On Point: 10. Defenses

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court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.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court of appeals decision (1-judge; not for publication); for Heindl: Lisa A. McDougal; BiC; Resp.; Reply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court of appeals decision (3-judge; not recommended for publication); for Lonski: Basil M. Loeb; BiC; Resp.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,

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.

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.

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.

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,

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,

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,

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,