State v. Jonathan Lamar Humphrey

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.
January 31, 2023
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. 2021AP505-CR Cir. Ct. No. 2018CF3748

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN LAMAR HUMPHREY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Affirmed.

Before Brash, C.J., Dugan and White, 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. 2021AP505-CR

¶1 PER CURIAM. Jonathan Lamar Humphrey appeals from a
judgment of conviction for homicide by negligent handling of a dangerous weapon
and an order of the trial court denying his motion for postconviction relief. On
appeal, Humphrey argues that he is entitled to a new trial because of an error in
the jury instruction that he maintains failed to correctly inform the jury of the
State’s burden to disprove self-defense as it related to the charge for which he was
convicted. From this alleged error in the jury instructions, he raises several
claims, including that he is entitled to a new trial on the basis of ineffective
assistance of counsel, plain error, and the interest of justice.

¶2 We disagree, and we conclude that there was no error in the jury
instruction when the instructions are viewed as a whole. Thus, for the reasons set
forth below, we reject Humphrey’s claims and affirm.

BACKGROUND

¶3 Humphrey was charged with one count of first-degree reckless
homicide for the shooting death of his nephew, Tucker.1 The case proceeded to a
jury trial on the charge of first-degree reckless homicide, as well as two lesser-
included charges of second-degree reckless homicide and homicide by negligent
handling of a dangerous weapon. The jury found Humphrey guilty of the lesser-
included charge of homicide by negligent handling of a dangerous weapon, and
Humphrey was sentenced to six years of imprisonment, composed of four years of
initial confinement and two years of extended supervision.

1
We refer to the victim and his twin brother in this case using pseudonyms. See WIS.
STAT. RULE 809.19(1)(g) (2019-20). All references to the Wisconsin Statutes are to the 2019-20
version unless otherwise noted.

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No. 2021AP505-CR

¶4 At trial, Humphrey and other witnesses testified that Humphrey’s
niece called him on the night of the shooting and told Humphrey that her twin
brothers, Tucker and David, had an argument with their grandmother—
Humphrey’s mother.2 Humphrey drove over to his mother’s house to assist, but
by the time Humphrey arrived, the boys had packed their bags and left. On his
way back to his own house, Humphrey saw the boys walking with their bags, and
he began arguing with them in the street and asking what they had said to their
grandmother. Tucker threatened to fight Humphrey, and Humphrey fired two
warning shots into the air. David ran away, but Tucker approached Humphrey in
his vehicle and struck him in the head.3 Humphrey testified that he was holding
his gun when Tucker struck him, and his gun discharged as he raised his hands to
block Tucker from hitting him. After the shots were fired, Humphrey called
police and administered CPR until the police arrived. Humphrey left the scene
after the police arrived, but he turned himself in the following morning.

¶5 Additional witnesses who testified at the trial indicated that they
heard multiple gunshots that night. Several witnesses described hearing a couple
of gunshots, followed by a pause, and then followed by up to four additional
gunshots.

¶6 Humphrey argued at trial both that he fired the gun accidentally and
that he acted in self-defense when he shot his nephew. Related to his argument of
self-defense, he testified that he feared what his nephews might do to him that

2
Humphrey’s niece, Tucker, and David lived with their grandmother—Humphrey’s
mother—since the time that they were about two or three years old.
3
Police testimony confirmed that Humphrey indeed had a head injury when Humphrey
turned himself into the police the day after the shooting.

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No. 2021AP505-CR

night, and he believed Tucker intended to cause him great bodily harm. As
explained at trial, Humphrey was aware that the boys had been diagnosed with
ADHD and had a history of violent behavior. Their grandmother, who was raising
them, had previously sought help from male family members, including
Humphrey, and in one incident described at trial, the boys beat their
grandmother’s brother with a shovel until the shovel broke. Tucker had also
caused $3,000 worth of property damage by throwing rocks at the windows of his
school, and he had also been expelled from school after stealing money from the
school administrator.

¶7 At the end of the trial, the trial court instructed the jury generally
that “[d]efendants are not required to prove their innocence” and “[t]he burden of
establishing every fact necessary to constitute guilt is upon the State.” The trial
court then proceeded to instruct the jury that there were three offenses presented
for the jury’s consideration—first-degree reckless homicide, second-degree
reckless homicide, and homicide by negligent handling of a dangerous weapon—
and the trial court provided a brief overview of the elements of each offense.

