On Point: 10. Defenses

State v. Joshua J. Luther, 2016AP1879-CR, 5/3/18, District 4 (not recommended for publication); case activity (including briefs)

This is a pretrial interlocutory appeal. Luther is charged with causing injury by driving with a detectable amount of THC in his blood. He wants to present expert testimony that the levels of THC would not have impaired him at the time of the crash–he says he last smoked pot the night before. He argues this evidence can help him meet the statutory affirmative defense in § 940.25(2)(a), (the “even-if” defense) which requires a defendant to show the crash would have happened even if he was exercising “due care” and had no controlled substances in his blood. The court of appeals holds the evidence inadmissible on the record as it stands, but cautions the trial court that if facts emerge supporting the defense, that could change.

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)

White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:

¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.

The court of appeals also admonished White’s appellate counsel.

State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)

Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.

State v. J.D.V., 2017AP1057, District 3, 2/13/18 (one-judge decision; ineligible for publication); case activity

J.D.V. (given the pseudonym “Joseph” by the court) was adjudged delinquent for punching Thomas, another juvenile, in the head outside of school. The incident was recorded by Charles, another student, using his electronic device. Based primarily on that recording the trial court rejected Joseph’s self-defense claim—rightly so, says the court of appeals.

State v. Taran Q. Raczka, 2018 WI App 3; case activity (including briefs)

This is an interlocutory appeal. Raczka is charged with homicide by intoxicated use of a vehicle and reckless homicide; he crashed his car into a tree on the way to work in the morning and his passenger was killed. A blood test revealed trace amounts of THC and cocaine so naturally, the state charged him with two homicides.

State v. Joseph T. Langlois, 2016AP1409-CR, petition for review of a published court of appeals decision granted 12/13/17; case activity (including briefs)

Issues (composed by On Point):

1. Was trial counsel ineffective for failing to object to the jury instructions for self defense and accident on the lesser included charge of homicide by negligent handling of a dangerous weapon?

2. Alternatively, is a new trial in the interest of justice warranted because the erroneous jury instructions on self defense and accident prevented the real controversy from being tried?

3. Did the erroneous instructions on self defense and accident violate due process by relieving the state of the burden to prove every element of the offense?

4. Was the evidence sufficient to support the jury’s verdict of guilty of homicide by negligent handling of a dangerous weapon?

State v. Tydis Trinard Odom, 2015AP2525-CR, certification granted 9/12/17; case activity (including briefs). This is the second certification of this case; here’s the first.

Issue

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNA surcharges are “punishment,” was incorrect.

State v. Joseph T. Langlois, 2017 WI App 44, petition for review granted 12/13/17, affirmed, 2018 WI 73; case activity (including briefs)

We all know that an appellate court determines the accuracy of a trial court’s jury instructions by reviewing them as a whole, not in isolation. State v. Pettit, 171 Wis. 2d 627, 637-638, 492 N.W.2d 633 (Ct. App. 1992).  But surely this doesn’t mean that a “whole” that includes incomplete, inaccurate instructions for some charges is fine so long as it includes the correct instructions for other charges. Surely we don’t expect 12 people unfamiliar with the complex law of “self defense” and “accident” to determine which versions of these instructions are correct and whether the same version applies to three distinct charges. This split opinion says “sure we do.” Judge Reilly objects to the majority’s “as long as the correct words are in there somewhere” approach to instructing a jury. Hopefully, SCOW will too.

State v. Robert Joseph Stietz, 2017 WI 58, 6/13/17, reversing a per curiam decision of the court of appeals; case activity (including briefs)

This case breaks no new legal ground, but simply reaffirms some long-standing rules governing when a trial judge should instruct a jury on self-defense: The defendant has only to meet the “low bar” of producing “some evidence” to support the defense; the evidence supporting the instruction should be viewed in the light most favorable to the defendant; and that the trial judge shouldn’t weigh the credibility of the evidence because that’s the job of the jury. (¶¶12-23). Under the specific facts of this case, the trial judge erred in not giving Stietz a self-defense instruction. (¶¶24-60).

State v. Ron Joseph Allen, 2016AP885, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Ron Allen of first-degree intentional homicide as party to the crime. He raises various challenges to the conviction and sentence of life without extended supervision, but the court of appeals rejects them all.