On Point: 10. Defenses

City of Madison v. Jacob Ong, 2015AP1176, 10/20/16, District 4 (1-judge decision; ineligible for publication) case activity (including briefs)

The court rejects all challenges to this pro se appellant’s jury-trial conviction of an ordinance violation for stealing a letter from a mailbox.

Review of a per curiam opinion; case activity (including briefs); petition for review

Issues (from Stietz’s petition):

1. On the facts of this case, did the court of appeals deny Stietz’s federal and state constitutional rights to present a complete defense of self-defense, and contradict controlling precedent of this Court in State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260 (1977), by weighing Stietz’s credibility and requiring more than “some evidence,” even if inconsistent, to support a self-defense instruction?

2. On the facts of this case, did the court of appeals deny Stietz’s federal and state constitutional rights to present a defense by forbidding argument that Stietz was defending himself against two men he reasonably believed were armed trespassers?

3. On the facts of this case the court of appeals contradict this Court’s controlling decision in State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), by foreclosing self-defense against wardens who: (a) the accused did not know were law enforcement officers, on evidence the jury was entitled to credit; (b) were not even claiming to make an arrest, but only were trying to disarm a man without apparent right; and (c) were not acting peaceably in any event, but rather were trying violently to disarm a lawfully armed man?

State v. Ronald Marshall Jewett, 2015AP1014-CR, District 3, 8/30/16 (not recommended for publication); case activity (including briefs)

The question presented in this case is whether a certified driving record from the Wisconsin DOT is sufficient evidence to establish 2 prior OWI convictions in Minnesota–even though the original court records for those convictions no longer exist. The court of appeals says “yes.”

So far, only one Wisconsin case has interpreted and applied our new Castle Doctrine law–State v. Chew, 2014 WI App 116. Attorneys researching the issue may find a new law review article about this history of this type of legislation helpful.

State v. Zachary W. Swan, 2015AP1718-CR, 5/5/16, District 4 (one-judge opinion; ineligible for publication); case activity, including briefs

Swan was convicted of OWI 2nd with a prohibited alcohol content. On appeal he argued that the circuit court should have suppressed the results of a preliminary breath test and other evidence due to the absence of probable cause. The court of appeals initially rejected Swan’s argument on the ground of issue preclusion, but on reconsideration agreed with Swan that issue preclusion “could not apply as a matter of law.” (¶2, ¶13). It now rejects Swan’s argument on the merits and affirms.

That’s what we suspect anyway. In 2011, Kansas passed the Offender Registration Act, which requires persons convicted of certain felonies to register with state authorities. That prompted the question of whether applying the Act to persons convicted before it went into effect would violate the constitutional prohibition against ex post facto laws. Last week, the Kansas Supreme Court issued a 4-3 opinion answering “yes.” A few hours later it issued another 4-3 opinion reversing itself on the very same issue.  

State v. Joshua Java Berry, 2016 WI App 40; case activity (including briefs)

Berry was found guilty at a bench trial of being a felon in possession of a firearm under § 941.29(2)(a) (2013-14). Before sentencing, Berry’s lawyer figured out that Berry’s prior conviction was for a misdemeanor, not a felony. The court vacated the felon-in-possession conviction and dismissed the charge with prejudice, and the state immediately recharged him under § 941.29(2)(b) (2013-14) because Berry had a prior delinquency adjudication. (¶¶2-6). Recharging him doesn’t violate the prohibition against double jeopardy.

State v. Phillip Kareen Green, 2015AP1126-CR, 4/26/16, District 1 (not recommended for publication); case activity (including briefs)

Green argues that the evidence was insufficient to convict him of first degree reckless homicide because it didn’t prove he acted with utter disregard for human life. He also argues for a new trial in the interest of justice on the grounds that: 1) the jury wasn’t fully instructed about the interaction between self-defense and the utter disregard element; and 2) important facts were not introduced or placed in proper context. The court of appeals rejects Green’s claims in a decision heavy on facts and light on analysis.

State v. James Elvin Lagrone, 2016 WI 26, 4/22/2016, affirming an unpublished court of appeals decision, majority opinion by Ziegler, dissent by A.W. Bradley (joined by Abrahamson); case activity (including briefs)

Lagrone wasn’t told he had the right to testify during the second, mental responsibility phase of his NGI trial. He alleged in his postconviction motion that he didn’t know he had any such right. The trial court denied the motion without a hearing. The supreme court now affirms that denial in an opinion that neither (1) decides whether Lagrone had a right to testify during the second phase, nor (2) explains how the denial of that right, if it exists, can be raised in postconviction proceedings.

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.