State v. Alan M. Johnson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 5, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP2272-CR Cir. Ct. No. 2016CF422

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALAN M. JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Walworth County:
PHILLIP A. KOSS, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP2272-CR

¶1 PER CURIAM. Alan M. Johnson appeals from a judgment of
conviction for second-degree reckless homicide with use of a dangerous weapon.
On appeal, Johnson asserts the circuit court erred by denying his motion for a
mistrial following an incident that occurred during jury deliberations; by excluding
certain evidence from his trial; and by failing to properly instruct the jury. We
reject his arguments and affirm the conviction.

BACKGROUND

¶2 This matter returns to us following remand for a new trial. As
background, Johnson shot and killed his brother-in-law, K.M., in K.M.’s home.
State v. Johnson (Johnson I), 2021 WI 61, ¶¶9-10, 397 Wis. 2d 633, 961 N.W.2d
18. According to Johnson’s version of events, K.M., who married Johnson’s older
sister when Johnson was a child, repeatedly physically abused and one time
sexually abused him. Id., ¶6. Years earlier, Johnson found what he believed to be
child pornography on K.M.’s computer. Id., ¶7. Johnson eventually reported this
to authorities but was told that the evidence was “stale.” Id.

¶3 On October 24, 2016 at around 11:45 p.m., Johnson snuck into
K.M.’s home intending to discover “fresh pictures” of child pornography on
K.M.’s computer to deliver to the police. Id., ¶8. Johnson brought a gun to
protect himself because he was scared of K.M. Id. After two hours of searching
K.M.’s computer, Johnson believed he had “found what they needed.” Id.

¶4 Suddenly, K.M. appeared in the doorway and saw Johnson. Id., ¶9.
According to Johnson, K.M. shut the door and then burst through the door and
attacked Johnson. Id. The ensuing altercation left K.M. dead; Johnson shot him
five times. Id., ¶¶1, 9.

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No. 2023AP2272-CR

¶5 The State charged Johnson with first-degree intentional homicide,
use of a dangerous weapon, and armed burglary. At trial, Johnson claimed self-
defense in killing K.M. and requested jury instructions on perfect self-defense and
lesser-included homicide offenses. The circuit court instructed the jury on first-
degree intentional homicide, second-degree intentional homicide, first-degree
reckless homicide, and imperfect self-defense. Id., ¶12. It refused to instruct the
jury on perfect self-defense or, as relevant, second-degree reckless homicide. Id.

¶6 Following trial, the jury found Johnson guilty of first-degree reckless
homicide. It acquitted Johnson of burglary.

¶7 In Johnson I, Johnson argued, in part, the circuit court erred by
failing to instruct the jury on perfect self-defense and the lesser-included offense
of second-degree reckless homicide. Id., ¶¶20, 27. He also argued the circuit
court erred by prohibiting testimony that Johnson found child pornography on
K.M.’s computer the night K.M. was killed. Id., ¶4.

¶8 Our supreme court agreed the circuit court erred by refusing to
instruct the jury on perfect self-defense and second-degree reckless homicide. Id.,
¶¶26, 31. However, the court determined the circuit court did not err by
prohibiting testimony that Johnson found child pornography on K.M.’s computer
on the night K.M was killed. Id., ¶ 36. The case was remanded for a new trial.
Id., ¶37. The court noted that, on retrial, the State was “precluded from trying
Johnson for burglary and first- and second-degree [intentional] homicide” because
the first jury had acquitted him on those charges. Id., ¶37 n.20.

¶9 On remand, the State elected to retry Johnson. An amended
information charged Johnson with one count of first-degree reckless homicide, use
of a dangerous weapon.

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No. 2023AP2272-CR

¶10 Prior to the new trial, Johnson moved for an order permitting him to
present evidence of the images found on K.M.’s computer. Specifically, Johnson
wished: to testify he found child pornography and other “disturbing images” on
K.M.’s computer shortly before K.M. attacked him; to publish the non-
pornographic images to the jury; and to present expert testimony confirming the
presence of images on K.M.’s computer that a reasonable person would believe to
constitute illegal child pornography and confirming that Johnson saw those images
on the night in question. The circuit court denied the motion.

¶11 It explained:

I’ve reviewed obviously the transcripts. I reviewed that
motion hearing where this was discussed, and [the previous
circuit court’s] decision. I’ve reviewed the pleadings filed
by all the parties here. Certainly I’ve reviewed both the
court of appeals and the supreme court’s decision.

