On Point blog, page 6 of 13
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,
State v. Donovan M. Burris, 2009AP956-CR, Wis SCt rev granted 9/21/10
decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein
Issue (from Table of Pending Cases):
Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183,
Battery – Self-Defense – Sufficiency of Evidence; Sanctions – Improper Briefing
State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10
court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.
Battery – Self-Defense – Sufficiency of Evidence
A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.
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court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.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,
Stalking, § 940.32: Sufficiency of Evidence
State v. Carl Ralph Eichorn, 2010 WI App 70; for Eichorn: Melissa Fitzsimmons, SPD, Milwaukee Appellate; BiC; Resp.; Reply
Evidence was sufficient to support stalking conviction, though the requisite “course of conduct” occurred over short span of time:
¶9 In sum, there is more than sufficient evidence under our standard of review to support beyond a reasonable doubt Eichorn’s stalking conviction.
State v. Quovadis Conyice Evans, 2009AP889-CR, District I, 4/20/10
court of appeals decision (3-judge; not recommended for publication); for Evans: George Tauscheck; BiC: Resp.; Reply
Testimony from 4 (of a total of 9) false imprisonment victims wasn’t necessary to sustain the convictions on those counts:
… (A) reasonable jury could have determined beyond a reasonable doubt from circumstantial evidence that Nathan B., Nicholas B., Nigel B. and Rashod H. did not consent to being restrained by Evans.
State v. Janet A. Conner, 2008AP1296-CR, Wis SCt review grant, 3/16/10
decision below: 2009 WI App 143; for Conner: Steven J. House
Issues:
What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?
Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?
State v. Patrick R. Patterson, 2008AP1968-CR, Wis SCt review granted 3/16/10
decision below: 2009 WI App 161; for Patterson: David R. Karpe
Issues:
Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?
Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?
Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”
Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?
State v. Donovan M. Burris, 2009AP956-CR, Dist I, 1/26/10, Wis SCt review granted 9/21/10
court of appeals decision (not recommended for publication), reversed, 2011 WI 32; for Burris: Byron C. Lichstein; BiC; Resp.; Reply
Answer to Jury Question – Misleading Definition of “Utter Disregard”
Trial court answer to jury question misleading as to whether jury could consider post-shooting conduct as bearing on “utter disregard” element, entitling Burris to new trial.