Hawthorne v. State, 78-806-CR
| Decision Date | 06 January 1981 |
| Docket Number | No. 78-806-CR,78-806-CR |
| Citation | 299 N.W.2d 866,99 Wis.2d 673 |
| Parties | Michael HAWTHORNE, Plaintiff in error-Petitioner, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
William J. Tyroler, Asst. State Public Defender (argued), with whom on briefs was Richard L. Cates, State Public Defender, for plaintiff in error-petitioner.
Chris C. Heikenen, Asst. Atty. Gen. (argued), with whom on briefs was Bronson C La Follette, Atty. Gen., for defendant in error.
This is a review of an unpublished decision of the Court of Appeals dated April 23, 1979, affirming a judgment of conviction entered by the Circuit Court for Milwaukee County, HON. VICTOR MANIAN, Circuit Judge.
The single question presented in this case is: Did the trial court err in denying defendant's request for submission of a verdict of endangering safety by conduct regardless of life 1 (endangering safety) as a lesser included offense of attempted first-degree murder. 2
We hold that the refusal to submit the verdict was prejudicial error, reverse the Court of Appeals decision upholding the trial court, and remand for a new trial.
The charges against Michael Hawthorne (defendant) arose out of his activities in the early morning hours of June 14, 1976, at a tavern in Milwaukee.
Defendant entered the tavern about 9 p. m. and was approached by Zachery Jenkins who asked him to shoot dice. According to Jenkins, defendant responded by calling him a vulgar name and the two men argued, then went outside and fought. According to the defendant, when asked to shoot dice, he told Jenkins he did not want to, but the two agreed to play pool betting twenty dollars on the outcome of the game. Defendant testified that he won the game and picked up the twenty dollars from the edge of the pool table, but that Jenkins protested and grabbed the money from him. They argued and then went outside to fight.
Jenkins gained the upper hand in the fight and held the defendant to the ground. Jenkins and the bartender, Cliffie Elliott, testified that Jenkins repeatedly told defendant he did not want to fight. Defendant denied that. After the fight, Jenkins returned to the bar and the defendant left.
The defendant testified that he drove around for forty-five minutes and then returned. He then removed his shotgun from the trunk of his car, loaded it, and entered the tavern.
When defendant entered the tavern, Jenkins was at the pool table furthest from the entrance. The bartender, Cliffie Elliott, testified that she yelled, "he got a gun" when she saw defendant with the shotgun, that he walked to the door to the back room of the bar, yelled "freeze" and shot Jenkins.
According to defendant, after he had ample opportunity to shoot Jenkins he yelled "freeze." He testified that his sole intention was to recover the twenty dollars taken by Jenkins after the pool game. He saw Jenkins jump over the pool table and stick his arm out from under the table holding a pistol. Seeing Jenkins' pistol, defendant said he aimed and shot at Jenkins' arm. After the shooting, defendant left the bar.
Jenkins testified that prior to the shooting he played dice with other patrons. Standing in front of the pool table, he heard someone say, "he got a gun." Others tried to get out of the way. He turned, saw the defendant holding a shotgun at shoulder level about eight or nine feet away, heard a shot and felt pain in his right arm. His body was turned by the force of the shot and he fell against the pool table. He denied getting under the pool table and denied having a gun.
Only the defendant testified that Jenkins had a gun, however, Roger Robbins, a patron of the tavern, testified that he dived under the pool table after he heard a voice shout "freeze" and that he saw a pistol on the floor after the shooting. Robbins did not know whose pistol it was or how it got there.
Cliffie Elliott, the bartender, also stated that Jenkins fell on the pool table. Elton Harding was seated in the back room when the defendant entered with his shotgun. Harding testified the victim went over the table and then under it. He heard defendant say, "hold it," and believed that the defendant was pointing his gun downward at Jenkins who was on the floor when the defendant shot. Harding also heard a second shot, but did not see it fired because he was pulled backward into a toilet by a friend.
Officer Dennis Perl arrived at the scene at 1:45 a. m. He found a spent twelve gauge cartridge shell on the floor near the pool table in the back room. He measured the pattern of shotgun pellets on the far wall, and found it extended from approximately three to six feet off the floor.
The court submitted two verdicts to the jury: (1) guilty of attempted first-degree murder, and (2) not guilty. They were also instructed, at the request of the defendant, on the privilege of self-defense. 3 The trial court denied defendant's request for an alternative verdict of endangering safety. The trial court said:
The jury returned a verdict of guilty of attempted first-degree murder. The judgment of conviction was entered on March 11, 1977. Defendant was sentenced to an indeterminate prison term of not more than twenty-five years. Post-conviction motions were denied on June 14, 1977.
