Hagenkord v. State, No. 79-808-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HEFFERNAN; The court pointed out that hospital records had extreme reliability and that it was highly improbable that a cross-examination of the original declarant physician would cast any doubt of the findings stated in the hospital record. The Hens
• Citation: 302 N.W.2d 421,100 Wis.2d 452
• Parties: Allen LeRoy HAGENKORD, Plaintiff in Error-Petitioner, v. STATE of Wisconsin, Defendant in Error.
• Decision Date: 03 March 1981
• Docket Number: No. 79-808-CR

Page 421

302 N.W.2d 421 100 Wis.2d 452 Allen LeRoy HAGENKORD, Plaintiff in Error-Petitioner,
v.
STATE of Wisconsin, Defendant in Error. No. 79-808-CR. Supreme Court of Wisconsin. Argued Oct. 28, 1980.
Decided March 3, 1981.

Page 423

[100 Wis.2d 454] Bryan Borman, Asst. Public Defender (argued), and David Niblack, State Public Defender, on brief, for plaintiff in error-petitioner.

Kirbie Knutson, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

HEFFERNAN, Justice.

This is a review of a decision of the Court of Appeals ¹ affirming the judgment of the Circuit Court for Milwaukee County, Robert W. Landry, Circuit Judge, and affirming one postconviction order and reversing another.

The defendant, Allen LeRoy Hagenkord, was found guilty of first-degree sexual assault, in violation of sec. 940.225(1)(a), Stats., and of injury by conduct regardless of life, in violation of sec. 940.23. Following the jury's verdict of guilty, Hagenkord was sentenced to a seven-year sentence on the charge of first-degree sexual assault and to a three-year consecutive sentence on the charge of injury by conduct regardless of life.

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Two motions for postconviction relief were brought before the Circuit Court. The first of these motions asserted that there was a denial of the right of confrontation[100 Wis.2d 455] because hospital records were introduced without calling as witnesses the doctors whose observations were recorded. This motion was denied by the Circuit Court on the ground that there was no substantial issue as to the truth of the statements recorded in the hospital records. The Court of Appeals reversed this order and remanded for the purpose of further proceedings on the issue of confrontation. We find this order of the Court of Appeals erroneous and reverse.

The second motion brought in the Circuit Court was founded on the claim that conviction for injury by conduct regardless of life was a lesser-included offense within first-degree sexual assault and therefore could not properly be the basis for a separate conviction and sentence. The Circuit Court denied this motion on the ground that conduct evincing a depraved mind was an element of injury by conduct regardless of life but not an element of first-degree sexual assault. It therefore concluded that they were separate crimes, that one was not included in the other, and that separate convictions and sentences were appropriate. The Court of Appeals affirmed this order, and we affirm the Court of Appeals in that respect.

On the appeal to the Court of Appeals, it was determined that the evidence was sufficient to establish that Hagenkord had committed the crime of first-degree sexual assault. Basic to that determination was the affirmance of the finding that sexual intercourse had in fact occurred. The sufficiency of the evidence in respect to whether Hagenkord caused great bodily harm in violation of sec. 940.23, Stats., was not disputed on the appeal and is not an issue on this review. It is therefore apparent that the conviction under sec. 940.23 must be affirmed unless it constituted a lesser-included offense of sec. 940.225(1)(a).

The facts adduced at trial, not disputed on this review, show that Hagenkord had been a friend of the deceased [100 Wis.2d 456] husband of the victim. He met her in a neighborhood tavern and asked her to take him home. While they were in the automobile, he struck her repeatedly on the head and face; and after pulling her into the rear seat of the vehicle, choked her. She lost consciousness, and when she regained consciousness several hours later, near dawn on the morning of July 7, 1976, she was nude except for a pair of anklets and was bleeding profusely from her injuries. A passing traffic patrol officer of the Milwaukee Police Department noticed her parked car, came to her assistance, and called a police ambulance to take her to the Milwaukee County General Hospital.

A crime laboratory investigation showed that the interior of the vehicle was blood-stained and a tire iron found in the vehicle was stained with blood of the same type as the victim's. Human hair adhering to the tire iron had characteristics consistent with samples of the victim's hair. The severity of the victim's injuries was undisputed; and even at the time of the trial, she suffered from visual impairment as a result of the assault.

