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Ken Driessen Legal Defense Fund

Reply Brief Filed 12/27/2010

Motion for Stay of Sentance
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As an Appeallant you file a Brief, then the Respondent files a brief and then you have the option of filing a Reply Brief. I tried to file a 4046 word brief with a motion to file an oversize brief which was denied. Below is the 2946 word brief filed 12/27/10.  Peace Love and Hemp, Ken

STATE OF WISCONSIN

COURT OF APPEALS

DISTRICT 3

__________________________________________________________________

 

STATE OF WISCONSIN                                                                                                                                                                                                   

            Plaintiff-Respondent,                             

                                                                  

                                                                           Appeal No. 2010AP001050

Vs.                                                                      Circuit Court Case No. 09 CF 48

 

KENNETH LEROY DRIESSEN

           Defendant-Appellant

__________________________________________________________________

 

             ON APPEAL FROM JUDGEMENT OF CONVICTION 

 AND DENIAL OF POST-CONVICTION RELIEF

ENTERED BY THE CIRCUIT COURT FOR SAWYER COUNTY

 THE HONORABLE JUDGE ROBERT EATON, PRESIDING

 

__________________________________________________________________

 

REPLY BRIEF OF APPELLANT KENNETH LEROY DRIESSEN

 

__________________________________________________________________

 

 

 

 

                                                                                                           

 

 

 

 

 

                                                    

 

                                                                              Ken Driessen  pro se

                                                                             12022 N. Co. Rd. T

                                                                             Hayward WI 54843

                                                                             715-634-2801

                                                                       kendriessen@hotmail.com   

 

TABLE OF CONTENTS

 

REPLY TO REPONEDENT'S STATEMENT OF THE FACTS - - - - 4

 

REPLY TO THE STATE REPONEDENT'S STATEMENT OF THE CASE - -8 

    On The Adequacy of the Record (I., A. B.) - - - - - - - 8

    Religious 1st Amendment and/or Wis. Art. 1 18 Claim Burden Met (C.) - - 9

    Medicinal Necessity Claim Based on Statutes (D.) - - - - - 11

    Popularity Claim Based on Case Law and Common Sense (D. cont.) - - - 12

    Reply to Respondent's Conclusions - - - - - - - - - - 13

 

LEGAL AUTHORITIES:

 

Case Law Cited

2007AP400-CR, State v. Tody 312 Wis. 2d 480, 751 N.W.2d 902 (2009) - - -7

2007AP1940 CR - - - - - - - - - - - 9

Conant v Walters, 309 F3.d 629 (2002) - - - - - - - 11

Noesen v. Department of Regulation and Licensing, 2008 WI App 52, 311 Wis. 2d - - - - - - -9

State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001) - - - - -12

State v.Mann, 123 Wis 2nd 375, 367 N.W. 2d 209 (1985) - - - - - -4

State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), 96-3028 - - - -8

State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219

237, 751 N.W.2d 385, 06-1110 - - - - - - - - - 8

State v. Peck, 143 Wis. 2d 624, 629-30, 422 N.W.2d 160 (Ct. App. 1988) - - 10,11

Town of Grand Chute v. Kettner Docket: 2009AP002369 - - - - - -11

 

 

 

Wisconsin Statutes Cited

967.04(8)(b)10 - - - - - - - - - - -7

971.23 - - - - - - - - - - - - -8,9

971.23(1)(h)  - - - - - - - 4

971.23(1)(f) - - - - - - - -7

809.30 - - - - - -8  

809.30(2)(g)2 - - - - - 8 

SCR 71.04(5)(b) - - - - -9

967.06 (3) - - - - - -9

961.41 - - - - - -11

961.41(3g) - - - - - -11, 12

 

 

Other Authorities Cited

http://marijuanacannabis.wordpress.com/2008/12/10/2700-year-old-marijuana-found-in-chinese-tomb/ - - - - - -10 http://www.travelchinaguide.com/cityguides/xinjiang/turpan/ - - - -10

http://www.msnbc.msn.com/id/28034925/ - - - - -10

http://www.drugscience.org/States/WI/WI.pdf - - - - - 12

 

 

 

 

 

 

 

 

 

 

 

REPLY TO REPONEDENT'S STATEMENT OF THE FACTS:

 

 

