On Point: 10. Defenses

State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11

circuit court decision; case activity

Carrying concealed weapon charge dismissed, under as-applied (state) constitutional challenge, Art. I § 25. Pinnow had a cased, unloaded gun underneath the seat of his car, had himself been the recent victim of an armed robbery, believed with reason he was transporting the gun in a lawful manner, and wasn’t carrying the gun for an unlawful purpose.

State v. Richard L. Daniels, 2010AP1715-CR, District 3, 2/23/11

court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity

Ineffective Assistance of Counsel – Voluntary Intoxication

Voluntary intoxication requires that the defendant establish utter lack of capability to form the requisite intent; because Daniels’ version couldn’t make this showing, counsel’s failure to pursue the defense wasn’t deficient performance.

¶12      It was reasonable for Daniels’ trial counsel to view Daniels’ version of events as inconsistent with a voluntary intoxication defense,

State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11

court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.

Ineffective Assistance Claim – Necessity of Motion

Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.

Entrapment – Child Sex Crime with Computer

Challenge to sufficiency of evidence to negate entrapment defense rejected,

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,

State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10

court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.

Battery – Self-Defense – Sufficiency of Evidence

A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.  

State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

Venue – Instruction

¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v.

Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply

Statute of Limitations – § 939.74(3) – Constitutionality

Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued.

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,

court of appeals decision (1-judge; not for publication); for Heindl: Lisa A. McDougal; BiC; Resp.; Reply

Jury Instructions – Self-Defense

Trial for battery, which the State theorized occurred when Heindl put Lien in a headlock from behind. Heindl himself suffered scratches and swelling about an eye, but was seriously drunk and had difficulty giving a coherent account to the police. He did not testify,

court of appeals decision (3-judge; not recommended for publication); for Lonski: Basil M. Loeb; BiC; Resp.

Self-Defense
Lonski’s claim of self-defense (that she was protecting herself from “unlawful” use of force by a uniformed officer) was rejected as not credible by the trial court in a bench trial, and that credibility determination wasn’t clearly erroneous.

Jury Waiver
Lonski’s jury waiver was adequately canvassed,