And my understanding is that the [S]tate is not
conceding that there is child pornography on the victim’s
computer. They would concede that there are unseemly
photographs, perhaps nude photographs, perhaps what
might be considered pornography, but not necessarily of
children.

The circuit court emphasized that the detective who examined K.M.’s computer
testified at the original motion hearing that, although there were some
pornographic images on the computer, the detective could not determine whether
the females in the photographs were under eighteen years old.

¶12 The circuit court continued:

[W]hile I agree that [Johnson’s] subjective state of mind is
incredibly important, his fear is what [K.M.] will do. But if
it’s not child pornography, the [S]tate can easily make the
argument [Johnson] wouldn’t have to fear it.

So why can’t, as the [previous circuit court] allowed, “I
found what I was looking for,” goes to his state of mind of

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No. 2023AP2272-CR

whether [Johnson] thought … the victim would be angry
enough to attack him? If we allow all these images, they
are distasteful. We would all agree on that. And I agree
with the supreme court and [the previous circuit court] and
ultimately the [S]tate on this, that it is going to unfairly
prejudice the [S]tate if they have to see all of these images,
and they would. And then the [S]tate is going to have to
present some evidence to mitigate this, that it really isn’t
child pornography, to try and present a reasonable reason
that [K.M.] wouldn’t be concerned.

....

[T]o show these pictures to the jury is adding days to trial
and adding a distasteful view that is kind of an: Eh, [K.M.]
didn’t – doesn’t-deserve-to-live kind of argument. Or who
cares, he’s just a creep. And that’s not what we want the
jury to do. We want the jury to focus on [Johnson’s] state
of mind, which I’m not preventing, and for the same
reasons that the supreme court upheld it.

¶13 Ultimately, the circuit court excluded the evidence on the basis it
believed it would be a waste of time, confuse the issues, and unfairly prejudicial.
The court concluded that Johnson could testify at trial:

I went there because I knew there was child -- I knew in the
past there had been child pornography; I wanted to turn it
over to the police if I found it again. I found what I was
looking for, and I was going to turn that over to the police.

The clear implication to a jury is I found child
pornography.

The court also precluded the State from arguing “to the jury that it has not seen
evidence to corroborate [Johnson’s] testimony.”

¶14 The case proceeded to trial. The testimony presented to the jury
generally followed the testimony presented at the first trial.

¶15 In Johnson’s second trial, the jury was instructed on perfect self-
defense. As related to the privilege of self-defense, the circuit court also
instructed the jury on the law of provocation. As part of the provocation

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No. 2023AP2272-CR

instruction, and over Johnson’s objection, the circuit court included an optional
pattern jury instruction paragraph that stated: “A person who provokes an attack
whether by lawful or unlawful conduct with intent to use such an attack as an
excuse to cause death or great bodily harm to another person is not entitled to use
or threaten force in self-defense.” See WIS JI—CRIMINAL 815 (2020).

¶16 During jury deliberations, the circuit court received a question from
the jury: “Do you waive your right to self-defense if you trespass into a home
based on the castle law?” As the circuit court began to discuss with the parties an
appropriate response, it received word from the jury foreperson that another juror
had looked up a definition of the castle doctrine on her cellular phone. Johnson
moved for a mistrial.

¶17 The circuit court questioned the foreperson about the situation. The
foreperson advised the circuit court that some other jurors brought up the castle
doctrine and

[a]nother juror suggested we bring the question to you. We
did.

While I was writing the question out, another person, a
third person, brought that up on her cell phone to look up
the definition. As I was walking back in, she started to
speak about it, and we all shut her down.

The foreperson advised that the juror, M.F., had not shared what she read on her
cellular phone with anyone else.

¶18 Johnson renewed his motion for a mistrial. The State responded that
the circuit court should instead provide a curative instruction to the jury. The
circuit court questioned M.F. about the situation.

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No. 2023AP2272-CR

¶19 M.F. admitted to the circuit court she had used her cellular phone to
look up the definition of the castle doctrine. She explained, “I didn’t understand
what it was. And [the other jurors] were using it as a point, pretty strong point.”
M.F. stated she read the entire definition to herself and she read the first words of
the definition—“The castle doctrine is”—to the other jurors before “someone said
stop, stop. And we all kind of stopped, and then it was reported.” M.F. told the
circuit court that she understood she could not consider anything that she had read
on the internet.

¶20 Outside the presence of the jury, the court addressed the parties:

[O]bviously [the] castle doctrine is in the news. It has been
for years. Politicians have made much hay that we need a
castle doctrine. So it’s not surprising that it would come up
in a self-defense case, just in common sense, without
somebody looking it up.

