DEFENSES

Updated 7/29/09

Statutory Defenses
  • § 939.43, Mistake

Non-Statutory Defenses
  • Constitutional
    • Bear Arms
    • Due Process and Strict Liability
    • Ex Post Facto
    • Notice
    • Selective Prosecution

  • Common Law
    • Collateral Attack on Underlying Order
    • Homicide, Causation: Year-and-Day Rule
    • Laches
    • Resist Arrest
    • Self-Defense, Applied to CCW

  • Claim/Issue Preclusion

Particular Miscellaneous Issues
  • Rape-Shield
  • Non-Support
Waiver of Defense



STATUTORY DEFENSES

§ 118.15(5)(b)2, Disobedient Child, Compulsory School Attendance

Disobedient Child Defense to Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).

§ 939.03, Territorial Jurisdiction

Territorial Jurisdiction Defense, § 939.03 -- First-Degree Homicide -- Intent as "Constituent Element [That] Takes Place"
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶47 We conclude that § 939.03(1)(a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. Specifically, intent to kill, which is a constituent element of first-degree intentional homicide, may be said to take place——that is, "exist," "occur," or "be present"——in Wisconsin if the defendant commits an act in this state that manifests or exhibits an intent to kill....

...

¶51 Therefore, we conclude that the phrase "constituent elements" in § 939.03(1)(a) refers to the elements of the underlying offense that the State must prove beyond a reasonable doubt in order to secure a conviction. A constituent element of a criminal offense may be either an actus reus element or a mens rea element. Intent to kill is a constituent element of first-degree intentional homicide in Wisconsin. Thus, intent to kill is a constituent element for purposes of § 939.03(1)(a). Further, we conclude that the State offers sufficient proof that a mens rea element of first-degree intentional homicide "takes place" in Wisconsin for purposes of § 939.03(1)(a), if there is proof that the defendant committed an act in this state that manifests an intent to kill.

In one sense the court has simply rewritten the statute to make it read the desired way. Section 939.03(1)(a) premises jurisdiction on an element that "takes place" in Wisconsin. Does intent "take place"? Not really, which is why the court says the State must prove "an act in this state that manifests an intent to kill." The statute, though says no such thing -- hence opening the court to an accusation of revisionism -- but this gloss nonetheless now becomes a settled part of the statutory text. The court's embellishment of the intent element probably won't be too nettlesome in most cases, simply because in the ordinary case there is indeed a congruence of intent and the death-causing act itself. But it certainly presents an opportunity for mischief-making in the odd case. If nothing else, there should be an entitlement to a manifest-act instruction, so that the jury will have to decide its existence beyond reasonable doubt. And, if the court's rhetoric is to (as indeed it must) be taken at face value, then manifest ought to mean just that: obvious, clear, plain. So taken, the gloss isn't necessarily pernicious.
Instructions -- Territorial Jurisdiction Defense, § 939.03
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue/Holding: Whether defendant was entitled to an instruction on territorial jurisdiction, § 939.03, where the offense was partially committed out of the state.
Holding:
¶23. The question of whether or when a jury must be instructed on the State's burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin. See Wis JI-Criminal 268. We conclude that a jury instruction on territorial jurisdiction is required only when a genuine dispute exists regarding the facts necessary to establish Wisconsin's territorial jurisdiction over a charged crime. Because no such dispute existed in this case, the trial court did not err in failing to instruct the jury on the jurisdictional issue....

¶25. There is no dispute that the State is obligated in all prosecutions to establish its territorial jurisdiction over a defendant for charged crimes. See Hotzel v. Simmons, 258 Wis. 234, 240, 45 N.W. 2d 683 (1951) ("It is elementary that a court may act only upon crimes committed within the territorial jurisdiction of the sovereignty seeking to try the offense."). The question is whether the determination that territorial jurisdiction over a defendant for charged crimes exists in Wisconsin is to be made by the court or a jury. We are satisfied that the proper answer to this question is that it depends on the circumstances in a given case. In its "Law Note" on territorial jurisdiction, the Criminal Jury Instruction Committee states its conclusion that if the jurisdiction issue depends upon contested issues of fact, those issues are for the jury to determine, using the beyond a reasonable doubt standard. If the charging document does not properly allege that the crime was committed within the territorial jurisdiction of the state of Wisconsin, the trial court should grant a motion to dismiss. If there is a dispute about jurisdiction that presents a purely legal question, that is, whether the law confers jurisdiction over [a defendant for a given crime based on] an undisputed factual situation, that question should be decided by the court. But if the charging document sufficiently alleges facts in support of jurisdiction and there is a dispute about those facts, the issue will be for the jury to decide. Wis JI-Criminal 268. ...

¶30. We conclude that it is not necessary for us to decide in this case whether something less than a "full element" of a crime may be a "constituent element" of the crime for purposes of Wis. Stat. § 939.03(1)(b), or if the statute requires that a "full element" take place within Wisconsin's borders. Rather, we conclude that the State is on firmer ground in claiming that Wisconsin's territorial jurisdiction over Brown's crimes was beyond factual dispute because his out-of-state acts were done "with intent that [they] cause in this state a consequence set forth in a section defining a crime." Wis. Stat. 939.03(1)(c).

Analogy is made to State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999) (interference with child custody, where child's concealment took place out of state). Brown's crimes -- operating w/o owner's consent and theft -- were "intended to cause criminally proscribed consequences in Wisconsin." However, Brown had permission to take the truck out of state, which the court finesses with something of a non-sequitur: "At whatever point Brown elected to depart from that mission, his operation became nonconsensual...." (Emphasis supplied.) But the very problem is that there was a dispute on that very point: Brown maintained that he abandoned the truck, and it’s a bit hard to see how abandonment can be equated with operation; Brown’s defense, indeed, was that he stopped operating the vehicle. So, there would seem to be a genuine question about just where (and how) the crime was committed. The court says that there's no factual dispute that Brown intended "criminally proscribed consequences in Wisconsin." However, that characterization is defensible only because the court upheld exclusion of his proffered testimony denying intent, see ¶¶16-20; very convenient.
Territorial Jurisdiction -- Retention of Jurisdiction over Lesser Offenses
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue: Whether territorial jurisdiction, acquired over the charged offense, may be lost over a lesser offense whose elements do not include any committed within the state.
Holding:
¶20 ... Like criminal subject matter jurisdiction, once territorial jurisdiction attaches, it will continue until a final disposition of the case. See Webster, 196 Wis. 2d at 317.

¶21 Thus, we conclude that because territorial jurisdiction attached to the original charge of second-degree sexual assault, the trial court necessarily retained jurisdiction over all lesser-included offenses of the original charge, including third-degree sexual assault.


§ 939.43, Defense of Mistake

Mistake, § 939.43(1) – Relation to Reckless Conduct
State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child, ¶¶26-32.
Different issue but similar analysis in the recently-published State v. Ray A. Hemphill, 2006 WI App 185, to the effect that because element of “recklessness” in § 948.03 doesn’t implicate criminal intent, defense of mistake not available, nor need defendant be subjectively aware of risks of conduct. Note, though, that “recklessly” has its own narrow definition under § 948.03(1), and that other crimes involving reckless conduct will contain a subjective component by dint of § 939.24(1)—a point made by Williams, ¶26.
Mistake, § 939.43(1) – Relation to Reckless Conduct
State v. Ray A. Hemphill, 2006 WI App 185, PFR filed 9/14/06
For Hemphill: Timothy A. Provis
Issue/Holding: Because physical abuse of a child by recklessly causing great bodily harm doesn’t require any criminal intent, the defendant is not entitled to a defense of “mistake,” § 939.24(2), ¶¶9-13.

§ 939.45, Privilege Defense (see also Defense of Self, Defense of Others, and Common Law, below, as these defenses are referenced in § 939.45)

Privilege Defense -- Accident -- Interplay with Self-Defense and Intent
State v. Carroll D. Watkins, 2002 WI 101, affirming as modified 2001 WI App 103, 244 Wis. 2d 205, 628 N.W.2d 419
For Watkins: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Accident has long-existed as a defense that "excuses" homicide, and therefore is incorporated in § 939.45(6) as a privilege "for any other reason." ¶37. It is not, however, "a true affirmative defense" (which accepts the existence of all the elements of the offense) but, rather, "is a defense that negatives intent, and may negative lesser mental elements." ¶¶39-41. Thus, proof of intent necessarily disproves accident. ¶43. What happens when self-defense (a true affirmative defense) is combined with accident (which, as noted, negates intent)? The two concepts aren't mutually exclusive -- accident requires a showing that the defendant was acting lawfully, something advanced by showing that he or she acted in lawful self-defense. ¶45. Watkins says he pulled a gun on Malone in lawful self-defense, but didn't pull the trigger intentionally. This denial of intent didn't defeat the possibility of self-defense for the simple reason that § 939.48(1) allows a person to threaten deadly force. ¶55.
¶58. As noted above, the defense of accident is a defense to a charge of intentional homicide only if the person who caused the death was acting lawfully and with no criminal intent. We conclude that pointing a gun at another person as a threat of force does not necessarily preclude the possibility of asserting the accident defense so long as the person reasonably believes that such a threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. See State v. Head, 2002 WI 99, ___ Wis. 2d ___, ___ N.W.2d ___, and State v. Camacho, 176 Wis. 2d 860, 865, 872, 501 N.W.2d 380 (1993) for a discussion of the objective reasonable threshold necessary to assert perfect self-defense.
Although the court of appeals found insufficient evidence to sustain the conviction, in that the evidence didn't disprove the accident defense, the supreme court says the was evidence was sufficient. ¶77. (Other than reciting the circuit court's findings -- it was a bench trial -- the supreme court doesn't elaborate on the particulars of its disagreement with the court of appeals.) Nonetheless, the court reverses the conviction in the interest of justice, §  751.06: The circuit court didn't provide a clear analysis of self-defense and accident -- its analysis was, in effect, inconsistent with the arguments of both parties, such that "both could claim an element of surprise." ¶¶83-84. Nor did the circuit court even mention accident in its decision. ¶85. Trial counsel may have been ineffective. ¶¶86-87. The trial court's findings were internally inconsistent. ¶¶88-89. The trial court was also overly fixated on Watkins' supposed duty to retreat. ¶¶90-94. Finally, the sentence (30 years in prison) seems to add to the supreme court's unease. ¶95. In sum, then, the result is entirely fact-specific, if welcome; and the abstract discussion on accident in relation to self-defense is certainly quite significant.
On the related idea, "It is well established that the mere assertion of justification or self-defense does not concede intent," at least where the jury could find an intent "'merely to wound or even to frighten a feared aggressor' rather than kill him," see Cox v. Donnelly, 2nd Cir No. 03-2440, 10/22/04. Similarly see State v. Jones, 147 Wis. 2d 806, 814, 434 N.W.2d 380 (1989) ("a defendant's testimony that the act that caused a death was unintended does not necessarily preclude an instruction on the privilege of self-defense").
Go To Brief
Privilege, § 939.45 – CCW, § 941.23
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45. As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one's vicinity does not qualify as a "natural physical force" under the law. See Dundon, 226 Wis. 2d at 666-67.” ¶30. As to subs. (2), which incorporated self-defense and defense of others: General assertions of fear because of the high-crime nature of the locale, even when coupled with past instances of violence against the defendant aren’t enough to establish the “specific and imminent” threat required. ¶¶31-33.  As to subs. (6), other statutory or common law privileges: Dundon refused to recognize a common law privilege, ¶35, and Art. I § 25 does not create a “statutory” privilege, ¶36.
Privilege -- Carrying Concealed Weapon
State v. John V. Dundon, 226 Wis.2d 654, 594 N.W.2d 780 (1999), on certification
For Dundon: William S. Coleman, SPD, Milwaukee Appellate
Issue/Holding: Because "(t)he crime of carrying a concealed weapon has many of the earmarks of a strict liability offense," privilege defenses "must be applied restrictively." The court concludes, after relatively lengthy analysis, that Dundon can't avail himself of any privilege defense. The statutory defenses in § 939.45 don't apply for largelyfact-specific reasons. (This doesn't mean that a CCW defendant can never take advantage of these defenses, only that the court "find[s] no possible basis for their application to the facts in this case.")
§ 948.03(2)(b) (2001-02), Harm to Child – Defense of Parental Privilege, § 939.45(5)
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding:
¶30      While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However, we agree with the State that the plain language of § 939.45 requires that (1) the use of force must be reasonably necessary; (2) the amount and nature of the force used must be reasonable; and (3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. If parental conduct fails to satisfy even one of these prongs, then the parent is not protected by the privilege. Thus, to overcome the privilege of parental discipline in Wisconsin , the State must prove beyond a reasonable doubt that only one of these three prongs is not present.

