WAUKESHA

State prosecutors are asking an appeals court to deny a Whitewater man’s request for a new trial because they say a Walworth County judge made correct decisions about the man’s testimony and his presentation of evidence.

They also say Judge Kristine Drettwan made the right choice about the type of self-defense argument Alan M. Johnson, 34, could make at his 2017 trial, according to the appeal filed Sept. 3 in the District 2 Court of Appeals.

“Johnson mistakenly equates his right to present a defense with a right to present any evidence, in any manner, and to receive any requested instruction,” the response states. “Many of Johnson’s arguments are undeveloped, and all fail.”

A jury decided in November 2017 that Johnson was guilty of first-degree reckless homicide for using his father’s pistol to fatally shoot his brother-in-law Ken Myszkewicz, 43, on Oct. 25, 2016, in Myszkewicz’s Whitewater home.

Throughout most of the case, Johnson’s argument never rested on who shot Myszkewicz—court documents say he admitted to police, “Arrest me. I killed him.”

A contested issue before, during and now after the trial, however, involves the reason Johnson gave for being at the Myszkewicz home that night—he said he went to find more recent evidence of child porn on Myszkewicz’s computer.

He had previously tried to report to police that he found child porn years before, but police told him the evidence was too old and if he found “anything more” he should call them.

In January 2018, Drettwan sentenced Johnson to 25 years in prison and 10 years of extended supervision.

Assistant Attorney General Hannah S. Jurss argues in her response to Johnson’s appeal that he could not present evidence of Myszkewicz’s past—allegations of sexual and physical assault against Johnson and others—without testifying first.

The only way evidence about Myszkewicz’s reputation of violence would be relevant to the case, according to Jurss, was if Johnson argued his self-defense theory through his own testimony—as he and Myszkewicz were the only ones present for the shooting.

Regarding what Johnson says he found on Myszkewicz’s computer on the night of the shooting, the response again says the court properly used its discretion. The legally relevant point was Johnson’s belief of what was on the computer when he killed Myszkewicz, not what was actually on there, according to the response.

Johnson has said he found more than 5,500 pictures of school-age kids going past the Myszkewicz home labeled in categories such as “Blondes.”

Including such information, the response argues, would mislead the jury and unnecessarily paint Myszkewicz negatively.

“Few crimes are more stigmatized than possession of child pornography, and discussing it would have unfairly steered the jury towards nullification,” the response states.

Additionally, Johnson could not make an argument for perfect self-defense because he was in Myszkewicz’s home with a loaded gun in the middle of the night, according to the response.

Johnson also was limited in what he could say because he said he can’t remember shooting Myszkewicz.

The most recent court filing supports Drettwan’s decisions. But even if it conceded the decisions were wrong, it argues the results were “harmless,” considering what evidence eventually came through Johnson’s testimony. The jury acquitted Johnson of first- and second-degree intentional homicide.

A reply is scheduled to be due by Wednesday, Sept. 18, but extensions to the deadlines have been common in the case so far.