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Homicide conviction overturned, man should have been able to claim self-defense
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Homicide conviction overturned, man should have been able to claim self-defense

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MADISON — The son of a former Racine County sheriff who fatally shot his brother in-law after sneaking into his house had his homicide conviction overturned Wednesday as an appeals court concluded he should have been able to claim self-defense.

According to the District II Court of Appeals opinion:

Alan M. Johnson, 35, formerly of Whitewater, carried a loaded pistol when he entered Kenneth Myszkewicz’s home at 11:45 p.m. on Oct, 24, 2016. Johnson had previously told police that he had found child pornography on a computer in the home a few years ago. Police said the evidence was likely “stale,” and they needed more recent proof that Myszkewicz possessed any child porn.

Johnson told his father, Eric Johnson, who was Racine County’s sheriff from 1992 to 1994, about the suspected pornography, and the retired sheriff told Myszkewicz that he was not welcome at family events.

The younger Johnson testified at trial that Myszkewicz repeatedly physically abused him when he was a child and once had sexually abused him. Johnson also saw Myszkewicz physically abuse his youngest sister, Nicole Johnson, years earlier.

Myszkewicz never denied having child pornography and told his father-in-law, Eric Johnson, that he would move and get counseling. Myszkewicz did neither and Alan Johnson, fearful that Myskewicz would abuse Nicole’s two young daughters, entered Myszkewicz’s unlocked back door and used Myszkewicz’s computer for 2.5 hours before finding child pornography.

Myszkewicz saw Johnson at the computer. Johnson testified that Myszkewicz recognized him, knew he had found the pornography and knew he was going to prison.

Myszkewicz lunged at Johnson, who couldn’t remember what happened next.

Myszkewicz died after being shot by a .40-caliber pistol that Johnson brought to the home.

Walworth County Circuit Judge Kristine Drettwan refused to instruct the jury it could consider that Johnson had acted in self-defense. Drettwan based her decision on Myszkewicz being unarmed at the time, naked from the waist up and had been shot five times including in the back and in the head.

Jurors found Johnson guilty of first-degree reckless homicide and he was sentenced in November 2017 to 25 years in prison.

‘Castle Doctrine’ used in appeal

On appeal, Johnson’s right to self-defense was balanced against Myszkewicz right under the “Castle Doctrine,” which allows a person to use deadly force to protect them self while inside their home.

Even though Johnson had a gun, the Castle Doctrine did not apply to Myszkewicz because he had engaged in an illegal act, possessing child pornography on his computer, the appeals court concluded.

“(Myszkewicz’s) purpose in attacking Johnson was not because he viewed it as ‘necessary to prevent imminent death or great bodily harm’ to himself, but rather because he wanted to prevent Johnson from reporting his ongoing criminal activity of possession of child pornography, or perhaps in a fit of rage over the fact that such activity had been discovered,” Judge Paul Reilly wrote in the unanimous opinion.

While Johnson was also engaging in an illegal act, trespassing, he couldn’t lawfully claim the right to self-defense unless he, too, reasonably believed he needed to use lethal force to prevent his imminent death or suffering great bodily harm.

Judge Drettwan improperly made that determination because it was the jury’ duty to decide if it was reasonable for Johnson to believe he faced imminent death or great bodily in deciding to shoot Myszkewicz, according to the opinion.

“We are reminded of a quote from Justice Oliver Wendell Holmes Jr.: ‘Detached reflection cannot be demanded in the presence of an uplifted knife,’” Reilly wrote.

At trial, Drettwan had also excluded evidence of the child pornography on the computer and refused to allow jurors to consider finding Johnson guilty of lesser offenses. The appeals court concluded those decisions also were erroneous.

The District II court ordered a new trial for Johnson, who is currently incarcerated at the Redgranite Correctional Institution.

Johnson’s attorney, Marcus Berghanh, was unavailable for immediate comment, and a spokesperson for the state Attorney General’s office had no immediate reply on the opinion.

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