On Point: 25. Jury

State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)

In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.

State v. Robert Daris Spencer, 2018AP942-CR, District 1, 3/9/21 (not recommended for publication), petition and cross petition for review both granted 8/13/21, affirmed in part, reversed in part, 2022 WI 56; case activity (including briefs)

Spencer challenges the trial court’s decision to dismiss a juror for cause just before deliberations began, but over a dissent the court of appeals holds his claims are forfeited or that any error was harmless. However, Spencer is entitled to a Machner hearing on his claim that trial counsel was ineffective for failing to object to hearsay evidence.

State v. Theophilous Ruffin, 2019AP1046-CR, District 1, 3/9/21 (not recommended for publication), state’s petition for review granted 9/17/21; reversed, 2022 WI 34; case activity (including briefs)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State v. Donald P. Coughlin, 2019AP1876-CR, District 4, 3/4/21 (not recommended for publication), state’s petition for review granted 9/14/21; case activity (including briefs)

In 2010 Coughlin was charged with over 20 counts of having sexual contact with three different children during various periods between 1989 and 1994. The court of appeals holds the evidence was insufficient to convict him of the counts involving  two of the children.

State v. Chidiebele Praises Ozodi, 2019AP886-CR, District 2, 12/16/20 (not recommended for publication); case activity (including briefs)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. Alan M. Johnson, 2020 WI App 50, state’s petition for review granted, 9/16/20, affirmed in part, reversed in part, 2021 WI 61; case activity (including briefs)

Johnson killed his brother-in-law, K.M., while he was in K.M.’s house, uninvited, to look to see whether K.M. had child porn on his computer. The court of appeals orders a new trial for Johnson because the trial court erred in denying Johnson’s perfect self-defense instruction and lesser-included offense instruction and in excluding evidence that there was, in fact, child porn on K.M.’s computer.

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.

State v. Troy R. Lasecki, 2020 WI App 36; case activity (including briefs)

Wonders never cease. The State charged Lasecki with 2 counts of failure to return security deposits to tenants in violation of Wis. Admin Code. §ATCP 134.06(2) and §§100.20(2) and 100.26(3)(2013-3104). Lasecki proceeded pro se at trial, and a jury convicted  on both counts. His appeal drew amicus briefs from the Apartment Ass’n for Southeastern Wisconsin, the Univ. of Wis. Law School and from the Attorney General  about whether the statute and code criminalized the failure to return rent. Answer: “yes.” but Lasecki won anyway because the jury instructions were erroneous and the court erred in ordering restitution above the victim’s pecuniary losses.

State v. Kieuta Z, Perry, 2019AP270-CR, 5/12/20, District 1, (not recommended for publication); case activity (including briefs)

The State charged Perry with armed robbery and 1st degree recklessly endangering safety with use of a dangerous weapon both as a party to a crime, along with possession of a firearm by a felon. During cross-exam a witness blurted out “Didn’t [Perry] shoot somebody in the head before he shot me? That’s what I heard.” Defense counsel moved to strike and then later for a mistrial.

Ramos v. Louisiana, USSC No. 18-5924, 2020 WL 1906545, 4/20/20, reversing State v. Ramos, 231 So. 3d 44 (La. Ct. Apps. 2017); Scotusblog page (including links to briefs and commentary)

The holding in this case has no relevance to Wisconsin practitioners, or indeed anyone outside of Louisiana or Oregon–the only two jurisdictions permitting 10-2 guilty verdicts in criminal trials. The Sixth Amendment requires unanimity in federal trials, and our state supreme court has long held the Wisconsin Constitution confers the same right. See Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979). So if you’re interested only in the impact on your practice, there is none, and you can stop reading now.