APPLETON, WI (WTAQ-WLUK) — The attorney for a woman who wants to argue she should be acquitted of a Kaukauna homicide because she was the victim of sex trafficking at the time has asked a judge to wait before deciding if that argument will be allowed.
Dontae Payne and Tanya Stammer are charged with first-degree intentional homicide and armed robbery for the death of Brian Porsche at a home on W. Division Street on March 30, 2021.
No trial date has been set for Payne, who returns to court Friday for a motions hearing, while Stammer is scheduled to stand trial July 24.
Stammer’s offering of what’s known as an “affirmative defense” appears to be the first of this type in the region since a Wisconsin Supreme Court decision in July. The court ruled that a 2008 state law that absolves trafficking victims of criminal liability for any offenses committed as a direct result of being trafficked extends to first-degree intentional homicide. However, but defendants have to offer evidence the crime — in this case, murder — was connected to being a victim of trafficking.
Prosecutors have opposed the tactic, calling that claim “patently incredible and contrary to the evidence.”
In a five-page response filed Wednesday, attorney Mindy Nolan argues a decision before trial would be premature.
“The prosecution is requesting that this Court summarily preclude the affirmative defense before any testimony has been presented. It is a troublesome request, as what experience has taught us all is that we do not know exactly how the evidence will come in at trial until the evidence is actually presented. Witness testimony and recollections can change, some witnesses may become unavailable, and certain evidence may be excluded through pre-trial orders, such as suppression. The Wisconsin Supreme Court has held for the last five decades that the weighing of evidence is within the sole province of the jury and that the trial court does not become involved in weighing the evidence before an affirmative jury instruction is given. The prosecution is essentially asking the Court to weigh the evidence, draw conclusions, and exclude the affirmative defense prior to its presentation at trial,” Nolan wrote.
Nolan argues evidence in the case shows that Stammer had a history of prostitution with Porsche.
“Mr. Payne admits in his interview to killing (Porsche) after seeing Ms. Stammer being attacked and himself intervening, stating that it was self defense. These statements serve as a logical connection that the alleged homicide was a direct result of the human trafficking offense,” she stated.
It is uncertain if Judge Mark McGinnis will issue a written ruling on the issue, or wait to address it from the bench at a March 9 motions hearing.
According to the criminal complaint, Payne and Stammer targeted Porsche. The two then tried to make the scene look like a robbery, and tossed his phone and keys into Lake Winnebago.