¶8 The trial court then instructed the jury on self-defense in relevant
part as follows:

Self-defense is an issue in this case. In deciding
whether the defendant’s conduct was criminally reckless
conduct which showed utter disregard for human life or
was criminally reckless conduct or was criminally
negligent conduct, you should also consider whether the
defendant acted lawfully in self-defense. 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 that the defendant used or threatened to use
was necessary to prevent or terminate the interference and
the defendant’s beliefs were reasonable.

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No. 2021AP505-CR

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 that force was
necessary to prevent imminent death or great bodily harm
to himself.

A belief may be reasonable even though mistaken.
In determining whether the defendant’s beliefs were
reasonable, the standard is what a person of ordinary
intelligence and prudence would have believed in the
defendant’s position under the circumstances that existed at
the time of the alleged offense. The reasonableness of the
defendant’s beliefs must be determined from the standpoint
of the defendant at the time of the defendant’s acts and not
from the viewpoint of the jury now.

¶9 The trial court then instructed the jury in more detail on the elements
for first-degree reckless homicide and proceeded to incorporate additional
instruction regarding self-defense into the elements of first-degree reckless
homicide as follows:

You should consider the evidence relating to self-
defense in deciding whether the defendant’s conduct
created an unreasonable risk to another. If the defendant
was acting lawfully in self-defense, his conduct did not
create an unreasonable risk to another person. The burden
is on the State to prove beyond a reasonable doubt that the
defendant did not act lawfully in self-defense. And you
must be satisfied beyond a reasonable doubt from all the
evidence that the risk was unreasonable.

….

You should consider the evidence relating to self-
defense in deciding whether or not the defendant’s conduct
showed utter disregard for human life. The burden is on
the State to prove beyond a reasonable doubt that the
defendant did not act lawfully in self-defense. And you
must be satisfied beyond a reasonable doubt from all the
evidence in the case that the circumstances of the
defendant’s conduct showed utter disregard for human life.

¶10 Following the instruction on the elements of first-degree reckless
homicide, the trial court instructed the jury on the elements of the lesser-included

5
No. 2021AP505-CR

offenses of second-degree reckless homicide and homicide by negligent handling
of a dangerous weapon. The court did not repeat the self-defense jury instruction
when instructing the jury on the lesser-included offenses. The trial court also
provided an accident instruction and an additional instruction on a defendant’s
duty to retreat as it relates to any action taken in self-defense.

¶11 During its deliberations, the jury asked two questions. In the second
question, the jury requested a more descriptive definition for criminal negligence.
After conferring with the State and the defense, the trial court responded to the
jury that it should revisit the instructions that were already given. The jury did not
ask any follow up questions, and ultimately, returned the guilty verdict for
homicide by negligent handling of a dangerous weapon.

¶12 Humphrey filed a motion for postconviction relief in which he
argued that he was entitled to a new trial because the jury was not properly
instructed on the State’s burden of proof as it related to Humphrey’s defense of
self-defense and the crime for which he was convicted. The trial court denied his
motion and found that, under State v. Langlois, 2018 WI 73, 382 Wis. 2d 414, 913
N.W.2d 812, the jury instructions, when viewed as a whole, properly informed the
jury of the State’s burden of proof.

¶13 In a written decision, the trial court stated:

Similarly, while the court in this case did not repeat
the self-defense/burden of proof instruction when
instructing the jury on the lesser included offenses, the
court instructed the jury at the outset that self-defense
applied to the charged offense and to the lesser included
offenses. … The court also instructed the jury that before it
could find the defendant guilty of the charged offense—
first degree reckless homicide—it had to consider whether
the defendant acted in self-defense and that it was the
State’s burden to disprove the defendant’s self-defense
claim beyond a reasonable doubt. The lesser included

6
No. 2021AP505-CR

offense of second degree reckless homicide differed from
the charged offense only in that it did not require the State
to prove that the defendant acted with utter disregard for
human life. Too, on the lesser included offense of criminal
negligence, Langlois reasoned that an additional instruction
on the State’s burden of proof was unnecessary[.]

¶14 Humphrey now appeals.