    The Respondent failed to answer why the State and Circuit Court Judge in this case think they can break from statute and case precedence to quash the original complaint depriving Driessen of exculpatory evidence concerning false probable cause information. From the original complaint record (3 (1-9)), specifically document 3 page 2, Probable Cause paragraph line 6, states: "Complainant states that a check of the defendant's driving record in the State of Wisconsin revealed that the defendant's operating privileges were revoked in the state of Wisconsin and had not been reinstated as of March 28, 2009."   A pleading titled "Answer to Complaint" record (6 (1-4)), Driessen provided undisputed information that he did possess a valid Driver's license on March 28, 2009… related case precedence is cited at Appellant's Brief pages 16 and 17...the "Amended Complaint, "…may be attacked when there has been an omission of critical material when inclusion is necessary for an impartial judge to determine probable cause", State v.Mann, 123 Wis 2nd 375, 367 N.W. 2d 209 (1985).   In 967.04(8)(b)10,  and 971.23(1)(h) …it is the duty of the prosecutor to supply such information and the Judge's oath-fulfilling duty consider the facts concerning probable cause…   

    

     The State Respondent Brief begins with misquotes of Deputy Knapp's Incident Report "Statement of Facts"(pg 2):

On Saturday, March 28, 2009, Deputy Brian Knapp saw a pickup truck that was speeding and had a very loud exhaust (14:3).  Deputy Knapp followed the vehicle and turned on his emergency lights and siren (14:3). 

Appellant Driesssen brings it to the attention of the Appeals Court that those words do not occur in that order in Deputy Knapp's report of the incident. The Respondents omitted the following nonsensical, theatrical, physically impossible wording designed to make the Deputy a hero and vilify Driessen through false statements that the audiovisual recordings and photos of the scene submitted by Driessen (Record entry 66-1 to 66-7, also 30-4) along with Trooper Lewis's report (30 -1thru3) prove as such:

Deputy Knapp then pulled out onto the roadway and attempted to catch up to the vehicle..it appeared to accelerate very quickly…Deputy Knapp accelerated quickly in an attempt to catch up to the vehicle and close the distance between the two vehicles…

In reality Deputy Knapp did not attempt to catch the vehicle (Driessen's 1971 low geared 4 wheel drive pickup truck); he did in fact catch up to it because as the audiovisual CD (66-1 to 67-1) footage along with photos (30-4) of the incident scene show…Driessen's vehicle had to come to an almost complete stop prior to negotiating the corner…sharper than 90 degrees and proceeds downhill…impossible to speed around…neither Deputy Knapp nor Trooper Lewis turned on their emergency lights in reaction to the speeding and muffler allegations…waited for retrieval of license plate owner information.  The timing of the radio dispatch identifying Driessen…coinciding with the activation of the emergency lights on it's own is prima facie proof of a selective discriminatory practice…

 

     The Deputy's heroic narrative of the supposed high-speed chase with wild acceleration and swerving accusations, complete with accusations of Driessen's inattentiveness, ignorance of emergency lights and sirens blaring, ending with Driessen somehow able to stop his truck parallel to the edge of the road allowing vehicles to pass safely…all within 780 feet… defies Newtonian laws of physics…Deputy Knapp's Report is purely fictional and full of false statements…Trooper Lewis's report, Circuit Court Record item 30 page 3, paragraph 3, beginning on line 2 thereof and ending on line four she plainly states, "Deputy Knapp asked if I had scene the truck on the wrong side of the road, which I informed him that I had not."

 

      Wisconsin Respondent Brief mentions the "vary loud exhaust" statement in the reply Brief without acknowledging, discrediting or debating the audiovisual recording CD evidence item Exhibit 3 of Motion to Suppress ( 25) or (66-1 and 67-1), also viewable at http://wiscokidd.blip.tv/file/2589408/…affidavit attached to Record 25…audiovisual recording of Driessen's truck placed visually and audibly mingled with other trucks and motorcycles…as stated in the Appellant's August 11, 2010 motion to supplement the record, all the audio/video submitted can be found here: http://www.blip.tv/search?q=wiscokidd…not unreasonably loud in comparison to other trucks on the road…in the interest of justice…to find that Deputy Knapp had no valid constitutionally acceptable reason to follow or stop Driessen's vehicle in the first place.

