On Point: D. Ch. 940: Against life/body

State v. Gary M. Hemmingway, 2012 WI App 133; case activity

Stalking,  § 940.32(2m)(a), which previously survived overbreadth and vagueness challenges based on rights to travel and equal protection, State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), now withstands a free-speech challenge: The statute isn’t a facially overbroad regulation of protected speech, in that the first amendment doesn’t immunize intentional conduct aimed at causing serious distress or fear of bodily harm.

State v. William F. Vollbrecht, 2012AP49-CR, District 3, 11/6/12,  court of appeals decision (not recommended for publication); case activity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.  

State v. Reginald Scott Williams, 2011AP1379-CR, District 1, 9/18/12

court of appeals decision (not recommended for publication); case activity

Williams drove at an excessive speed (30+ over the limit), and crashed into another car, resulting in death and serious injuries. He pleaded no contest to one count of homicide by negligent use, § 940.10 and one count of reckless driving / GBH, § 346.62(4). At the time of the pleas,

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.

State v. Mark M. Benson, 2012 WI App 101 (recommended for publication); case activity

Equal Protection – Homicide of Unborn Child by Intoxicated Use of Motor Vehicle, §§ 939.75(2)(b)3, 940.09(1)(c) 

Section § 939.75(2)(b)3 exempts from criminal liability any “act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.”

State v. Jason M. Jacobs, 2012 WI App 104 (recommended for publication); case activity

Search & Seizure – Consent – Blood Draw

Following a fatal traffic accident, Jacobs performed field sobriety tests well enough that he wasn’t placed under arrest, but he was asked to submit to a blood draw. Jacobs called his attorney, who advised him not to consent to the draw, but Jacobs nonetheless agreed to go to the hospital with an officer to have a blood test.

Wisconsin State v. Tally Ann Rowan, 2012 WI 60, on certification review ; case activity

Extended Supervision Conditions – Suspicionless Searches 

A condition of extended supervision “that allows any law enforcement officer to search [Tally]’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion,” was tailored to the particular facts and thus neither overbroad nor unrelated to Tally’s rehabilitative needs.

court of appeals certification, review granted, 6/13/12; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity

Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment

Convicted of reckless homicide, § 940.06(1), in the death of their daughter for failing to obtain medical treatment, the Neumanns raise various issues relating to interplay with the right to rely on prayer as treatment,

State v. Anrietta M. Geske, 2012 WI App 15 (recommended for publication); for Geske: Jefren E. Olsen, SPD, Madison Appellate; case activity

Sufficiency of Proof – “Utter Disregard” Element (Reckless Homicide, § 940.02(1)) 

Evidence held sufficient to support reckless homicide element of utter disregard of human life, where deaths resulted from high-speed automobile collision after running red light, notwithstanding undisputed evidence that Geske swerved her car in an attempt to avoid the collision. 

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.