DISCUSSION

¶15 On appeal, Humphrey renews his argument that the self-defense
instruction given to the jury was erroneous and failed to properly inform the jury
of the State’s burden to disprove self-defense as it related to the charge for which
he was convicted. He further argues that, as a result of this alleged error in the
instruction, he is entitled to a new trial on the grounds of ineffective assistance of
counsel, plain error, and in the interest of justice.4 We disagree, and we conclude
that the jury instruction, when viewed as a whole, properly informed the jury of
the State’s burden of proof. Consequently, we reject Humphrey’s arguments that
he is entitled to a new trial.5

¶16 “A [trial] court … has broad discretion in instructing a jury. A [trial]
court appropriately exercises its discretion in administering a jury instruction so

4
We note that Humphrey cites WIS. STAT. § 751.06 as authority for this court to grant a
new trial in the interest of justice. However, § 751.06 grants our supreme court the power of
discretionary reversal. The court of appeals is granted the power of discretionary reversal in WIS.
STAT. § 752.35.
5
Humphrey additionally pursues an argument that the decision in State v. Langlois,
2018 WI 73, 382 Wis. 2d 414, 913 N.W.2d 812, “was in error when it characterized the privilege
of self-defense as a ‘negative defense.’” He makes this argument recognizing that this court is
unable to provide the remedy he seeks. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d
246 (1997) (“The supreme court is the only state court with the power to overrule, modify or
withdraw language from a previous supreme court case.”). Thus, we do not address his argument
on this point further.

7
No. 2021AP505-CR

long as the instructions as a whole correctly stat[e] the law and compor[t] with the
facts of the case.” Langlois, 382 Wis. 2d 414, ¶34 (alterations in original; citation
omitted). We review de novo whether a jury instruction correctly states the law.
Id. “[W]e will not find error as long as the instructions adequately cover the
applicable law.” State v. Robinson, 145 Wis. 2d 273, 281, 426 N.W.2d 606 (Ct.
App. 1988).

¶17 Humphrey argues in particular that self-defense should have been
incorporated and integrated into the instruction for homicide by negligent handling
of a dangerous weapon. In making this argument, he points to both the comments
to WIS JI—CRIMINAL 801 and the comments to WIS JI—CRIMINAL 1023. The
first recommends “integrat[ing]” an instruction on self-defense into the elements
of the crime, WIS JI—CRIMINAL 801 n.1, and the second provides that it is
“preferable to repeat the full statement of the burden of proof with each of the
lesser included offenses,” WIS JI—CRIMINAL 1023 cmt. While the trial court
could have followed the recommendations provided in these jury instructions, we
conclude that the jury instructions in this case, when viewed as a whole, still
correctly instructed the jury that self-defense applied to the lesser-included charge
of homicide by negligent handling of a dangerous weapon and that the State bore
the burden to disprove the defense as it relates to this crime. In this regard, we
find Langlois instructive.

¶18 Similar to the instructions provided in Langlois, the trial court here
provided an accurate instruction on self-defense prior to instructing the jury on the
elements of the crimes for which Humphrey was on trial. Within that instruction,
the trial court clearly stated that “[s]elf-defense is an issue in this case. In deciding
whether the defendant’s conduct was criminally reckless conduct which showed
utter disregard for human life or was criminally reckless conduct or was criminally

8
No. 2021AP505-CR

negligent conduct, you should also consider whether the defendant acted lawfully
in self-defense.” As did the court in Langlois, we conclude that “[t]herefore, the
jury was aware that the initial instruction it was receiving applied to the case
generally and to criminally negligent conduct specifically.” See Langlois, 382
Wis. 2d 414, ¶43.

¶19 Additionally, the trial court here, at the outset of the instructions,
also correctly instructed the jury that “[d]efendants are not required to prove their
innocence” and “[t]he burden of establishing every fact necessary to constitute
guilt is upon the State.” The trial court also twice indicated that the State bore the
burden of disproving self-defense during the instructions. The court stated in
Langlois, “Because self-defense is a negative defense, the State disproves self-
defense beyond a reasonable doubt if it proves the elements of the crime beyond a
reasonable doubt, specifically criminal negligence.” See id., 382 Wis. 2d 414,
¶45. The court further stated, “Therefore, the jury was aware that the State had to
prove criminal negligence—the element that self-defense would negate—beyond a
reasonable doubt.” Id. Thus, as in Langlois, the jury here was aware that the
State bore the burden to prove the elements of homicide by negligent handling of a
dangerous weapon and proof of those elements would negate any self-defense.

