Hussong v. State

• Decision Date: 05 March 1974
• Docket Number: No. 123 and N,123 and N
• Citation: 215 N.W.2d 390,62 Wis.2d 577
• Parties: Brian L. HUSSONG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. STATE ex rel. Brian L. HUSSONG, Plaintiff in Error, v. Norbert FROELICH, Defendant in Error. o. State 66.
• Court: Wisconsin Supreme Court

Page 390

215 N.W.2d 390

62 Wis.2d 577

Brian L. HUSSONG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

STATE ex rel. Brian L. HUSSONG, Plaintiff in Error, v. Norbert FROELICH, Defendant in Error.

No. 123 and No. State 66.

Supreme Court of Wisconsin.

March 5, 1974.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant in error.

HANLEY, Justice.

The following issues are presented on review.

1. Whether the evidence educed at the preliminary hearing was sufficient to support a finding of probable cause.

2. Whether the evidence educed at the trial was sufficient to support the conviction.

3. Whether the action of the circuit court denying the defendant's motion for a change of venue constituted an abuse of discretion.

4. Whether the trial court erred in failing to grant the defendant's motion to suppress tape recordings of telephone conversations because of alleged unconstitutionality of Wisconsin Statutes authorizing wiretaps and the alleged illegality in applying said statutes.

5. Whether the trial court erred in admitting several rifle shells into evidence.

6. Whether the trial court erred in refusing to permit the defendant to call a specific witness during post-conviction motions.

7. Whether a new trial should be granted in the interests of justice.

Preliminary Hearing

The defendant herein challenged the validity of the bindover through the use of the writ of habeas corpus. The question raised is whether the evidence educed at the preliminary hearing was sufficient to bindover the defendant to the circuit court for trial.

On review of the validity of the bindover challenged by use of habeas corpus, ¹ the burden which the state must sustain at the preliminary was set forth in State ex rel. Marachowsky v. Kerl (1951), 258 Wis. 309, 313, 45 N.W.2d 668.

'It is well established in this state that the evidence at a preliminary hearing need not be sufficient to prove the charge against the defendant beyond a reasonable doubt. The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence.'

Thus, this court must examine the evidence to discover whether there was competent evidence for the judicial mind to act upon in determining the existence of the essential facts necessary for a finding of probable cause.

The fact of the crime is effectively admitted. While the defendant claims that sufficient evidence was not educed to prove how Neil LaFave was murdered, there is no claim that Neil LaFave died from natural or accidental causes.

As to the determination of whether there existed competent evidence for the judicial mind to act upon in determining whether there existed probable cause to believe that the defendant murdered LaFave, it is necessary to examine the evidence.

The evidence educed at the preliminary hearing was totally circumstantial. Circumstantial evidence is, however, sufficient to support a finding of probable cause or guilt beyond a reasonable doubt. State ex rel. Kanieski v. Gagnon (1972), 54 Wis.2d 108, 194 N.W.2d 808. Likewise, the evidence educed at the preliminary was of a lesser quality than that educed at trial. However, it is not necessary to prove the defendant's guilt beyond a reasonable doubt therein.

The evidence at the preliminary sufficiently established the state's theory as to the crime, i.e., that the deceased was initially shot and killed at Site 1 (S-1); that he was shot with a 30.06 caliber rifle and decapitated at Site 2 (S-2); that his body was buried at Site 3 (S-3) and that his head was buried at Site 4 (S-4).

Norman Hicks, a state game warden, testified as to the defendant's motive at the preliminary hearing--that the defendant stated he had a score to settle with the deceased because of previous dealings. Wayne John Trutlman, an investigator for the Brown County Sheriff's Department, testified that two .22 caliber shells were recovered at S-1. These shells were compared with other shells previously fired by defendant which had been recovered by Leon Pieschek, an investigator with the Brown County Sheriff's Department, and William Nooyen, a friend of the defendant's. Those shells recovered from S-1 were found to be identical to those previously fired by the defendant by William Rothman, a state crime lab ballistics expert.

