State v. Moore, 492 N.W.2d 190 (WI Ct. App. 1992)

Court of Appeals of Wisconsin, District Four
August 20, 1992, Released
No. 91-1418-CR
1992 Wisc. App. LEXIS 671; 170 Wis. 2d 732; 492 N.W.2d 190

STATE OF WISCONSIN, Plaintiff-Respondent, v. RONALD K. MOORE, Defendant-Appellant.

Judges: Before Eich, C.J., Gartzke, P.J., and Sundby, J.


GARTZKE, P.J. Ronald K. Moore is an inmate at Columbia Correctional Institution. He appeals from a judgment convicting him of two counts of battery by a prisoner, sec. 940.20(1), Stats., and from an order denying his motion for postconviction relief. The statute makes it a felony for a prisoner to intentionally cause bodily harm to a prison officer. The issue is whether Moore was entitled to a self-defense instruction as to the second count, involving a battery to Officer Tape. We conclude that the trial court should have given the instruction. 1 We therefore reverse the conviction on the second count, order a new trial on that count, and otherwise affirm.


The facts are disputed, but when deciding whether the trial court should have given a self-defense instruction, we consider the evidence most favorable to Moore. State v. Jones, 147 Wis.2d 806, 809, 434 N.W.2d 380, 380 (1989). That evidence is the version of the prison fracas to which he testified.

Moore testified that on February 17, 1989, he was leaving the lunchroom when Officer Jonsrud approached him and said, “I don’t like your attitude.” Moore testified he walked away to his cell and Jonsrud asked, “Did you hear what I said?” Moore continued walking with Jonsrud behind him. When Moore stopped and turned, Jonsrud ran into him and fell sideways over a table.

According to Moore, Officer Tape then ran at him with a chair in hand, Moore picked up a chair, and Officer Tape and Moore swung the chairs at each other. The chairs went flying and Officer Tape said to Moore, “I got to take you down.” Moore responded, “Just leave me alone. Let me go to my cell.” Moore grabbed another chair and swung at Tape saying, “Back up. Back off me,” and without striking the officer.
Moore testified that he was afraid of being restrained by OfficerTape because he saw no captain or lieutenant present. He testified that to prevent the excessive use of force, captains and lieutenants supervise physical restraint of inmates. Without a captain or lieutenant present, he claimed he could have been put in a choke-hold and killed.

Moore testified that Officer Tape came at him with another chair, and Moore reacted by again picking up a chair. Tape pushed his chair at Moore’s face, “like a lion tamer,” Moore ducked but was almost hit in the face, and swung his chair at Tape while telling him to back up. When the chairs collided, Tape fell. Other officers rushed in. Seeing a lieutenant, Moore offered no further resistance.
Moore was charged with battery against Jonsrud and Tape. The trial court denied Moore’s request for a self-defense instruction as to the count involving Tape. 2

Self-defense is a statutory privilege. Section 939.48(1), Stats., provides in part, “A person is privileged to threaten or 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 such other person.”

When a reasonable view of the evidence most favorable to the defendant supports a self-defense theory, the jury should decide the self-defense issue. State v. Reinwand, 147 Wis.2d 192, 199, 433 N.W.2d 27, 30 (Ct. App. 1988). Moore argues that his testimony supported his theory of self-defense as to the Tape count and that it was for the jury to decide whether to believe him. We agree.

Moore testified that he picked up a chair to counter Tape’s charge, later swung a chair at Tape in response to nearly being hit in the face by a chair Tape held, and was afraid to submit to Tape because no supervisors were present to protect him against choke-holds or other excessive force. Moore’s testimony, if believed, reasonably supports a theory of self-defense.

The state argues that because he used a weapon to defend himself, contrary to Wis. Adm. Code sec. DOC 303.05(4), Moore was not entitled to a self-defense instruction. That administrative rule applies to inmates in correctional institutions. It provides in part that an “inmate may never use a weapon in exercising the privilege of self-defense.” The rule applies to inmates asserting a self-defense claim at a prison disciplinary hearing conducted by prison officials under Wis. Adm. Code ch. DOC 303. But the appeal before us does not involve a disciplinary hearing.

