Lofton v. State, 76-015-CR

• Decision Date: 06 June 1978
• Docket Number: No. 76-015-CR,76-015-CR
• Citation: 266 N.W.2d 576,83 Wis.2d 472
• Parties: Gloria J. LOFTON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 576

266 N.W.2d 576

83 Wis.2d 472

Gloria J. LOFTON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-015-CR.

Supreme Court of Wisconsin.

Submitted on Briefs March 8, 1978.

Decided June 6, 1978.

On January 7, 1975, the plaintiff in error, Gloria J. Lofton (defendant), was charged with first degree murder in the shooting death of her brother-in-law, George White, at his residence in the City of Beloit on December 29, 1974. After a jury trial, the defendant was convicted of homicide by reckless conduct contrary to sec. 940.06, Stats., and sentenced on November 10, 1975 to a prison term not to exceed three years. The defendant's motion for dismissal or, in the alternative, a new trial was denied by order of the county court on May 13, 1976. The defendant seeks review of both the judgment and the order.

Howard B. Eisenberg, State Public Defender, and Mark Lukoff, Asst. State Public Defender, submitted on briefs, for plaintiff in error.

Bronson C. La Follette, Atty. Gen. and Pamela Magee-Heilprin, Asst. Atty. Gen., submitted on brief, for defendant in error.

BEILFUSS, Chief Justice.

The defendant contends that the complaint did not state sufficient facts to support the charge of first degree murder; that sufficient evidence was not presented at the preliminary hearing to support a bindover or to support the information charging first degree murder; and that at the close of trial testimony the county court should have granted the motion to dismiss on the ground that sufficient evidence had not been presented on the charge of first degree murder. In addition, the defendant argues that the trial court should have granted a mistrial because of statements made by the prosecutor during the rebuttal stage of his closing argument; that the trial court erred in refusing to instruct the jury on the lesser included crime of homicide by negligent use of a weapon; and that she is entitled to a new trial in the interest of justice.

The defendant argues that the complaint is insufficient because it fails to allege facts showing that she shot George White with the intent to kill.

The two elements of first degree murder are that the defendant intended to kill the victim and that the defendant caused the death of the victim. Sec. 940.01, Stats. ¹ Gloria Lofton does not challenge the sufficiency of the complaint as to the second element; she only argues that it failed to show an intent to kill.

City of Beloit Police Detective David Grenke alleges in the complaint, in part:

"That on or about December 29, 1974, he was called to the Jossie White residence at 1802 Arbor Drive, Beloit, Wisconsin, in reference to a disturbance; that upon his arrival at the White residence, this officer was taken to a nearby backyard; that they thereupon saw an individual with what appeared to be a bullet hole in his chest and blood on his shirt and that said individual was rushed to the Beloit Hospital; that according to information from the Coroner of Rock County and also the records of Beloit Hospital, Mr. White died within minutes of his arrival;

"That this affiant thereupon commenced an extensive investigation of possible witnesses to the incident at the White residence; that this affiant has interviewed one of the witnesses to the disturbance who indicated that the defendant, Gloria Lofton, and her sister were engaged in an argument with the deceased and that said witness heard gun fire and saw the flash of a gun between the three persons heretofore mentioned, namely Gloria Lofton, her sister and the deceased;

"That on January 3, 1975, this affiant interviewed another witness to said incident who indicated to this affiant that there was an argument between the defendant, the deceased and the defendant's sister; that said witness further indicated that immediately after that incident, in the presence of others, the defendant indicated that she was sorry and that she didn't mean to shoot the deceased."

The standards by which this court tests the sufficiency of the complaint were reviewed in State v. Elson, 60 Wis.2d 54, 57-58, 208 N.W.2d 363, 365-366 (1973):

"By statute, a criminal ' . . . complaint is a written statement of the essential facts constituting the offense charged,' sec. 968.01, Stats., and in the case of State ex rel. Evanow v. Seraphim (1968), 40 Wis.2d 223, 161 N.W.2d 369, this court gave common sense meaning to the statute in that the complaint must answer certain fundamental questions. At page 230, it is stated:

" 'What is the charge? Who is charged? When and Where is the offense alleged to have taken place? Why is this particular person being charged? (and) . . . " Who says so?" '

"The sum of the answers to the above six questions as contained in the complaint ' . . . must meet the test of "probable cause. " ' State ex rel. Cullen v. Ceci (1970), 45 Wis.2d 432, 443, 173 N.W.2d 175; State v. Becker (1971), 51 Wis.2d 659, 188 N.W.2d 449.