The defendant brought writs of error alleging that his rights to due process and trial by jury had been denied by the court's refusal to submit the lesser offense of endangering safety. Defendant also challenged the admission at trial of "other crimes" evidence.
The Court of Appeals, in an unpublished decision, dated April 23, 1979, held that the other crimes evidence was improperly admitted, but that its admission was harmless error. 4
On the lesser offense question the Court of Appeals held that endangering safety includes an element not required to convict for attempted murder, to wit, endangering safety, and therefore, it is not a lesser included offense of that crime.
On review, this Court in a per curiam opinion dated June 29, 1979, held that endangering safety is a lesser included crime of attempted first-degree murder and vacated that portion of the Court of Appeals decision that held to the contrary. We remanded the case to the Court of Appeals to consider "whether the evidence would reasonably have permitted acquittal of plaintiff in error on the charge of attempted first-degree murder and conviction on the lesser included offense of endangering safety by conduct regardless of life." On remand, the Court of Appeals held that the evidence would not reasonably permit acquittal of the defendant on the charge of attempted first-degree murder and again affirmed the trial court. We granted review of that decision.
Oral argument was heard on this case and Walker v. State, --- Wis.2d ----, 299 N.W.2d 861, and the cases were decided together with Cartagena v. State, --- Wis.2d ----, 299 N.W.2d 872, also mandated this date. In each of these cases, the defendant was charged with attempted first-degree murder, claimed the privilege of self-defense and requested submission to the jury of the lesser offense of endangering safety which was denied.
After oral arguments were heard, this Court ordered the parties to submit supplemental briefs restricted to the question: Is endangering safety a lesser included offense of attempted first-degree murder, consistent with our opinion in Randolph v. State, 83 Wis.2d 630, 266 N.W.2d 334 (1978)?
The first question in determining the submission of a lesser offense is whether that offense is an included crime of the charged offense. A trial court may not submit a verdict on a lesser but not included offense. Clark v. State, 62 Wis.2d 194, 205, 214 N.W.2d 450 (1974).
Because the Court of Appeals originally held that, under the "elements only" test reaffirmed in Randolph, supra, endangering safety is not a lesser included offense of attempted murder, we deem it appropriate to first discuss that issue.
In Randolph we held that injury by conduct regardless of life 5 is not a lesser included offense of attempted first-degree murder.
The submission of lesser included crimes is governed by sec. 939.66, Stats., (1977), which provides:
In Randolph, we observed that subsection (3) above cannot apply to a crime requiring that defendant's conduct "evince a depraved mind regardless of human life," such as endangering safety, because Randolph, 83 Wis.2d at 639, 266 N.W.2d 334.
Subsections (2), (4) and (5) are inapplicable by their own terms.
In Randolph, we held that sec. 939.66(1), was also inapplicable, because injury is an additional element not required for the offense of attempted murder. Randolph, 83 Wis.2d at 641, 266 N.W.2d 334.
Based on this reasoning, the Court of Appeals held that ...
To continue reading
Request your trial
-
State v. Neider
...P.2d 260 (Mont.1980); State v. Weik, 206 Neb. 217, 292 N.W.2d 289 (1980); State v. Poss, 298 N.W.2d 80 (S.D.1980); Hawthorne v. State, 99 Wis.2d 673, 299 N.W.2d 866 (1981). It is apparent that because the legal definition of a lesser included offense requires its elements to be embraced wit......
-
State v. Wilson
...reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense. Hawthorne v. State, 99 Wis.2d 673, 682, 299 N.W.2d 866 (1981). To give an instruction on a lesser included offense when the commission of that lesser included offense is not rea......
-
Hagenkord v. State
...of a given defendant's criminal activity, but on whether the lesser offense is statutorily within the greater. Hawthorne v. State, 99 Wis.2d 673, 299 N.W.2d 866 (1981). Stated in other words, an offense is a "lesser included" one only if all of its statutory elements can be demonstrated wit......
-
State v. Jacobus
...while, in applying this test, the evidence is to be reviewed in the light most favorable to the defendant, Hawthorne v. State, 99 Wis.2d 673, 683-84, 299 N.W.2d 866, 871 (1981), "[t]he key word in the rule is 'reasonable.' " State v. Bergenthal, 47 Wis.2d 668, 675, 178 N.W.2d 16, 20 (1970),......