¶32      Reasonable force is that force which a reasonable person would believe is necessary.  Wis JI—Criminal 950. …

¶33      “The test of unreasonableness is met at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means.” State v. Thorpe, 429 A.2d 785, 788 (R.I. 1981). There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive corporal punishment. Id. Rather, the accepted degree of force must vary according to the age, sex, physical and mental condition and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances. See Wis JI—Criminal 950.

¶37      Given the evidence before the jury concerning the aggressive nature of the physical punishment, the actual injuries sustained and Kimberly’s demeanor and prior knowledge, the jury could reasonably conclude that Kimberly was not making a genuine effort to discipline Jasmine by proper means ….


§ 939.46(1), Coercion

Coercion -- § 939.46(1)
State v. Jeffrey A. Keeran, 2004 WI App 4, PFR filed 1/5/04
For Keeran: Joseph L. Sommers
Issue/Holding:
¶5 … The coercion defense is limited to the "most severe form of inducement." State v. Amundson, 69 Wis. 2d 554, 568, 230 N.W.2d 775 (1975). It requires a finding "under the objective-reasonable man test, with regard to the reasonableness of the actor's beliefs that he is threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act." Id.

¶6. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support such an instruction. …

¶7. Keeran argues that he was entitled to a coercion defense instruction because a reasonable construction of the evidence supports a finding that threats made by Barreau reasonably caused Keeran to believe that participating in the crimes (including striking Robert Hansen with a bat as Hansen lay on the floor) was "the only means of preventing imminent death or great bodily harm" to Keeran. The trial court gave several reasons why Keeran was not entitled to a coercion defense instruction. We need not address all of these reasons because we agree with the trial court, and the State, that Keeran has failed to meet his initial burden of producing sufficient evidence to support a finding that he had no "means of preventing imminent death or great bodily harm" to himself, except by participating in the crimes. See Wis. Stat. § 939.46(1). In the words of the Amundson court, Keeran failed to present evidence showing that he reasonably believed there was "no possible escape other than the commission of a criminal act." Amundson, 69 Wis. 2d at 568.

(Keeran did not, in particular, explain why he didn’t call the police or run away despite opportunity to do either or both, ¶12, nor why he could not have used his weapon – a bat – “to fend off Barreau,” ¶13. Nor did Keeran “take the most obvious step to avoid hitting Hansen: he did not tell Barreau that he did not want to hit Hansen …,” but instead “simply complied with Barreau’s directive,” ¶14.)
Although there was evidence that Keeran was threatened with harm, more is required:
¶15. Keeran testified that he was afraid of Barreau and, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that Barreau would attempt to harm Keeran if Keeran did not comply with Barreau's orders. But that only suggests that Keeran's safest course was to comply with Barreau's orders; it does not mean that Keeran's only course was to comply with Barreau's orders. The coercion defense is not a license to take the safest course. Further, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that if he successfully managed to separate himself from Barreau, Barreau would attempt to hunt Keeran down and harm him later. But such a finding would not support a coercion defense because the defense requires the prevention of "imminent" death or great bodily harm.

§ 939.48(1), Defense of Self

Defense of Self -- Applicability -- Carrying Concealed Weapon
State v. Tony Nollie, 2002 WI 4, on certification.
For Nollie: Erich Straub
Issue: Whether defendant was entitled to assert the privilege of self-defense to the charge of carrying concealed weapon.
Holding:
¶24. To argue self-defense, Nollie's offer of proof must indicate that he had an actual and reasonable belief of actual or imminent unlawful interference. In this case, there was no actual or imminent unlawful interference to speak of. As we stated in Dundon, a general and potential threat of interference is not enough to invoke the self- defense privilege; the threat must be imminent and specific. Dundon, 226 Wis. 2d at 667-68. Nollie asserts that the four men on the street corner presented a specific threat. Although we agree that they may have presented a more specific threat than the ones perceived by Dundon, the threats perceived by Nollie were not imminent and were still too general to invoke the privilege. Even when viewed in the light most favorable to Nollie, there was no indication that the men threatened, accosted, communicated, or even noticed Nollie at any time. This situation does not present a threat imminent and specific enough for Nollie to invoke the privilege of self-defense. Affording a person the privilege of carrying a concealed weapon for self-defense under such circumstances clearly does not comport with the legislature's intent in criminalizing carrying a concealed weapon.

¶25. Furthermore, when the police officers arrived, Nollie was still armed, he was sitting in his car, and the four young men were nowhere to be seen. Nollie does not contest this. At that point in time, the specific threat alleged by Nollie was gone. The only threat that Nollie could point to then was the high incidence of crime in the neighborhood-- clearly not a specific and imminent threat.

¶26. In Coleman, we noted that it is difficult for a defendant claiming the defense of privilege to the crime of felon in possession of a firearm to show that the firearm was not possessed for longer than reasonably necessary. Coleman, 206 Wis. 2d at 211-12 (citing Perez, 86 F.3d at 737; Perrin, 45 F.3d at 874). The same holds true for the crime of carrying a concealed weapon. Here, even in the light most favorable to the defendant--that Nollie was not asleep but merely resting from an injury--any potential opportunity for him to assert a self-defense privilege had passed. To allow an individual to claim self-defense under such circumstances would essentially allow anyone walking in a ‘high crime neighborhood’ to conceal a weapon--a situation that, again, would eviscerate the legislature's intent in making carrying a concealed weapon a crime.

(Note: the court specifically holds open “the question of when, if ever, the privilege of self-defense may be asserted for the crime of carrying a concealed weapon.” ¶1.)
Defense of Self -- jury instructions -- duty to retreat.
State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999).
For Wenger: Richard L. Wachowski.
Holding: Duty-to-retreat instruction, Wis JI-Crim 810, properly submitted, though retreat would have been into defendant's own home.
Defense of Self -- jury instructions -- evidentiary support.
State LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999).
For Wenger: Richard L. Wachowski.
Holding: Evidence supported self-defense instruction, though victim 10-12 feet away, and turning from defendant, when shot.
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; and (2) a reasonable belief that the amount of force the person intentionally used was necessary to prevent or terminate the interference. Wis. Stat. § 939.48(1)....

¶106. Perfect self-defense is a privilege recognized in Wis. Stat. § 939.45(2). Before a privilege may be considered by the fact-finder, the defendant must raise the privilege as an affirmative defense. State v. Trentadue, 180 Wis. 2d 670, 674, 510 N.W.2d 727 (Ct. App. 1993). Once the defendant successfully raises an affirmative defense, the state is required to disprove the defense beyond a reasonable doubt. State v. Stoehr, 134 Wis. 2d 66, 84 n.8, 396 N.W.2d 177 (1986).

¶107. Unnecessary defensive force is also an affirmative defense, Wis. Stat. § 940.01(2), but not a privilege under Wis. Stat. § 939.45. When the issue of unnecessary defensive force (imperfect self-defense) "has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1)." Wis. Stat.  § 940.01(3)....

¶110. Raising the affirmative defense of unnecessary defensive force should not present great difficulty. We have already determined that the defendant is not required to meet an objective reasonable threshold. Consequently, unnecessary defensive force must have a lower threshold for the admissibility of evidence than perfect self-defense, which does have an objective reasonable threshold. Unnecessary defensive force also has a lower threshold than "adequate provocation," because "provocation" is defined as "something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death." Wis. Stat. § 939.44(1)(b) (emphasis added).

Court explains that defendant has mere burden of production -- to show "some evidence" supporting the defense. Though the threshold for perfect is logically higher than for imperfect self-defense, the two defense are so overlapping that "it would be very challenging for the court to exclude evidence on one but not the other." ¶¶110-17.
But see:
State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School
Issue/Holding: The holding of State v. Head, 2002 WI 99 [first-degree intentional homicide mitigated to 2nd-degree if defendant had actual but unreasonable belief in necessity of deadly force] is a “new rule” not requiring retroactive application to collateral attacks. ¶¶61-84.  
Defense of Self, § 939.48(1) - Violent Acts of Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21      It is well established that a defendant seeking to support a self-defense claim may attempt to "prov[e] prior specific instances of violence within [the defendant's] knowledge at the time of the incident."  State v. Wenger, 225 Wis. 2d 495, 507, 593 N.W.2d 467 (Ct. App. 1999) (quoting McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973)); see also Wis. Stat. §§ 904.04 and 904.05(2).  It is also well established that admissibility of evidence proffered to show the reasonableness of the self-defense claim is within the circuit court's discretion.  State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413.  As with any "other acts evidence," the evidence is subject to the application of the balancing test involving the weighing of probative value against the danger of unfair prejudice, and considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Wis. Stat. § 904.03.  Assuming its probative value outweighs such considerations, we have in previous cases established the defendant's right to put on such evidence once a factual basis has been set forth for a self-defense claim, and also established the circuit court's responsibility to vet the evidence prior to admission to be sure it is valid McMorris evidence.  See, e.g., McAllister v. State, 74 Wis. 2d 246, 246 N.W.2d 511 (1976).  The question before us in this case is primarily a question of timing: whether a circuit court has the authority to order a defendant to disclose any planned McMorris evidence prior to trial, so that the factors involved in determining the evidence's admissibility can be weighed not only prior to admission, but also prior to trial.
Defense of Self, § 939.48(1) - Pretrial Disclosure by Defense of “McMorris” Acts of Prior Violence by Victim
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:
¶26      Given the limited nature of the evidence covered in this order——that is, the requirement that McClaren give notice of the specific McMorris evidence he wants to introduce and which he was aware of on the night of the incident——this order fits comfortably into Wis. Stat. § 906.11's description of the court's sphere of control.  The court is, in fact, required to "exercise reasonable control" over the "present[ation of] evidence" so that it can be done effectively and with minimal wasted time.  See State v. Wallerman, 203 Wis. 2d 158, 168, 552 N.W.2d 128 (Ct. App. 1996).  Both concerns were specifically mentioned by the circuit court with regard to this order.  This is precisely the type of admissibility of evidence questions that circuit courts should be attempting to resolve in advance of trial. [9]

¶28      Under the circumstances presented here, where McClaren seeks to introduce McMorris evidence in support of a self-defense claim, the circuit court has the authority under Wis. Stat. § 906.11, in conjunction with Wis. Stat. § 901.04(3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.

