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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Defense of Self, § 939.48 – Interplay with Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶84. To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold. The trial evidence must show: (1) a reasonable belief in the existence of an unlawful interference;
Defenses – “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: Drafters of § 939.71 intended to incorporate general principles of law of double jeopardy as then (1953) existed – which includes the “necessary facts” exception (prosecution of greater not barred by conviction of lesser offense where all facts necessary to conviction of greater had yet to come into existence).
Defenses – “Statutory Double Jeopardy,” § 939.71 – Federal Bank Robbery and State Armed Robbery
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/1
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: The elements of federal bank robbery, 18 USC § 2113(d), and state armed robbery, § 943.32(2), don’t exactly overlap, therefore conviction of former doesn’t bar prosecution of latter under § 939.71. ¶¶18-28.
Defenses – Statute of Limitations – Tolling – § 939.74(4)
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: A verdict form requiring the jury to find that the offense occurred between March 1, 1989, and November 28, 1992, adequately established a time period for the offense. And, by finding that the victim was unable to complain due to the effects of the sexual contact or efforts by the defendant,
Constitutional Defenses – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Defenses – Claim/Issue Preclusion — Prior Dismissal — SVP Proceeding
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.
Holding:
¶22. Although Parrish’s preclusion argument presents an issue of first impression in Wisconsin,
Due Process – Right to Present Defense — Rape-Shield Bar
State Charles A. Dunlap, 2002 WI 19, reversing, 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398
For Dunlap: Jack E. Schairer, SPD, Madison Appellate
Issue: “(W)hether a defendant who is charged with sexual assault should be allowed to present evidence of sexual behavior exhibited by the child complainant prior to the alleged assault, even though the evidence would normally be barred by the rape shield law,
Expunction, § 973.015 — Application to Prosecutor and Law Enforcement Records
State v. Anthony J. Leitner, 2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207
For Leitner: Jefren Olsen, SPD, Madison Appellate
Issue: Whether the expunction statute, § 973.015, requires prosecutors and law enforcement agencies to expunge their records documenting the facts underlying an expunged conviction.
Holding:
¶38. Although the Wisconsin legislature has not explicitly set forth the purpose of Wis.
Enhanced Penalties — Waiver of Objection to Sufficiency of Repeater Proof
State v. James O. Edwards, 2002 WI App 66, PFR filed 2/18/02
For Edwards: Glenn C. Cushing, SPD, Madison Appellate
Issue: Whether failure to object to exhibits (uncertified copy of judgment of conviction; DOC fax indicating prior periods of confinement) waived an argument that the state failed to prove Edwards’ repeater status.
Holding: Failure to object to documentation that facially establishes repeater status waives the issue of sufficiency of proof;
Fleeing, § 346.04(3) – Elements
State v. Thomas P. Sterzinger, 2002 WI App 171
For Sterzinger: Steven P. Weiss, SPD, Madison Appellate
Issue1: Whether fleeing, § 346.04(3) requires proof that the defendant knowingly “interfere(d) with or endanger(ed)” another.
Holding1: Scienter is required, but is limited to a single element — knowingly flee or attempt to elude — and doesn’t extend to “interfere with or endanger.” ¶¶7-11.
Issue2: Whether fleeing,
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.