On Point blog, page 1 of 1
Court of appeals holds evidence supports instructions and conviction on lesser-included offense of 1st-degree reckless homicide
State v. Brian A. Patterson, Appeal No. 2013AP749-CR, District 1, 7/22/14 (not recommended for publication); case activity
The State charged Patterson with 1st-degree intentional homicide in a shooting death, but the jury convicted him of a lesser-included offense: 1st degree reckless homicide. In a cut-and-dried decision, the court of appeals held the evidence sufficient to support the conviction, and found no circuit court error in allowing the jury to consider 1st-degree reckless homicide, instructing the jury, or sentencing Patterson.
Sufficiency of Evidence–First-Degree Intentional Homicide
State v. William F. Vollbrecht, 2012AP49-CR, District 3, 11/6/12, court of appeals decision (not recommended for publication); case activity
Evidence held sufficient to sustain conviction for first-degree intentional homicide. The jury was entitled to reject Vollbrecht’s testimony that the shot he fired into his ex-girlfriend’s new boyfriend was accidental.
¶12 Vollbrecht’s argument fails on two fronts. First, consistent with Poellinger, the jury was permitted to accept Clark’s revised version of events and reject Vollbrecht’s tenuous explanation of what occurred at the time of the shooting.
Adequate Provocation Defense, §§ 939.44(1), 940.01(2)(a): Test for Admissibility; Counsel: No Right to Participate, in camera Hearing
State v. Scott E. Schmidt, 2012 WI App 113 (recommended for publication); case activity
Adequate Provocation Defense, §§ 939.44(1), 940.01(2)(a) – Test for Admissibility
The “some evidence,” rather than Schmidt’s proposed less stringent “mere relevance,” standard controls admissibility of evidence of adequate provocation that would reduce first- to second-degree intentional homicide:
¶9 When applying the some evidence standard, “the circuit court must determine whether a reasonable construction of the evidence will support the defendant’s theory viewed in the most favorable light it will reasonably admit of from the standpoint of the accused.” [State v.
First-Degree Intentional Homicide – Sufficiency of Evidence; Evidence – Habit, § 904.06(1)
State v. Thomas C. Niesen, 2010AP1864-CR, District 2, 10/5/11
court of appeals decision (not recommended for publication); for Niesen: James A. Rebholz; case activity
Evidence held sufficient to sustain conviction § 940.01(1), court rejecting argument that State failed to prove that Niesen inflicted the fatal knife wound. (Niesen made certain damaging admissions; he met the description of the man last seen with the victim; his sperm was found in the ¶¶2-21.
Statute of Limitations: Attempted first-Degree Intentional Homicide
State v. Rodney A. Larson, 2011 WI App 106 (recommended for publication); for Larson: Chris Gramstrup; case activity
Prosecution for attempt rather than completed crime, §939.32, comes within the general limitation period in § 939.74(1). Therefore, although prosecution for homicide may be commenced at any time, § 939.74(2)(a), Larson’s prosecution for attempted first-degree intentional homicide had to be commenced within 6 years, and must be dismissed as untimely.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent; Sanction – Appendix
State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10
court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent
¶13 That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound,
§ 940.01, First-Degree Intentional Homicide — Sufficiency of Evidence
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Although “most of the persuasive evidence against” Zimmerman was his own statements and alibi; and although a conviction may not be based solely on a negative inference drawn from the defendant’s own version, other evidence sufficiently supported the conviction, including: “evidence of his obsessive behavior,
§ 940.01, Intentional Homicide — definitions – “human being” – fetus
State v. Deborah J.Z., 228 Wis.2d 468, 596 N.W.2d 490 (Ct. App. 1999), affirmed by equally divided vote, 225 Wis.2d 33, 590 N.W.2d 711 (1999)
For Deborah J.Z.: Sally Hoelzel
Holding: An unborn child is not a “human being” under the controlling definition in § 939.22(16), and the defendant therefore can’t be charged with attempting to kill and injure her fetus by excessive drinking during her pregnancy.