasonable doubt that all three elements of first[-]degree reckless injury have been proved and that the defendant did not act lawfully in defense of others, you should find the defendant guilty of first[-]degree reckless injury.If you are not so satisfied, you must find the defendant not guilty of first[-]degree reckless injury ….
(¶17).
Following the guilty verdicts, Cross filed a PCM arguing that the jury was improperly instructed. (¶18). He also argued his lawyer was ineffective for failing to impeach Aaron with the number of his prior convictions. (Id.). The circuit court denied the motion. (¶19).
On appeal, COA addresses the following issues:
Forfeiture
Unsurprisingly, the State tries to argue that Cross has forfeited his claim of instructional error, because of statements made during the conference appearing to suggest counsel’s acquiescence to the court’s proposed instruction. (¶28). The State claims that, under § 805.13(3), Cross’s attorney “was required [to] object to the provocation jury instruction on the record while the instruction was being read to the jury to preserve the issue for appeal.” (¶28). COA holds that this “reading is contrary to the plain meaning of the statute” which requires the objection to be made “at the conference.” (Id.). Here, counsel made a sufficient objection and his other comments, when placed in context, do not erase his clear attempt to object to what he believed was a mistaken view of the law. (Id.).
Provocation and the Defense of Others
Here, the parties focus their dispute on the following portion of the jury instructions:
You should also consider whether the defendant provoked an alleged attack of him. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense or defense of others against that attack.
(¶33).
COA sees two problems with this part of the instructions. Focusing on the second sentence, “the jury could have interpreted this portion of the jury instruction as requiring it to consider either (1) the second sentence only in relation to whether Cross ‘provoked an alleged attack of him’; or (2) the second sentence separately from the first sentence.” (¶36). Under either reading, the jury would be left with an erroneous statement of the law:
The first interpretation would apply to a situation where Aaron attacked Cross after Cross provoked Aaron, and Cross had to defend himself as a result. This interpretation says nothing about whether Cross could defend McGrew if he provoked Aaron into attacking McGrew. As we explain below, this interpretation failed to inform the jury that Cross was privileged, under specific circumstances, to defend McGrew if he provoked an attack on McGrew through the first strike.
[…]
The second interpretation of the jury instruction would apply to a situation where Cross provoked Aaron into attacking McGrew. Importantly, this reading would not have permitted Cross, under any circumstances, to defend McGrew if he provoked an attack of McGrew through the first strike. As we explain below, this instruction is a misstatement of the law.
(¶¶37-38).
§ 939.48(4) is the governing authority, which makes clear that
[a] person is privileged to defend a 3rd person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person’s intervention is necessary for the protection of the 3rd person.
(¶39). Relying on general self-defense principles, COA therefore observes that “a successful assertion of the privilege of defense of others, like the privilege of self-defense, requires a finding that the defendant actually believed he or she was acting to prevent or terminate an unlawful interference and that the defendant’s belief was objectively reasonable.” (¶40). And provocation, as is well-settled, does not erase the privilege of self-defense. (¶42). Putting it all together, COA holds “a person is privileged, within the confines of WIS. STAT. § 939.48, to defend a third person under limited circumstances if he or she provoked an attack on that third person by unlawful conduct.” (¶43). “In other words, a person is privileged to defend a third person under those standards provided in § 939.48(1) and (2), provided that he or she ‘reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person’s intervention is necessary for the protection of the 3rd person.'” (Id.). As applied to this fact pattern:
Consistent with that statute, for Cross to have been privileged to defend McGrew, he must have actually believed that McGrew would be privileged to act in self-defense and that his intervention was necessary for the protection of McGrew. See WIS. STAT. § 939.48(4). If the jury finds provocation by Cross at issue, Cross must have also actually believed that he was acting to prevent imminent danger of death or great bodily harm to McGrew, and his belief must have been objectively reasonable. See § 939.48(2)(a), (4); Giminski, 247 Wis. 2d 750, ¶13. If the jury believes that Cross resorted to force intended or likely to cause death to Aaron, Cross must have reasonably believed that McGrew “exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.” See § 939.48(2)(a). Importantly, Cross cannot claim defense of others if he provoked an attack “with intent to use such an attack as an excuse to cause death or great bodily harm.” See § 939.48(2)(c).
(¶44).
Harmless Error
Although the State tries to claim that the jury already found Cross and McGrew incredible, COA holds that the State has not proven harmlessness beyond a reasonable doubt. As there is “no question” that the jury was not instructed correctly on the law of self-defense and a reasonable interpretation of the trial evidence would be consistent with a verdict in favor of Cross had the jury been properly instructed, COA finds that the error merits reversal with respect to Count 1. (¶52).
Remaining IAC Claim
Finally, COA makes short work of the remaining IAC claim, an argument that trial counsel should have impeached Aaron with the fact that he had been convicted of a crime five times. (¶59). While Cross tries to argue that this deficiency means he should also get a new trial on Count 2, COA finds the argument undeveloped and affirms. (¶61).