¶21 After further discussion, the circuit court decided, over Johnson’s
objection, it would give a curative instruction. The jury returned to the courtroom.
The court instructed:

Normally we don’t interfere with deliberations, but I don’t
want you to go into areas that need not be explored.

And I know that there’s been discussion about the castle
doctrine. The castle doctrine is a complex legal issue, but it
does not apply at all to the facts of this case, and you
should not consider it in any way. We -- There would have
been an instruction on it if it applied. Please do not do any
research on this case. The parties have spent a lot of time
and money on this.

…..

So it[] -- need not be a topic of discussion, and you may
continue to deliberate. Reread [the jury instruction] if you
need to, but please do not do any research. It’s not a point
of discussion.

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No. 2023AP2272-CR

The circuit court also had the bailiff collect the jurors’ cellular phones for the
remainder of deliberations.

¶22 Ultimately, the jury found Johnson guilty of second-degree reckless
homicide, use of a dangerous weapon. Johnson renewed his motion for a mistrial
on the basis that “one of the jurors researched on her cellular telephone the castle
doctrine” and it was “not exactly clear how much of that was communicated to the
remainder of the jury.”

¶23 The circuit court denied the motion. It observed that both the
foreperson and the juror advised the court that the information had not been
conveyed to the rest of the jury. The court continued:

But I instructed them that -- quickly and strongly that
the castle doctrine had nothing to do with this case
whatsoever, and I can only assume, as with any jury
instruction, that they took it to heart and that their decision
had nothing to do with the -- whatever [M.F.] found.

Johnson appeals. Additional facts will be included below.

DISCUSSION

¶24 Johnson raises three arguments on appeal. He asserts the circuit
court erred by: (1) denying his motion for a mistrial following the juror’s actions
during deliberations; (2) by excluding evidence of the images that Johnson found
on K.M.’s computer; and (3) including an optional pattern-jury-instruction
paragraph in the provocation instruction. We address each argument in turn.

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No. 2023AP2272-CR

I. Mistrial

¶25 Johnson first argues the circuit court erred by denying his motion for
a mistrial after learning a juror looked up the definition of the castle doctrine
during deliberations. We review “a circuit court’s decision to grant or deny a
motion for mistrial for an erroneous exercise of discretion.” State v. Debrow,
2023 WI 54, ¶15, 408 Wis. 2d 178, 992 N.W.2d 114. A circuit court properly
exercises its discretion if it applied the proper legal standard to the relevant facts
and reached a reasonable discretionary decision. Id. However, “not all errors
warrant a mistrial and the ‘law prefers less drastic alternatives, if applicable and
practical.’” State v. Givens, 217 Wis. 2d 180, 191, 580 N.W.2d 340 (Ct. App.
1998) (citation omitted).

¶26 “A party is entitled to a new trial when prejudicial extraneous
information is brought to the attention of the jury.” Manke v. Physicians Ins. Co.
of Wis., 2006 WI App 50, ¶17, 289 Wis. 2d 750, 712 N.W.2d 40. The State must
prove beyond a reasonable doubt that the extraneous information did not
contribute to the guilty verdict. State v. Eison, 194 Wis. 2d 160, 177-78, 533
N.W.2d 738, 745 (1995). We consider whether there is a reasonable possibility
that the information “would have a prejudicial effect upon a hypothetical average
juror.” Id. at 178. We evaluate the “impact of the error by considering such
factors as the nature of the extraneous information and the circumstances under
which it was brought to the jury’s attention; the nature of the [S]tate’s case; the
defense presented at trial; and the connection between the extraneous information
and a material issue in the case.” State v. Poh, 116 Wis. 2d 510, 530, 343 N.W.2d
108 (1984).

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No. 2023AP2272-CR

¶27 We conclude that in this case, one juror looking up the definition of
the castle doctrine after the other jurors had already been discussing it and had
submitted a question to the circuit court—was not so prejudicial as to warrant a
new trial. Significantly, the castle doctrine was not at issue in the case, and the
circuit court did not instruct the jury on the castle doctrine. M.F. told the circuit
court she looked up the definition because other jurors were already discussing the
doctrine and they wrote a question to the court about it. The other jurors stopped
M.F. from reading the definition out loud, and the jurors, including M.F., reported
the incident to the circuit court. In response, the court issued a curative instruction
telling the jury that: the castle doctrine was a complex legal doctrine; the doctrine
did not apply in this case; if the doctrine did apply, the jury would have received
an instruction; and to not consider it further. The court then took all the jurors’
cellular phones to ensure no one used them during deliberations.

