On Point blog, page 15 of 22
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.
Defenses – “Statutory Double Jeopardy” – Drug Offenses, § 961.45 – “Same Conduct” Test
State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09
For Bautista: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.
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,
Defenses – Statute of Limitations, § 939.74 – Tolling: Procedure for Determining
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding:
¶50 Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez,
§ 943.34, Receiving Stolen Property: Venue
State v. Kenneth W. Lippold, 2008 WI App 130, PFR filed 8/18/08
For Lippold: Thomas J. Nitschke
Issue/Holding: On a charge of receiving stolen property, venue may rest in the county where the underlying theft occurred (and, provable by circumstantial rather than direct evidence):
¶16 Extrapolating from the holding in Swinson, we conclude that because the crime of receiving stolen property requires more than two acts,
Defenses – Statute of Limitations, § 939.74 – Version Applicable to Since-Repealed, Ch. 944 Offense
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding: Alleged violations, between 1965 and 1972, of since-repealed ch. 944 sexual assault statutes come within the statute of limitations provision extant during that time frame.
There is, of course, a whole lot more to it than that, at least in terms of getting to that point,
Defenses – § 940.09(2), Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and,
§ 939.48(2), Defense of Self – Provocation: Initial Aggressor & Right to Assert Privilege
Root v. Saul, 2006 WI App 106
For Root: Thomas E. Hayes
Issue/Holding: Either slapping or punching someone in the face “is certainly conduct that can provoke others to attack”; and, because Saul indisputably slapped or punched Root in the face the jury could have found Saul the initial aggressor, the jury should have been instructed in accordance with Wis JI—Criminal 815 (embodying § 939.48(2), initial aggressor may not assert self-defense privilege except under enumerated circumstances),
Common Law Defenses – Collateral Attack on Order as Element of Pending Offense, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶42 Where a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void. See State v.