On Point blog, page 21 of 22
Ex Post Facto – Continuing Offense
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether § 943.201(2) creates a continuing offense such that, as applied to Ramirez, it violated the ex post facto clause because the statute was promulgated after he commenced the activity that formed the basis for the charge.
Holding:
¶18. We hold that Ramirez obtained money in the form of wages,
Self-Defense – “McMorris” Acts of Prior Violence by Victim – Procedure on Determining Admisssibility
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;
Defenses – “Statutory Double Jeopardy” – Drug Offenses – § 961.45
State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper
Issue: “¶8 … ‘Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently,
Defenses – Claim Preclusion – Revocation Hearing Determination of Insufficient Proof of Element of New Offense No Bar to Prosecution of That Offense
State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217
For Terry: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶1 … Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine,
Common Law Privileges – Self-Defense, as Applied to Carrying Concealed Weapon
State v. John V. Dundon, 226 Wis.2d 654, 594 N.W.2d 780 (1999), on certification
For Dundon: William S. Coleman, SPD, Milwaukee Appellate.
Holding:
¶36 In Coleman, we recognized that “a narrow defense of privilege under Wis. Stat. § 939.45(6) exists to a charge of felon in possession of a firearm.” Coleman, 206 Wis. 2d at 210.
Defense of Self – jury instructions – duty to retreat
State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999)
For Wenger: Richard L. Wachowski
Holding: Duty-to-retreat instruction, Wis JI-Crim 810, properly submitted, though retreat would have been into defendant’s own home:
Here, the trial court used the pattern instruction to inform the jury of the applicable law on retreat. The jury instruction put squarely before the jury the disputed issue of whether Wenger’s use of deadly force was reasonably necessary to “prevent or terminate the interference,”
Defense of Self – violent acts of victim
State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999)
For Wenger: Richard L. Wachowski
Holding: Violent acts of victim relevant to self-defense, as exception to general prohibition against character evidence, § 904.04(2), but exclusion of same harmless.
Defenses – Inability to Pay – Nonsupport
State v. Christopher M. Clutter, 230 Wis.2d 472, 602 N.W.2d 324 (Ct. App. 1999)
For Clutter: Martha K. Askins, SPD, Madison Appellate
Issue: Whether the nonsupport defense of inability to pay is viable by showing “lack of financial resources alone.”
Holding: “(L)ack of financial resources alone is insufficient to demonstrate inability to pay.”
Inability to pay is a defense to nonsupport. Clutter, on postconviction motion,
Ex Post Facto – Noncriminal Disability flowing from prior conviction
Monroe Swan v. Douglas LaFolette, 231 Wis.2d 633, 605 N.W.2d 640 (Ct. App. 1999)
Issue: Whether denial of opportunity to become notary public due to felony conviction violates ex post facto provision.
Holding: Ex post facto clause forbids punishing as crime any act which wasn’t punishable when committed, but laws that merely disadvantage someone don’t; because the plain language of the new notary public provision evinces no intent to punish,
§ 948.22(2), Nonsupport — statute of limitations, unit of prosecution
State v. David J. Lenz, 230 Wis.2d 529, 602 N.W.2d 173 (Ct. App. 1999)
For Lenz: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether a charge of § 948.22(2) nonsupport based on arrearages accrued more than six years prior to the charge is barred by the statute of limitations.
Holding: The crime of nonsupport is complete after each 120-day period of intentional failure to pay, including arrearages as well as current obligations,