The disclosure order is constitutional: the court analogizes to alibi-disclosure, Williams v. Florida, 399 U.S. 78 (1970), ¶35, while stressing that the trial court’s order “absolutely required” reciprocal prosecutorial disclosure, ¶¶38-39. As for enforcement of the order, guidance is taken from Taylor v. Illinois, 484 U.S. 400 (1988):
¶43      We agree with the State.  The United States Supreme Court has established a test for excluding evidence and has said that under certain circumstances, exclusion of evidence does not violate a defendant's constitutional rights.  There are sanctions short of excluding evidence, of course.  The Court cited a case, for example, that "[gave] consideration to the effectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful."  Taylor, 484 U.S. at 415 n.19 (citing Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir. 1983)).  However, as Taylor makes clear, even the sanction of excluding evidence against a defendant is constitutionally permissible in certain cases, such as where there have been willful violations "motivated by a desire to obtain a tactical advantage."  Taylor, 484 U.S. at 415.

¶44      As we noted above, Taylor states well the balancing of interests that goes into a court's oversight of a trial:

It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor.  But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.  The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.
Id. at 414-15 (emphasis added).

¶45      Whether a violation merits the extreme sanction of exclusion must be determined by a circuit court after a violation has occurred, and under the parameters set forth by the United States Supreme Court in Taylor.

¶50      … It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was "willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence," the test set forth in Taylor.

Potentially vast as the implications might be, it is probably wise to treat the holding as narrow, a mere matter of the timing of something that would have to be disclosed sooner or later anyway.
Defense of Self -- Violent Acts of Victim -- McMorris Evidence
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:
¶123. We conclude that evidence of a victim's violent character and of the victim's prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense. Such evidence may be probative of a defendant's state of mind and whether she actually believed that an unlawful interference was occurring, that danger of death or great bodily harm was imminent, or that she needed to use a given amount of defensive force to prevent or terminate the unlawful interference. In determining any of these issues, the circuit court should consider all the evidence proffered.
The deceased's verbal threats and physical violence against both the defendant and others, though not contemporaneous with the charged event, "was clearly sufficient to raise the issue of imperfect self-defense" and to require both the admission of at least some of this McMorris evidence and a jury instruction on imperfect self-defense. ¶¶138-141.
Defense of Self - violent acts of victim.
State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999).
For Wenger: Richard L. Wachowski.
Holding: Violent acts of victim relevant to self-defense, as exception to general prohibition against character evidence, § 904.04(2), but exclusion of same harmless.
§ 939.48(2), Defense of Self – Provocation: Initial Aggressor & Right to Assert Privilege
Root v. Saul, 2006 WI App 106
For Root: Thomas E. Hayes
Issue/Holding: Either slapping or punching someone in the face “is certainly conduct that can provoke others to attack”; and, because Saul indisputably slapped or punched Root in the face the jury could have found Saul the initial aggressor, the jury should have been instructed in accordance with Wis JI—Criminal 815 (embodying § 939.48(2), initial aggressor may not assert self-defense privilege except under enumerated circumstances), ¶28. This is a civil case, but the court’s discussion makes it appear applicable to criminal cases.

§ 939.48(4), Defense of Others

Defense of Others -- Terminating Interference by Police Officer
State v. John F. Giminski, 2001 WI App 211, PFR filed 9/20/01
For Giminski: Edward J. Hunt
Issue: Whether the defendant was entitled to invoke the privilege of defense of others, § 939.48(4), in using potentially deadly force against police officers who had pulled a gun on his daughter while executing a valid warrant.
Holding:
¶13. (T)he privilege of defense of others, like the privilege of self-defense, has two components, both of which must be satisfied by a defendant claiming the privilege: (1) subjective-the defendant must have actually believed he or she was acting to prevent or terminate an unlawful interference; and (2) objective-the belief must be reasonable. See Jones, 147 Wis. 2d at 814-15.” The evidence doesn’t support the reasonableness of any belief in the use of deadly force:

¶17. Thus, as the State emphasizes, even according to Giminski's account, Giminski was aware that Agent Hirt was a federal agent executing a warrant and that Elva was acting in violation of his authority to seize the van, and, therefore, even if Agent Hirt was holding a gun to Elva's head, Giminski could not have reasonably believed that Agent Hirt would have escalated his conduct from pointing the gun to pulling its trigger. Indeed, as the developments in this case confirmed, the citizen who unreasonably interferes with an agent's effort to prevent a third party's interference with the execution of a warrant, not the agent, often is the one who endangers all involved.

¶18. Although no Wisconsin court has directly addressed the propriety of Wis JI-Criminal 830 under circumstances like these, the State's arguments find some support in State v. Hobson, 218 Wis. 2d 350, 353, 577 N.W.2d 825 (1998), where the supreme court abrogated the common-law privilege to ‘forcibly resist an unlawful arrest in the absence of unreasonable force.’ The State's arguments also are grounded in solid reasoning, as articulated in United States v. Branch, 91 F.3d 699, 714 (5th Cir. 1996), where the federal court commented that the general principles governing the law of self-defense and defense of others ‘must accommodate a citizen's duty to accede to lawful government power and the special protection due federal officials discharging official duties.’ We agree with the federal court.


Statutory Double Jeopardy

“Statutory Double Jeopardy” – Drug Offenses, § 961.45 – “Same Conduct” Test
State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09
For Bautista: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.
¶1        … In this case, Julio C. Bautista, relying on two cases from Pennsylvania, argues that conduct is defined as a “common scheme or plan” such that his conspiracy to sell drugs encompasses all acts under that planned endeavor. We are unwilling to accept that definition. Borrowing from a phrase in Harrell v. State, 88 Wis. 2d 546, 558, 277 N.W.2d 462 (Ct. App. 1979), we hold that when a defendant comes to a “fork in the road” and commits to a separate volitional act, it is different conduct and its prosecution is not subject to § 961.45. We affirm.

¶14      However, in Bautista’s case, he sold cocaine on one date, August 13, 2005. [3] This act resulted in a federal charge to which he pled guilty. The state charge had nothing to do with delivering cocaine on a certain date. Instead, it had everything to do with a different kind of drug—marijuana—and it alleged a conspiracy with others to sell this particular kind of drug between April 11, 1997, and September 6, 2005, a span of over eight years. Clearly this was different conduct involving different drugs, during a different time frame and with an underlying factual basis that consisted not of the act of delivery itself, but of the conspiracy to sell. The act of conspiring to sell marijuana over a long period of time is different in time, space and manner than one instance of delivering cocaine. Not only do the charges involve different types of acts, the acts are also different in nature—the defendant had sufficient time between the acts to again commit himself. The conduct involved different invasions of interests and different intentions making the defendant subject to multiple punishments. The state charge is therefore not the same conduct as that conduct resulting in the federal convictions by any stretch.

¶15      We must reject Bautista’s attempt to paint his case with a broad brush to say that since the marijuana and cocaine are both controlled substances, it does not matter that two different drugs were involved. And we must also reject the idea that because the conspiracy charge overlapped one of the cocaine delivery charges, this was all part of the same trafficking conspiracy. Rather, we look to the underlying actions, the “thing done” or the “deed” [4] that gave rise to the conspiracy conviction on the one hand and the “thing or deed” done that gave rise to the discrete act of selling which formed the basis of the other conviction. If the two deeds or things involved different conduct, the proverbial “fork in the road,” then they can be prosecuted by dual sovereigns without running afoul of Wis. Stat. § 961.45. We therefore affirm the conviction for conspiring to sell marijuana.

The court doesn’t say who has the burden of (dis)proving a “different volitional act,” with the standard of proof left unsaid as well. It’s a defense to a charge, so you probably shouldn’t facilely assume the State has the burden of proof. The court is also silent on just what factors might inform this determination. The “fork in the road” metaphor comes from Harrell, but that is a sexual assault case and its seven-factor test isn’t readily applicable to drug prosecutions, 88 Wis. 2d at 572. Is Bautista’s case representative, so that whether the conduct is (or is not) the “same” will always be obvious from the nature of the charges? Doubtful.
"Statutory Double Jeopardy," § 939.71 -- As Compared with § 961.45
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper
Issue/Holding: Greater statutory double jeopardy protection afforded drug prosecution under § 961.45 than non-drug prosecution under § 939.71 doesn’t violate equal protection:
¶55. We note that while Wis. Stat. § 939.71 adheres to the dual sovereignty doctrine, Wis. Stat. § 961.45 does not. We therefore conclude, as the supreme court did in Petty, that § 961.45 is representative of the type of legislation instituted by our legislature seeking to preclude continuing prosecution in the drug arena as is otherwise permitted under the doctrine of dual sovereignty. See Petty, 201 Wis. 2d at 358-59. That is, in deciding not to abrogate the dual sovereignty doctrine in nondrug cases, the legislature could have rationally considered that in the nondrug arena the interests of the state and federal governments are different. Swinson has not persuaded us of the unconstitutionality of § 939.71 as applied to him.
This passage is more assertion than explanation. Why are the interests in drug and non-drug prosecutions different? The state’s argument – that federal authorities are more likely to be involved in drug than non-drug prosecutions, ¶51 – makes sense, indeed, is supported by the legislative history to § 961.45, State v. Hansen, 2001 WI 53, 36, 243 Wis. 2d 328, 627 N.W.2d 195. But even that view (which the court doesn’t seem to quite embrace) still begs the question. Maybe the greater frequency and likelihood of federal intervention in drug prosecutions somehow supports an inhibition on dual sovereignty in that limited context. Maybe ... but this isn’t exactly a self-evident proposition and would have to be fleshed out. So, the holding appears to be a result in search of a rationale.
"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). ¶12. Nothing in § 939.71 (or § 939.66) “prohibit(s) a successive prosecution for a greater crime when a fact necessary to conviction on the greater crime does not come into existence until after a defendant has been convicted of a lesser crime based on the same act.” ¶16.
"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.
"Statutory Double Jeopardy" -- Drug Offenses -- § 161.45.
State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper
Issue: "¶8 ... ‘Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently, is the term "same act" under § 961.45 defined by the elements of the state and federal crimes, or by the conduct for which a defendant is convicted?’"
Holding: "Act" refers to factual conduct underlying, as opposed to legal elements of, the offense and therefore "§ 961.45 bars a prosecution where the defendant has previously been acquitted or convicted for the same conduct under federal laws or the laws of another state[.]" ¶43.
Analysis: The statute significantly limits the dual sovereignty doctrine, which otherwise allows Wisconsin prosecution for an offense even though the underlying conduct has been prosecuted to conclusion elsewhere. The bar applies only to ch. 961 drug offenses, but that’s plenty, given federal encroachment. The statute reads as follows: "Bar to prosecution. If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state." Note, though, that timing is everything: the bar applies only before completion of the Wisconsin prosecution (which means attachment of jeopardy, such as entry of guilty plea). See generally, State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996). Note, too, that the limitation is purely statutory. See, e.g., ¶10 ("Section 961.45 thus operates as a limitation on the State’s power to prosecute where no constitutional limit exists. Our inquiry today addresses the scope of the statutory protection against successive prosecutions.")

