On Point: 10. Defenses

State v. Jacob G. Mayer, 2013AP2758-CR, District 2, 9/24/14 (not recommended for publication); case activity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

On review of a published court of appeals decision in Kempainen (case activity) and a per curiam decision in Hurley (case activity)

Issues (adapted from the State’s  PFR in Hurley):

Did the amended complaint charging repeated sexual assault of a child, which alleged that Hurley assaulted his stepdaughter at least 26 times over a five or six-year charging period, satisfy Hurley’s due process right to prepare a defense?

Did the circuit court properly exercise its discretion in admitting “other acts” evidence that Hurley repeatedly assaulted his sister when she was 10 and he was 14 in view of the greater latitude shown “other crimes” evidence in child sexual assault cases?

Did the circuit court err in ordering a new trial due to the prosecutor’s unobjected-to remark in closing argument about Hurley’s failure in his trial testimony to make a strong denial of his sister’s allegations?

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State v. Donyil Leeiton Anderson, 2014 WI 93, 7/30/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Gableman; case activity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. Vernon D. Hershberger, 2014 WI App 86; case activity

As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.

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 Kempainen, 2014 WI App 53, petition for review granted 9/18/14, affirmed, 2015 WI 32; case activity

In this case, the circuit court dismissed 2 counts of sexual assault of a child against Kempainen because the charges failed to provide sufficient notice of when the assaults occurred thus violating due process.  The court of appeals, clarifying the test in State v. R.A.R. and State v. Fawcett, reversed and held that the date of the crimes need not be precisely alleged.

State ex rel. Ardonis Greer v. Wayne J. Widenhoeft, 2014 WI 19, affirming a published court of appeals decision; case activity; Majority opinion:  Justice Ziegler; Dissent: Justice Bradley and C.J. Abrahamson

The DOC assured Greer his probation was over and issued a discharge certificate to that effect.  In truth, his probation term hadn’t yet expired.  So when he committed new crimes, the DOC revoked his probation.  The Majority rejects Greer’s claims that the DOC: (1) lacked jurisdiction to revoke probation, (2) denied due process, and (3) is subject to equitable estoppel.

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.