COURT OF APPEALS

DECISION

DATED AND FILED

January 31, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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 lesserincluded charges of second-degree reckless homicide and homicide by negligent 

handling of a dangerous weapon. The jury found Humphrey guilty of the lesserincluded 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. 
No. 2021AP505-CR

3

¶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. 
No. 2021AP505-CR

4

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 selfdefense 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.
No. 2021AP505-CR

5

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 selfdefense 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 selfdefense 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 
No. 2021AP505-CR

6

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 
No. 2021AP505-CR

7

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.
No. 2021AP505-CR

8

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 
No. 2021AP505-CR

9

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 selfdefense 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 
No. 2021AP505-CR

10

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 seconddegree 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, 
No. 2021AP505-CR

11

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 selfdefense, 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.
No. 2021AP505-CR

12

¶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).