¶20 Last, we conclude that, any argument that the jury failed to
understand that Humphrey’s defense of self-defense applied to the lesser-included
charge of homicide by negligent handling of a dangerous weapon also fails. In
Langlois, Langlois argued that it was evident that the jury instruction was
erroneous because the jury found him not guilty on the two counts for first and
second-degree reckless homicide where the self-defense instruction included the
State’s burden, but guilty on the lesser-included charge of negligent homicide
where the State’s burden was not restated. See id., ¶46. The court noted that

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No. 2021AP505-CR

Langlois believed that, therefore, the lack of reiteration of the State’s burden is the
reason that the jury found him guilty of negligent homicide. See id. The court
concluded that “[t]his argument fails.” Id. It then stated that “the circuit court did
not repeat the accident or self-defense instructions for the second-degree reckless
homicide, but the jury still found Langlois not guilty of that offense.” Id.

¶21 Similar to Langlois, the trial court here did not incorporate any
instruction on self-defense into the instruction providing the elements of the
lesser-included offense of second-degree reckless homicide. See id. Yet, the jury
here still did not find Humphrey guilty of that lesser-included offense of second-
degree reckless homicide. We will not infer error in the instructions because the
jury did not find Humphrey guilty of the lesser-included offense of second-degree
reckless homicide but did find him guilty of the lesser-included offense of
homicide by negligent handling of a dangerous weapon. See id.

¶22 Thus, viewing the jury instructions as a whole, we conclude that the
jury was properly informed that the State bore the burden in this case and that
Humphrey’s defense of self-defense applied to the lesser-included charge of
homicide by negligent handling of a dangerous weapon. “[T]he context provided
by the prior instruction and the general instructions clearly convey that the State
bore the burden to disprove self-defense.” See id., ¶47.

¶23 Relying on State v. Gonzalez, 2011 WI 63, 335 Wis. 2d 270, 802
N.W.2d 454, Humphrey additionally argues that the error in the instruction was
compounded by the trial court’s response to the jury’s question to review WIS JI—
CRIMINAL 1023, the substantive instruction containing the elements of the crime,

10
No. 2021AP505-CR

omitted any guidance that self-defense applied to homicide by negligent handling
of a dangerous weapon.6

¶24 We disagree because the jury’s question had nothing to do with self-
defense, its application to homicide by negligent handling of a dangerous weapon,
or the State’s burden to disprove self-defense. Rather, the jury’s question dealt
with confusion over the definition of criminal negligence, an element of the crime
of homicide by negligent handling of a dangerous weapon. A reminder to review
WIS JI—CRIMINAL 1023, where criminal negligence is specifically defined as an
element of the crime, was an appropriate response to the jury’s question.

¶25 Nevertheless, Humphrey argues that Gonzalez is “particularly
relevant because the instructions error there arose from the trial court’s
mishandling of its response to the jury’s requests for clarification.” We are not
persuaded. The court in Gonzalez relied on several shortcomings in the jury
instructions in reaching its conclusion and did not rely solely on the trial court’s
lack of a response to the jury’s questions during deliberations. See id., 335
Wis. 2d 270, ¶62 (listing the jury’s questions during deliberations as the fourth
reason the instructions were misleading). Moreover, unlike the trial court in
Gonzalez, which provided absolutely no response to the jury’s questions, id., ¶72,
the trial court in Humphrey’s case did. Thus, we are not persuaded that Gonzalez
compels a conclusion that the jury instructions in this case were erroneous.

6
In arguing that an error in the jury instruction requires reversal, Humphrey further cites
to State v. Altenburg, No. 96-1099-CR, unpublished slip op. (WI App Dec. 12, 1996). Pursuant
to WIS. STAT. RULE 809.23(3), unpublished opinions issued before July 1, 2009, may not be
cited. Consequently, we reject Humphrey’s reliance here on Altenburg.

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No. 2021AP505-CR

¶26 Having concluded that there is no error in the jury instructions when
viewed as a whole, we turn to Humphrey’s arguments of ineffective assistance of
counsel, plain error, and a new trial in the interest of justice.7 “An erroneous jury
instruction warrants reversal only when the error is prejudicial.” Langlois, 382
Wis. 2d 414, ¶48. Consequently, because we conclude that the jury instruction
was not erroneous, we necessarily must conclude that Humphrey’s claims of
ineffective assistance of counsel, plain error, and reversal in the interest of justice
that are predicated on an error in the jury instructions must fail. See id.
(concluding “that there is no basis” for a defendant’s claims of ineffective
assistance of counsel, violation of due process, or a new trial in the interest of
justice when the jury instruction was not erroneous). Accordingly, we reject
Humphrey’s claims, and we affirm.

By the Court.—Judgment and order affirmed.

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

7
As a result of our conclusion, we do not address the State’s argument that any error in
the jury instruction is harmless. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct.
App. 1989).

12