On Point blog, page 16 of 22
Defenses – Mistake, § 939.43(1) – Relation to Reckless Conduct
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child,
Defenses – Imperfect Self-Defense, Generally
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue/Holding:
¶23 At trial, Kramer asserted he acted in self-defense, and the jury was instructed on imperfect self-defense. A successful defense based on imperfect self-defense reduces first-degree intentional homicide to second-degree intentional homicide. [12] The test is subjective; a defendant must present “evidence of actual beliefs that [he] was in imminent danger of death or great bodily harm and that the force [he] used was necessary to defend [himself].”State v.
Common Law Defenses – Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remandingsummary order of court of appeals
For Coleman: Brian Kinstler
Issue/Holding:
¶28 Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice).
Defenses – Issue Preclusion — “Actually Litigated” Requirement: OWI – Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.
Holding:
¶11 Thus, a threshold prerequisite for application of the doctrine is that,
Common Law Defenses – Collateral Attack on Custody Order, § 948.31
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.
Campbell argued that the custody order was procured by fraud,
Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.
Holding:
¶56 There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57 One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.
Defenses – Venue – First-Degree Intentional Homicide – Sufficient Bindover Showing of Killing in County Where Prosecution Lodged
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding: Venue, § 971.19(1), requires trial in the county where the crime was committed; bindover proof of venue in a first-degree intentional homicide was sufficient (taking the inferences in favor of bindover) to show that defendant killed the victim in the county where the prosecution was lodged,
Disobedient Child Defense to Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Territorial Jurisdiction Defense, § 939.03 — First-Degree Homicide — Intent as “Constituent Element [That] Takes Place”
State v. Derek Anderson, 2005 WI 54, on certification
Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶47 We conclude that § 939.03(1)(a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. Specifically, intent to kill, which is a constituent element of first-degree intentional homicide, may be said to take place——that is,
Defenses – Issue Preclusion: TPR
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9.
The court remands for determination of whether issue preclusion is appropriate in this instance,