Hammen v. State

• Decision Date: 27 February 1979
• Docket Number: No. 76-710-CR,76-710-CR
• Citation: 87 Wis.2d 791,275 N.W.2d 709
• Parties: Terry HAMMEN, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 709

275 N.W.2d 709

87 Wis.2d 791

Terry HAMMEN, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

No. 76-710-CR.

Supreme Court of Wisconsin.

Argued Nov. 1, 1978.

Decided Feb. 27, 1979.

Robert Paul, Deputy State Public Defender, argued for plaintiff in error; Howard B. Eisenberg, State Public Defender, on brief.

Maryann S. Calef, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

CALLOW, Justice.

Terry Hammen was convicted after a jury trial of injury by conduct regardless of life in violation of sec. 940.23. Stats. ¹ The issues on review are whether it was prejudicial error to allow testimony about the defendant's drug dealing before and after the offense and to permit two photographs of the victim's wounds to go to the jury room. Concluding there was no error, we affirm.

A complaint was issued on August 10, 1976, alleging the defendant caused great bodily harm to Linda Olson in violation of sec. 940.23, Stats., by beating and slashing her three days earlier. Following the bindover, the defendant pleaded not guilty and was released on bail. The jury found the defendant guilty November 19, 1976.

Testimony revealed that at about 3:45 a. m. on August 7, 1976, Linda Zimmerman and her boyfriend returned to their apartment on East Dayton Street in Madison. They shared the apartment with five persons. They discovered blood in the living room and found one of their roommates, Linda Olson, in a bedroom in an apparent state of shock. Olson gave the names "Terry" and "Tim" and said, "It's someone we all know." The police and fire rescue squad arrived between 4:20 and 4:35 a. m. They found Olson lying naked on a bed, wrapped in covers, with bruises and cuts over her face and body. She said, "Terry did it," and "(H)e tried to strangle me." There were several pools of what appeared to be blood on the floor and sofa in the living room; blood was smeared on the wall leading to the bedroom where Olson was found. On the floor of the living room there were items of women's clothing and a broken bottle with blood and hair on it.

The physician who treated Olson at the hospital testified that she was in shock and had suffered facial injuries, contusions, bruising, and swelling. On his initial examination he found that she had multiple fractures of the facial bones and extensive lacerations of her chest, abdomen, back, right arm, and left leg. She had a bruise on the lower part of her neck, and lost four pints, or about 25 percent, of her blood. There was no evidence of sexual intercourse. The court admitted, over objection, four photographs of Olson's injuries, noting that they were received as proof of great bodily harm and that no sympathy or prejudice was to be drawn from them. The doctor testified, finally, that a sharp, heavy instrument probably caused the wound and that without treatment Olson would have had serious facial disfigurement.

A police officer testified that at around 12:45 a. m. on August 7, 1976, he saw the defendant near a car at the intersection of Atwood Avenue and Winnebago Street in Madison. He complained that the parties in the car struck him, and he asked the officer to pursue them. The officer examined him and found no injury. By that time the car was gone. Commenting that he had waited for a bus since 11 p. m., the defendant asked the officer for a ride uptown. The officer refused because he was going in a different direction.

Dwight Greve testified that he returned to his apartment on Pinckney Street around the corner from the Olson apartment with a friend, Jill Whaples, between 1:30 and 1:45 a. m. on the morning of August 7, 1976. As they were climbing the stairs to the apartment, the defendant and a companion approached from the rear, asked for a person named Frank, and then offered to sell Greve some hashish. Greve said that the defendant was shoving his companion up the stairs. The defendant told Greve that the fellow had "ripped (him) off thirty three thousand dollars worth of coke." As the conversation ended, the defendant told his companion that if he ran he would shoot him. Whaples remembered that the defendant and another person had a conversation with Greve on the stairway to Greve's apartment on the morning of August 7.

