On Point: 10. Defenses

State v. Aman D. Singh, 2015AP850-CR, District 4, 1/7/16 (one-judge decision; ineligible for publication); case activity

Singh, appealing pro se, seeks to reverse a twelve-year-old OWI-second conviction for which his sentence is long over. 

State v. Keith D. McEvoy, 2015AP1262, District 4, 12/30/2015 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the facts of this case, the temporary suspension of McEvoy’s license based on his blood alcohol content didn’t equitably estop the State from seeking to revoke his license based on his refusal to submit to a chemical test of his blood.

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

State v. Glen Artheus Beal, 2014AP2534-CR, 9/22/15, District 1 not recommended for publication); case activity

A jury convicted Beal of child abuse as a  party to a crime because multiple witnesses testified that he punched his girlfriend’s daughter and also restrained the daughter so that her mother (his girlfriend) could hit her. See §939.05(2)(a) and §939.45(5). Beal argued that although he was not entitled to assert the parental discipline privilege himself, he should have been able to present a defense based on his girlfriends’ right to assert that privilege.

Review of an unpublished court of appeals decision; affirmed 2016 WI 26; case activity (including briefs)

Issues (composed by On Point)

Does a defendant have the right to testify at the mental responsibility phase of a bifurcated criminal proceeding?

If so, is an on-the-record colloquy regarding the waiver of the right to testify required?

State v. Corey R. Kucharski, 2015 WI 64, reversing an unpublished court of appeals decision; majority opinion by Crooks; dissent by Bradley (joined by Abrahamson);  case activity (including briefs)

If you thought defending a discretionary reversal in SCOW was tough before, it just got tougher. Kucharski pled “no contest” to killing his parents but claimed he was not guilty by reason of mental illness due to schizophrenia. Voices told him to commit the murders. He had not been diagnosed with schizophrenia, but 3 doctors supported his NGI defense. The State presented no witnesses, yet the circuit court found that Kucharski failed his burden of proof. The court of appeals granted a new trial in the interests of justice. In a split decision, SCOW reversed and changed the “discretionary reversal” standard.

Questions presented:

1.  Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment.

2.  Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

State v. James Elvin Lagrone, 2013AP1424-CR, District 1, 4/7/15 (not recommended for publication), petition for review granted 9/9/15; affirmed 2016 WI 26; case activity (including briefs)

Does a defendant who has raised an NGI defense have the right to testify in the mental responsibility phase of the NGI proceeding? That’s the novel issue in this case. But the court of appeals doesn’t decide the question. Instead, the court ignores relevant binding case law and, relying on a case that doesn’t apply, concludes that if Lagrone had the right to testify, any error in denying it was harmless.

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

State v. Benjamin J. Strohman, 2014AP1265-CR, District 3, 2/3/15 (1-judge decision; ineligible for prosecution); case activity (including briefs)

Rejecting the state’s arguments that the statute of limitation had been tolled, the court of appeals holds the state could not re-charge Strohman for an OWI offense that was improperly treated as a first offense because the time limit for charging the offense had expired.