¶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....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....
¶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.
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....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.¶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).
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
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.
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.
For Hamdan: Chris J. Trebatoski
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.")
¶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 ….
¶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.(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.)¶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.
¶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.
¶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.(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.)¶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.
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)....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.¶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).
But see:
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School
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.
¶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.
¶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.)
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/1
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Amicus: Robert R. Henak
¶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.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.¶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.
Amicus: Robert R. Henak
¶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.
¶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. …
¶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....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:¶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).
¶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.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.¶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.
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) .…
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02For 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.
(See Constitutional Defenses, below)
¶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.
¶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.
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.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).)¶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).
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)....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.¶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).
¶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.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.¶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."
¶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.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.)¶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.
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.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.…
¶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
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).
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: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.[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.
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").
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02For 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.
¶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.
¶56 There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.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 ….”¶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. …
¶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)).
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: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).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.
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.
¶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.Laches is discussed here as a State's defense to a habeas claim of ineffective assistance of appellate counsel.¶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.