Victim’s alleged harm to others, child pornography will not be allowed

By Heather Ruenz

Staff Writer

      Alan Johnson

In a ruling by Walworth County Circuit Court Judge Kristine Drettwan on a motion by the defense team for Alan M. Johnson, she determined the court will allow the establishment of self-defense and the introduction of child pornography, in part, with conditions on both.

Johnson, 32, of Lima, is charged with first-degree intentional homicide for the Oct. 25 shooting death of Kenneth J. Myszkewicz, 43, of Whitewater. Myszkewicz is Johnson’s brother-in-law, and Johnson is the son of former Racine County Sheriff Eric Johnson.

In a hearing July 28, Johnson appeared in court with attorney Stephen Hurley. Assistant District Attorney Diane M. Donohoo appeared for the State of Wisconsin.

Drettwan granted the defense’s request to establish self-defense but said it must present a sufficient factual basis for self-defense through testimony by the defendant.

“The only way that can happen is if the defendant testifies, and the court finds that the defense has met that basis,” Drettwan said.

Provided the basis is met, she said, defense counsel will have to request a sidebar so the jury can be excused and the court can make a record regarding whether the burden has been met.

“Any reputation that he was self absorbed or a bad father would not apply. Acts of physical violence against the defendant, those are allowed,” Drettwan said.

Johnson will not be allowed to testify about acts that happened to others, Drettwan said.

The motion by the defense also included it be allowed to introduce sexual assault of child issues in opening statements and during jury selection, which Drettwan granted.

“The court rules on integrity of counsel and also presumes the jury will follow instructions, such as what is evidence and what is not evidence, which the court will direct them on,” she said.

Drettwan’s final ruling related to child pornography Johnson reportedly found during a search of the victim’s computer Oct. 25 before the shooting.

“This is regarding what the defendant saw, his efforts to report it and why nothing was done. And can the defense introduce evidence that Detective Craig was contacted about the child pornography?” Drettwan said.

She said if the defendant testifies about the child pornography, the defense can then call witnesses about what Johnson did or didn’t do with regard to reporting it.

“But whether or not there was child pornography, regular pornography, photos of girls walking, and so on, is not relevant to self-defense,” Drettwan said.

Drettwan clarified no evidence will be allowed regarding what the defendant or police found on the victim’s computer.

“With respect to no evidence about what he found, the court’s saying I can’t ask him why he spent two whole hours on the computer, to look for pornography?” Hurley said.

“You can ask that but cannot share what he found,” Drettwan replied.

 

Night of homicide

According to the criminal complaint, police were called to Myszkewicz’s West Peck Street home in Whitewater at about 2:20 a.m. Oct. 25 after Kimberly Myszkewicz called 911, believing that her husband had fallen and hit his head. Police found a .40-caliber shell cartridge case in the hallway as they approached Kenneth Myszkewicz and found Myszkewicz with no pulse and what appeared to be a gunshot wound in his arm and chest, according to the complaint. When an officer rolled Myszkewicz on to his side he saw a gunshot wound in Myszkewicz’s back.

Kimberly Myszkewicz told police she and her husband had gone to bed upstairs, and she was awoken by a thud and thought Kenneth Myszkewicz had fallen down the stairs, according to the complaint. When she got up to check on her husband, she heard what she believed was the sliding back patio door closing and the closing of the rear house door, according to the complaint.

Kenneth Myszkewicz was pronounced dead at the scene at 10:02 a.m., and police met three times later that day with Johnson, Kimberly Myszkewicz’s brother. Johnson denied any involvement in Kenneth Myszkewicz’s death, according to the complaint.

A detective also met with Eric Johnson, Kimberly Myszkewicz’s and Alan Johnson’s father, who is a retired police officer and turned over his .40-caliber Smith and Wesson pistol, according to the complaint. A detective noted that the pistol had not been cleaned since it was last fired, and Eric Johnson said he routinely cleans his guns after using them.

Eric Johnson said after learning about Kenneth Myszkewicz’s death, he looked at his .40-caliber ammunition and found that some rounds were missing, according to the complaint.

Later that day on Oct. 25, Eric Johnson called a detective back to his Rock County residence where Alan Johnson was. When the detective entered the home, Alan Johnson allegedly said, “Arrest me. I killed him,” according to the complaint.

Eric Johnson told the detective that Alan Johnson admitted he went to Kenneth Myszkewicz’s home with one of Eric Johnson’s guns with the intention of killing Myszkewicz and then committing suicide, according to the complaint.

A forensic examination determined the .40-caliber shell cartridge case found at the scene was fired from Eric Johnson’s Smith and Wesson pistol, according to the complaint.

A final pre-trial for Johnson is scheduled for 2:30 p.m. Oct. 19. A five-day jury trial will begin at 8:30 a.m. Oct. 30.

 
 

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