§ 939.74, Statute of Limitations

Statute of Limitations, § 939.74 – Version Applicable to Since-Repealed, Ch. 944 Offense
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding: Alleged violations, between 1965 and 1972, of since-repealed ch. 944 sexual assault statutes come within the statute of limitations provision extant during that time frame.
There is, of course, a whole lot more to it than that, at least in terms of getting to that point, but this may be the nub of it:
¶17      We conclude that the 1965-1972 version of Wis. Stat. § 939.74 governs the case at issue because (1) here, the offenses allegedly occurred prior to the effective date of § 939.74(2)(c), which was July 1, 1989; and (2) the legislature did not include chapter 944 crimes in subsection (2)(c) of § 939.74 even though it specifically included chapter 948 crimes. Accordingly, neither the 1987 amendment to § 939.74, which created subsection (2)(c), nor any subsequent amendment to subsection (2)(c) applies to the case at hand.

¶18      Wisconsin Stat. §§ 990.06 and 991.07 [12] instruct that when a limitation period has been repealed and the repealing act provides for a new limitation period, "such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect" and the repealed act shall continue in force and be operative unless the repealing act specifically provides otherwise.

¶19      Applying Wis. Stat. §§ 990.06 and 991.07 to the case at hand, we conclude that Wis. Stat. § 939.74(2)(c) (1987-88) (effective July 1, 1989), does not apply to MacArthur. The causes of action here accrued between 1965 and 1972. …

¶26      In summary, by its plain language, no version of subsection (2)(c) applies to the chapter 944 charges from 1965-1972. The 1987 version of Wis. Stat. § 939.74 does not apply because it specifically stated that subsection (2)(c) was to apply only prospectively from July 1, 1989, and subsection (2)(c) listed only chapter 948 offenses, thus leaving out any mention of "predecessor statutes" to chapter 948. The 1993, 1997, and 2003 versions do not apply to the case at hand for two reasons. First, the legislature has not specifically withdrawn the 1987 directive to apply subsection (2)(c) only prospectively. Second, the post-1987 amendments apply only to claims not yet barred by a previous version of subsection (2)(c). The 2005 version of Wis. Stat. § 939.74 does not apply because it became effective after MacArthur was charged with these offenses.

This result seems, at first glance to be very fact-specific (which is to say, limited to repealed ch. 944 offenses), but the concurrence (¶¶55-65) argues that the implications are quite broad. Perhaps so if, for a superceding statute of limitations to have retroactive effect, the statutory language must so specify.
Statute of Limitations, § 939.74 – Tolling: Procedure for Determining
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding:
¶50      Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez, 447 F.3d at 149-50. In Florez, the following protocol was set forth: After the defendant makes a statute of limitations challenge, the State bears the burden of showing, at a pretrial proceeding, that Wis. Stat. § 939.74(3) has been satisfied by a preponderance of the evidence. However, at trial, the jury must determine the date or date range of the charged offense beyond a reasonable doubt. This can be accomplished by the general verdict's language or when appropriate with a special verdict. If the date found by the jury creates a bar against prosecution because of the statute of limitations and the court's pretrial findings regarding tolling, the court must then rule accordingly on the issue.

¶51      This approach is supported for a number of reasons. Under this approach, the issue is then decided prior to trial, which prevents an untimely prosecution. Moreover, it allows the State the opportunity to appeal the court's decision on this jurisdictional issue. As a practical matter, this is an issue which is typically known and addressed early on in litigation. Furthermore, the fact that a defendant was not a public resident for some period of time is not determinative of guilt and not an element of the crime charged. Rather, it is a fact that determines whether the law tolls a statute of limitations. Therefore, the State need not prove a defendant's status as a public resident beyond a reasonable doubt. Finally, compliance with a statute of limitation is required for the court to have personal jurisdiction over the defendant, and jurisdiction is typically a question of law for the trial court to decide.

¶52      On appellate review, a circuit court's tolling decision under Wis. Stat. § 939.74(3) should be subject to the following standard: Appellate courts should review the circuit court's findings of fact relevant to the application of Wis. Stat. § 939.74(3) only for an erroneous exercise of discretion, and this court reviews de novo the circuit court's legal conclusion that these facts establish tolling as specified by the statute. See Florez, 447 F.3d at 150.

Statute of Limitations -- Tolled by Plea Agreement
State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867
For Deilke: Kelly J. McKnight
Issue/Holding:
¶28 The primary purpose of the statute of limitations is to protect the accused from criminal consequences for remote past actions. State v. Jennings, 2003 WI 10, ¶15, 259 Wis. 2d 523, 657 N.W.2d 393 (citations omitted). However, we have held that prosecution for the act in question tolls the statute of limitations that otherwise would apply. State v. Pohlhammer, 78 Wis. 2d 516, 522, 254 N.W.2d 478 (1977).

¶29 In Pohlhammer, we addressed the consequence to the parties of charges that were withdrawn when a plea bargain resulted in the filing of an amended information to which Pohlhammer pled. On postconviction motion, Pohlhammer argued that the act described in the amended information (making a false representation) was different from the act described in the original information (intentionally damaging a building by means of fire). We agreed, concluding that not all charges that arise out of the same course of conduct comprise the same acts. Id. at 522-23. Therefore, because the amended information was filed more than six years after the complained of act, Pohlhammer argued he had an absolute defense to the charge and his conviction should be vacated. Id. at 522-23. We agreed that the conviction was properly vacated. Id. at 524. However, because the amended information, which was filed based on Pohlhammer's agreement to plead guilty to the one charge it contained, formed the basis for the plea bargain that Pohlhammer breached through his successful postconviction motion, we returned the parties to "the same posture" they occupied prior to his plea. Id. Accordingly, we reinstated the original information that contained three counts of arson with intent to defraud an insurer, as party to the crime, and permitted further proceedings on those charges. Id. at 524-25.

¶30 We conclude that Pohlhammer provides ample support for the circuit court's conclusion that Deilke has no statute of limitations defense to the PAC charges he pled to after his original convictions were set aside. …

Statute of Limitations, § 939.74(1) – Complaint as Commencing Prosecution of Already-Incarcerated Defendant
State v. Kevin D. Jennings, 2003 WI 10, reversing 2002 WI App 16, 250 Wis. 2d 138, 640 N.W.2d 165
For Jennings: Steven M. Compton
Issue/Holding:
¶1 … At issue is whether a criminal complaint that is filed against a defendant, who is already incarcerated, is sufficient to commence a prosecution. Based on the legislative history of Wis. Stat. § 939.74(1) (1999-2000) and related criminal statutes that deal with the commencement of criminal prosecutions and warrantless arrests, we conclude that if an individual, like Jennings, is already in custody due to incarceration, a complaint is sufficient to commence a prosecution....

¶27. Based on all the above, we hold that when a defendant is already in custody due to his or her incarceration, the filing of a criminal complaint is sufficient to commence a prosecution. Because we hold that the filing of a criminal complaint, without the issuance of a warrant, is sufficient to commence prosecution of a defendant who is already in custody, we do not address whether an order to produce satisfies the "summons" requirement under Wis. Stat. § 939.74(1).

Jennings was identified, from a “cold-hit” DNA search, as the assailant in a December 5, 1992, offense. The complaint was filed December 4, 1998, just under the 6-year statute of limitations wire. However, the initial appearance wasn’t until December 6, so the question is whether issuance of the complaint satisfied the statute, which says that “a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.” Seems clear enough; but not so fast: under § 967.05, prosecution may be commenced by filing of a complaint. This potential conflict, the court says, creates an ambiguity and leads the court to the legislative history, which leads the court to say that a prosecution is deemed commenced upon “the earliest action authorized by law to initiate criminal proceedings.” This is more than a little strained. But the holding is, as the above quotes indicate, more limited than that, because the decisive point seems to be that Jennings was already in custody (in prison) when the complaint was issued:
¶24. The State also points to Wis. Stat. § 968.04(1)(a), which states that "[w]hen an accused has been arrested without a warrant and is in custody, . . . no warrant shall be issued and the complaint shall be filed forthwith with a judge." The State claims that § 968.04(1)(a) accurately describes Jennings' situation as a "warrantless arrestee in custody." Jennings disputes the State's assertion, arguing that he was never arrested or in custody for the sexual assault of M.K. because his incarceration was due to an unrelated crime. We cannot accept Jennings' proposition.

¶25. We agree with the State that based on the totality of the circumstances in this case, it is clear that Jennings was in custody and in essence, under arrest, for the sexual assault charge when the police detectives questioned him while he was incarcerated at Columbia for an unrelated crime. It is undisputed that the officers told Jennings that the purpose of their visit was to inform Jennings that his DNA matched that of M.K.'s assailant and to question him about the sexual assault of M.K. In addition, the officers gave Jennings a Miranda warning, which he waived. A reasonable person in Jennings' position should have known that he or she would be charged, and was essentially arrested for, the sexual assault of M.K. based on the conclusive DNA evidence and the officers' interrogation. Since Jennings was already physically in custody due to his incarceration, a warrant to bring him into custody was not necessary. Rather, the next logical procedural step would be to file a criminal complaint, which is what the State did in this case.

This limitation to the holding doesn’t justify the result. § 939.74(1) is clear on its face – it specifically defines what commences a prosecution for limitation purposes, and the operative statutory construction principle is that the specific controls the general. Who cares whether a statutory conflict is establishes by looking elsewhere? But, if “John Doe” DNA warrants are upheld, the practical significance may be limited.
Statute of Limitations, § 939.74(1) – “DNA Complaint” as Satisfying
State v. Bobby R. Dabney, 2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth
Issue/Holding:
¶21. Here, it is undisputed that the DNA profile complaint and warrant were issued three days before the statute of limitations expired. We have already concluded that the complaint and warrant in this case were sufficient to commence the prosecution. Thus, the case was timely filed. Nonetheless, we address briefly, Dabney's contentions that the State's actions in this case effectively nullify the statute of limitations.

¶22. First, we note that the protection afforded by the statute of limitations "is not a fundamental right" of a criminal defendant. State v. Sher, 149 Wis. 2d 1, 13, 437 N.W.2d 878 (1989). Rather, it is a statutorily created right, whose primary purpose is to "protect the accused from having to defend himself against charges of remote misconduct." John v. State, 96 Wis. 2d 183, 194, 291 N.W.2d 502 (1980).

¶23. That purpose has not been violated here. The charged crimes were committed December 7, 1994, and the arrest warrant was issued on December 4, 2000. This was less than six years after the crimes. The legislature has determined that six years is not so "remote" as to negatively prejudice the defendant's rights.

¶24. Second, the legislature has addressed this issue and passed legislation addressing these concerns, (n)ewly enacted Wis. Stat. § 939.74(2d) .…

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, the jury found that the victim was unable to report during that period of time. ¶¶17-18. The evidence was sufficient to support this tolling of the statute of limitations, in that the defendant (a therapist who allegedly assaulted the victim during therapy sessions) told the victim that what occurred during therapy was private, and that the victim was too embarrassed and afraid to say anything. ¶¶19-20.
Ex Post Facto -- Change in Statute of Limitations
(See Constitutional Defenses, below)
Statute of Limitations -- Support Arrearages, § 893.40 – Accrual upon Entry of Support Judgment
State v. Walter Junior Benjamin, 2003 WI 50, affirming 2002 WI App 89
For Hamilton: Robert A. Ramsdell
Issue/Holding:
¶3. Walter's case raises questions about the application of statutes of limitations to child support collection actions. The issue presented is whether the State, as an assignee of Walter's deceased former wife, filed a timely action to collect child support arrearages in 2000. … Thus, the specific questions of law are: (1) Does Wis. Stat. § 893.40 (2001-2002) apply to independent actions to collect child support not paid after July 1, 1980, and (2) if § 893.40 applies, when does the 20-year limitations period in the statute begin to run?

