On Point blog, page 19 of 22
Privilege Defense – Accident – Interplay with Self-Defense and Intent
State v. Carroll D. Watkins, 2002 WI 101, affirming as modified 2001 WI App 103, 244 Wis. 2d 205, 628 N.W.2d 419
For Watkins: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Accident has long-existed as a defense that “excuses” homicide, and therefore is incorporated in § 939.45(6) as a privilege “for any other reason.” ¶37. It is not, however, “a true affirmative defense”
Defense of Self – Carrying Concealed Weapon
State v. Tony Nollie, 2002 WI 4, on certification
For Nollie: Erich Straub
Issue: Whether defendant was entitled to assert the privilege of self-defense to the charge of carrying concealed weapon.
Holding:
¶24. To argue self-defense, Nollie’s offer of proof must indicate that he had an actual and reasonable belief of actual or imminent unlawful interference. In this case, there was no actual or imminent unlawful interference to speak of.
Defense of Self – Violent Acts of Victim – McMorris Evidence
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶123. We conclude that evidence of a victim’s violent character and of the victim’s prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense.
Defenses – Imperfect Self-Defense, § 940.05 – Interplay with Defense of Self, § 939.48
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶84. To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold. The trial evidence must show: (1) a reasonable belief in the existence of an unlawful interference;
Self-Defense — “McMorris” Acts of Violence by Victim
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶123. We conclude that evidence of a victim’s violent character and of the victim’s prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense.
Territorial Jurisdiction – Retention of Jurisdiction over Lesser Offenses
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue: Whether territorial jurisdiction, acquired over the charged offense, may be lost over a lesser offense whose elements do not include any committed within the state.
Holding:
¶20 … Like criminal subject matter jurisdiction, once territorial jurisdiction attaches, it will continue until a final disposition of the case.
Defense of Self, § 939.48 – Interplay with Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶84. To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold. The trial evidence must show: (1) a reasonable belief in the existence of an unlawful interference;
Defenses – “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: Drafters of § 939.71 intended to incorporate general principles of law of double jeopardy as then (1953) existed – which includes the “necessary facts” exception (prosecution of greater not barred by conviction of lesser offense where all facts necessary to conviction of greater had yet to come into existence).
Defenses – “Statutory Double Jeopardy,” § 939.71 – Federal Bank Robbery and State Armed Robbery
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/1
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: The elements of federal bank robbery, 18 USC § 2113(d), and state armed robbery, § 943.32(2), don’t exactly overlap, therefore conviction of former doesn’t bar prosecution of latter under § 939.71. ¶¶18-28.
Defenses – Statute of Limitations – Tolling – § 939.74(4)
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: A verdict form requiring the jury to find that the offense occurred between March 1, 1989, and November 28, 1992, adequately established a time period for the offense. And, by finding that the victim was unable to complain due to the effects of the sexual contact or efforts by the defendant,