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Battery – Self-Defense – Sufficiency of Evidence; Sanctions – Improper Briefing

State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10

court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.

Battery – Self-Defense – Sufficiency of Evidence

A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.  Kubat then pushed Belcher, who “was the first to swing,”  leading Kubat to hit Belcher with the tire knocker — these facts sustain Kubat’s conviction for battery against a sufficiency-of-evidence argument.

Two high-testosterone jerks egging each other on: why is one guilty and not the other? The court doesn’t quite say, though one possible answer is suggested by the court’s précis of the “pertinent facts, including:  those leading up to the physical confrontation, that Kubat pushed Belcher first, that Belcher was the first to swing, and that it was merely the blow to the face with the tire knocker that Belcher was unsure of,” ¶6. The court’s analysis — granted, an apparently inadequate defense argument did neither Kubat nor the court any favors — is unilluminating. Maybe the idea is that Kubat committed the battery when he committed the first physically aggressive act, pushing Belcher. Or maybe the battery is premised on Kubat’s striking Belcher with the tire knocker. As to which, let our friends at bigstickcombat explain the virtues: “A tire knocker follows the characteristics I prefer in a stick –it stresses heft/weight and solidity over reach. I would rather a short stick be short and compact, yet heavy enough to deal a decisive blow.” Overreach, indeed, for Kubat to use this combat stick in response to Belcher’s mere “swing,”  enough so to prevent him from arguing some form of mutual combat, or the reasonableness of his response to Belcher’s own provocation, as a defense. UPDATE: Two days after release, ¶6 was amended so that it now reflects “that Kubat was the first to swing” (emphasis supplied). That change certainly clarifies things. We all make mistakes.

The court goes on to say that the evidence also supported a “provocation” instruction, which allowed the jury to strip Kubat of self-defense because of his “unlawful conduct,” ¶10. But the court doesn’t identify just what unlawful conduct he engaged in. It might be supposed that the unlawful conduct was his use of a potentially deadly weapon, the tire knocker. The tire knocker wasn’t necessarily a dangerous weapon, because it wasn’t designed as such,  Coleman v. State, 790 S.W.2d 369, 372 (Tex. App.-Dallas 1990), but it became one when Kubat used it in such a manner. Or maybe the court just thought Kubat more of a jerk than Belcher.

Sanctions – Improper Briefing

¶12      We sanction Kubat’s appellate counsel $250 for his filing of two false certifications and rules violations. We also sanction the State’s counsel $50 for her rules violations.  Counsel shall pay their respective forfeitures to the clerk of this court within thirty days of this decision. See Wis. Stat. Rule 809.83(2).

A pox on both their houses! With respect to Kubat’s counsel, multiple violations did him in,  ¶6 n. 3. Didn’t help that his “brief inadequately sets forth the trial testimony, fails to develop a coherent argument, and ignores the proper standard of review,” ¶6, all of which surely warmed the court toward lightening his wallet. But it was a false certification that did the trick, n. 3, something almost guaranteed to incur a sanction. And opposing counsel’s offenses? The fine is meted out for “violations,” which the court scatters in a couple of footnotes:  “fail(ing) to provide proper record citations, omitting the record number,” n. 3; and misciting a case holding, n. 6. In the proper case – no suggestion is made that this is it – the idea will have to be advanced that counsel is entitled to notice, opportunity to be heard and allocution before being deprived of his or her property. The court may then be compelled why it deems improper argumentation worthy of sanction in one case, but not another. Or, compelled why multiple violations by each side results in differential punishment by a factor of 5 (the guess here is that the false certifications provide the multiplier effect, on the assumption it is that much more egregious a violation; be nice, though, to have the court spell out as much). But even with the dawning of that happy day when the right to allocution is finally recognized, you do not want to have to explain why you filed a false certification; why, that is, you lied to the court about the contents of the very document on which your client pinned his hopes. If you pay attention to certification requirements, you won’t ever have to worry about explaining certification defects.

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