On Point: 9. Crimes

State v. Alan M. Johnson, 2018AP2318-CR, review of published opinion granted 9/16/20; case activity (including briefs)

Issues for review (from the State’s Petition)

1. Was Johnson entitled to a jury instruction for perfect self-defense based on his testimony concerning his motivation for trespassing with a loaded firearm in KM’s house, despite the fact that KM was unarmed, shot five times, and Johnson could not recall anything about the shooting other than that KM “lunged” at him?

2. Was Johnson entitled to submission of the lesser-included offense of second-degree reckless homicide under the above circumstances?

3. Did the circuit court erroneously exercise its discretion in excluding evidence of alleged child pornography Johnson found on KM’s computer before he killed KM?

County of Walworth v. Bozena Twarowksi, 2020AP208, 9/16/20, District 2, (1-judge opinion ineligible for publication); case activity

Twarowski went to pick up her dog from a kennel, balked at an inflated bill, and apparently became argumentative and hostile. The trial court convicted her of disorderly conduct, and she appealed pro se.  According to the court of appeals, which criticized her poorly developed argument, Twaroski challenged the trial court’s finding that the County’s witness was credible. 

State v. Joseph K. Edwards, 2019AP2138-CR, District 1, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Edwards was charged with disorderly conduct with use of a dangerous weapon for “creepy, stalker-like behavior.” (¶6). The court of appeals rejects his complaint that the jury wasn’t instructed on the definition of “true threat” under State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.

State v. Donnie Gene Richards, 2020 WI App 48; case activity (including briefs)

Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.

State v. Christopher Drew Helwig, 2019AP448-CR, 6/4/20, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

The circuit court admitted a blood/urine analysis form and lab report containing blood test results into evidence during Helwig’s OWI trial. On appeal Helwig argued that these documents were hearsay. And because the nurse who drew the blood did not testify at trial, the admission of these documents violated the Confrontation Clause. The court of appeals rejects both arguments.

State v. George E. Savage, 2019AP90-Cr, petition for review of an unpublished option granted, 5/19/20, case activity

Issues (adapted from the State’s petition for review):

1.  Under Hill v. Lockhart, 474 U.S. 52 (1985), when a defendant claims that he received ineffective assistance of counsel in connection with a guilty plea, he must prove that but for his lawyer’s deficient performance  he would have proceeded to trial.  More recently, Lee v. United States, 137 S. Ct. 1958 (2017) held that a defendant can, in some circumstances, prove Strickland prejudice even without a reasonable probability of success at trial.  Given the facts of this case, did Savage prove that he was entitled to withdraw his guilty plea even though he couldn’t show a reasonable probability of success at trial?

2.  State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89 holds that a court cannot decide an ineffective assistance of counsel claim if a Machner hearing has not occurred. In Savage’s case, the circuit court did conduct a Machner hearing,  but the court of appeals reversed and remanded on both deficient performance and prejudice because the circuit court misapplied State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787. Should the court of appeals have affirmed under the rule that the court of appeals may sustain a circuit court decision if there are facts in the record to support it?

State v. Phyllis M. Schwersenska, 2018AP1619-CR, District 4, 4/30/20 (not recommended for publication); case activity (including briefs)

Schwersenska was convicted of embezzling money from a joint bank account she held with her daughter, H.R. The court of appeals holds trial counsel wasn’t ineffective for failing to raise the defense that, as joint owner of the account, none of the money in the account belonged solely to H.R. and so she can’t be guilty of theft from H.R.

State v. Mister N.P. Bratchett, 2018AP2305-CR, 4/22/20, District 1 (not recommended for publication); case activity

Bratchett was convicted of mutilating a corpse under §940.11(1), which requires proof that: (1) the defendant mutilated a corpse, and (2) he did so with intent to conceal a crime. On appeal, Bratchett argued that there was insufficient evidence to support the second element. Part of the problem was that State never specified the crime to be concealed.

State v. Shannon G. Potocnik, 2019AP523, 4/14/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

There’s a deep split nationwide about whether the community caretaker doctrine can ever permit entry into a home. Wisconsin has held that it can, and this pro se appeal is of course necessarily fact-bound. But the decision is thorough and provides a good summary of state community-caretaker law as it stands, along with a much briefer discussion of blood draws based on exigency.

State v. Mitchell L. Christen, 2019AP1767-Cr, 3/17/20, District 4 (1-judge opinion; ineligible for publication); review granted 9/16/16; case activity (including briefs)

Interesting case. Section 941.20(1)(b) makes operating or going armed with a firearm while under the influence of an intoxicant a misdemeanor.  Christen argued that the statute violates the 2nd Amendment “as applied” to anyone who engages in the prohibited conduct while inside his or her home. The State declined to file a response brief, which means it conceded the point. Still, the court of appeals rejected Christen’s argument and affirmed.