On Point blog, page 2 of 22
Defense win: Nonprosecution agreement isn’t void for violating public policy
State v. Debra L. Rippentrop & Steven E. Rippentrop, 2023 WI App 15; case activity (including briefs) 2022AP92-CR and 2022AP93-CR
The nonprosecution agreement the Rippentrops made with the state doesn’t violate public policy and is therefore enforceable, and that requires the criminal charges filed against them to be dismissed with prejudice.
COA rejects slew of challenges to theft conviction
State v. Jeffrey L. Blabaum, 2022AP111, 11/10/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Blabaum texted his ex and told her to meet him in Dodgeville to retrieve a few personal items she’d left behind when she moved out of the home they shared in Tennessee. He also sent a picture of one of the items, a bench, which appeared to be sitting in a trailer. His text specified that she should “Come alone.”
Some (brief) notes on Bruen
New York State Rifle & Pistol Association Inc. v. Bruen, USSC No. 20-843, 6/23/22 reversing N.Y. State Rifle & Pistol Ass’n v. Beach (2nd Cir. unpublished); Scotusblog page (including briefs and commentary)
You can read tons of analysis of, and commentary on, of this precedent-demolishing (and establishing) case at Scotusblog (and many, many other places). SCOTUS abandoned its previous balancing approach to assessing gun regulations under the Second Amendment in favor of a history-only approach (with that “history,” as so often in SCOTUS, very much in dispute). As to the specific question before it, the Court struck down state concealed-carry licensing regimes that invest authorities with discretion to decide whether to issue a permit to a given applicant (the so-called “may-issue” model).
SCOW clarifies scope of affirmative defense for victims of human and child sex trafficking
State v. Chrystul D. Kizer, 2022 WI 58, affirming a published court of appeals opinion, 2021 WI App 46, 7/6/22, case activity (including briefs)
There’s been a lot of press on this case, so we’ll skip the facts. Kizer is charged with 1st-degree intentional homicide and other felonies in connection with the death of a man she says trafficked her. She asserts §939.46(1), which provides “an affirmative defense for any offense committed as a direct result” of human or child sex trafficking. In a split decision, SCOW decided two questions of statutory interpretation. Now the circuit court must apply the clarified statute and decide whether Kizer gets a jury instruction on this defense at trial.
Exclusion of evidence didn’t violate defendant’s right to present defense; instruction on self defense adequately instructed the jury
State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)
Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.
Multiple charges for fleeing an officer weren’t multiplicitous
State v. Roman T. Wise, 2021 WI App 87; case activity (including briefs)
Wise was convicted of 4 counts of fleeing or eluding an officer under §346.04(3). He claimed trial counsel was ineffective for failing to seek dismissal of 3 of his 4 charges on the grounds that they were multiplicitous. The court of appeals held that the charges were not multiplicitous because each one required proof of a different element or fact. Thus, the circuit court appropriately denied Wise’s ineffective assistance of counsel claim without a hearing.
Defense win: Social media posts mixing photos of guns and a crowded theatre was protected speech, not a “true threat”
Town of Brookfield v. Martin M. Gonzalez, 2021AP218, District 2, 10/27/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Gonzalez posted some photos on Instagram as a “story,” a series of shorter, more casual, less permanent images or posts than standard posts on a user’s Instagram feed (so we’re told). The first photo showed a ticket to an upcoming movie at a Brookfield cinema. The second showed loose bullets and a hand holding a loaded magazine. The third showed the inside of a darkened movie theater. (¶3). This “story” led to Gonzalez being convicted for violating the municipality’s disorderly conduct ordinance, a conviction the court of appeals now vacates.
SCOW will review scope of statutory affirmative defense for victims of human and child sex trafficking
State v. Chrystul D. Kizer, 2020AP192-CR, petition for review of a published court of appeals decision granted 9/14/21; case activity (including briefs)
Issue Presented (from the State’s PFR)
Does § 939.46(1m) provide a victim of trafficking with a complete defense to first degree intentional homicide?
SCOW affirms new trial in unusual homicide case involving a self-defense claim
State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)
In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.
Defense win: Court of Appeals addresses when affirmative defense for trafficking victim “directly results” from trafficking violations
State v. Chrystul D. Kizer, 2021 WI App 46, state’s petition for review granted 9/14/21, affirmed, 2022 WI 58; case activity (including briefs)
The court of appeals gives the affirmative defense in § 939.46(1m) for victims of human trafficking and child sex trafficking its ordinary, common-sense meaning, and rejects the crabbed reading given the statute by the circuit court.