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1st-Degree Intentional Homicide – Sufficient Evidence, Intent; Sanction – Appendix

State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10

court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.

1st-Degree Intentional Homicide – Sufficient Evidence, Intent

¶13      That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound, does not demonstrate a lack of intent to kill. Zurkowski acknowledged he also repeatedly kicked June in the ribs while she was laying on the ground and he was standing above her and that she no longer had the knife when he was jamming the ceramic dish in her mouth. Zurkowski also ignores the fact that he chose not to call for an ambulance after the struggle despite knowing June was dying. Further, regardless whether he intended that the dish break off in her mouth, he intentionally forced the dish in there, leaving tooth marks in the ceramic.

¶14      Zurkowski also ignores evidence suggesting he planned to kill June. …

¶15      In light of the overwhelming evidence presented, the jury could reasonably reject Zurkowski’s self-serving claim that he did not intend to kill his wife. …

No kidding.

“McMorris” Evidence

When self-defense is raised,McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) allows admissibility of prior specific instances of violence committed by the victim and within the defendant’s knowledge. Admissibility is not automatic, but is discretionary; Zurkowski’s effort to obtain admissibility of two prior acts of the deceased victim, his wife, falls short:

¶21      The circuit court properly concluded Zurkowski’s hazy testimony did not fall into the realm of McMorris evidence of prior violent acts. There were no verbal threats accompanying the “pointing” of the knife, which occurred during food preparation in the kitchen. Indeed, Zurkowski provided very little context in which to consider the incidents. There was little or no discussion before, during, or after the pointing. Further, the incidents were not significant enough to produce a fear of bodily harm. Zurkowski merely walked away and “went on with his life.” Under these facts, the pointing of the knife, without more, can hardly be said to constitute a violent act. Furthermore, for the same reasons, the court reasonably concluded the testimony was inadequate to demonstrate any effect on Zurkowski’s state of mind when he killed June.

Sanction – Appendix

¶23      Finally, we observe Zurkowski’s appellate counsel filed a deficient appendix.  An appellant’s brief must “include a short appendix containing, at a minimum, the findings or opinion of the circuit court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues.” WIS. STAT. RULE 809.19(2)(a). Zurkowski’s brief’s appendix contains only the judgment of conviction. “A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant.” State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367.

¶24      Counsel also falsely certified that the brief’s appendix complied with the rule. Filing a false certification is a serious infraction not only of the rule, but also of SCR 20:3:3(a), which prohibits knowingly making false statements of fact or law to a tribunal. Id., ¶24. Counsel’s omission places an unwarranted burden on the court and is grounds for imposition of a penalty pursuant to WIS. STAT. RULE 809.83(2). Id., ¶25. Accordingly, we sanction Zurkowski’s attorney for providing a deficient appendix and a false certification, and direct that he pay $150 to the clerk of this court within thirty days of the date of this opinion.

The Appendix matters. The court’s ire is understandable. (That the court fully intends to enforce the Appendix-Certification rule is not to be doubted, as this opinion well-illustrates; for earlier examples, see here.) But even though the violation is plain, is sanction-by-fiat defensible? Even in the instance of summary contempt, which is to say offensive conduct committed in the court’s presence, counsel has the right to allocution before sanction is meted out: why is this any different? Recent, albeit foreign, authority: McCoy v. Fed Express, 9th Cir No. 09-15575, 6/15/10 (“Inherent power sanctions require a level of procedural protections similar to that required for contempt proceedings.”)

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