William Augustyn lived in the apartment downstairs from Olson's at the time in question. He testified that between midnight and 1:00 a. m. on the morning of August 7 he saw the defendant, whom he had met three weeks earlier, and another man pacing back and forth in front of his window. Between 2:15 and 3 a. m., Augustyn, who was watching a late movie, heard "wrestling noises," moaning, and sounds of glass breaking upstairs. He was not concerned because he assumed people were "goofing around." Around 2:45 or 3 a. m., Augustyn saw someone whom he thought to be the defendant leave and "turn the corner around the stairs." Augustyn testified that three or four weeks before the trial the defendant asked him on the street, before recognizing him, if he wanted to buy cocaine. Defense counsel objected and moved for a mistrial. The court denied the defendant's motion for a mistrial and instructed the jury to disregard the statement. Augustyn testified that after the defendant realized who Augustyn was, he said if Augustyn was thinking of testifying, he "might end up getting . . . hurt."

Linda Olson, who was twenty-four at the time of the attack, testified that she was working on a paper in the early morning hours of August 7, 1976. No one else was home. Someone knocked on the door around 1:30 or 2 a. m., identified himself as Terry, and asked for one of Olson's roommates. When she told him that the roommate was gone, he said he needed someone to talk with. Olson identified the defendant, whom she had met on a few occasions before August 7, as the person she let into the apartment that night. They sat on the couch and talked for at least twenty minutes. The defendant did not appear to be intoxicated. He asked Olson if she would go to bed with him. She ignored him. As she was looking the other way, he grabbed her throat and strangled her. She lost consciousness. Her next memory is of the hospital. Olson testified that she remained in the hospital's intensive care unit four days. She said that she had wounds over most of her body, except for her legs and left arm, and that her jaw had to be wired.

The defendant's mother testified that she was tending bar at a tavern on Atwood Avenue in Madison on the evening of August 6. She said the defendant was in the bar until 1 a. m., drinking and playing pool and pinball. The defendant and his mother left the bar together. She went home where she lived with her husband and the defendant. She thought the defendant was going to a restaurant. The defendant's stepfather testified that he was awakened by the defendant and let him in the house a little after 2:30 a. m. on August 7. He noticed nothing unusual about him. The owner of the bar at which the defendant's mother was working testified that the defendant was at the bar drinking and playing pool from 6 p. m. the evening of August 6 until 1 a. m., August 7.

The defendant, age twenty-five, testified that he was at the bar on Atwood Avenue until 1 a. m. As he was on his way to get something to eat, he met a girl on the street. They talked and smoked marijuana for fifteen or twenty minutes. He went directly home, arriving about 2 a. m. The defendant testified that the meeting with Greve took place not on the night of Olson's attack but the evening before. He denied attacking Linda Olson.

Following instructions, the court, over objection, sent two of the photographs of Olson's wounds to the jury room. The pictures were 8 X 10 color, glossy photos showing the bruises and scars on Olson's face and back.

The jury found the defendant guilty. Judgment of conviction was entered December 1, 1976. The court denied the defendant's motion for a new trial on April 8, 1977. The defendant seeks review by writs of error of the judgment and order denying the motion for a new trial.

There are two questions presented: (1) Was it prejudicial error to allow testimony about the defendant's drug dealing before and after the offense? (2) Was it prejudicial error to permit two photographs of the victim's wounds to go to the jury room?

The defendant argues that it was prejudicial error to allow testimony about the defendant's drug dealing before and after the offense occurred. Sec. (Rule) 904.04(2), Stats., provides as follows:

"Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

This court thoroughly discussed the application of the other-conduct rule in State v. Spraggin, 77 Wis.2d 89, 94-95, 252 N.W.2d 94 (1977). Observing that the general rule is to exclude such evidence where it is offered to show criminal disposition, the court quoted from Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557, 563 (1967), Cert. denied 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155 (1968), as follows:

" 'The character rule excluding prior-crimes evidence as it relates to the guilt issue rests on four bases: (1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in the evidence of other crimes.' "

Where the evidence in question properly...