" 'A complaint is sufficient if a fair-minded magistrate could reasonably conclude that the facts alleged justify further criminal proceedings and that the charges are not merely capricious. State ex rel. Cullen v. Ceci, supra; Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 14 L.Ed.2d 345.' State v. Becker, supra, 51 Wis.2d at page 663, 188 N.W.2d 449.

"In testing the complaint, both facts and the reasonable inferences arising from the facts may be looked to.

" 'A complaint must state facts sufficient in themselves or admitting to reasonable inferences which are sufficient to establish probable cause.' State v. Becker, supra, at page 662, 188 N.W.2d 449."

Applying these standards, we find the complaint alleges sufficient facts to show an intent to kill. In Garcia v. State 73 Wis.2d 174, 183, 242 N.W.2d 919, 923 (1976), we said:

"There is the presumption that one intends the natural and probable consequences of his acts. State v. Cydzik (1973), 60 Wis.2d 683, 697, 211 N.W.2d 421. In cases of first-degree murder, the fact that the defendant shot his victim in a vital part raises a presumption of intent. Smith v. State (1975), 69 Wis.2d 297, 303, 304, 230 N.W.2d 858."

In the instant complaint, Officer Grenke stated that he observed a bullet hole in the victim's chest and the victim was rushed to the hospital where he died within minutes of his arrival. As in Garcia, the fact that George White was shot in a vital part of his body raises a presumption of intent.

The defendant contends that the evidence presented at the preliminary hearing was insufficient to support a bindover because the evidence did not support a finding of probable cause that a felony had been committed and that she committed it. She argues that the preliminary hearing only shows that a gun was fired from the area in which she was standing, and that she was never linked with the gunshot.

The standards by which this court reviews the evidence at a preliminary examination to determine whether it was sufficient to support the finding of the court were stated in State v. Olson, 75 Wis.2d 575, 584, 250 N.W.2d 12, 16 (1977):

"The defendant contends that the evidence adduced at the preliminary hearing was insufficient to support a bindover for trial. The purpose of a preliminary hearing is to determine if there is probable cause, a reasonable probability, to believe a felony has been committed by the defendant.

"The scope of appellate review of the sufficiency of the evidence adduced at the preliminary hearing is set forth in State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 583, 215 N.W.2d 390 (1974):

" 'It is well established in this state that the evidence of 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.' "

Applying these standards to the evidence presented at the preliminary examination we conclude that the evidence was sufficient to support the finding of probable cause that a felony had been committed by the defendant.

Beloit Police Detective David Grenke testified that shortly after 4 a.m., on December 29, 1974, while responding to a complaint regarding an altercation at 1802 Arbor Drive, he found George White approximately fifty or sixty yards from that property. Grenke testified that White had what happened to be a bullet hole to the left side of his chest; he appeared to be very near death; and he was unconscious. Grenke said that a few days later he interviewed Philip Berg who gave him a Valentine candy box containing a .25 caliber Titan automatic pistol wrapped in newspaper, a clip and six rounds of ammunition. Grenke also testified to receiving the .25 caliber bullet that was removed from White's body.

White's death was established by the introduction of the death certificate.

James Robert Gladney testified that on the morning of the shooting, the victim, the defendant and Irene Lofton, who was the defendant's sister, were involved in a series of arguments during which George White shoved the defendant and her sister up against the wall inside the residence at 1802 Arbor Drive. Eventually everyone went outside and during one argument the defendant and Irene were standing by George White, all about a step away from each other. Gladney heard shouting but was not paying much attention to it. The three were kind of struggling and talking and then Gladney heard a shot and saw a flash in the middle of them. Gladney said the flash was between the defendant and Irene. Gladney testified that after the shooting the defendant told him that "George got...