Holmes v. State
| Decision Date | 07 May 1974 |
| Docket Number | No. S,S |
| Citation | 63 Wis.2d 389,217 N.W.2d 657 |
| Court | Wisconsin Supreme Court |
| Parties | Stuart A. HOLMES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 187. |
Shellow & Shellow, James M. Shellow, Milwaukee, for plaintiff in error; Gilda B. Shellow and Harold L. Harlowe, Milwaukee, of counsel.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
Two issues are raised on appeal by court-appointed counsel for the defendant: (1) That the trial together of separate charges was error; and (2) that failure to submit a requested instruction and verdict of endangering safety by conduct regardless of life was error. Each claim of error will be separately considered.
TRIAL TOGETHER OF SEPARATE CHARGES.
Under Wisconsin statutory law a court may order two or more complaints, informations or indictments to be tried together if the crimes and defendants could '. . . have been joined in a single complaint, information or indictment. . . .' 1 Two or more crimes may be charged in the same complaint, information or indictment if the crimes charged '. . . are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. . . .' 2
The trial court held that the charges of armed robbery and attempted murder were based on a same or single transaction. We agree, holding that the armed holdup, flight with officers in hot pursuit and attempted shooting to evade apprehension did constitute a single transaction. A successful holdup includes a successful getaway. Where charges of distributing unlawful drugs and assaulting arresting officers were joined, a federal court of appeals held: 'Since the two offenses charged arose from a single transaction, there was clearly no misjoinder under F.R.Crim.P.
8(a). . . .' 3 As clearly, the two charges in the case before us arose from a single transaction
However, the joinder of trial is to follow the same procedure '. . . as if the prosecution were under such single complaint, information or indictment.' 4 This makes applicable the statute providing that, if it appears that a defendant or the state is prejudiced by the joinder, the court '. . . may order separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. . . .' 5 It is self-evident that a worthwhile public interest is served by the consolidated trial of joinable charges. Duplicitous and time-consuming trials in which the same factual situation is involved are thus avoided. However, where possible prejudice to the defendant or the state is involved, there is to be a weighing of the possibility of prejudice against the public interest served by consolidated trial. 6 What is involved is an exercise of trial court discretion. On the granting of a motion to consolidate, reversal requires a finding of abuse of discretion, exactly as would be the test on denial of a motion for severance. 7
In opposing the consolidation for trial of the armed robbery and attempted murder charges, the defendant here by supporting affidavit claimed that consolidation would affect his constitutional right against self-incrimination in that defendant '. . . intends to testify in the attempted murder case and not in the armed robbery matter. . . .' The affidavit stated that '. . . testimony by Defendant in the attempted murder matter is essential and critical to his defense while testimony in the armed robbery matter would be highly prejudicial. . . .' Where separate and distinct but related acts or transactions are involved, possible prejudice may arise if joint trial could result in the jury using '. . . the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged. . . .' 8 However, where, as here, there are two charges involving a single act or transaction, evidence on the one charge is relevant and admissible on the other. 9 Severance is not required where the two charges involving a single act or transaction are '. . . so inextricably intertwined so as to make proof of one crime impossible without proof of the other. . . .' 10 In the case before us, evidence as to the attempted murder would have been relevant on the getaway aspect of the armed robbery; evidence as to the armed robbery would have been relevant to the attempted murder charge as supplying motive. Where charges joined in a single trial arise from a single criminal transaction or have a common scheme, plan or design, the cases hold that there is no abuse of discretion in a trial court's granting a motion for consolidation Additionally, for balancing the public interest in joint trials against a claim of possible prejudice to a defendant, something more is needed than defendant's statement that he intends to testify on one charge and not on the other. The defendant, opposing consolidation or urging severance, is required to present enough information, including the nature of the testimony he wishes to give on one count that would not be admissible on the other count or counts, to enable the trial court to intelligently weigh the opposing factors to be weighed and balanced. This added requirement is termed the Baker rule, 12 and has been consistently followed in the federal courts, 13 and in state courts as well. 14
or denying a motion for severance. 11
In the case before us, the defendant put onto the scales only his statement of intention to testify on one charge only, and the very generalized and conclusory statement that testimony by him on the one charge was essential and testimony by him on the other would be highly prejudicial. If no more than that were required, control as to consolidation or severance of charges would clearly pass out of the hands of the trial court and into the complete control of the defendant. 15 In this state the granting or denying of a motion for consolidation or severance as to trial is directed to the sound discretion of the trial court, and we find that here that discretion was not exceeded or abused.
REQUESTED INSTRUCTION AND VERDICT.
Defendant requested that an instruction and verdict be given the jury of the lesser offense of endangering safety by In determining whether or not a reasonable view of the evidence supports a finding that defendant pulled the trigger without intent to effect the death of the police officer, we do not seek to read his mind at the moment of the trigger-pulling. 24
conduct regardless of life, contrary to sec. 941.30, Stats. Endangering safety by conduct regardless of life is an included crime of attempted first-degree murder. 16 One of the elements of endangering safety is that the conduct involved '. . . was of such a character that it evinced a depraved mind, regardless of human life.' 17 This court has held that such depravity is also present in first-degree murder and that '. . . the intent is the same except for the absence of the design to effect death.' 18 However, the crime of endangering safety by conduct regardless of life '. . . does not require the specific intent to kill as does first degree murder . . .' 19 It does not follow that, because endangering safety by [63 Wis.2d 400] conduct regardless of life is a lesser included offense of the crime of attempted first-degree murder, that it should have been submitted to the jury. As this court has said, '. . . to justify the submission for conviction of a lesser offense included in a greater crime there must be some reasonable ground in the evidence for a conviction of the lesser offense and an acquittal of the greater offense. . . .' 20 They key word is 'reasonable.' 21 If the evidence in one reasonable view would suffice to prove the guilt of the higher degree of crime beyond a reasonable doubt and if under a different but reasonable view the evidence would be sufficient to prove the guilt of the lesser offense beyond a reasonable doubt and also leave a reasonable doubt as to some element included in the higher degree but not in the lesser, the court could and should submit both degrees or offenses. 22 In the case before us, defendant's counsel contends that under a reasonable view of the evidence the jury could find that the defendant lacked the design to effect the death of the police officer when he pulled the trigger. As was said by this court in a case involving degrees of murder, '. . . The real question is whether that testimony could result in a reasonable doubt of his (defendant's) mental purpose to kill. . . .' 23
Intent we have held, '. . . must necessarily be evidenced by the conduct of the actor and the circumstances surrounding the act. . . .' 25 We agree with the trial court that no different but reasonable view of the evidence in this case supports any conclusion other than that when the defendant pulled the trigger he must be held to have intended the death of the police officer. The weapon the defendant used was a loaded .44 caliber magnum revolver, the most powerful handgun in existence. The position of the revolver--about two inches from the lower stomach of the officer--is also material. 26 The evidence establishes that when the police officer opened the door of the van the defendant swung his gun toward the officer who attempted to push it away. The defendant overpowered the officer and brought the .44 caliber magnum revolver down to and about two inches from the officer's body. We have said that '. . . When one intentionally points a loaded gun at the vital part of [63 Wis.2d 402] the body of another, and discharges it, it cannot be said that he did not intend the natural, usual, and ordinary consequences. . . .' 27 Here the defendant clearly waited until he had the gun close to the officer's body before he pulled the trigger.
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