Moreover, sec. DOC 303.05(4) does not negate the legislature’s decision that self-defense as described in sec. 939.48(1), Stats., is a privilege which may be asserted by a defendant charged with a crime. The commentary to sec. DOC 303.05 acknowledges that “sections 939.42 – 939.49, Stats., list the ‘defenses’ which may be used in a criminal case.” Appendix to Wis. Adm. Code ch. DOC 303, note: DOC 303.05. No statute is called to our attention which allows the department of corrections to adopt a rule depriving an inmate of a privilege available to other criminal defendants in a court of law. See Richland School Dist. v. DILHR, 166 Wis.2d 262, 278, 479 N.W.2d 579, 586 (Ct. App. 1991) (administrative rule has no force against the plain language of a statute).

The state argues that because Moore was not confronted with “an unlawful interference with his person,” sec. 939.48(1), Stats., therefore does not apply. The state asserts that, even accepting Moore’s testimony, Tape lawfully charged him with chair in hand, since Tape could not have known why Jonsrud fell. But the issue raised by sec. 939.48(1), as applied to Moore, is whether he could have “reasonably believed” Tape’s approach “to be an unlawful interference with his person.” Id. A jury could have decided that issue in Moore’s favor. That is to say, a jury could find Moore reasonably believed Tape’s attack was an unlawful interference with Moore’s person, regardless what in fact motivated Tape to attack him. The self-defense privilege deals with reasonable appearances. It is how the situation reasonably appears that may justify the use of force to save one’s self.

The state asserts that State v. Cummings, 153 Wis.2d 603, 451 N.W.2d 463 (Ct. App. 1989), is analogous to this case. Cummings involved an inmate charged with battery to a prison officer. The inmate refused to obey an officer’s direct orders, contrary to Wis. Adm. Code sec. [DOC] 303.24(1)(a). Because of his refusal, the correctional officers forcefully restrained him and he bit an officer. We rejected the inmate’s contention that he was entitled to a self-defense instruction. Cummings, 153 Wis.2d at 608, 451 N.W.2d at 465.

Cummings does not apply, since there the inmate could not have reasonably believed that he faced an unlawful interference of his person, his disobedience having provoked the officers’ use of force. According to Moore, he did not disobey an order or intentionally provoke Tape to use force, and feared death as long as a captain or lieutenant was not present. A jury could find that, from Moore’s perspective, he could reasonably see Tape’s attack as an unlawful interference.

The state argues that failure to give a self-defense instruction was harmless error at best. The state asserts that the guilty verdict on the Jonsrud count implies that the jury believed the witnesses who testified that Moore deliberately struck Jonsrud. The state argues that the jury would have found that by hitting Jonsrud, Moore engaged “in unlawful conduct of a type likely to provoke others to attack him,” and therefore the jury would have rejected Moore’s self-defense claim. The state cites sec. 939.48(2)(a), Stats., which provides:

A person who engages in unlawful conduct of a type likely to provoke others to attack him 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 him to reasonably believe that he is in imminent danger of death or great bodily harm.

We cannot say that harmless error resulted from the failure to give the self-defense instruction. It does not follow from the verdict on the Jonsrud count that the jury necessarily would have found that Moore provoked Tape’s attack. The jury could have believed that the batteries to Jonsrud and Tape were separate and distinct because Moore’s battle with Jonsrud was over when, according to Moore, Tape intervened. Compare State v. Giwosky, 109 Wis.2d 446, 457-58, 326 N.W.2d 232, 238 (1982) (“defendant can not claim the benefit of self-defense in order to attempt to break this single continuing incident into distinct conceptual incidents….”). But even if the jury found that Moore had engaged in unlawful conduct of a type likely to provoke Tape to attack him, the jury could have found Moore was entitled to claim self-defense because, fearing a choke-hold in the absence of a superior officer, Moore reasonably believed that he was in imminent danger of death or great bodily harm. Section 939.48(2)(a), Stats.

Viewing as we must the evidence in a light most favorable to Moore, we conclude that it reasonably supports a theory that Moore’s use of force was undertaken in self-defense. The issue should have gone to the jury. We reverse the judgment with regard to the second count, the battery to Officer Tape, and order a new trial on that count. We affirm the judgment as to the first count, the battery to Officer Jonsrud.
By the Court.–Judgment affirmed in part; reversed in part and cause remanded; order affirmed.


EICH, C.J. (dissenting). Officer Tape was in a prison lunchroom or dayroom when he saw Officer Johnsrud, after coming into contact with Moore, fall backwards, roll off the edgeof a table, and fall to the floor. He then saw Moore begin turning over tables and chairs in the room. He picked up a chair and advanced toward Moore. Moore also picked up a chair and the two men swung at each other, with Moore’s chair striking Tape in the head. For this, Moore was convicted of battery. 1

Moore claims on this appeal that he was entitled to a self-defense instruction, and the majority agrees that he should have had one, ordering a new trial because the trial court declined to give the instruction. I respectfully disagree.