¶4. We hold that Wis. Stat. § 893.40, which became effective on July 1, 1980, governs the time within which a party may bring an independent action to collect child support arrearages that accumulated after the statute's effective date. In addition, we conclude that, under the statute, an action brought to enforce a child support judgment must be commenced within 20 years of the date when the judgment is entered. The period of limitation begins to run upon entry of judgment, irrespective of whether any payment under that judgment has been missed.

¶5. The last judgment ordering Walter to pay child support was entered on November 9, 1977. Consequently, the State had until November 9, 1997, to commence an action against Walter to collect arrears that accrued after July 1, 1980. Because the State's action to collect arrearages was not initiated until May 2000, it must be deemed untimely and barred under Wis. Stat. § 893.40.


§ 940.05(2), Imperfect Self-Defense

Defenses – Imperfect Self-Defense, Generally
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue/Holding:
¶23      At trial, Kramer asserted he acted in self-defense, and the jury was instructed on imperfect self-defense. A successful defense based on imperfect self-defense reduces first-degree intentional homicide to second-degree intentional homicide. [12] The test is subjective; a defendant must present “evidence of actual beliefs that [he] was in imminent danger of death or great bodily harm and that the force [he] used was necessary to defend [himself].” State v. Head, 2002 WI 99, ¶124, 255 Wis.  2d 194, 648 N.W.2d 413; see also Wis. Stat. § 940.01(2)(b). [13] A defendant may use what is referred to as McMorris [14] evidence to establish a factual basis to support an imperfect self-defense claim. Head, 255 Wis.  2d 194, ¶122. This evidence may be relevant to a defendant’s state of mind and whether the defendant actually believed that he was in imminent danger of death or great bodily harm, “or that [he] needed to use a given amount of defensive force to prevent or terminate the unlawful interference.” Id., ¶123.
Imperfect Self-Defense -- Jury Instructions
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:
¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide.

¶104. In light of this analysis, we must modify Camacho [176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993)] to the extent that it states that Wis. Stat. § 940.01(2)(b) contains an objective threshold element requiring a defendant to have a reasonable belief that she was preventing or terminating an unlawful interference with her person in order to raise the issue of unnecessary defensive force (imperfect self-defense).

It follows that Wis JI-Criminal No. 1014  is wrong, and "requires amendment." ¶146. The court requests the Instruction Committee to revise it, but suggests that the pre-Camacho versions may be correct. ¶147. (See, however, State v. Harp, 150 Wis. 2d 861, 443 N.W.2d 38 (Ct. App. 1989).)
Imperfect Self-Defense, § 940.05 -- Interplay with Defense of Self, § 939.48 --
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; and (2) a reasonable belief that the amount of force the person intentionally used was necessary to prevent or terminate the interference. Wis. Stat. § 939.48(1)....

¶106. Perfect self-defense is a privilege recognized in Wis. Stat. § 939.45(2). Before a privilege may be considered by the fact-finder, the defendant must raise the privilege as an affirmative defense. State v. Trentadue, 180 Wis. 2d 670, 674, 510 N.W.2d 727 (Ct. App. 1993). Once the defendant successfully raises an affirmative defense, the state is required to disprove the defense beyond a reasonable doubt. State v. Stoehr, 134 Wis. 2d 66, 84 n.8, 396 N.W.2d 177 (1986).

¶107. Unnecessary defensive force is also an affirmative defense, Wis. Stat. § 940.01(2), but not a privilege under Wis. Stat. § 939.45. When the issue of unnecessary defensive force (imperfect self-defense) "has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1)." Wis. Stat.  § 940.01(3)....

¶110. Raising the affirmative defense of unnecessary defensive force should not present great difficulty. We have already determined that the defendant is not required to meet an objective reasonable threshold. Consequently, unnecessary defensive force must have a lower threshold for the admissibility of evidence than perfect self-defense, which does have an objective reasonable threshold. Unnecessary defensive force also has a lower threshold than "adequate provocation," because "provocation" is defined as "something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death." Wis. Stat. § 939.44(1)(b) (emphasis added).

Court explains that defendant has mere burden of production -- to show "some evidence" supporting the defense. Though the threshold for perfect is logically higher than for imperfect self-defense, the two defense are so overlapping that "it would be very challenging for the court to exclude evidence on one but not the other." ¶¶110-17.

§ 940.09(2), Homicide by Intoxicated Use of Vehicle

§ 940.09(2), Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father's vehicle and, on one occasion, had actually grabbed the wheel,” was properly excluded as irrelevant:
¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father's vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide's vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide's vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun's father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide's vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.

¶29      Due to these dissimilarities, we conclude that Muckerheide's offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts "is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged."

State v. Sullivan, 216 Wis. 2d 768, 771-72, 576 N.W.2d 30 (1998), it will be recalled, establishes a 3-part test for admissibility of § 904.04 extraneous conduct evidence, ¶20: acceptable purpose under § 904.04(2); relevancy under § 904.01; danger of unfair prejudice under § 904.03. The variant presented by this case is that it deals with evidence sought for use by rather than against the defendant. Draw your own conclusions as to whether identity of extraneous-conduct evidence has a distorting effect on the outcome. One noteworthy point, though: Muckerheide argued that Sullivan’s 3rd step, unfair prejudice, isn’t applicable where the other-acts evidence is advanced by the defendant; the court, while expressly declining to reach that argument, nonetheless equally explicitly “urge(s) circuit court to discuss and analyze all three steps of the Sullivan analytical framework,” ¶32.

§ 971.19, Venue

Venue -- First-Degree Intentional Homicide -- Sufficient Bindover Showing of Killing in County Where Prosecution Lodged
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding: Venue, § 971.19(1), requires trial in the county where the crime was committed; bindover proof of venue in a first-degree intentional homicide was sufficient (taking the inferences in favor of bindover) to show that defendant killed the victim in the county where the prosecution was lodged, where: the victim left work scheduled to take a trip to a cabin but never made it and was found dead over 1500 miles away; defendant was the last person to see the vicitm alive shortly before he disappeared, at the family home in the county of prosecution; a large number of unexplained miles were run up on the vehicle used by defendant; the victim was in a good mood until receiving a phone call at work from the defendant but then became visibly distressed and told a co-worker,"We may have to go to a funeral"; and, the victim had earler told a co-worker that the defendant had threatened him and attacked him one night after work, ¶¶ 53-77.

NON-STATUTORY DEFENSES

Constitutional defenses

Bear Arms -- Fundamental Right, Under Wis. Const. Art. I, § 25 – Necessary Showing
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:

¶86. In the meantime, we must give effect to the constitutional right embodied in Article I, Section 25.39 A defendant who challenges on constitutional grounds a prosecution for carrying a concealed weapon will be required to secure affirmative answers to the following legal questions before he or she is entitled to raise a constitutional defense. First, under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the State's interest in enforcing the concealed weapons statute? The State generally has a significant interest in prohibiting the carrying of concealed weapons. Thus, to satisfy this element, the defendant must have been exercising the right to keep and bear arms under circumstances in which the need to do so was substantial. Second, did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? Put differently, did the defendant lack a reasonable alternative to concealment, under the circumstances, to exercise his or her constitutional right to bear arms? The invocation of this possible defense must be raised by motion of the defendant before trial, and resolution of these legal questions must be made by the court prior to trial. Affirmative answers to these questions will require a court to conclude that the State's enforcement of the CCW statute constituted an unreasonable and unconstitutional impairment of the right to keep and bear arms as granted in Article I, Section 25 of the Wisconsin Constitution.

¶87. The issue of unlawful purpose is relevant only when the court approves a constitutional defense. The State can overcome a court-approved constitutional defense only if it asserts, and then proves at trial, that the defendant had an unlawful purpose at the time he or she carried the concealed weapon. Whether the defendant had an unlawful purpose, defined as an intent to use the weapon in furtherance of the commission of a crime, is a question of fact. The question should be submitted to the trier of fact along with separate, traditional instructions on the crime of carrying a concealed weapon.

¶88. If a jury answers that the defendant did not intend the unlawful purpose specifically alleged by the State, then it will not need to reach the questions posed in the jury instructions for a CCW offense as the defendant's conduct remains constitutionally protected. If any unlawful purpose is proven, then the defendant can be found guilty of carrying a concealed weapon upon proof beyond a reasonable doubt of the elements of the crime of carrying a concealed weapon. See Wis JI--Criminal 1335.

The procedure devised by the court for determining the viability of this constitutional right in any given case appears to be unique. The court, that is, bifurcates the determination, treating its core  as a legal matter for the judge; and leaving “unlawful purpose” a question of fact for jury resolution. Some embellishment is provided by Justice Bablitch, who says in a concurrence that this is the framework employed in 4th amendment cases: “So too here. The constitutional facts are determined by the court, applying the historical facts to the constitutional amendment, and ‘reasonableness’ is the touchstone.” ¶96. But this begs the question. A 4th amendment issue by definition raises an issue of preliminary admissibility which “shall be determined by the judge,” § 901.04. The present question directly relates to guilt – which is paradigmatically for the fact-finder – not admissibility, and Justice Bablitch’s analogy therefore seems inapt. The right to bear arms creates a defense to CCW. Why shouldn’t this be treated same as any other defensive issue: the judge screens the issue for evidentiary support but rather than independently weighing the evidence views it in the light most favorable to the defense, and keeps in mind that reasonableness is peculiarly for the fact-finder? The problem, it should be stressed, is not that the judge screens the issue, but that the judge makes an independent determination of its viability.

The court "conclude[d] that a citizen's desire to exercise the right to keep and bear arms for purposes of security is at its apex when undertaken to secure one's home or privately owned business," ¶67; compare that conclusion to District of Columbia v. Heller, USSC No. 07-290, 6/28/08, which overturned a D.C. ban on possession of a usable, lawful gun in one's home (holding in the process that: the 2nd amendment safeguards a personal, as opposed to collective, right to keep and bear arms; and that this right may be subjected to reasonable regulation, albeit not to the point of the D.C. effort to restrict it out of existence). Whether the 2nd amendment applies to states through the incorporation doctrine remains to be seen, and in any event the result in Heller doesn't appear to be inconsistent with the result if not the reasoning of Hamdan. And see People v. Yarbrough, Cal App No. A120721, 12/17/08 (Heller doesn't invalidate CCW statute)

Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.
Holding:
¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years. The text is not rendered vague by the difficulties that might attach to an actor's attempt to ascertain whether the person is at least 16 years old. We are not persuaded that Wis. Stat. § 948.02(2) is unconstitutionally vague.

¶38. The defendant contends that the statute is overbroad and violates substantive due process because its language is so sweeping that its sanctions may be applied to conduct that the state is not permitted to regulate.35

¶39. The defendant concedes that the government has a significant interest in protecting children and regulating sexual contact between minors and adults and agrees with the court of appeals decision in State v. Fisher that the state's significant interests in protecting children trumped Fisher's right to a privacy interest in having sexual intercourse with another person.36

¶40. The defendant argues, however, that because Wis. Stat. § 948.02(2) does not allow a defense based on the victim's intentional misrepresentation about her age, the statutes impermissibly chill his exercise of his legitimate prerogative to have sex with young women who are of the age of consent. The defendant argues that the circumstances in this case, that is, the victim's intentional misrepresentation, provide a very narrow and necessary exception to the criminalization of sexual contact between minors and adults.

