On Point blog, page 1 of 2
Exclusion of evidence didn’t violate defendant’s right to present defense; instruction on self defense adequately instructed the jury
State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)
Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.
Defense wins on restitution, loses on evidentiary issues
State v. Shawn W. Forgue, 2016AP2414-CR, 5/11/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Forgue, convicted of misdemeanor battery and disorderly conduct, appealed the circuit court’s decision to exclude evidence of the victim’s prior violent conduct toward him (i.e. McMorris evidence) and her other bad acts. He also appealed an order setting restitution at $269.50 for the victim’s lost wages and $1,000 to the Crime Victim Compensation Program.
State v. Curtis L. Jackson, 2011AP2698-CR, petition for review granted, 2/11/13
Review of unpublished court of appeals decision; case activity
Issues (composed by On Point)
1. Whether the jury instructions on self defense as it pertained to second degree reckless homicide fairly and adequately explained the defense to the jury.
2. Whether trial court erroneously excluded evidence of the victim’s reputation for violence.
Petitions for review aren’t available on the court’s website, so issue-formulation is educated guesswork based on the decision of the court of appeals.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent; Sanction – Appendix
State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10
court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent
¶13 That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound,
Defense of Self, § 939.48(1) – Violent Acts of Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21 It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.” State v. Wenger, 225 Wis.
§ 904.04, Self-Defense – “McMorris” Acts of Prior Violence by Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21 It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.” State v. Wenger, 225 Wis.
Defense of Self, § 939.48(1) – Pretrial Disclosure by Defense of “McMorris” Acts of Prior Violence by Victim
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:
¶26 Given the limited nature of the evidence covered in this order——that is,
Defense of Self – Violent Acts of Victim – McMorris Evidence
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:
¶123. We conclude that evidence of a victim’s violent character and of the victim’s prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense.
Self-Defense — “McMorris” Acts of Violence by Victim
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:
¶123. We conclude that evidence of a victim’s violent character and of the victim’s prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim 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;