On Point: A. Statutory defenses

On review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

In granting Kucharski a new trial on the issue of mental responsiblity under the miscarriage of justice prong of § 752.35, did the court of appeals substitute its judgment for that of the trial court on issues that are within the sole province of the finder of fact, so that the appellate court’s decision conflicts with this court’s decision in State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979)?

Should a defendant be entitled to a new trial on the affirmative defense of mental disease or defect under the miscarriage of justice prong of § 752.35 where the court of appeals does not find any error or unfairness in the defendant’s trial, but determines there is a substantial probability of a different result on retrial only by substitution its judgment for that of the fact-finder on issues that are the province of the fact-finder alone?

State v. Jacob G. Mayer, 2013AP2758-CR, District 2, 9/24/14 (not recommended for publication); case activity

The trial court’s refusal to instruct the jury on the defense of voluntary intoxication and the prosecutor’s improper closing argument were harmless, but the latter is egregious enough to cause the court of appeals to refer the prosecutor to OLR.

State v. Kim B. Simmelink, 2014 WI App 102; case activity

The court of appeals holds that § 939.74(2)(b)’s extended statute of limitation for certain theft charges runs from actual discovery of the theft, and not from when the theft should have been discovered with the exercise of reasonable diligence.

State v. Donyil Leeiton Anderson, 2014 WI 93, 7/30/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Gableman; case activity

Without explaining its reasoning, the supreme court declares that while the consumption of prescription medication in accordance with a physician’s advice may give rise to an involuntary intoxication defense under § 939.42, it can never create a mental defect that would sustain an insanity defense under § 971.15. The court also holds that mixing prescription medication with any amount of alcohol precludes a defendant from using either defense.

State v. Erick O. Magett, 2014 WI 67, 7/16/14, affirming an unpublished court of appeals decision; majority opinion by Justice Prosser; case activity

The circuit court erred when it prevented Magett from testifying on the issue of mental disease or defect during the responsibility phase of his NGI trial because the court mistakenly believed that Magett was not a competent witness regarding his own mental condition and that he was required to present expert testimony on the issue. The circuit court also erred in dismissing Magett’s NGI defense without hearing any testimony during the responsiblity phase. However, a majority of the supreme court holds these errors are harmless, so Magett does not get a new hearing on the issue of mental responsibility.

State v. Charles R. Kucharski, 2013AP557-CR, District 1, 5/6/14, petition for review granted 9/24/14, reversed, 2015 WI 64; case activity

This is a nice defense win, and the majority opinion makes sense.  Kucharski shot and killed his parents and pled not guilty by reason of mental disease or defect. The only issue at his court trial was whether he lacked the capacity to appreciate the wrongfulness of his conduct and comply with the law. The uncontested expert opinions answered “yes.” So the majority granted a new trial.  The dissent took issue with the majority’s application of § 752.35, the discretionary reversal standard.

State v. Brian J. Anderson,  2013AP913-CR, District 1, 4/15/14 (not recommended for publication); case activity

Anderson appealed his conviction for 1st-degree intentional homicide arguing that the trial court should have admitted evidence of his victim’s violent character under State v. McMorris and excluded “other acts” evidence under State v. Sullivan and § 904.04(2) and 904.03. The court of appeals rejects both arguments.

State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity

The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

Did the trial court err in instructing the jury that voluntary consumption of any drug precludes a finding of “mental defect” under § 971.15, where the defendant claimed he suffered from a temporary mental defect based in part on his use of a prescription drug as directed by a doctor?

Did the court of appeals erroneously exercise its discretion in granting a new trial in the interest of justice?

State v. Tina M. Jacobsen, 2014 WI App 13; case activity

Jacobsen was charged with 8 offenses for stealing $500,000 from her employer, and she was convicted on 3 counts.  The charges were based on 289 individual thefts occurring over 3 years.  On appeal she claimed her trial lawyer was ineffective for failing advise her that, and for failing to seek dismissal because, the charges were duplicitous or multiplicitous.