¶50. Because the legislature's forbidding a reasonable mistake of age defense in statutory rape cases (whether the mistake is induced by intentional misrepresentation or otherwise) has a significant historical derivation and is widespread, and because of judicial deference to the legislature's discretion in the exercise of its police powers, we conclude it is not violative of due process for the state legislature to forbid a defense of fraud or reasonable mistake about the age of the victim.52

The court’s dismissal of the constitutional argument is pretty casual; a bit too casual: it doesn’t go much farther analytically than saying that this is the way it’s always been done. That may be fine in relation to a notice argument, but this is a substantive due process claim, and so the court's wave of the hand doesn’t quite reach what seems to be the heart of the problem: strict liability impermissibly trenches, at least in this sort of instance, on the protected right to intimate interaction with individuals who have attained majority age. Remarkably, the court doesn’t even cite Lawrence v. Texas. Moreover, the court flatly dismisses analogy to first amendment jurisprudence, ¶21 n. 14. The court is at least arguably wrong on both counts; the errors are related. Lawrence is meaningful because it says there is a constitutional right to consensual sex with an adult. And 1st amendment principles are meaningful because they inhibit strict liability for distributing obscene material to minors, see generally, State v. Lane R. Weidner, 2000 WI 52 (“¶11 Because age represents the critical element separating illegal conduct from that which remains protected, to avert significant constitutional dilemmas some form of scienter must be implied in a statute imposing criminal liability based on age.”). These principles should intersect in an age-of-consent context. That is, if the potential inhibition on protected activity is too great to impose strict liability in the one context, it ought to be so in the other as well. Is distribution of pornography a more valued right than consensual sex with an adult? Not, at least arguably, after Lawrence. Jadowski seems to have raised such an argument (indeed, this is, or at least ought to be, his preeminent argument), see ¶40: “defendant argues … the statutes impermissibly chill his exercise of his legitimate prerogative to have sex with young women who are of the age of consent.” To be sure, the argument is stronger put as, chill the legitimate right to have sex with someone who has attained the age of 18, rather than age of consent which is 16 – but this is a mere detail in that it certainly seems as if Jadowski believed the minor was in fact 18. Regardless, that detail doesn’t seem to matter in the way the court treated the argument, which is to say cavalierly dismissed the notion that first amendment principles have any application. Habeas relief seems doubtful (simply because there is no clearly established controlling SCt authority), making cert the only potential avenue of relief.
UPDATE: For foreign authority, taking a more flexible approach, see In re Jennings, Cal SCt No. S115009, 8/23/04 (despite fact that crime of providing minor with alcohol imposed strict liability, court would recognize affirmative defense of mistake of fact: that defendant honestly and reaosnably believed minor was an adult).
Ex Post Facto -- Change in Statute of Limitations
State v. Jeffrey B. Haines, affirming, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann
Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.
¶15. In sum, the court of appeals succinctly and correctly reasoned that:
[T]he 1994 amendment to Wis. Stat. § 939.74(2)(c) did not remove a defense that was available to Haines in 1992. At the time of the alleged assault, Haines had no statute of limitations defense. Indeed such "defense" would not have been available until 1999, when the former statute of limitations would have run. Accordingly, there is no ex post fact violation under the third consideration set forth in Kurzawa.
State v. Haines, 2002 WI App 139, ¶7, 256 Wis. 2d 226, 647 N.W.2d 311. We cannot improve upon the court of appeals' analysis and reasoning. Accordingly, we affirm the decision of the court of appeals that applying the amended age 26 statute of limitations under Wis. Stat. § 939.74(2)(c) (1993-94) to Haines does not violate the ex post facto clause of the Wisconsin Constitution.
Haines raised no argument under the US Constitution. ¶6 n. 6. This omission is probably due to apparent uniform agreement "that retroactive application of an amended statute of limitations, which is enacted at a time when the prior limitations period has not yet run, does not violate the ex post facto clause." ¶14, cases collected id., n. 7.

UPDATE: The Supreme Court subequently held that retroactive enlargement of an expired statute of limitations violates ex post facto protection. Stogner v. California, 01-1757 -- a result that doesn't affect Haines, in that the SOL enlargement occurred pre-expiration. See, for example, Renderos v. Ryan, 9th Cir No. 05-16454, 11/8/06 (legislative enlargement of limitation period while claims against Renderos still running "precisely the type of statute that Stogner expressly stated it was not striking down").

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, which allowed the defendant to considerably narrow the time frame, ¶¶32-36.
Selective Prosecution
State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett
Issue1: Whether Kramer established a prima facie case for selective prosecution.
Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic. ¶14. But the equal protection clause prohibits singling out someone for prosecution when others similarly situated aren't. ¶18. "Similarly situated" means that the circumstances present no distinguishable legitimate prosecutorial factors that might justify the different treatment. ¶20. Here, tavern owners in one municipality (including Kramer) were singled out for commercial gambling prosecution; others in the county weren't, even though they also had the prohibited machines. ¶22. Because the record doesn't show "distinguishable legitimate prosecutorial factors that justify" this action, a prima facie case for discriminatory effect was made; the trial court's contrary finding was clearly erroneous. ¶¶23-24.
Issue2: Whether the prosecution put forth compelling evidence to rebut the prima facie showing of selective prosecution.
Holding: Because the trial court (erroneously) found no prima facie showing, a rebuttal hearing wasn't held, and the case must therefore be remanded for "an evidentiary hearing to determine whether the State has produced sufficient evidence to rebut this prima facie showing." ¶26.

Common Law Defenses

Collateral Attack on Custody Order, § 948.31
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.
Campbell argued that the custody order was procured by fraud, because the mother (who was then married to Campbell) obtained an order of adoption from a Missouri court but withholding her status at the time as a Wisconsin resident. Ultimately though, the parents were divorced in Wisconsin, where a family court entered the custody order Campbell was accused of interfering with. Because the parents were residents of Wisconsin when the divorce commenced, the family court had subject matter jurisdiction; nor is there any dispute that the family court had personal jurisdiction over Campbell, ¶48.
¶49      Even if the family court commissioner erred in granting custody and primary placement to Denise, Campbell had to abide by the terms of the custody order until he succeeded in reversing it through the applicable review process. See Orethun, 84 Wis. 2d at 490 ("Where a court has jurisdiction over the subject matter and the parties, the fact that an order or judgment is erroneously or improvidently rendered does not justify a person in failing to abide by its terms."); Anderson v. Anderson, 82 Wis. 2d 115, 118-19, 261 N.W.2d 817 (1978); cf. Kett, 222 Wis. 2d at 128 ("A voidable judgment . . . has the same effect and force as a valid judgment until it has been set aside.").

¶50      Since Campbell's allegation of fraud, even if true, cannot deprive the family court of subject matter jurisdiction or personal jurisdiction, and cannot render the custody order void, evidence of Denise's alleged fraud cannot negate an element of interference with custody.

Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.
Holding:
¶56      There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.

¶57      One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.  See Hobson, 218 Wis.  2d at 373-80. …

¶58      For similar reasons, no affirmative defense for fraud can justify interference with legal custody of a child unless there is a credible threat of physical harm. … Adequate judicial processes exist to attack an order or judgment for fraud.  In this case, Campbell received a de novo hearing on the family court order in the circuit court. See Wis. Stat. § 757.69(8). If he had fully pursued the de novo hearing, he would have received a decision, and he could have sought an appeal of an adverse determination. …

¶59      Recognition of an affirmative defense entails the balancing of competing policy considerations. We believe the legislature properly balanced the competing policies when it established four affirmative defenses to interference with legal custody of a child. See Wis. Stat. § 948.31(4)(a). …

¶60      None of these legislatively created affirmative defenses applies in this case. …

¶62      Under the facts of this case, we refuse to recognize a common law affirmative defense of fraud. …

A fact-specific result, then, that doesn’t really resolve the general problem of whether or when you can collaterally attack a court order or judgment in defense of a criminal charge. The court notes: “Though the court of appeals has stated in criminal cases that a judgment or order may be collaterally attacked if procured by fraud, the court of appeals has never applied the rule in these cases,” ¶55. The certification asked the supreme court to determine whether there is indeed “a fraud exception to the general rule which bars a collateral attack against an order or judgment of another judicial body in the context of a criminal proceeding[.]” The court says that its “holding does not eviscerate the Bouzek rule [which recognizes a general fraud-exception to the collateral attack bar]; it helps define and give substance to the Bouzek rule,” ¶62; but that is true only in the negative sense that the court finds no such exception “under the facts of this case.” It might be worth pausing to recall that courts don’t seem at all hesitant to find a fraud-based exception to finality when the defendant benefited from the fraud— e.g., State v. Ary L. Jones, 2002 WI App 208, ¶14 (“The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void ….”
Collateral Attack on Order as Element of Pending Offense, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶42      Where a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void. See State v. Orethun, 84 Wis.  2d 487, 490-91, 267 N.W.2d 318 (1978); State v. Jankowski, 173 Wis.  2d 522, 528, 496 N.W.2d 215 (Ct. App. 1992). A void judgment is a nullity and cannot create a right or obligation. Kett v. Cmty. Credit Plan, 222 Wis.  2d 117, 127-28, 568 N.W.2d 68 (Ct. App. 1998) (affirmed 228 Wis.  2d 1, 596 N.W.2d 786) (citing Fischbeck v. Mielenz, 162 Wis. 12, 17-18, 154 N.W. 701 (1916)). It is not binding upon anyone. Id. On the other hand, a voidable judgment has the same force and effect as a valid judgment until it has been set aside. Id. at 128 (citing Slabosheske v. Chikowske, 273 Wis. 144, 150, 77 N.W.2d 497 (1956)); Stimson v. Munson, 251 Wis. 41, 44, 27 N.W.2d 896 (1947) ("The order or judgment, however erroneous, must stand until reversed, modified, or set aside . . . . It is not subject to collateral attack merely because it is erroneous, nor is it void for that reason.") (quoting Pugh v. Fowlie, 225 Wis. 455, 471, 274 N.W. 247 (1937)).
Common Law Defenses -- Causation, Homicide -- "Year and a Day" Rule
State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski
Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.
Holding:
¶5. We disagree with the circuit court and hold that the defendant's conviction in this case is barred by the common-law year-and-a-day rule. In order to reach this conclusion, we must address four successive questions of law that this court decides independent of the circuit court but benefiting from the circuit court's analysis. The four questions and this court's answers to them are as follows:
1. Is the common-law year-and-a-day rule the law in Wisconsin? We agree with both the State and the defendant that the year-and-a-day rule has been the law of Wisconsin since statehood, preserved through Article XIV, Section 13 of the Wisconsin Constitution.

2. If the year-and-a-day rule is the law in Wisconsin, does this court have the authority to abrogate the rule? This court has the authority to develop the common law and therefore may abrogate the year-and-a-day rule.

3. If this court has the authority to abrogate the year-and-a-day rule, do sufficiently compelling reasons exist for this court to do so now? This court should abrogate a common-law rule when the rule becomes unsound. We conclude that the year-and-a-day rule is an archaic rule that no longer makes sense. Accordingly, the court abolishes the rule.

4. Should the abrogation of the year-and-a-day rule apply to the defendant in the present case? The court may change or abrogate a common-law rule either retroactively or prospectively. We conclude that purely prospective abrogation of the year-and-a-day rule best serves the interests of justice. Thus, prosecutions for murder in which the conduct inflicting the death occurs after the date of this decision are permissible regardless of whether the victim dies more than a year and a day after the infliction of the fatal injury. The prosecution for first-degree reckless homicide in the present case, however, remains subject to the year-and-a-day rule, and because the fatal injury in the present case was inflicted more than a year and a day before the death of the victim, the defendant's conviction for first-degree reckless homicide is reversed.

