State v. Scott A. Walker

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.
November 7, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP1138-CR Cir. Ct. No. 2018CM137

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SCOTT A. WALKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Grant
County: ROBERT P. VAN DE HEY, Judge. Affirmed.

¶1 BLANCHARD, J.1 Scott Walker, a resident of the Town of
Fennimore in Grant County, was found guilty at a jury trial of “intentionally
point[ing] a firearm at or toward” another person, contrary to WIS. STAT.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1138-CR

§ 941.20(1)(c), a misdemeanor.2 Walker appeals an order of the circuit court
denying his motion for a new trial. The court rejected Walker’s argument that he
was denied effective assistance of counsel at trial. Walker argued that his counsel
was ineffective in failing to pursue a theory that Walker’s actions were justified
under the privilege of defense of property under WIS. STAT. §§ 939.49(1),
§ 939.45(2).3 I affirm because Walker fails to show prejudice.

2
The pertinent paragraph of WIS. STAT. § 941.20 (“Endangering safety by use of
dangerous weapon”) prohibits “intentionally point[ing] a firearm at or toward another.”
Sec. 941.20(1)(c).
3
The pertinent subsections of WIS. STAT. § 939.49 provide:

(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 the person’s property. Only such
degree of force or threat thereof may intentionally be used as the
actor reasonably believes is necessary to prevent or terminate the
interference. It is not reasonable to intentionally use force
intended or likely to cause death or great bodily harm for the sole
purpose of defense of one’s property.

….

(3) In this section “unlawful” means either tortious or
expressly prohibited by criminal law or both.

WISCONSIN STAT. § 939.45 provides in pertinent part:

Privilege. The fact that the actor’s conduct is privileged,
although otherwise criminal, is a defense to prosecution for any
crime based on that conduct. The defense of privilege can be
claimed under any of the following circumstances:

….

(2) When the actor’s conduct is in defense of persons or
property under any of the circumstances described in s. 939.48
[self-defense or defense of others] or 939.49 [defense of
property];

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No. 2019AP1138-CR

¶2 The criminal complaint charged that on July 11, 2018, Walker
intentionally pointed a firearm “at or toward” a person who was in the process of
trying to leave Walker’s residence after unsuccessfully attempting to collect on a
debt that she claimed Walker owed her. The allegations of probable cause
included the following.

¶3 The victim went to Walker’s house to address an outstanding debt
arising from her performing house cleaning work for him. Walker approached the
victim outside his house and the two “discussed the cleaning and the outstanding
bill.” Walker “eventually told her to leave his property.” Walker started walking
toward the victim, “shouting at her” to leave, “and then indicated that he was
going to get his gun.” The victim went to her vehicle and got in, but had trouble
finding her car key. Walker “came out of his home through the garage entrance
carrying a rifle or a large gun,” and, while standing 10 to 15 feet from the victim,
“point[ed] the gun directly at her while she was in her car starting the vehicle.”
There is no allegation that Walker fired the gun in this incident.

¶4 The complaint further alleged that a sheriff’s deputy spoke with
Walker six days after this incident and that Walker told the deputy the following.
The victim had arrived at his residence on July 11th to ask him about an
outstanding cleaning bill. Walker told the victim “to leave the property and … he
took a step toward her, but then stepped back,” and further told her that “he had a
gun.” Walker went into his residence “and came back out with a shotgun, but …
never pointed it at” the victim, only at her vehicle.

¶5 At a jury trial in October 2018, the victim gave an account of the
incident that generally matched the allegations in the complaint and Walker did
not testify. However, the jury heard testimony from a deputy relating post-

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No. 2019AP1138-CR

incident statements that Walker made to the deputy, including that Walker had
pointed the firearm only at the victim’s vehicle, and the jury heard a recording of
these statements by Walker. Indeed, the thrust of the defense closing argument
was that the jury should believe Walker’s statement to the deputy that he had
pointed the firearm only at the victim’s vehicle (not “at or toward” her, in the
terms of the charged offense) and the jury should disbelieve the victim’s testimony
that he had pointed it at her, which she falsely testified to as “revenge for an
unpaid bill.” The jury found Walker guilty.

¶6 Through new counsel, Walker filed a motion requesting a new trial.
Aspects of the motion are confusing or incomplete. First, a heading summarizes
the argument as follows: “Trial Counsel was Ineffective for Failing to Raise a
Claim of Self Defense,” even though Walker’s argument on appeal involves the
privilege to defend property, not the privilege of self-defense. Second, the motion
fails to identify a specific pattern or modified jury instruction that Walker
contends trial counsel should have offered.

