On Point blog, page 14 of 15
Defense of Self, § 939.48 – Interplay with Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶84. To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold. The trial evidence must show: (1) a reasonable belief in the existence of an unlawful interference;
Defenses – “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: Drafters of § 939.71 intended to incorporate general principles of law of double jeopardy as then (1953) existed – which includes the “necessary facts” exception (prosecution of greater not barred by conviction of lesser offense where all facts necessary to conviction of greater had yet to come into existence).
Defenses – “Statutory Double Jeopardy,” § 939.71 – Federal Bank Robbery and State Armed Robbery
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/1
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: The elements of federal bank robbery, 18 USC § 2113(d), and state armed robbery, § 943.32(2), don’t exactly overlap, therefore conviction of former doesn’t bar prosecution of latter under § 939.71. ¶¶18-28.
Defenses – Statute of Limitations – Tolling – § 939.74(4)
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: A verdict form requiring the jury to find that the offense occurred between March 1, 1989, and November 28, 1992, adequately established a time period for the offense. And, by finding that the victim was unable to complain due to the effects of the sexual contact or efforts by the defendant,
§ 940.05(2), Intentional Homicide — Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence,
Defenses – Imperfect Self-Defense – Jury Instructions
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence,
Defense of Others – Terminating Interference by Police Officer
State v. John F. Giminski, 2001 WI App 211, PFR filed 9/20/01
For Giminski: Edward J. Hunt
Issue: Whether the defendant was entitled to invoke the privilege of defense of others, § 939.48(4), in using potentially deadly force against police officers who had pulled a gun on his daughter while executing a valid warrant.
Holding:
¶13. (T)he privilege of defense of others, like the privilege of self-defense,
Self-Defense – “McMorris” Acts of Prior Violence by Victim – Procedure on Determining Admisssibility
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;
Defenses – “Statutory Double Jeopardy” – Drug Offenses – § 961.45
State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper
Issue: “¶8 … ‘Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently,
Common Law Privileges – Self-Defense, as Applied to Carrying Concealed Weapon
State v. John V. Dundon, 226 Wis.2d 654, 594 N.W.2d 780 (1999), on certification
For Dundon: William S. Coleman, SPD, Milwaukee Appellate.
Holding:
¶36 In Coleman, we recognized that “a narrow defense of privilege under Wis. Stat. § 939.45(6) exists to a charge of felon in possession of a firearm.” Coleman, 206 Wis. 2d at 210.