This is all clear enough: The year+ rule is viable up to 5/16/03, null subsequently. Conduct ultimately resulting in death must occur on or after 5/17/03 in order to come within the new (post-abrogation) regime. Beyond that, it is "clear that Article XIV, Section 13 specifically incorporates the common law of England as it existed in 1776 into the law of this state.” ¶10. Discerning which common law rules might require resort to such authorities as this (Blackstone); or this (Bracton); or this (Hale). Keep in mind that the supreme court has the authority to abrogate your genealogical effort, ¶24, and isn’t indifferent to its exercise, see State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998).
What, though, of the practical impact of this particular holding? It’s not known how many prosecutions are or might be affected. But State v. Trevor McKee, 2002 WI App 148, holds that neither double jeopardy not lesser-offense statutes bar prosecution for homicide when the victim dies following the defendant's conviction and sentence for assaultive offenses related to the incident ultimating resulting in that death. In short, McKee eliminates possible procedural bar to prosecution; Picotte eliminates the substantive defense of no-causation. (Causation, of course, remains challengeable, but the "substantial factor" test is so easily met that such a challenge will very rarely be viable.
Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals
For Coleman: Brian Kinstler
Issue/Holding:
¶28      Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice). In Neylan, McMillian, Smalley and Evans, the first element is the same, unreasonable delay, but the second element of the two-element analysis is set out as "actual prejudice." When the delay is not extensive, the movant's lack of knowledge that the claim would be brought is important in assessing prejudice. Neylan, 121 Wis.  2d at 491 n.5. Stated otherwise, actual prejudice includes the concept that the party raising laches did not have knowledge that the claim would be brought and that he suffered prejudice because of the delay in bringing the claim.

¶29      Because it may be difficult to quantify "actual prejudice," we conclude that the three-element analysis of Sawyer and Prihoda provides the better analytic framework for assessing a laches defense than does the two-element analysis set out in McMillian, Smalley and Evans. Carefully applied to the facts, assessing whether a party raising laches did not have knowledge that the claim would be brought will permit the circuit court to more fully apprise the effect of a claim that has been unreasonably delayed. For example, if the State had knowledge that Coleman would bring his claim of ineffective appellate counsel, but destroyed all the records that it possessed that were relevant to that claim, the State might be prejudiced in defending against the claim, but it would nevertheless fail on its laches defense.

Laches is discussed here as a State's defense to a habeas claim of ineffective assistance of appellate counsel.
Common Law Privileges -- Right to Resist Unlawful Arrest
State v. Shonna Hobson, 218 Wis.2d 350, 577 N.W.2d 825 (1998), on certification.
For Hobson: Keith A. Findley, John A. Pray, LAIP, UW Law School
Holding: Wisconsin recognizes a common law privilege to forcibly resist an unlawful arrest (i.e., w/o made w/o probable cause); but having recognized that privilege, the court simultaneously abrogates it (albeit prospectively only, because of ex post facto concerns). The holding is limited to "unlawful interference with the person" not involving excessive force; the right of self-defense in those situations is governed by statute, § 939.48(1). Fn. 16.
Common Law Privileges -- Self-Defense, as Applied to Carrying Concealed Weapon
State v. John V. Dundon, 226 Wis.2d 654, 594 N.W.2d 780 (1999), on certification.
For Dundon: William S. Coleman, SPD, Milwaukee Appellate.
Holding:
¶36 In Coleman, we recognized that "a narrow defense of privilege under Wis. Stat. § 939.45(6) exists to a charge of felon in possession of a firearm." Coleman, 206 Wis. 2d at 210. The privilege contained a five-part test which was derived from numerous cases cited in the opinion.12 Dundon points to Coleman, but he fails to point to case law recognizing a common law defense of privilege for the crime of carrying a concealed weapon. We decline to extend the privilege recognized in Coleman to the unrelated crime of carrying a concealed weapon.
12 The court in Coleman established the following test to describe the common law privilege for felons in possession:
In order to be entitled to the defense, the defendant must prove: (1) the defendant was under an unlawful, present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury, or the defendant reasonably believes he or she is under such a threat; (2) the defendant did not recklessly or negligently place himself or herself in a situation in which it was probable that he or she would be forced to possess a firearm; (3) the defendant had no reasonable, legal alternative to possessing a firearm, or reasonably believed that he or she had no such alternative; in other words, the defendant did not have a chance to refuse to possess the firearm and also to avoid the threatened harm, or reasonably believed that he or she did not have such a chance; (4) a direct causal relationship may be reasonably anticipated between possessing a firearm and the avoidance of the threatened harm; (5) the defendant did not possess the firearm for any longer than reasonably necessary.
State v. Coleman, 206 Wis. 2d 199, 210-11, 556 N.W.2d 701 (1996).

We also noted "that a defendant will be able to establish these elements 'only on the rarest of occasions,' because of the difficulty in proving that he or she did not have a reasonable legal alternative to violating the law, and that he or she possessed the firearm for a period of time no longer than reasonably necessary." Id. at 212 (citing United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996); United States v. Perrin, 45 F.3d 869, 874 (4th Cir. 1995), cert. denied, 515 U.S. 1126 (1995)).


Claim/Issue Preclusion

Issue Preclusion -- “Actually Litigated” Requirement: OWI – Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.
Holding:
¶11 Thus, a threshold prerequisite for application of the doctrine is that, in order to be precluded from “relitigating” an issue, a party must have “actually litigated” it previously. …

¶12 … By contrast, a determination is not conclusive “as to issues which might have been but were not litigated and determined in the prior action.” …

¶13 The question of whether the arresting officer had probable cause to arrest Nytsch was not “actually litigated” during the judicial review hearing. The court’s order vacating the administrative suspension is more akin to the Restatement’s examples of nonlitigated circumstances, such as when an admission is given and evidence relating to the issue is never heard before a court and therefore a considered judgment is never made.

The court goes on to invoke notions of “fundamental fairness,” which include “the adverse impact on public safety that would result from allowing issue preclusion to prevent relitigation of probable cause under the circumstances of this case,” ¶17. The court also “overrules” (that is not technically correct, but close enough) the unpublished case of Village of Westfield v. Mashek, 1994AP361, 11/10/94, ¶18 n. 6. ( Mashek has no precedential value, because it isn’t published, so it can’t be overruled; instead, the court says that the “result” in that case “is wrong.”)
Issue Preclusion: TPR
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. (The court remands for determination of whether issue preclusion is appropriate in this instance, without attempting to reach the merits on appeal, ¶ 10 and id. n. 5, citing Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 224, 594 N.W.2d 370 (1999) for the issue-preclusion test.)
Claim Preclusion, Generally
State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

¶13. Barksdale next argues that, even if the circuit court properly allowed the warden to raise claim preclusion as a defense, the defense must fail because all of the elements for claim preclusion are not present. The burden of proving claim preclusion is upon the party asserting its applicability. Alexopoulos v. Dakouras, 48 Wis. 2d 32, 37, 179 N.W.2d 836 (1970). There are three requirements for claim preclusion to apply:
In order for the earlier proceedings to act as a claim-preclusive bar in relation to the present suit, the following factors must be present:  (1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction.
Northern States Power Co., 189 Wis. 2d at 551
Issue Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04

For Miller: Robert T. Ruth
Issue/Holding: Issue preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew:
¶22. In the second action, the facts were different in that Miller already had a copy of the expert's summary. Thus, the first two issues decided by Judge Krueger were not before Judge Flanagan for decision. The issue that Miller raised in his motion did ask Judge Flanagan to decide whether Wis. Stat. § 971.23(7m)(a) required that the expert's testimony be excluded in this action, but that was not the same as the third issue decided by Judge Krueger. Judge Krueger decided that § 971.23(7m)(a) required exclusion of the State's expert testimony in the trial then scheduled because the State had not provided a summary within a reasonable time before that trial and did not have good cause. The issue before Judge Flanagan regarding that testimony was whether § 971.23(7m) or some other authority required that the testimony be excluded even though Miller had a summary of the expert's testimony well in advance of the trial in the second case.

¶23. Miller argues that the factual context of the issue or issues presented to Judge Krueger and to Judge Flanagan are different only because the State "manipulated" the facts by seeking dismissal and then refiling the charges, and we should therefore disregard the differences. However, the doctrine of issue preclusion is not concerned with why the facts are different in the second litigation and, thus, why there is a different issue of law presented. Rather, the doctrine is aimed at limiting litigation of an issue that has actually been litigated. We are satisfied that, by taking the position that its expert's BAC testimony is admissible in this action, the State is not seeking to relitigate an issue of law or fact decided by Judge Krueger.9
9   We observe that the factual differences, and hence the different legal issues presented in the first and second actions here, distinguish this situation from one in which a motion to suppress evidence based on a legal standard applied to historical facts is decided in a prior action and in the later action a party seeks a ruling on suppression of the same evidence based on the same historical facts and same legal standard. See, e.g., Jones v. State, 47 Wis. 2d 642, 655-57, 178 N.W.2d 42 (1970). Our decision does not address issue preclusion in such a situation.

 
Claim Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04

For Miller: Robert T. Ruth
Issue/Holding: Claim preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew::

26. We conclude that claim preclusion is not applicable for two independent reasons. First, as is evident from the name of this doctrine, its application bars a claim, or cause of action, but Miller does not seek that result. The claims in this case are the charges that Miller violated Wis. Stat. § 346.63(1)(a) and (b) in the incident occurring on June 3, 2000. However, Miller is not arguing that the State is barred from refiling those charges. Rather, Miller is arguing that in the second action on the same charges, which he implicitly concedes the State was not precluded from filing, the State may not present certain evidence because the admissibility of that evidence was determined in the first action. This is not the remedy that the application of claim preclusion affords.

¶27. The second reason claim preclusion is inapplicable is that there was no "final judgment on the merits." Judge Krueger's order excluding the BAC testimony did not in any sense decide the merits of the charges against Miller. The order dismissing the charges also was not a "final judgment on the merits" because it was without prejudice, meaning that no decision on the merits had been made and the State was therefore free to refile the same charges to obtain a judgment on their merits. See Russell v. Johnson, 14 Wis. 2d 406, 411-12, 111 N.W.2d 193 (1961) (holding, in a civil action for damages, that a dismissal without prejudice does not constitute a judgment because it is not the final determination of the rights of the parties in the actions)

 
Claim Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04

For Miller: Robert T. Ruth
Issue/Holding: Judicial estoppel didn’t prevent admissibility of evidence excluded as discovery sanction in prior, dismissed but then reissued action, where judge who dismissed prior action after imposing sanction contemplated that the excluded evidence would not be barred in a new proceeding, ¶¶31-33.
 
