Beavers v. State
Decision Date | 07 May 1974 |
Docket Number | No. S,S |
Citation | 217 N.W.2d 307,63 Wis.2d 597 |
Parties | Robert L. BEAVERS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 160. |
Court | Wisconsin Supreme Court |
Whelan, Morey, Morey & Ricci, Randall E. Morey, Mondovi, for plaintiff in error.
Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.
The following issues have been raised on appeal:
I. Whether there was sufficient evidence to sustain a conviction for first-degree murder?
II. Whether the state improperly anticipated and remarked upon the defendant's defense in its opening statement to the jury?
III. Whether there was sufficient evidence to sustain the jury's finding that defendant was free of mental disease or defect?
IV. Whether the trial court erred in refusing to permit defense counsel to use certain charts to assist him in making his opening statement to the jury in the sanity phase of the trial?
V. Whether the defendant's right to a fair trial was denied because of pretrial publicity?
The defendant argues that the defendant did not intend to kill his wife but rather sought only to 'shut her up.' He also seeks to discredit the adequacy of the autopsy and thereby minimize its conclusions. Finally, it is suggested that the victim could have died by swallowing her tongue.
These arguments are proper considerations for the jury in its determination of the defendant's guilt. However, the rule is well established that '. . . only if the evidence that the jury has relied upon is inherently or patently incredible or insufficient will this court substitute its judgment for that of the jury.' Baldwin v. State (1973), 59 Wis.2d 116, 119, 207 N.W.2d 630, 632.
In State v. Chacon (1971), 50 Wis.2d 73, 74, 183 N.W.2d 84, 85, this court stated that it would not '. . . retry the case on the record to see if each member of this court is convinced of the guilt of the defendants beyond a reasonable doubt. . . .'
In Fox v. State (1973), 60 Wis.2d 462, 466, 210 N.W.2d 722, 724, this court very recently explained:
'. . . The test of the sufficiency of the evidence to convict is, on appeal, whether the evidence adduced, believed and rationally considered by the trier of fact was sufficient to prove the defendant's guilt beyond a reasonable doubt. Insufficiency of the evidence to warrant conviction requires holding that the evidence, when considered most favorably to the state and the conviction, be so insufficient in probative value that it can be said as a matter of law that no trier of fact acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt."
We deem the testimony and proof adduced at trial to be sufficient credible evidence upon which the jury could find the defendant guilty beyond a reasonable doubt.
Prior to trial, the court was asked to rule on the permissible scope of the opening statements which would be made to the jury. Defense counsel objected to the fact that the prosecution would anticipate the defendant's defense that the victim had, in fact, fallen down the stairs. The prosecution argued that the defendant's statements to the sheriff were admissions and properly admissible into evidence, and as such, they could be referred to in opening statements to the jury. The trial court denied the defendant's motion to restrict opening statements to exclude reference to the defendant's statements of the manner and way in which his wife had died.
The prosecution in its opening remarks to the jury reviewed the testimony that he intended to introduce as he called the various witnesses. In so doing, he explained the anticipated testimony of Sheriff Hoch which included the defendant's explanation to him concerning the circumstances of the victim's death. It was also explained that the sheriff would testify that the defendant changed his story upon subsequent questioning and admitted to having fought with his wife on the afternoon of the crime and choking her.
The defendant argues it was error for the trial court not to restrict the opening statement of the prosecution as requested, citing the following language from Baker v. State (1887), 69 Wis. 32, 40, 41, 33 N.W. 52, 56.
In the instant case, the prosecution did not allude to what the defendant would introduce as evidence but simply explained its own evidence. It had been previously determined in a Goodchild hearing that the statements made by the defendant to investigating officers had been made voluntarily and were admissible in evidence. The opening statement of the prosecutor explained that the sheriff would testify about the statements made by the defendant in respect to how his wife had died. The sheriff did eventually testify about these statements.
This is not a situation where the prosecutor referred in his opening statement to matters which he could not, or did not, intend to prove. (See: Annot., Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification. (1953) 28 A.L.R.2d 972.
Nor is this a situation where the prosecutor commented upon the anticipated failure of the defendant to testify. It was clear from the defendant's version of his wife's death that he hoped the jury would believe his wife had fallen to her death. The state believed she was strangled. It is generally recognized that:
'The office or purpose of an opening statement is to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. . . .' 23A C.J.S. Criminal Law § 1085, p. 97.
It is also recognized that:
23A C.J.S. Criminal Law § 1085, pp. 98--100.
The defendant's statements to investigating officers were ultimately proven and the prosecutor's opening remarks in relation thereto were proper.
The defendant entered a plea of not guilty by reason of mental disease or defect, pursuant to sec. 971.06, Stats.
Again on this issue, counsel for the defendant presents to this court the same testimony and arguments which were rejected by the jury when it resolved the issue against the defendant and held him responsible for his actions. The proof of defendant's insanity at trial consisted of the testimony of Dr. Lorenz as supplemented by the Michigan and California reports of previous mental evaluations of the defendant, which we summarized as follows:
In 1956, the defendant was convicted of armed robbery in California and committed to the Atascadero State Hospital for observation. The psychiatric report signed by Dr. Leonard Liest diagnosed the defendant at that time as having a sociopathic personality disturbance, antisocial reaction.
In 1957, he was diagnosed by another California psychiatrist, Dr. Arnold Sheuerman, as having a schizophrenic reaction, mixed type, chronic, moderate, progressing. It was recommended at that time that he receive institutionalization because he was believed to be dangerous to himself and others.
While in California, another psychiatrist, Dr. John A. Malloy, also felt he had a schizophrenic reaction, mixed type.
In 1958, the defendant was charged with arson in Michigan. He was on parole from California at the time of this offense. He was incarcerated in Michigan and there received some psychiatrix review. He was paroled from Michigan in 1962, married Sarah Ernst (victim) in 1963, and began to work regularly after 1964 in Winona, Minnesota.
In opposition to the testimony of Dr. Lorenz is that of the court-appointed psychiatrist, Dr. Chapman.
Doctor Chapman testified that it was his expert opinion, after having reviewed the defendant's history of mental problems and personally examining him, that he '. . . was not because of mental disease or defect lacking in substantial capacity to appreciate the wrongfulness of his conduct.' Dr. Chapman went on at length to explain the reasons for his conclusion. He was impressed with the defendant's improvement which was evident after his encounters with the law in Michigan and California. Chapman considered and evaluated the earlier psychiatric reports on the defendant, put pointed out that defendant had held steady employment after he was married in 1963.
Chapman explained that the defendant had an unfortunate childhood and had been faced with a great many social pressures. However, it was his opinion that the defendant was not schizophrenic, and while he was of borderline mental retardation, he was not substantially lacking in capacity by reason of mental defect to conform his conduct to the requirements of law. Thus,...
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