In his Court of Appeals' brief, the defendant Hagenkord made the following statement, which the Court of Appeals appropriately accepted as establishing the sufficiency of the evidence to convict the defendant of injury regardless of life, in violation of sec. 940.23, Stats. In the Court of Appeals brief, the following appears:

"In the instant case the complaint and proof show that (the victim) gave a ride home to the defendant who had been a friend of her deceased husband, that during that ride home the defendant, without provocation, repeatedly beat (the victim) with a tire iron about her face and head, dragged her into the back seat of her car, continued beating her and choked her until she passed out, and then had sexual intercourse with her without her consent. As a result of the assault she lost considerable blood, spent over a week in the hospital, suffered fractures of bones in her face, and suffered what was

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at the least a protracted[100 Wis.2d 457] impairment of her left eye. This conduct constituted a violation of sec. 940.225(1)(a), Stats., and of sec. 940.23, Stats."

The same concession is made by the defendant in his brief on review in this court. It should be noted that in the concession the defendant recites, "This conduct constituted a violation of sec. 940.225(1)(a), Stats., and of sec. 940.23, Stats." If this concession, which is made without any qualification whatsoever in the briefs, were to be taken at face value, all issues, except for the question relating to a lesser-included offense, would be decided summarily against the defendant. We believe that, with judicial propriety, we could accept that concession at its face value. At oral argument, however, counsel for the defendant asserts that no concession was intended in respect to proof of sexual intercourse, that the intent of the defendant in making the concession was only in respect to facts other than those tending to show sexual intercourse took place. On the basis of the direct language and the unequivocal nature of the concession, we accept the defendant's present interpretation of the nature of the concession with great difficulty. Nevertheless, for the purposes of this appeal, we accept the concession in the briefs only for the purposes now acknowledged by the defendant. We therefore accept the concession in respect to all facts except for that portion which acknowledged that the defendant had sexual intercourse with the victim.

As so viewed, three questions are presented for our resolution: First, was the evidence sufficient to show that Hagenkord had sexual intercourse with the victim after he beat her, choked her, and while she was unconscious. We conclude that the Court of Appeals' affirmance of the trial court finding that sexual intercourse took place was correct and that the hospital records submitted[100 Wis.2d 458] by the state constituted evidence to support that element of the crime beyond a reasonable doubt.

Related to the question of the sufficiency of the evidence is the second question, whether the confrontation clause of the United States Constitution was violated when the proof of intercourse was put into evidence by use of hospital records under circumstances where the maker of the records did not appear in court and was not cross-examined. The Court of Appeals did not decide this question, because it concluded that the defendant at trial had not made an objection with sufficient specificity to raise the confrontation question. It therefore remanded that portion of the case to the trial court to afford the defendant the opportunity to present testimony with respect to the alleged denial of confrontation. We conclude that that remand was in error, that adequate objection was made, and that Hagenkord's constitutional right to confront witnesses was not denied.

The third question is whether injury by conduct regardless of life, sec. 940.23, Stats., is a lesser-included offense of first-degree sexual assault causing great bodily harm, sec. 940.225(1)(a). We conclude that it is not and affirm the Court of Appeals' decision in that respect and hold that they are separate offenses and conviction and sentence was appropriate on each charge.

Ordinarily, it is not the role of this court to review the Court of Appeals' decision affirming or reversing a trial court's finding on an evidentiary matter. Basic to the court reorganization of 1977 is the philosophy that Court of Appeals' decisions on questions of evidence usually be final. Here, however, the fact-finding is inextricably interwoven with the legal problems which arise from the nature of the state's proof. The victim was unable to give direct testimony that Hagenkord had sexual intercourse with her. She testified that she was beaten, severely injured, and lost consciousness. Upon [100 Wis.2d 459] regaining consciousness several hours later, she was nude except for ankle socks. These facts are uncontested; and, in accordance with the concession of the defendant, are sufficient to prove beyond a reasonable doubt that Hagenkord is guilty of causing great bodily harm to another human being by conduct imminently dangerous to another and evincing a depraved

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mind regardless of human life, in violation of sec. 940.23, Stats. Clearly, that conviction must be affirmed.

That evidence, while sufficient also to show that Hagenkord caused great bodily harm to the victim consonant with requirements of sec. 940.225(1)(a), Stats., first-degree sexual assault, does not in itself furnish proof that he had...