Ameen v. State
| Decision Date | 07 May 1971 |
| Docket Number | No. 112,112 |
| Citation | 186 N.W.2d 206,51 Wis.2d 175 |
| Parties | Rowland Charles AMEEN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State |
| Court | Wisconsin Supreme Court |
The plaintiff in error, Rowland Charles Ameen, (hereinafter termed defendant, his status at the time of trial), was convicted, following a trial to a jury, of first-degree murder, contrary to sec. 940.01, Stats. The facts, out of which the charge and conviction arose, are as follows:
On August 25, 1968, the day before the defendant was to leave to go to Cleveland, an acquaintance, Lulu Belle Figlinski, held a 'going-away party' for him. During the party Lulu Belle and defendant had an argument, about what the record does not reveal. During the party Lulu Belle danced with one Robert Ludford, the person shot and killed by defendant. Prior to the party defendant and deceased had not met.
On August 26, 1968, at about 3:30 a.m., after most of the other guests had left, Lulu Bell and the deceased were in the living room. When defendant was asked by Lulu Belle to go upstairs and get a third man so that all three men could go home, the defendant agreed to do so. About ten minutes later the defendant, who had left the house after going upstairs, returned, making his entry by a rear door. He called to the deceased, who was in the living room, to come to the utility room so they could talk. The invitation was repeated, and the deceased went to the utility room. Lulu Belle then heard something fall 'like a board or something.' She heard shots, jumped up and ran into the utility room. She saw the deceased lying on the floor, and the defendant standing at the outside door with a dark object that looked like a gun in his hand. She ran upstairs for help. When she returned, the defendant was gone. The police were called, and, when they arrived, were given the defendant's description.
Police Officers Watters and Wilson testified for the state. They testified that they apprehended and arrested the defendant within a half hour of the shooting, approximately six blocks from the scene of the killing. When first observed by the police, the defendant ducked into an alley and flattened himself against the wall of a church. After being ordered by police to stop, the defendant made a movement into his shirt. He was ordered to freeze. Officer Watters then withdrew from a holster inside defendant's shirt a loaded .22-caliber pistol.
Principal defense reliance at the time of trial was on the claim of intoxication. The defendant testified that he had started drinking about 1 p.m. on August 25, 1968, and continued to drink until his arrest. He testified he could not recall any of the events of the shooting. He did not recall how he came into the possession of the pistol, which was identified as belonging to his brother-in-law who lived a short distance from the scene of the killing. He did not recall telling the police anything about the shooting. Witnesses for the defense testified that he was very drunk. Lulu Belle and the two arresting officers testified that the defendant, in their opinions, was not drunk.
Murder in the first-degree and murder in the second-degree were submitted to the jury. The jury found the defendant guilty of murder in the first-degree. Motions after verdict were denied. Judgment was entered and the defendant was sentenced to life imprisonment. By writ of error the defendant challenges the judgment and order denying motions after verdict.
James H. McDermott, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz and Thomas J. Balistreri, Asst. Attys. Gen., Madison, for defendant in error. ROBERT W. HANSEN, Justice.
The conviction of the defendant on the charge of first-degree murder is challenged on a number of grounds, each of which will be dealt with separately.
CONFESSION AS REBUTTAL.
On rebuttal, after the defendant had taken the stand to testify that he could not recall any of the events of the shooting and could not recall telling the policy anything about the shooting, the state called Police Officer Watters as a rebuttal witness. He testified as to inculpatory statements made by the defendant at the time of arrest, including the defendant's describing in detail the events leading up to the killing, and his admission that he shot the deceased with his brother-in-law's pistol and that he did so because he 'did not like' the deceased. Prior to such rebuttal testimony, a Goodchild hearing was held at to admissibility of statements made by the defendant at the time of his arrest.
Postconviction counsel argues that the presenting as rebuttal evidence of statements made by defendant, inconsistent with his witness-stand testimony, gives such statements a 'blockbuster' dimension. The contention appears to be that all statements made by the defendant must be introduced as part of the case in chief, and, if not so presented, may not be offered as rebuttal testimony. Quite aside from the considerable discretion given trial courts in controlling what evidence may be admitted in rebuttal, 1 whatever merit there may have been in the argument made vanished with the recent United States Supreme Court decision in Harris v. New York. 2
In Harris, the nation's highest court held admissible in rebuttal self-impeaching statements of the defendant that were not and could not have been made part of the case in chief for the state. No warning of a right to appointed counsel was given before the questions were put to Harris by the police when he was taken into custody. The prosecution conceded that the statements, for this reason, were inadmissible under the Miranda rule, 3 and made no effort to use them in presenting the case for the state. When the defendant took the stand in his own defense and denied making the sale of heroin to an undercover police officer, he was asked, on cross-examination, whether he had made specified statements to the police immediately following his arrest that partially contradicted his direct testimony at trial. He testified that he could not remember any of the questions or answers recited. While both counsel argued the substance of the impeaching statements, the trial court instructed the jury that the statements attributed to the defendant could be considered only in passing on defendant's credibility. The nation's highest court upheld the procedure followed, holding that Miranda barred the prosecution only '* * * from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel.' 4 Specifically, the court permitted the impeaching statements made by the defendant to the police, inadmissible in the case in chief, to be used for impeachment purposes on rebuttal. 5
In Harris, the statements made by defendant to the police were not and could not have been used by the state as part of the case in chief. Here the statements made by the defendant to the police were not presented as part of the case in chief, but could have been. In both situations, as well as to the shades of grey in between where the state may not be sure as to admissibility of statements made, Harris controls and to use such statements in rebuttal only is to do '* * * no more than utilize the traditional truth-testing devices of the adversary process. * * *' 6 The defendant here was entitled to take the stand in his own defense, or to refuse to do so, but, when he elected to testify, he cannot be insulated from '* * * the risk of confrontation with prior inconsistent utterances. * * *' 7
MANSLAUGHTER AS ALTERNATIVE.
The defendant at the time of trial requested the submission to the jury of manslaughter as an alternative or lesser included charge. The request was denied by the trial court. There is in this state no '* * * near automatic inclusion of all lesser but included offenses as additional options to a jury. * * *' 8 Rather, it is '(o)nly if 'under a different, but reasonable view,' the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury. * * *' 9
Here the defendant contends that a reasonable view of the evidence would warrant finding the killing to have been accomplished without the intent to kill and while in the heat of passion, bringing it within the manslaughter statute. 10 The trial court held that there was no reasonable ground in the evidence for submission of manslaughter to the jury, and we agree.
The crime of manslaughter as the causing of the death of another human being without intent to kill and while in the heat of passion, has been defined as:
"'That which will constitute the 'heat of passion' which will reduce what would otherwise be murder to manslaughter 'is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make his incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition. * * *" " 11
The defendant's claim to having acted while in the 'heat of passion' has a far more fragile foundation than that present in the Lucynski case. There was involved a wronged husband, outraged by the conduct and threats of his cuckolder. Here the defendant testified that he had just met the deceased, and was not angry with him. He testified that Lulu Belle was not his girl friend, and she testified that he was not her boy friend, and that she had never gone out alone with him. Even if some contest between defendant and deceased for the...
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