On Point: A. Statutory defenses

Review of a per curiam opinion; case activity (including briefs); petition for review

Issues (from Stietz’s petition):

1. On the facts of this case, did the court of appeals deny Stietz’s federal and state constitutional rights to present a complete defense of self-defense, and contradict controlling precedent of this Court in State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260 (1977), by weighing Stietz’s credibility and requiring more than “some evidence,” even if inconsistent, to support a self-defense instruction?

2. On the facts of this case, did the court of appeals deny Stietz’s federal and state constitutional rights to present a defense by forbidding argument that Stietz was defending himself against two men he reasonably believed were armed trespassers?

3. On the facts of this case the court of appeals contradict this Court’s controlling decision in State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), by foreclosing self-defense against wardens who: (a) the accused did not know were law enforcement officers, on evidence the jury was entitled to credit; (b) were not even claiming to make an arrest, but only were trying to disarm a man without apparent right; and (c) were not acting peaceably in any event, but rather were trying violently to disarm a lawfully armed man?

State v. Ronald Marshall Jewett, 2015AP1014-CR, District 3, 8/30/16 (not recommended for publication); case activity (including briefs)

The question presented in this case is whether a certified driving record from the Wisconsin DOT is sufficient evidence to establish 2 prior OWI convictions in Minnesota–even though the original court records for those convictions no longer exist. The court of appeals says “yes.”

So far, only one Wisconsin case has interpreted and applied our new Castle Doctrine law–State v. Chew, 2014 WI App 116. Attorneys researching the issue may find a new law review article about this history of this type of legislation helpful.

State v. Joshua Java Berry, 2016 WI App 40; case activity (including briefs)

Berry was found guilty at a bench trial of being a felon in possession of a firearm under § 941.29(2)(a) (2013-14). Before sentencing, Berry’s lawyer figured out that Berry’s prior conviction was for a misdemeanor, not a felony. The court vacated the felon-in-possession conviction and dismissed the charge with prejudice, and the state immediately recharged him under § 941.29(2)(b) (2013-14) because Berry had a prior delinquency adjudication. (¶¶2-6). Recharging him doesn’t violate the prohibition against double jeopardy.

State v. Phillip Kareen Green, 2015AP1126-CR, 4/26/16, District 1 (not recommended for publication); case activity (including briefs)

Green argues that the evidence was insufficient to convict him of first degree reckless homicide because it didn’t prove he acted with utter disregard for human life. He also argues for a new trial in the interest of justice on the grounds that: 1) the jury wasn’t fully instructed about the interaction between self-defense and the utter disregard element; and 2) important facts were not introduced or placed in proper context. The court of appeals rejects Green’s claims in a decision heavy on facts and light on analysis.

State v. James Elvin Lagrone, 2016 WI 26, 4/22/2016, affirming an unpublished court of appeals decision, majority opinion by Ziegler, dissent by A.W. Bradley (joined by Abrahamson); case activity (including briefs)

Lagrone wasn’t told he had the right to testify during the second, mental responsibility phase of his NGI trial. He alleged in his postconviction motion that he didn’t know he had any such right. The trial court denied the motion without a hearing. The supreme court now affirms that denial in an opinion that neither (1) decides whether Lagrone had a right to testify during the second phase, nor (2) explains how the denial of that right, if it exists, can be raised in postconviction proceedings.

State v. Corey R. Kucharski, 2013AP557-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)

The trial court correctly applied the elements of § 971.15, and the record supports the trial court’s finding that Kucharski failed to meet his burden of showing that he lacked mental responsibility when he killed his parents.

State v. Aman D. Singh, 2015AP850-CR, District 4, 1/7/16 (one-judge decision; ineligible for publication); case activity

Singh, appealing pro se, seeks to reverse a twelve-year-old OWI-second conviction for which his sentence is long over. 

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

State v. Glen Artheus Beal, 2014AP2534-CR, 9/22/15, District 1 not recommended for publication); case activity

A jury convicted Beal of child abuse as a  party to a crime because multiple witnesses testified that he punched his girlfriend’s daughter and also restrained the daughter so that her mother (his girlfriend) could hit her. See §939.05(2)(a) and §939.45(5). Beal argued that although he was not entitled to assert the parental discipline privilege himself, he should have been able to present a defense based on his girlfriends’ right to assert that privilege.