 

          The Respondent's Brief, Statement of Facts, paragraph 3, goes on paraphrasing the officer's report expressing Deputy Knapp's Narrative about Driessen constantly putting his hands in his pants pockets and handing the jar to the Deputy… "look man, it's just a little weed"…Driessen…did refer to the officer's insinuations as the "pocket pool, hand jive" incident…Trooper report (30, 1-3) stating, "Deputy Knapp had removed a small glass container from Mr. Driessen's pants Pocket."…the report of Trooper Lewis, stating that Deputy Knapp did, "remove a small glass container", from Driessen's Pocket and she did not see Driessen's, "truck on the wrong side of the road". 

 

     Continuing to refer to the State Respondent's Brief "Statement of Facts" section; paragraph 5 mentions the field sobriety test of the morning of March 28, 2009. Did Driessen start the test prior to completion of instructions or did he loose his balance or take a step to the right? What are small choppy steps or was he supposed to walk heal to toe?…Did he stand on one foot on a cold March night for a 22 count or a 24 count? Did Deputy Knapp actually follow the Horizontal Nystagmus test procedure or did he "not have him (Driessen) take his glasses off", as Trooper Lewis stated in her report?  Why did Trooper Lewis not provide the video of the incident, from the video camera that automatically turns on when the emergency lights go on, in her (the people of the state of Wisconsin's) camera equipped vehicle if the two officers were not at least prepared to get their fairytales synchronized?

 

     Judge Eaton once stated, "I like to consider myself part of law enforcement", in a public hearing…verbally making his oath to defend the constitution a joke, see 2007AP400-CR , State v. Tody 312 Wis. 2d 480, 751 N.W.2d 902 (2009).  Driessen submitted copies of an Incident Report and an audiovisual recording containing information pertaining to Case 08080802 …where Deputy Knapp struck a reporter and wrote a report that is false when compared to video recording (http://www.blip.tv/file/2832344/) of the incident (Rec. 34 pg, 18-19)…  November 13, 2009 submission before jury trial and in (34) record…crimes including, writing a false police report and assault are evident…compared to the DVD video (66-1 thru 67-1) record.  By 971.23(1)(f), The criminal record of a prosecution witness which is known to the district attorney, is discovery and inspection the district attorney must disclose to a defendant.    

 

     It is without doubt and prima facie, on it's face obvious when the record of this case is reviewed and considered; the Respondent's "Statement of the Facts", is not based on fact. It is more like something from the 1997 Devils Advocate movie…where the devil is in the detail of making public servants beyond reproach… where people who take an oath to defend the constitution then do everything humanly possible to deny citizens their constitutionally guaranteed rights…a small cultish group within the otherwise honorable legal & law enforcement communities gain salaries and benefits from an unrestrained police state.  This Appellant/Defendant prays to the Court for the proper sanction for falsifying probable cause as defended by State agents be acquittal of all counts.

  

REPLY TO THE STATE REPONEDENT'S STATEMENT OF THE CASE

 

On The Adequacy of the Record (I., A. B.)

     In discussing the adequacy of the official Circuit Court Record, the complaint, pleadings and exhibits within, provide plenty of factual evidence, as referenced and referred to above in this Reply Brief and within Driessen's Appellant Brief…  to determine that a majority of Deputy Knapp's Incident Report, pertaining to probable cause, is not truthful or accurate. Driessen expressed cited statutes seeking the transcripts in his first statement on transcript (44)…Withholding such records (transcripts) may be a violation of his 6th Amendment right to a public trail.  The…Court Reporter to deny Driessen the transcripts, demanding payment comes from civil procedural rules, not from rules in criminal appeals where the court found the defendant indigent waiving the filing fee, see item 57 of the case record…Court Reporter refusing…transcripts including the Post Conviction Hearing until Driessen paid $1000 down is in violation of statutes, See 809.30 etc.:

809.30  ANNOT  Sub. (1) (e)…whereas a copy is served by the court reporter on the defendant. …transcript of postconviction proceedings must be filed and served by the court reporter within 20 days of ordering by the defendant.  

809.30(2)(g)2. …Within 20 days after the request for a transcript of postconviction… proceedings…and serve a copy of that transcript on the person….

971.23 - ANNOT  … has a right to postconviction discovery when the sought-after evidence is relevant to an issue of consequence. State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), 96-3028.

971.23 - ANNOT. When an indigent defendant requests the state to furnish a free transcript… State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219.

