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