¶7 However, the text of the motion refers to WIS. STAT. § 939.49 and to
“the privilege Wisconsin citizens have to defend their property.” Moreover, the
State does not now argue any form of forfeiture as to the subject matter of the
motion or the nature of the jury instruction at issue. Further, in the circuit court,
both sides and the court proceeded on the apparent belief that Walker had
presented a developed ineffective assistance of counsel argument involving failure
to invoke the privilege to protect property. For all these reasons, I proceed on the
assumption that this issue was properly preserved in the circuit court.

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No. 2019AP1138-CR

¶8 The circuit court held an evidentiary Machner hearing,4 at the
conclusion of which the court explained its denial of the motion for a new trial on
multiple grounds.

¶9 As pertinent to the issue that I conclude is dispositive here, our
supreme court has summarized the ineffective assistance of counsel standards as
follows:

Whether a defendant was denied effective assistance of
counsel is a mixed question of law and fact. The factual
circumstances of the case and trial counsel’s conduct and
strategy are findings of fact, which will not be overturned
unless clearly erroneous; whether counsel’s conduct
constitutes ineffective assistance is a question of law,
which we review de novo. To demonstrate that counsel’s
assistance was ineffective, the defendant must establish that
counsel’s performance was deficient and that the deficient
performance was prejudicial. If the defendant fails to
satisfy either prong, we need not consider the other.

….

Whether any deficient performance was prejudicial
is … a question of law we review de novo. To establish
that deficient performance was prejudicial, the defendant
must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.”

State v. Breitzman, 2017 WI 100, ¶¶37, 39, 378 Wis. 2d 431, 904 N.W.2d 93
(citations omitted).

¶10 Applying these standards, and putting to the side other potential
problems with Walker’s argument, I conclude that Walker fails to show prejudice.
He fails to point to even a hint of an evidentiary basis that could support an

4
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2019AP1138-CR

argument that, at the time Walker pointed the firearm at the victim, he had
“specific and imminent” concerns about the victim unlawfully interfering with his
property that could reasonably justify the threat represented by a pointed firearm.
See State v. Dundon, 226 Wis. 2d 654, 668, 594 N.W.2d 780 (1999) (privileges
for the defense of property “do not apply” when defendant’s “concerns were not
specific and imminent,” but instead were only “general and potential”).

¶11 As the circuit court noted, even 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.

¶12 Walker points to pieces of evidence that he contends support a
“specific and imminent” concern. However, even collectively, this evidence could
have created, at the most, only a “general and potential” concern for Walker

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No. 2019AP1138-CR

regarding the victim’s intentions, and even that would have abated by the time she
was in her car.

¶13 Walker asserts that the prejudice argument made by the State is
“baseless,” but he fails to provide a persuasive counter-argument. We now
summarize the points he briefly makes on this topic.

¶14 Walker references trial testimony by the victim that, before the
incident, she had received mailed notice that Walker had filed for bankruptcy,
presumably placing her on notice that creditors were prohibited from demanding
payment from Walker as a debtor during bankruptcy proceedings. He also points
to part of a post-incident, recorded police interview of the victim regarding her
interaction with Walker before he pointed the firearm at her. The victim said that
she had suggested to Walker that he could make good on his debt by giving her
personal property from his garage. Finally, Walker asserts that the victim “did
not” “leave” after he told her he was going to get his firearm. This last assertion is
apparently based on the idea that when Walker re-emerged with his firearm, the
victim had not yet driven off or perhaps not yet even started the car.5

¶15 Walker fails to develop an argument that this evidence could have
rendered the victim’s conduct, as she sat in her vehicle, threatening to Walker’s
property rights in a way that could possibly justify pointing a firearm at her at that
moment. Walker fails to persuade me that there is a reasonable probability that if

5
Without explanation, Walker cites only to his trial counsel’s argument to the jury as the
basis for this argument that the victim had not left, instead of providing a citation to evidence in
the record. This does not provide adequate factual support for the proposition asserted.

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No. 2019AP1138-CR

counsel had pursued as a theory at trial a privilege of defense of property the result
of the proceeding would have been different.

¶16 I express no opinion about any of the many issues that might arise
when defendants generally attempt to raise the affirmative defense of the privilege
to protect property as a defense to firearms charges or to charges involving acts or
threats of violence under various other scenarios. Instead, given the undisputed
facts here, I resolve this appeal based strictly on Walker’s failure to show
prejudice from the ineffective assistance of trial counsel that he alleges.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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