On Point blog, page 12 of 15
Defenses – Imperfect Self-Defense, Generally
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue/Holding:
¶23 At trial, Kramer asserted he acted in self-defense, and the jury was instructed on imperfect self-defense. A successful defense based on imperfect self-defense reduces first-degree intentional homicide to second-degree intentional homicide. [12] The test is subjective; a defendant must present “evidence of actual beliefs that [he] was in imminent danger of death or great bodily harm and that the force [he] used was necessary to defend [himself].”State v.
Defenses – Venue – First-Degree Intentional Homicide – Sufficient Bindover Showing of Killing in County Where Prosecution Lodged
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding: Venue, § 971.19(1), requires trial in the county where the crime was committed; bindover proof of venue in a first-degree intentional homicide was sufficient (taking the inferences in favor of bindover) to show that defendant killed the victim in the county where the prosecution was lodged,
Disobedient Child Defense to Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Territorial Jurisdiction Defense, § 939.03 — First-Degree Homicide — Intent as “Constituent Element [That] Takes Place”
State v. Derek Anderson, 2005 WI 54, on certification
Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶47 We conclude that § 939.03(1)(a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. Specifically, intent to kill, which is a constituent element of first-degree intentional homicide, may be said to take place——that is,
Defenses – § 948.03(2)(b) (2001-02), Harm to Child – Defense of Parental Privilege, § 939.45(5)
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding:
¶30 While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However,
Defenses – Coercion – § 939.46(1)
State v. Jeffrey A. Keeran, 2004 WI App 4, PFR filed 1/5/04
For Keeran: Joseph L. Sommers
Issue/Holding:
¶5 … The coercion defense is limited to the “most severe form of inducement.” State v. Amundson, 69 Wis. 2d 554, 568, 230 N.W.2d 775 (1975). It requires a finding “under the objective-reasonable man test, with regard to the reasonableness of the actor’s beliefs that he is threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act.”
Defenses – Statute of Limitations – Tolled by Plea Agreement
State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867
For Deilke: Kelly J. McKnight
Issue/Holding:
¶28 The primary purpose of the statute of limitations is to protect the accused from criminal consequences for remote past actions. State v. Jennings, 2003 WI 10, ¶15, 259 Wis.
Defenses – Statute of Limitations – Support Arrearages, § 893.40 – Accrual upon Entry of Support Judgment
State v. Walter Junior Benjamin, 2003 WI 50, affirming 2002 WI App 89
For Hamilton: Robert A. Ramsdell
Issue/Holding:
¶3. Walter’s case raises questions about the application of statutes of limitations to child support collection actions. The issue presented is whether the State, as an assignee of Walter’s deceased former wife, filed a timely action to collect child support arrearages in 2000.
Defenses – Territorial Jurisdiction, § 939.03 – Instructions
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue: Whether defendant was entitled to an instruction on territorial jurisdiction, § 939.03, where the offense was partially committed out of the state.
Holding:
¶23. The question of whether or when a jury must be instructed on the State’s burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin.
Defenses – Privilege, § 939.45 – CCW, § 941.23
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45.
As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one’s vicinity does not qualify as a ‘natural physical force’ under the law.