(note even if transcripts were not to be provided there is a fee per page, not a $1000 down fee)

 SCR 71.04(5)(b)  …fee at the rate of $1.50 per 25-line page for the original and 50 cents per 25-line page for the duplicate. Except as provided in s. 967.06 (3), the fee shall be paid by the county treasurer…

…under undue duress he amended his Statement on Transcript (45) agreeing to proceed without transcripts of the hearings and on the Record alone. In fact, there is nothing missing from the Record necessary to prove the untruth of the State's probable cause or the timeliness of Driessen's "Notice of Claim of Unconstitutionality" of marijuana laws in the Circuit Court necessary to proceed with such claims on appeal…Driessen again asks the Court, in the best interest of justice, to at this time, proceed and decide the case independently of the transcripts without assuming the "missing material supports the Circuit Court ruling." 

 

      Religious 1st Amendment and/or Wis. Art. 1 18 Claim Burden Met (C.)

 

     Contrary to the State's contentions, that the only description of his religious sincerity concerning marijuana use is, "cannabis use to be an important part of my religious and spiritual experience"; at the beginning of the "Argument concerning religious use of marijuana" section of his Brief, Driessen did mention his "Petition for Declaratory Judgement", record item 27. Pages 3 and 4, of that document, contain a section entitled, "Religious/Spiritual/Shamanistic Use", which gives further detail of Driessen's beliefs. Driessen did not come up with this defense over night, he stated his pagan, shaman, spiritual evolutionist beliefs and cannabis use as essential to those beliefs in his 2007AP1940 CR Appellant's Brief…began studying Shamanism in the 1970's.   In case the court does not recognize Driessen's shamanistic naturalistic worldview philosophy as religion that includes herbal cannabis use; his Brief (pg 28) also cites Noesen v. Department of Regulation and Licensing, 2008 WI App 52, 311 Wis. 2d 237, 751 N.W.2d 385, 06-1110 referring to Wisconsin Constitution Article 1 Section 18 freedom of conscience clause…claiming Wisconsin's THC possession laws violate his freedom of conscience. 

 

     In addition Driessen has been told he is of Dutch, French, Belgian, German, Swedish, English and Polish heritage.  These nationalities are of Celtic origination.

789 grams of dried cannabis was buried alongside a light-haired, blue-eyed Caucasian man, likely a shaman of the Gushi culture, near Turpan in northwestern China. The researchers believe the individual spoke a now-extinct language called Tocharian that was similar to Celtic. Turpan, where the 2700 year old Shaman was found, is a hub of economic and cultural accumulations to West Asia and West Europe. Turpan China embodies the convergence of Eastern and Western culture as well as many religions.   The cache of cannabis is about 2,700 years old and was clearly “cultivated for psychoactive purposes,” rather than as fiber for clothing or as food, says a research paper in the Journal of Experimental Botany.

 Therefore Driessen declaring that he is a shaman in training, not outwardly bragging or claiming to be shaman; is well within long established religious, ethnic and cultural tradition to claim that he uses marijuana/cannabis in a spiritual religious manner with Nature being his higher power rather than an anthropomorphic patriarchal God, his religion is bona fide, See: http://marijuanacannabis.wordpress.com/2008/12/10/2700-year-old-marijuana-found-in-chinese-tomb/ http://www.travelchinaguide.com/cityguides/xinjiang/turpan/

http://www.msnbc.msn.com/id/28034925/

 

        Respondent's argument that the Peck decision upholds the state's "compelling interest" extends to possession for personal religious/spiritual use from that case involving manufacturing marijuana is flawed. As quoted from State v. Peck, 143 Wis. 2d 624, 629-30, 422 N.W.2d 160 (Ct. App. 1988), we considered a challenge to the statute prohibiting manufacture of controlled substances brought by a person whose religion dictated use of marijuana as a sacrament.  Also quoting Peck under 961.41 annotations, Possession is not a lesser-included offense of manufacturing.  Peck was charged with growing/manufacturing a large amount of marijuana; so in Driessen's case, the state failed to cite a binding precedence to lawfully deny a claim that laws criminalizing possession of small amounts of marijuana for personal religious use and/or purpose within personal freedom of conscience does violate US 1st Amendment and Wisconsin Article 1 section 18 clauses.  

 

Medicinal Necessity Claim Based on Statutes (D.)

