On Point: 10. Defenses

State v. Theophilous Ruffin, 2019AP1046-CR, District 1, 3/9/21 (not recommended for publication), state’s petition for review granted 9/17/21; reversed, 2022 WI 34; case activity (including briefs)

Ruffin raises three challenges to how the jury was instructed at his trial. Two are rejected in all respects, but one—regarding trial counsel’s decision to withdraw a self defense instruction—gets him a Machner hearing.

State v. Marshun Dante Jackson, 2019AP2091, 2/17/21, District 3 (not recommended for publication); case activity (including briefs)

Jackson pleaded to being part of a conspiracy to commit fraud (passing bad checks) against a bank in Dunn County. Then he was charged in St. Croix county with committing fraud against a bank there (initially this was also charged as a conspiracy, but ultimately he pleaded to the fraud itself as party to the crime). Both offenses occurred on the same date, and Jackson claims that the dual prosecutions violated both his constitutional right against double jeopardy and a statutory provision forbidding conviction of both conspiracy to commit a crime and the underlying crime itself. The court of appeals rejects both claims, holding that the conspiracy covered by the Dunn County charge didn’t encompass the acts in St. Croix County.

State v. Todd N. Triebold, 2021 WI App 13; case activity (including briefs)

Triebold was convicted of child sexual assault in Wisconsin and subject to lifetime sex offender registration. He moved to Minnesota and notified the Wisconsin DOC of his address. But he moved again and failed to notify either Wisconsin or Minnesota of his change in address. He was separately convicted of violating the sex offender registration laws of Minnesota and Wisconsin. This appeal concerns his challenges to his Wisconsin conviction. The court’s decision is recommended for publication.

State v. Leevan Roundtree, 2012 WI 1, 1/7/21, affirming a per curiam court of appeals opinion, 2018AP594-CR; case activity (including briefs)

In 2003, Roundtree was convicted of multiple felony counts of failure to pay child support. Twelve years later, police executed a search warrant at his home and found a firearm and ammunition under his mattress. He pled guilty to one count of felon in possession. On appeal, he argued that §941.29(2)(2013-2014), which barred him from possessing a firearm, is unconstitutional as applied to his case. The statute has no time limit and draws no distinction between serious or violent felonies versus less serious felonies like failure to pay child support. In a 5-2 decision SCOW upheld the statute.

State v. Savage, 2020 WI 93, 12/23/20, reversing a court of appeals opinion; case activity (including briefs).

Savage, who was homeless, claimed he received ineffective assistance of counsel when his lawyer failed to advise him that he had a defense under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787 before he pled guilty to violating the sex offender registry rule that he provide his address to the DOC. According to Savage and the court of appeals, Dinkins held that a homeless person is exempt from sex offender registration requirements.  In a unanimous opinion, SCOW reverses, holds that Dinkins did not establish that broad exemption, and thus counsel did not perform deficiently.

State v. Chidiebele Praises Ozodi, 2019AP886-CR, District 2, 12/16/20 (not recommended for publication); case activity (including briefs)

The legislature amended § 939.42 in 2013 Wis. Act 307 to eliminate the defense of voluntary intoxication when the intoxication negated the existence of a requisite mental state, like intent or knowledge. But because the state has the burden of proving every element of an offense, including the mental state, there’s a due process argument that evidence of intoxication that might negate that element is relevant and admissible, despite the absence of a statutory defense of voluntary intoxication. (¶27 & n.4). If that’s so, then what, if anything, should the court tell the jury about how to use that evidence?

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

State v. Raymond R. Barton, 2019AP1990, 9/24/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had happened because “things had happened before.” He also asserts the court should have instructed the jury on self-defense. The court of appeals rejects both arguments.

State v. Alan M. Johnson, 2018AP2318-CR, review of published opinion granted 9/16/20; case activity (including briefs)

Issues for review (from the State’s Petition)

1. Was Johnson entitled to a jury instruction for perfect self-defense based on his testimony concerning his motivation for trespassing with a loaded firearm in KM’s house, despite the fact that KM was unarmed, shot five times, and Johnson could not recall anything about the shooting other than that KM “lunged” at him?

2. Was Johnson entitled to submission of the lesser-included offense of second-degree reckless homicide under the above circumstances?

3. Did the circuit court erroneously exercise its discretion in excluding evidence of alleged child pornography Johnson found on KM’s computer before he killed KM?

State v. Mitchell L. Christen, review of a one-judge court of appeals decision granted 9/16/17, case activity (including brief)

Issue presented:

Wisconsin Statute § 941.20(1)(3) provides whomever goes armed with a firearm while under the influence of an intoxicant is guilty of a Class A misdemeanor. The consumption of alcohol may lead an individual to become under the influence of an intoxicant, but the consumption of alcohol is not prohibited. The question presented is: Does the consumption of a legal intoxicant void the Second Amendment’s guarantee of the right to carry a firearm for the purpose of self-defense?