¶28 These mitigating steps were entirely reasonable and appropriate for
the situation. Jurors are presumed to have followed jury instructions. State v.
LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 100, 750 N.W.2d 780, 788. Given
the way in which the jurors contemporaneously advised the circuit court of the
situation during deliberations and before they reached a verdict, we reject
Johnson’s contention that we can no longer assume the jurors in this case followed
the instructions. The circuit court did not err by denying Johnson’s motion for a
mistrial.

¶29 Relatedly, Johnson also appears to challenge the curative instruction.
In his appellate brief, he asserts the circuit court should have “explain[ed] what the
Castle Doctrine means or what law does apply in the absence of the Castle
Doctrine.” Johnson contends that because the circuit court failed to do so, the
castle doctrine “stood in the way” of the jury’s consideration of self-defense.

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No. 2023AP2272-CR

¶30 We disagree. During trial, and after it became clear to Johnson that
the circuit court was going to deny the motion for mistrial and issue a curative
instruction, Johnson advised the court “I’m very uncomfortable with us, on the
cuff, writing what is effectively a jury instruction relating to the castle doctrine by
saying it doesn’t apply and here’s why.” Johnson was also “uncomfortable with
instructing [the jury] on what the castle doctrine means.” After more discussion,
Johnson advised that if the court was going to “create some type of curative
instruction for what has occurred, I think the way to do it is to say the castle
doctrine does not apply in this case. You are not to consider it, and please stop
researching things on your cell phones.” The circuit court’s instruction tracked
Johnson’s request. The court did not err by failing to include in its curative
instruction an explanation on what the castle doctrine means or why it did not
apply in this case.

II. Excluded evidence

¶31 Johnson next argues the circuit court erroneously exercised its
discretion by excluding evidence of the images that Johnson found on K.M.’s
computer. We review circuit court evidentiary determinations for an erroneous
exercise of discretion. Johnson I, 397 Wis. 2d 633, ¶33. “[W]e examine whether
‘the circuit court applied the proper legal standard to the relevant facts and reached
a reasonable discretionary decision.’” Id., ¶34 (citation omitted).

¶32 Johnson asserts the circuit court “erroneously determined, without
reviewing the images themselves and contrary to the descriptions provided by
those who had reviewed the images, that the images were not child pornography.”
Johnson also argues the circuit court “unreasonably concluded that introduction of

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No. 2023AP2272-CR

any evidence regarding the images would create a minitrial that would outweigh
the evidence’s probative value.”

¶33 We disagree. First, and contrary to Johnson’s argument, the circuit
court did not exclude the images because it determined they were not child
pornography. The circuit court observed the State had a basis to assert the images
were not child pornography, and it did not want minitrials on whether the images
were in fact child pornography.

¶34 As for Johnson’s assertion that the circuit court erred by not
specifically examining the images, the record reflects that in making its
determination the circuit court reviewed the parties’ briefs, the transcript from the
previous motion hearing on this issue which included the detective’s testimony as
to the images that he examined, Johnson’s expert’s analysis of K.M.’s hard drive,
and both our opinion and the supreme court’s decision from Johnson I. The
circuit court also explicitly asked the parties whether there were any images of
prepubescent children engaged in sexual activity. When Johnson offered a table
from his expert’s report, the circuit court observed it did not appear Johnson
accessed those images in that table on the night K.M. was killed. This factual
record was an entirely sufficient basis upon which the circuit court made its
decision. The circuit court was not required to view all the images to determine
whether they constituted child pornography.

¶35 In any event, the record reflects the circuit court excluded the
evidence on the ground that any probative value would be substantially

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No. 2023AP2272-CR

outweighed by the danger of unfair prejudice. See WIS. STAT. § 904.03.1 Similar
to the circuit court in Johnson I, it is apparent that the circuit court was
“concern[ed] that the introduction of this evidence could mislead the jury or cause
them to focus on K.M.’s potential criminal behavior related to child pornography
rather than the circumstances surrounding his death.” See Johnson I, 397 Wis. 2d
633, ¶35. The circuit court was also again “worried about a trial within a trial
regarding whether certain pictures constituted child pornography or not, possibly
distracting the jury from the real issues in the case.” See id. Finally, “while
Johnson was not permitted to present direct evidence of what he found on K.M.’s
computer, Johnson did testify that he went to the house to look for child
pornography and that he believed he found what the police needed.” Id. The
State was also prohibited from arguing to the jury that there was no evidence to
corroborate Johnson’s testimony. We conclude the circuit court’s decision here
was “a reasonable call within the bounds of the law.” See id., ¶36.

