Kirby v. State

• Decision Date: 27 October 1978
• Docket Number: No. 77-667-CR,77-667-CR
• Citation: 86 Wis.2d 292,272 N.W.2d 113
• Parties: Durwood KIRBY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. *
• Court: Wisconsin Court of Appeals

Page 113

272 N.W.2d 113

86 Wis.2d 292

Durwood KIRBY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. ^*

No. 77-667-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 12, 1978.

Opinion Released Oct. 27, 1978.

Opinion Filed Oct. 27, 1978.

Melvin F. Greenberg, Asst. State Public Defender, Howard B. Eisenberg, State Public Defender, submitted briefs for plaintiff in error.

Michael R. Klos, Asst. Atty. Gen., and Bronson C. La Follette, Atty. Gen., submitted briefs for defendant in error.

Before DECKER, C. J., CANNON, P. J., and R. W. HANSEN, Reserve Judge.

DECKER, Chief Judge.

The issues raised by Kirby on appeal relate to alleged errors at the preliminary examination and the trial, and accordingly we deal with them under those headings.

PRELIMINARY EXAMINATION

Complainant Schindler was the sole witness at the preliminary hearing. She had returned to her apartment from an afternoon walk. Her roommate and four men were present. Schindler was tied hands and feet when Kirby came to the premises. Kirby untied her hands and feet and showed the others how to retie her "the correct way." Apparently she was placed facedown with her hands and feet tied to the bed. Three of the men, other than the defendant, beat Schindler with curtain rods, an electrical cord and a belt over a period of approximately five hours. Her roommate also participated in the beating. The three men threw lighted cigarettes, matches and marijuana roaches on her. Kirby's part in the affair included pouring salt and shaving lotion on her back and legs and attempting to shave her head after her hair was cut by others.

Schindler testified that she suffered a fractured rib, burns and four or five scars on her legs. Kirby was bound over for trial on aggravated battery after his motion to dismiss the charge was denied. He contended then, as now, that there was insufficient evidence of "great bodily harm" because the evidence is insufficient to support an inference of 1) a high probability of death; 2) serious permanent disfigurement, or 3) a permanent or protracted loss or impairment of the function of any bodily member or organ as specified in sec. 939.22(14), Stats. Although the state does not concede Kirby's position with respect to those specified elements, it makes no serious contrary argument.

This case focuses, as did LaBarge v. State, 74 Wis.2d 327, 246 N.W.2d 794 (1976), on the phrase "other serious bodily injury" incorporated in the definition of great bodily harm. Section 939.22(14), Stats., defines great bodily harm as:

(B)odily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or Other serious bodily injury. (Emphasis supplied.)

The test for sufficiency of evidence at a preliminary hearing and the standard for appellate review of such sufficiency was It is well established in this state that the evidence at a preliminary hearing need not be sufficient to prove the charge against the defendant beyond a reasonable doubt. The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence. P. 584, 250 N.W.2d p. 17.

reiterated in State v. Olson, 75 Wis.2d 575, 250 N.W.2d 12 (1977):

Applying the above standards, we believe the evidence of the five-hour torment at the preliminary examination is sufficient to establish "serious bodily injury" and the validity of the bindover on aggravated battery. Kirby asserts that because LaBarge and Flores v. State, 76 Wis.2d 50, 250 N.W.2d 720 (1977), in considering the element of great bodily harm, involved a stabbing and a beating about the head with a pool cue, those events involved a high possibility of death. Circularly, he would restore that specification of the statutory definition and narrow the broadened definition of great bodily harm resulting from the phrase "other serious bodily injury." His reasoning was expressly rejected in LaBarge :

Our study of the legislative history of the particular statute leads, however, to the conclusion that the phrase, "or other serious bodily injury," was designed as an intentional broadening of the scope of the statute To include bodily injuries which were serious, although not of the same type or category as those recited in the statute. P. 332 of 74 Wis.2d, p. 796 of 246 N.W.2d. (Emphasis supplied.)

Before trial the court granted the state's motion to amend the charge of aggravated battery to mayhem contrary to sec. 940.21, Stats., which provides:

Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another, may be fined not more than $5,000 or imprisoned not more than 15 years or both.

Once the magistrate found probable cause to believe the defendant had committed the crime of aggravated battery, the prosecutor was not bound, in preparing the information, to that charge. "Rather, the prosecutor may charge in the information any crime not wholly unrelated to the transactions and facts adduced at the preliminary examination." Wittke v. State ex rel. Smith, 80 Wis.2d 332, 352, 259 N.W.2d 515, 524 (1977). The charge of mayhem contained in the information in this case was not "wholly unrelated to the transactions and facts adduced at the preliminary examination." The amendment of the information to charge mayhem was therefore proper.

THE TRIAL

The same testimony adduced at the preliminary hearing was offered at the trial. In addition, it was established that: Schindler had been stripped of her clothing before being tied on the bed; the five-hour torture period was interrupted only a couple of times for a few minutes; one of the torturers had taken a knife and gone down the back of the complainant's leg with it; Schindler blacked out on two occasions before leaving the apartment after being untied; she was hospitalized for one month and two days while recovering from the beating; four days of the hospitalization were spent in the intensive care unit and the balance of the hospitalization was spent in the psychiatric unit; and police interviews at the emergency ward of the hospital where she was taken for initial treatment had to be suspended because she was screaming with pain, she was confused and at times hysterical.

At the conclusion of the trial, the court granted Kirby's motion to dismiss the mayhem charge upon the ground that there was not sufficient evidence to establish intent to disfigure as the trial court defined that element. Over the objections of defense counsel, the trial judge submitted to the jury the charges of injury by conduct regardless of life, sec. 940.23, Stats., endangering safety by conduct regardless of life, sec. 941.30, Stats., and battery, sec. 940.20, Stats. Kirby was convicted of endangering safety by conduct regardless of life.

Kirby contends that neither injury by conduct regardless of life nor endangering safety by conduct regardless of life is a lesser included offense of mayhem, and thus the conviction of endangering safety by conduct regardless of life was improper. He also contends that the conviction is not supported by the evidence. We disagree with both contentions.

The trial judge's action in amending the charge to injury by conduct regardless of life was proper if that crime is a lesser included offense of mayhem.

When a defendant is charged with a crime he is automatically put on notice that he is subject to an alternative conviction of any lesser included crime; the whole contains all its parts. Only if the charge is changed to a crime which is not a lesser included offense can the argument be made that the defendant is entitled to notice of the reduced charge and be given an opportunity to plead to that charge. Dunn v. State, 55 Wis.2d 192, 197, 197 N.W.2d 749, 752 (1972).

Accordingly, we consider whether injury by conduct regardless of life is a lesser included offense of mayhem.

Injury by conduct regardless of life, sec. 940.23, Stats., is defined as:

Whoever causes great bodily harm to another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life . . . .

A lesser included crime, sec. 939.66(1), Stats., is

A crime which does not require proof of any fact in addition to those which must be proved for the crime charged; . . . .

Kirby contends that injury by conduct regardless of life requires proof of three elements not required for conviction of mayhem: 1) great bodily harm; 2) conduct imminently dangerous to another; and 3) conduct evincing a depraved mind regardless of life. Balistreri v. State, 83 Wis.2d 440, 265 N.W.2d 290 (1978).

In State v. Carli, 2 Wis.2d 429, 87 N.W.2d 830 (1957), the Wisconsin Supreme Court held that mayhem necessarily includes the infliction of great bodily harm by means intended to cause great bodily harm:

In order to prove mayhem, as charged in the first...