A defendant is entitled to defend himself or herself by threatening or using force against another “for the purpose of preventing or terminating what he [or she] reasonably believes to be an unlawful interference with his [or her] person ….” Sec. 939.48(1), Stats. (emphasis added).

I agree with the majority that, in deciding whether to give the self-defense instruction, the court must consider the evidence in the light most favorable to Moore. However, I disagree with the majority’s conclusion that, taking Moore’s version of the incident at face value, he has met that statutory requirement.

Moore says that he picked up the chair and swung it at Tape because, seeing the chair in Tape’s hands, he feared for his life. 2 He says that because there was no superior officer present to prevent the excessive use of force by Tape, he feared that Tape would choke him or otherwise use excessive force upon him — and the majority concludes that this testimony establishes a reasonable belief on Moore’s part that he was required to do what he did in order to prevent or terminate “an unlawful interference with his person.”

But this was not a scuffle at a ballpark, or even a tavern. It was not confrontation between private citizens — or even between a private citizen and a police officer. Moore is a prison inmate and Tape is a corrections officer, responsible for maintaining order at the prison; and the special need for personal and institutional security, together with all of the other unique circumstances of prison life, must be included in the equation. Under all of the circumstances of this case, I believe the trial court could properly conclude that the defense of self-defense was not available to Moore as a matter of law.

In State v. Cummings, 153 Wis.2d 603, 451 N.W.2d 463 (Ct. App. 1989), we upheld the trial court’s denial of a self-defense instruction in a battery-to-a-corrections-officer case where the defendant, like Moore, a prison inmate, was engaging in unlawful conduct in violation of provisions of the administrative code when he engaged in an altercation with a corrections officer. 3 Moore, when he grabbed a chair and began swinging it toward Tape, was similarly engaging in unlawful conduct. See Wis. Adm. Code sec. DOC 303.05(4), prohibiting inmates from using weapons “in exercising the privilege of self-defense,” and sec. DOC 303.28, forbidding inmates from engaging in “disruptive conduct.” We also noted in Cummings that the officer’s response to the prisoner’s actions was “legitimate.”

On those facts, we concluded in Cummings that “the trial court could properly conclude that [the defendant] was not confronted with an ‘unlawful interference’ which would warrant a self-defense instruction to the jury.” Id., 153 Wis.2d at 608, 451 N.W.2d at 465. I would reach the same conclusion in this case and would affirm the trial court in all respects.


1 Moore also argued in his postconviction motion on both counts that the criminal prosecution subjected him to double jeopardy after prison officials took disciplinary action against him for the same conduct. He relied on United States v. Halper, 490 U.S. 435 (1989). Moore concedes that we rejected this argument in State v. Fonder, 162 Wis.2d 591, 598-99 n.4, 469 N.W.2d 922, 926 n.4 (Ct. App.),cert. denied, 112 S.Ct. 614 (1991), and that to reverse the postconviction order, we would have to overrule both Fonder and the Wisconsin Supreme Court’s decision in State v. Killebrew, 115 Wis.2d 243, 340 N.W.2d 470 (1983). Moore asks us to reconsiderFonder. We decline. As in Fonder, we believe Halper is inapposite, and we leave it to “the Wisconsin Supreme Court, if it so chooses, to modify its Killebrew analysis in light of Halper.” Fonder, 162 Wis.2d at 599 n.4, 469 N.W.2d at 926 n.4. We affirm the order denying postconviction relief as to both counts without further discussion.

2 The defense theory as to the Jonsrud count was essentially one of accident. Moore claimed he unintentionally collided with Jonsrud. Moore’s appeal from the Jonsrud count is limited to the double jeopardy issue. We have disposed of that issue in footnote 1, supra.


1 He was also convicted of battering Officer Johnsrud, over his own testimony that he never struck Johnsrud, but that Johnsrud, who had been walking closely behind him, simply ran into him and fell down when he (Moore) stopped.

2 As the majority notes, “according to Moore, he … feared death [presumably at Tape’s hands] as long as a captain or lieutenant was not present.” Maj. op. at 7.

3 In Cummings, the “unlawful conduct” was the defendant’s acts of “refusing to obey the officer’s direct orders and when he physically resisted them” in violation of Wis. Adm. Code secs. HSS 303.24(1)(a) and 303.28. 153 Wis.2d at 608, 451 N.W.2d at 465.

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