While there was little evidence as to the cause of death--it being, however, inferrable that whomever shot Neil LaFave likewise decapitated him--Dr. Billy Joe Bauman, a pathologist, testified that on the basis of presence of blood in the lungs of the deceased, it was his opinion that death was caused by gunshot wounds. Dr. Bauman likewise testified to bullet wounds in the deceased caused by a 30.06 caliber rifle. Several 30.06 shell casings were recovered from S-2. These shells were found to have been fired from the defendant's rifle which had intentionally been secreted with the defendant's grandmother.

Finally, Mrs. Nancy Frank, an acquaintance of the defendant's, testified that Hussong attempted to fabricate an alibi as to his presence during the period of time in question--September 24, 1971. Mrs. Frank also testified that she observed a knife on the passenger's side of the car on the evening of September 24, 1971. The presence of such a weapon had not been observed previously by Mrs. Frank.

Upon a review of the evidence we conclude there was substantial grounds for the exercise of judgment by the magistrate. We are also satisfied that there existed competent evidence for the judicial mind to act on in determining probable cause. Therefore, the order of the circuit court dismissing the petition for the issuance of a writ of habeas corpus is affirmed.

Sufficiency of Evidence at Trial

The defendant contends that the evidence educed at trial was insufficient to sustain his conviction for First Degree Murder. The test applied on appeal in determining whether the jury verdict of guilty is sustained by the evidence has most recently been expressed by the court as follows:

'Reversal (of conviction) is required only when the evidence considered most favorably to the state and the conviction is so insufficient in probative value and force that it can be said as a matter of law that no trier of facts acting reasonably could be convinced to that degree of certitude which the law defines as beyond a reasonable doubt.' ²

The test is not whether this court is convinced of the defendant's guilt but whether the jury acting reasonably could be so convinced. State v. Shaw (1973), 58 Wis.2d 25, 205 N.W.2d 132.

Since the proof of guilt in the instant action was entirely circumstantial, such evidence when taken together must be sufficient to convince a reasonable jury to a proper degree of certitude of the defendant's guilt.

'The evidence does not have to remove every possibility before a conviction can be sustained. See State v Eberhardt (1968), 40 Wis.2d 175, 161 N.W.2d 287. The test stated in State v. Johnson (1960), 11 Wis.2d 130, 136, 104 N.W.2d 379, is 'that all the facts necessary to warrant a conviction on circumstantial evidence must be consistent with each other and with the main fact sought to be proved and the circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged.' The circumstantial evidence must, however, be sufficiently strong to exclude every reasonable theory of innocence, that is, the evidence must be inconsistent with any reasonable hypothesis of innocence. This is a question of probability, not possibility.' State v. Shaw, supra, at p. 29, 205 N.W.2d at p. 134.

While the evidence educed at the trial in the instant case is not as conclusive as the usual case--said case consisting totally of circumstantial evidence--it is our opinion that a jury, acting reasonably, could be convinced beyond a reasonable doubt as to Hussong's guilt. Any piece of evidence taken in isolation of the rest may raise questions in the mind of the jurist. However, when the evidence therein educed is considered as a whole, each piece of the puzzle being properly in place, the conviction of the defendant may undoubtedly be sustained.

The defendant claims that the evidence when considered most favorably towards the state is insufficient to convict him in several respects.

Initially, the defendant claims that the state failed to prove the cause of the victim's death and that such constitutes a failure to prove that the defendant caused Neil LaFave's death.

The evidence educed at trial showed that Neil LaFave was shot in the head several times by a .22 caliber rifle. The head and neck were then torn away by several rounds delivered from a 30.06. Finally, the remainder of LaFave's head was viciously chopped off with a sharp instrument. All of these injuries individually could have caused LaFave's death.

The possibility that LaFave's death was caused by the wounds delivered from a 30.06 rifle was eliminated by the state's reconstruction of the crime itself. At a place in the Sensiba Wild Life Area located near the area where the body and head were found, referred to as Site 1, two .22 caliber shell casings were found. Also a close investigation of the ground at Site 1 indicated that a great amount of blood had soaked into the soil. It is at this site the state theorizes that LaFave was critically wounded. The body was then dragged about 50 feet to Site 2. The...