III. Provocation jury instruction

¶36 Finally, Johnson argues the circuit court erred when it instructed the
jury on provocation. We begin by putting Johnson’s argument into context.

¶37 In Johnson I, Johnson argued the circuit court erred by failing to
instruct the jury on perfect self-defense. Id., ¶20. Perfect self-defense is a
privilege that is codified in WIS. STAT. § 939.48(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

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP2272-CR

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.

¶38 As the court in Johnson I observed, “the privilege of self-defense
may also be limited when the person claiming self-defense provoked the initial
attack.” Johnson I, 397 Wis. 2d 633, ¶26 n.13. WISCONSIN STAT. § 939.48(2)
outlines how provocation affects the privilege of self-defense:

(a) A person who engages in unlawful conduct of a type
likely to provoke others to attack him or her and thereby
does provoke an attack is not entitled to claim the privilege
of self-defense against such attack, except when the attack
which ensues is of a type causing the person engaging in
the unlawful conduct to reasonably believe that he or she is
in imminent danger of death or great bodily harm. In such
a case, the person engaging in the unlawful conduct is
privileged to act in self-defense, but the person is not
privileged to resort to the use of force intended or likely to
cause death to the person’s assailant unless the person
reasonably believes he or she has exhausted every other
reasonable means to escape from or otherwise avoid death
or great bodily harm at the hands of his or her assailant.

….

(c) A person who provokes an attack, whether by lawful
or unlawful conduct, with intent to use such an attack as an
excuse to cause death or great bodily harm to his or her
assailant is not entitled to claim the privilege of self-
defense.

¶39 Here, Johnson requested an instruction on perfect self-defense. The
State requested an instruction on provocation that included an optional pattern jury
instruction paragraph:

A person who provokes an attack whether by lawful or
unlawful conduct with intent to use such an attack as an
excuse to cause death or great bodily harm to another

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No. 2023AP2272-CR

person is not entitled to use or threaten force in self-
defense.

WIS JI—CRIMINAL 815 (2020); see WIS. STAT. § 939.48(2)(c).

¶40 On appeal, Johnson argues the circuit court erred by instructing the
jury on this optional paragraph. He asserts that because the optional paragraph
includes an intent element (“intent to use such attack as an excuse to cause death
or great bodily harm”) and because he was acquitted of first-degree intentional
homicide, second-degree intentional homicide, and burglary, the circuit court’s
instruction violated his right to be free from double jeopardy.

¶41 We disagree. Johnson is not being put in jeopardy a second time.
The Double Jeopardy Clause applies in three situations. State v. Henning, 2004
WI 89, ¶16, 273 Wis. 2d 352, 681 N.W.2d 871. “It protects against a second
prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.” Id. (citation omitted). Here, Johnson was
acquitted of first-degree intentional homicide, second-degree intentional homicide,
and burglary. The State did not try him a second time for those offenses.

¶42 On remand, and before his second trial, Johnson requested the
following perfect self-defense instruction:

The Criminal Code of Wisconsin provides that a person
is privileged to intentionally use force against another for
the purpose of preventing or terminating what he
reasonably believes to be an unlawful interference with his
person by the other person. However, he may intentionally
use only such force as he reasonably believes is necessary
to prevent or terminate the interference. He may not
intentionally use force which is intended or likely to cause
death unless he reasonably believes that such force is
necessary to prevent imminent death or great bodily harm
to himself.

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No. 2023AP2272-CR

He also requested:

Self-defense is an issue in this case. The law of self-
defense allows the defendant to threaten or intentionally
use force against another only if:

 the defendant believed that there was an actual or
imminent unlawful interference with the defendant’s
person; and

 the defendant believed that the amount of force the
defendant used or threatened to use was necessary to
prevent or terminate the interference; and

 the defendant’s beliefs were reasonable.

The defendant may intentionally use force which is
intended or likely to cause death or great bodily harm only
if the defendant reasonably believed that the force used was
necessary to prevent imminent death or great bodily harm
to himself.

The circuit court gave the instructions. Because Johnson put intent at issue
through his perfect self-defense instruction, the circuit court did not err by
including in the provocation instruction a paragraph that accurately reflected the
law but referenced the word “intent.”

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

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