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, other jurisdictions have considered the dynamic nature of mental health and the importance of present-time determinations in the contexts of their civil commitment laws. See In re Mental Health L.C.B., 830 P.2d 1299, 1304 (Mont. 1992); Archer v. State, 681 So. 2d 296, 299 (Fla. Dist. Ct. App. 1996); In re Katz, 638 A.2d 684, 687 (D.C. 1994). Recently, the California Court of Appeals explained why the State's petition for extension of a defendant's commitment under the Sexually Violent Person Act (SVPA), California's counterpart to ch. 980, must be based on the defendant's current condition, with particular concentration on the developments since the last commitment order:
The nature of the [SVPA] envisions a special civil commitment proceeding that is begun and then continues, changes or ends depending upon the current mental condition and dangerousness of the proposed or committed [sexually violent person].... Although the same requirements or issues are involved in alleging any 'cause' filed via petition under the Act, the actual facts or circumstances comprising that 'cause' in a subsequent petition will necessarily be different due to the addition of new facts bearing on those issues based on the sheer passage of time which may support the release or commitment of the proposed [sexually violent person].
Butler v. Superior Court, 93 Cal. Rptr. 2d 468, 474 (Ct. App. 2000) (citations omitted). While the court was not considering whether claim or issue preclusion barred the State's action, its emphasis on "the current mental condition and dangerousness," "the addition of new facts," and "the sheer passage of time" is sound and applicable here. In fact, such emphasis is all the more meaningful where a defendant is released, revoked, and returned to custody during that "sheer passage of time."

¶23. In Parrish's cases, more than a year passed between the time a trial court determined that the evidence had not established that he was a sexually violent person and the time the State filed the second ch. 980 petition. In the interim, Parrish's parole was revoked and he was returned to prison. The passage of time, the new circumstances, and the dynamic nature of his mental health and potential dangerousness allowed the State to file a new petition for his commitment. Neither claim preclusion nor issue preclusion barred Parrish's post-parole-revocation commitment trial.

(Note: The trial court wasn't required to review the record of the first trial in order to resolve issue preclusion, though under "certain circumstances" -- namely, those which are certain never to occur in nature outside of laboratory conditions -- "a careful court might want to review the first trial's record." ¶¶24-26.)
Claim Preclusion -- Revocation Hearing Determination of Insufficient Proof of Element of New Offense No Bar to Prosecution of That Offense
State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217
For Terry: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶1 ... Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine, even under the relaxed preponderance of the evidence standard. We conclude that, while administrative agency decisions are given preclusive effect between the same parties in some instances, the doctrine of issue preclusion should not be applied to findings made in parole and probation revocation proceedings for three reasons: (1) the executive branch oversees revocation hearings through the Department of Corrections (DOC), and the district attorney is not a party. Moreover, DOC is generally disinclined to seek review of the ALJ's decision in a parole and probation revocation proceeding; (2) parole and probation revocation proceedings in this state and criminal trials have critical differences in procedure and function which militate against applying issue preclusion to revocation proceedings; and (3) public policy considerations weigh against applying issue preclusion to revocation proceedings. Thus, the state was not precluded from subsequently prosecuting Terry for possessing cocaine with the intent to deliver and we affirm.
Issue Preclusion -- Defensive Use Against Non-Party to Prior Case
Michael S. Johnson v. Berge, 2003 WI App 51
Issue/Holding: Review of issue preclusion is governed by Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 Wis. 2d 370 (1999). The record isn’t sufficient to review the issue. ¶¶13-14.
For discussion on preclusive effect of state court suppression ruling on federal court dealing with same evidence, see U.S. v. Dominguez, 6th Cir. No. 02-2081, 3/4/04 (even though the evidence was seized under warrant executed by joint state-federal task force, because there's generally no privity between state and federal governments issue preclusion isn't found).
Issue Preclusion -- "Offensive" Use -- Sexually Violent Person Proceeding
State v. Ronald G. Sorenson, 2001 WI App 251, PFR filed
For Sorenson: T. Christopher Kelly.
Issue1: Whether issue preclusion (collateral estoppel) may be used “offensively” by the state in a Ch. 980 trial to bar a respondent from presenting evidence that s/he didn’t commit the offense which underlies the qualifying conviction.
Holding: “¶28. … (W)e hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials. When a respondent was previously convicted of a sexually violent offense in a trial, issue preclusion may be used to prevent the respondent from offering evidence to show that he or she did not commit the prior offense.”
Issue preclusion is typically a “defensive” device used to preclude a plaintiff from relitigating a previously litigated issue. But it may also be used “offensively,” as proof of a fact determined adversely in prior litigation. Here, the state seeks to use this doctrine to prove up conclusively -- to prevent Sorenson from challenging -- the fact of the prior, SVP-qualifying conviction. Issue preclusion may be used offensively in civil cases, Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993), but Sorenson argues (a) that such use is inappropriate in criminal cases and (b) criminal rules apply to an SVP trial. The court recognizes that (a) is a novel question, but doesn’t reach it, assuming without deciding that offensive use is prohibited in criminal cases, ¶17. The question then becomes one of statutory construction, namely whether the absorption of criminal-proceeding rights via § 980.05(1m) bars offensive use of issue preclusion. The court says no, largely for policy reasons (legislature didn’t intend crime victims to be put through the ordeal of a second trial), ¶26. As to the threshold unresolved issue, see U.S. v. Smith-Baltiher, 9th Cir No. 03-50375, 9/9/05, to the effect "that collateral estoppel (may) not be used in a criminal case to prevent a defendant from contesting an element of the offense."
Issue2: Whether, under the particular facts of this case, issue preclusion was used unfairly against Sorenson to prevent him from presenting evidence that he didn’t in fact commit the underlying sexually violent offense.
Holding: Because the trial court didn’t meaningfully determine whether it was equitable to permit the state to prove the prior offense with the use of conviction evidence, the matter must be remanded so that the trial court can exercise its discretion appropriately; if issue preclusion is deemed proper, the SVP judgment is sustained, if not it will be reversed. ¶¶26-36.
The court views the problem not as whether Sorenson should be allowed to present evidence undercutting the prior conviction, but rather as whether the state should have been allowed at all to use the prior conviction to establish the fact of the prior assault, ¶31. The partial dissent points out that this isn’t quite right, that Sorenson should be allowed to present at trial evidence which the fact-finder would weigh to determine the likelihood he would commit future violent acts, ¶¶37 et seq.
Issue Preclusion
State v. Philip M. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, reversing State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999)
For Canon: Alan D. Eisenberg
Issue: "¶1 The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a)(1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue, but where the State claims to have discovered new evidence suggesting that the defendant falsely testified regarding that issue."
Holding: Balancing the interests protected by the double jeopardy clause (principally, finality of litigation) against the competing interest (integrity of the judicial system), ¶7: "¶23 ... [T]he appropriate balance between the competing policy interests can be struck with the following narrow newly discovered evidence exception. The must establish by clear and convincing evidence that: (1) the evidence came to the state's attention after a trial; (2) the state was not negligent in failing to discover the new evidence; (3) the new evidence must be material to the issue; and (4) the evidence must not be merely cumulative to the evidence which was introduced at trial. These requirements are based on the longstanding rule governing the granting of a new trial because of newly discovered evidence in a criminal case.... ¶25 We stress that this holding does not determine whether the 'new evidence; alleged in the state's perjury complaint against Canon meets the newly discovered evidence test set forth above. We determine only that the doctrine of issue preclusion does not constitutionally bar the state from pursuing perjury charges against Canon. The state still has the burden to prove by clear and convincing evidence that its alleged newly discovered evidence passes muster under each of the four prongs to the newly discovered evidence test. For this reason, Canon is entitled on remand to a separate hearing at which he can put the state to its proof."
Issue Preclusion -- Prior Litigation of Ultimate Fact
State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney
Issue: Whether a verdict of acquittal in the defendant’s prior trial estopped the prosecution from retrying the ultimate fact resolved by that acquittal.
Holding:
¶7 'Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit.’ State v. Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998). The issue of ultimate fact presented in both trials was whether Guzman handed the gun over to a co-conspirator during a meeting at Guzman’s house on November 24, 1997. The jury in the first trial concluded that Guzman was not in possession of a gun at that time. Therefore, the State was estopped from arguing during the second trial that Guzman was in possession of a gun at that time. The first jury had already decided this issue of ultimate fact in Guzman’s favor.

¶8 Our conclusion, however, does not affect the conviction on the substantive charge of criminal gang member solicitation because there is other evidence in the record sufficient to sustain the jury’s conviction on that charge. See State v. Peete, 185 Wis. 2d 4, 23, 517 N.W.2d 149 (1994). Based on our conclusion, however, Guzman is entitled to a resentencing on the criminal gang member solicitation conviction, without consideration of the penalty enhancer for use of a dangerous weapon. See State v. Avila, 192 Wis. 2d 870, 893, 532 N.W.2d 423 (1995). Accordingly, we reverse that portion of the judgment and remand for resentencing with directions to the trial court to resentence Guzman on the gang solicitation charge without the while armed penalty enhancer.


PARTICULAR MISCELLANEOUS ISSUES
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, because the State has introduced expert testimony to explain the complainant's reporting behavior."
Holding:
  • 1) The rape shield law applies (the excluded behavior included allegations of masturbation and touching men's genitals, ¶8). ¶16.
  • 2) The judicial exception to the rape shield law, State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), isn't satisfied, because the excluded acts don't closely resemble those on trial:
    ¶27. In the present case, the acts that Dunlap seeks to admit are not even close to the type of act he is accused of committing. Dunlap is alleged to have committed an act of finger-to-vagina sexual contact with possible digital penetration. The prior behaviors that Dunlap seeks to introduce--that the complainant had touched men in the genital area, writhed on men's laps, masturbated, and "humped the family dog"--bear very little similarity to the acts at issue in the present case.
  • 3) Expert testimony that the complainant's behavior was consistent with sexual assault victims doesn't alone open the door to evidence otherwise barred under the rape shield law. ¶33. Nor did this testimony cross a line and amount to comments by the expert on the credibility of the complainant. ¶¶39-30.
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Inability to Pay -- Nonsupport
State v. Christopher M. Clutter, 230 Wis.2d 472, 602 N.W.2d 324 (Ct. App. 1999).
For Clutter: Martha K. Askins, SPD, Madison Appellate.
Issue: Whether the nonsupport defense of inability to pay is viable by showing "lack of financial resources alone."
Holding: "(L)ack of financial resources alone is insufficient to demonstrate inability to pay."
Analysis: Inability to pay is a defense to nonsupport. Clutter, on postconviction motion, showed "that he was living in poverty. ... However, the affirmative defense of inability to pay requires more." Apparently, the defendant must show no "earning capacity," for medical or other reasons. "If a defendant has the capacity to become gainfully employed and realize earnings it is no valid defense to felony nonsupport."
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WAIVER OF DEFENSE
Waiver of Defense -- Territorial Jurisdiction -- Guilty Plea
State v. Anthony J. Randle2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue: Whether a territorial jurisdiction objection (that none of the constitutent elements occurred in the state, § 939.03(1)) is waived by guilty plea to a lesser offense.
Holding:
¶14 In this case, we need not decide whether a defendant may waive territorial jurisdiction altogether-that is, when an issue arises as to whether the charging document charges a crime that is committed wholly outside the territorial jurisdiction of Wisconsin. We do resolve, however, whether a defendant may waive territorial jurisdiction when territorial jurisdiction exists under the original charge, but becomes questionable because the defendant accepts a plea agreement to a lesser-included charge. Under these circumstances, we conclude that territorial jurisdiction may be waived.
(Under the plea colloquy, Randle explicitly acknowledged that he was waiving all jurisdictional issues. ¶16.)
Waiver of Defense -- self-representation.
State v. Christopher M. Clutter, 230 Wis.2d 472, 602 N.W.2d 324 (Ct. App. 1999).
For Clutter: Martha K. Askins, SPD, Madison Appellate.
Issue: Whether a defendant's decision to represent him/herself assumes the risk that a potential defense will be overlooked.
Holding: A defendant's decision to represent him or herself implicitly includes the risk that a defense will be waived.
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