 

     It "seems" apparent the State concedes that Marijuana (THC) is on the list of controlled substances.  Wisconsin 961.41(3g) clearly "deals with all controlled substances" on the list, "not just marijuana". Contrary to Respondent assertions, the exemption to criminal sanctions if, "the person obtains the substance or the analog directly from, or pursuant to a valid prescription…" includes marijuana.  Driessen knows there "…is an exception from the criminal statutes allowing medical marijuana use in Wisconsin". Driessen also knew that the Wisconsin Department of Justice, the State, county and local agents maintain a policy…not within the statutes forbidding doctors to prescribe marijuana.  Therefore as stated in his Brief in "Argument of Medicinal Necessity Defense", pg 29-31, with authorities and case law cited, due to the State subverting law 961.41(3g), his medical necessity claim should be honored by this Court. Town of Grand Chute v. Kettner Docket: 2009AP002369 decision logic, although a signed unpublished opinion, can be cited for its persuasive value.  Kettner while he " failed to show he met the 961.41(3g) exception for possession pursuant to a valid prescription or order", shows that if the state did not use extra-statutory method to forbid doctors from prescribing marijuana; an in-state doctor could prescribe marijuana to Driessen, see Conant v Walters, 309 F3.d 629 (2002).   Marijauna is on the list and is therefore prescribable, if the State agents want to take it off the list…let them lobby the legislature…Also while smoked or inhaled marijuana works fine for me (Driessen), I have allergic reactions to eating marijuana, therefore if the possession charges are acquitted or remanded on medicinal necessity grounds, I ask that the paraphernalia charges are also acquitted or remanded.  

    

Popularity Claim Based on Case Law and Common Sense (D. cont.)

 

     Contrary to the State's Brief, Driessen's claim that the State's mariuana possession laws violate the Constitutions because of the shear popularity of use, is not without merit; Driessen cited cases in his Appellant's Brief where such laws become arbitrary, discriminatory and unconstitutionally vague (Brief pages 32 and 34).  Considering the History of marijuana use, Driessen also claims that from the beginning of it's prohibition; such criminal sanction is nothing more than a bill of attainder being prejudice against a culture as old as human history itself.   A Drug Science report, titled "Marijuana in Wisconsin" based on FBI (UCR), …(NSDUH), …(SAMHSA)…(CJEE) of the (BJS)…states that 493,000 people in Wisconsin used marijuana at least once in 2007, and 17,734 were arrested for marijuana 'offences', see http://www.drugscience.org/States/WI/WI.pdf.    With a total population of 5.6 million in 2007, the year use statistic, brands one out of every 11 man woman and child a criminal due to marijuana possession laws and only 1 in 29 of them get arrested within a year. It would be ludicrous, nonsensical, and outright schizophrenic paranoid for a person to think that such a large portion of the population are dangerous criminals for choosing to use cannabis/marijuana. Cannabis has been used by humans for centuries without one overdose death ever attributed solely to the use of it, see:      

State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001) (a court abuses its discretion when it takes a position no reasonable person would adopt). No reasonable person would believe there are near a half million dangerous marijuana

using criminals running around free…deserving to be labeled felonious.  The popularity factor along with the religious freedom of conscience, medicinal use and the hodge-podge menagerie of laws and plea bargains concerning marijuana possession negate and nullify the State's "compelling" interest. Cannabis criminalization caters to the whims of a few sadistic law enforcement/legal community drug warrior hypocrite temperance cult members and big time violent gang members who profit from such prohibition.

 

Reply to Respondent's Conclusions

 

    Contrary to the Respondent's false Conclusions, the search and seizure of Driessen was unreasonable.  It is not a compelling state interest to use criminal possession sanctions to deprive individuals of the right to the control their minds and bodies particularly the choice to use marijuana/cannabis. In favor of the reasons so acknowledged in Reply and Appellant Briefs submitted; Driessen should be acquitted on all counts within the 2009CF48 complaint and the Third District Appeals Court should publish a decision stating that the current scheme of Wisconsin laws criminalizing marijuana (THC) possession are unconstitutional.  

 

__________________________________ Dated __December 21, 2010____

Kenneth Leroy Driessen (pro se)

12022 N. Co. Rd. T

Hayward WI 54843

715-634-2801

wiscokidd@hotmail.com   

 

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