Austin v. State
| Decision Date | 28 November 1978 |
| Docket Number | No. 76-389-CR,76-389-CR |
| Citation | 271 N.W.2d 668,86 Wis.2d 213 |
| Parties | Bobby Earl AUSTIN, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., submitted brief for defendant in error.
Bobby Earl Austin (hereinafter the defendant) was convicted following a jury trial of one count of first-degree murder, contrary to sec. 940.01, Stats.; one count of attempted first-degree murder, contrary to secs. 940.01 and 939.32, Stats.; and one count of armed robbery, contrary to secs. 943.32(1)(b) and (2), Stats. He was sentenced to the mandatory term of life imprisonment for first-degree murder and concurrent terms of 15 and 7 years for the attempted first-degree murder and armed robbery, respectively. On review the defendant challenges the attempted murder and armed robbery convictions.
We decline to apply the so-called concurrent sentence doctrine to bar our review of these convictions, and we hold that on these facts the defendant's belief that he was recovering his own money did not preclude his conviction for armed robbery and that there is no statutory or constitutional bar to the defendant's conviction for both murder and attempted murder.
On July 25, 1975, the defendant smoked marijuana, injected heroin, and drank an undetermined amount of wine and beer. That afternoon he joined a dice game at a local tavern in Racine. Later in the afternoon, Kenny Simmons and Berlyn Funderburg joined the game, and Funderburg began winning consistently. After the defendant found that Funderburg had been playing with loaded dice, he demanded that Funderburg return the money he had lost in the dice game, but Funderburg refused.
The defendant then went to the home of a friend, took a shotgun, and loaded it. He then returned to the site of the dice game. After demanding but not recovering money there, he traced down Funderburg. Funderburg approached defendant's car. The defendant got out of the car with the shotgun pointed down, and told Funderburg to return the money lost in the dice game. Funderburg took money out of his pocket, and the defendant took it. The defendant then noticed Kenny Simmons, turned and said either "You next Kenny boy" or something to the effect "I'm going to blow you away." In turning towards Simmons, the defendant either pointed the shotgun upwards or directly at Simmons, and the shotgun discharged. The blast only slightly injured Simmons but killed Willie Wortham, a friend of the defendant's who happened to be standing near Simmons at the time. Later that night the defendant turned himself in to the police.
On the basis of this evidence, the jury returned a verdict of guilty of murder, attempted murder, and armed robbery. The defendant seeks review by writ of error of the judgments of conviction for attempted murder and armed robbery.
There are three issues:
(1) Should this court decline to review the attempted murder and armed robbery convictions because the sentences for these run concurrently with the sentence for the defendant's unchallenged murder conviction?
(2) Does the defendant's belief that he was seeking to recover money which was cheated from him bar his conviction for armed robbery?
(3) Is there a statutory or constitutional bar to the defendant's conviction of both murder and attempted murder?
The concurrent sentence doctrine is a means by which federal courts have declined to review convictions where the sentences run concurrently with the sentence for a valid conviction. See, e. g., Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Hamilton, 420 F.2d 1096, 1099 (7th Cir. 1970). We have never adopted that doctrine, and we twice specifically refused to apply it where the companion conviction has not been affirmed on appeal. Peasley v. State, 83 Wis.2d 224, 265 N.W.2d 506 (1978); Blaszke v. State, 69 Wis.2d 81, 230 N.W.2d 133 (1975). Following those cases, we likewise refuse to apply the doctrine to bar our review of these two convictions.
The defendant argues that he could not be convicted of armed robbery under secs. 943.32(1)(b) and (2), Stats., because he believed he was entitled to the money and that he had the right to reclaim it. He claims his belief that he was recovering his own money when he took the money from Funderburg at gunpoint negates the requisite intent to steal. This specific issue was considered by this court in Edwards v. State, 49 Wis.2d 105, 113-14, 181 N.W.2d 383, 387-388 (1970):
The defendant argues that the record clearly demonstrates that the money given him by Funderburg was the same money that the defendant lost in the dice game. The defendant told Funderburg that he lost $50, although he later claimed that Funderburg won $65 from him; and he ultimately recovered all the money Funderburg had in his pocket, between $50 and $60. This similarity of the amounts of money lost and taken and the short span of time between these two events establishes, according to the defendant's argument, that this was the same money.
The state argues that the evidence was sufficient to show beyond a reasonable doubt that the bills the defendant took at gunpoint were not his. The record shows that the dice game involved at least eight players, and most of them lost money to Funderburg. The state points out that there is no indication that Funderburg's winnings were in any way segregated but instead were probably intermingled in Funderburg's hands and pockets. In view of this evidence the state contends that there is at most a mere possibility that the bills Funderburg pulled from his pocket were the very bills the defendant had lost, which does not raise a reasonable doubt as to the defendant's guilt.
On appeal the standard of review is "whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true." Lock v. State, 31 Wis.2d 110, 114-15, 142 N.W.2d 183, 185 (1966). The evidence does not have to remove every possibility before a conviction can be sustained. State v. Eberhardt, 40 Wis.2d 175, 178, 161 N.W.2d 287 (1968). Evidence for conviction need only exclude every reasonable hypothesis of innocence, not every possibility. Taylor v. State, 74 Wis.2d 255, 246 N.W.2d 516 (1976); State v. Shaw, 58 Wis.2d 25, 205 N.W.2d 132 (1973).
The defendant has shown only that approximately the same amounts of money were lost in the dice game and taken at gunpoint. While this makes it possible that the exact same bills were lost and taken, this does not seem to be a reasonable hypothesis of innocence in view of all the other testimony. Thus the trier of facts could reasonably find the defendant guilty beyond a reasonable doubt.
The defendant contends that his conviction for both the murder of Willie Wortham and the attempted murder of Kenny Simmons exceeds statutory and constitutional limits. Sec. 939.66, Stats., provides in part:
The defendant contends that, because all the elements of attempted first-degree murder are included in first-degree murder, conviction for both is precluded by sec. 939.66(1), Stats. Under the first-degree murder statute, one is guilty if he or she "causes the death of another human being with intent to kill that person or another." Sec. 940.01(1), Stats. To prove attempted first-degree murder, the state must establish:
"(1) A specific intent to take the life of another human being; and (2) an unequivocal act which, except for the intervention of some extraneous factor, would have resulted in the death of that individual."
State v. Schenk, 53 Wis.2d 327, 332, 193 N.W.2d 26, 29 (1972). The defendant concedes that an attempted murder requires the showing of an extraneous factor which prevented the homicide but argues that in this instance the extraneous factor, missing Simmons and killing Wortham, was a part of the homicide of Wortham.
However, the killing of Wortham did not constitute the extraneous...
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