Bowles v. Berge
| Decision Date | 31 March 1998 |
| Docket Number | No. 96-C-1031.,96-C-1031. |
| Citation | 999 F.Supp. 1247 |
| Parties | Darrin A. BOWLES, Petitioner, v. Gerald A. BERGE, Superintendent, Fox Lake Correctional Institution, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Darrin A. Bowles, pro se.
Daniel J. O'Brien, Assistant Attorney General, Madison, WI, for Respondent.
DECISION AND ORDER
Darrin A. Bowles, a prisoner in state custody, is seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On Christmas Day of 1992, Bowles drove a long-time friend to his home. The two spent the evening and early hours of the next day drinking beer and brandy, watching a boxing video, playing cards, and arguing. Later that morning, the friend, Michael Townsel, was found lying on a city street dead of gunshot wounds.
Bowles was arrested and charged with the homicide. After a trial by jury in the Circuit Court of Milwaukee County, he was convicted on April 1, 1993, of one count of first degree reckless homicide. He is serving a sentence of fifteen years of imprisonment and is currently in the custody of Respondent Gerald A. Berge, Warden of the Fox Lake (Wisconsin) Correctional Institution. This court, which is located in the district where Bowles was convicted, is empowered to consider his petition under 28 U.S.C. § 2241(a) & (d). In seeking collateral review, Bowles contends that: (1) the state trial court denied him due process when it refused to give a proffered lesser included offense instruction and (2) his trial counsel's closing argument relieved the prosecution of proving an element of the crime of which he was convicted.
The Respondent has answered and denies that Bowles is entitled to relief. As part of his response, Warden Berge has submitted complete transcripts of the relevant proceedings in the state courts which the court has now reviewed. The parties have fully briefed the issues raised, so this matter is ready for resolution.
Following his conviction, Bowles proceeded pro se to challenge his conviction in the Wisconsin Court of Appeals. See State v. Bowles, No. 94-0162-CR, 1995 WL 366171 (per curiam), review denied, 537 N.W.2d 571 (1995). In affirming the trial court, the appellate court recounted the following facts material to Bowles' case:
Bowles and Townsel drank heavily for about nine hours before the shooting. At 4:00 a.m., Bowles, while highly intoxicated, decided to drive Townsel home. Bowles placed a .380-caliber semi-automatic handgun on the car seat between himself and Townsel. According to Bowles, Townsel picked up the gun during the ride, refused to give it back to Bowles, and then fired the gun out the open passenger window. Bowles stated that he pulled the car over and that a struggle over the gun ensued. Townsel was shot three times; twice to his head, and once into his heart. According to the expert testimony, all three fatal shots were contact wounds. The first shot was through Townsel's ear, penetrating his brain; the second through his forehead; and the third perforating his heart. The handgun had a 12.5-pound trigger-pull, which a gun expert testified was on the "heavy side" for trigger-pull pressure. He also testified that once the gun was cocked, the gun could be fired in rapid succession with each pull of the trigger. He estimated that three shots could be fired within one second.
Bowles contended at trial that the gun may have been discharged during the struggle for the gun when he and Townsel both had their fingers on the trigger. Bowles admitted that he gained control of the gun after the first two shots, but that the third shot "somehow" fired into Townsel's heart. After the shooting, Bowles drove around, never asking for assistance, and then dumped Townsel's body in a gutter. He then went home, hid the gun in a closet, and went to bed without telling his wife about the shooting. The next day he feigned surprise upon learning of Townsel's death until he was later interrogated by the police.
Bowles was charged with first-degree intentional homicide, which, at the time of the offense, was defined as follows:
940.1 First-degree intentional homicide. (1) OFFENSE. Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
At trial, after both sides rested, the judge held a jury instruction conference and agreed to give an instruction allowing the jury to find first-degree intentional homicide. The jury was instructed that:
First degree intentional homicide as defined in Section 940.01 of the Criminal Code of Wisconsin is committed by one who causes the death of another human being with the intent to kill that person or another.
Before the defendant may be found guilty of first degree intentional homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following two elements were present:
First, that the defendant caused the death of Michael J. Townsel.
And, second, that the defendant intended to kill Michael J. Townsel.
The First element requires that the relation of cause and effect existed between the death of Michael J. Townsel and the act of the defendant. Before the relation of cause and effect can be found to exist, it must appear that the defendant's act was a substantial factor in producing the death.
The second element requires [that] the defendant acted with the intent to kill Michael J. Townsel. Under the criminal code, the phrase "with intent to kill" means that the defendant had the mental purpose to take the life of another human being or was aware that his conduct was practically certain to cause the death of another human being.
Answer to Petition for Writ of Habeas Corpus at Exhibit M (Trial Transcript at 41-42).
The judge also agreed to give an instruction on the lesser included offense of first-degree reckless homicide, a crime which, at that time, was defined by statute as follows:
940.02 First-degree reckless homicide. (1) Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
Wis.Stat. § 940.02(1) (1991). Based on this statute, the jury was instructed that:
First degree reckless homicide as defined in Section 940.02 Sub (1) of the Criminal Code of Wisconsin is committed by one who recklessly causes the death of another human being under circumstances which show utter disregard for human life.
Before the defendant may be found guilty of first degree reckless homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements of this offense were present:
First, that the defendant caused the death of Michael J. Townsel.
Second, the defendant caused the death by criminally reckless conduct.
And, third, that the circumstances of the defendant's conduct showed utter disregard for human life.
The first element requires that the relation of cause and effect exists between the death of Michael J. Townsel and the conduct of the defendant. Before the relation of cause and effect can be found to exist, it must appear that the defendant's conduct was a substantial factor in producing the death.
The second element requires that the defendant caused the death by criminally reckless conduct. This requires that the defendant's conduct created an unreasonable and substantial risk of death or great bodily harm to another person, and that the defendant was aware that his conduct created such a risk.
The third element requires that the circumstances of the defendant's conduct showed utter disregard for human life.
In determining whether the conduct showed utter disregard for human life, you should consider all of the factors relating to the conduct. These include the following: What the defendant was doing, why he was doing it, how dangerous the conduct was, how obvious the danger was, and whether the conduct showed any regard for human life.
If you are satisfied beyond a reasonable doubt that the defendant caused the death of Michael J. Townsel by criminally reckless conduct and the circumstances of the conduct showed utter disregard for human life, you should find the defendant guilty of first degree reckless homicide.
If you are not so satisfied, you must find the defendant not guilty of first degree intentional homicide and first degree reckless homicide.
Answer to Petition for Writ of Habeas Corpus at Exhibit M (Trial Transcript at 45-47).
Over the Defendant's objection, the judge refused to give an instruction on an additional lesser included offense of second-degree reckless homicide.1 The trial judge reasoned that:
The jury in this case—a reasonable jury I believe could find the defendant did not intend to kill as required by first degree reckless homicide but could unanimously find that the defendant recklessly caused the death of Mr. Townsel under circumstances which showed utter disregard for human life; and, therefore, I think the lesser included of first degree reckless homicide is appropriate.
As to the second degree reckless homicide, the testimony is basically undisputed by the medical examiner in this case that all three wounds were contact wounds, that the victim was shot three times with the gun up against his skin or clothing; and it is my belief that a reasonable jury could not find the defendant not guilty of first degree reckless homicide but yet find the defendant guilty of second degree reckless homicide.
My reasoning on that is that if the jury is convinced beyond a reasonable doubt that the defendant acted recklessly and that the reckless conduct caused the death of Mr. Townsel, I don't believe there is any reasonable evidence that would support them finding that it was not under circumstances which showed utter disregard for human life. And either they are going to...
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