Randolph v. State
| Decision Date | 06 June 1978 |
| Docket Number | No. 76-091-CR,76-091-CR |
| Citation | 266 N.W.2d 334,83 Wis.2d 630 |
| Parties | Tyjuainia RANDOLPH, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
The plaintiff in error, Tyjuainia Randolph, also known as Tyjuiana Randolph (hereinafter defendant), was convicted, following a jury trial, of injury by conduct regardless of life, contrary to sec. 940.23, Stats. She was sentenced to an indeterminate term of imprisonment of not more than five years.
Writs of error issued to review the judgment of conviction and an order of the trial court denying her postverdict motion for judgment notwithstanding the verdict or for a new trial.
Ronald L. Brandt, Deputy State Public Defender, argued, Howard B. Eisenberg, State Public Defender, on briefs, for plaintiff in error.
David J. Becker, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.
The principle issue in this case is whether the offense of injury by conduct regardless of life, sec. 940.23, Stats., is a lesser included offense of the crime of attempted first-degree murder, sec. 940.01 and sec. 939.32.
In the early morning hours of June 9, 1975, the defendant shot one Keith A. Plantz. He was nineteen years of age at the time, had played baseball during the afternoon of June 8, 1975, and went drinking beer in the evening. Late that night, he "decided to pick up a hooker." He drove to downtown Milwaukee, where he approached the defendant, who was a prostitute. They negotiated a price of $25 or $30; she got into his car; and they drove to her apartment.
The testimony of Plantz and the defendant is in conflict regarding what transpired in the defendant's apartment. Plantz testified at trial that he and the defendant went upstairs to her apartment and disrobed. He observed a scar on her abdomen, which she said was the result of a caesarean operation, and he said that it was ugly. She then asked for payment of the price they had negotiated. Plantz looked in his wallet and said "I only have $5.00." Plantz testified that the defendant did not appear to be greatly upset by his remark about her scar or about his lack of money, but that she told him to get dressed and leave. They both then dressed.
According to Plantz, as he finished dressing, the defendant rummaged in a dresser drawer and, in a single motion, withdrew a pistol, turned and shot him. The bullet went through his abdomen, hitting the colon, duodenum, spleen and bladder. Plantz would have died if he had not received prompt medical assistance.
The defendant's account of the shooting was substantially as follows: At about 2 a. m. on the morning of June 9, 1975, before she met Plantz, someone in a black car had followed her and a previous customer to her apartment. At about 2:30, after she returned downtown, she was approached by Plantz in what she recognized as the same black car. They negotiated a price of $30 for sexual intercourse, and she got into his car.
The defendant testified that while they were in the car, Plantz proposed a blackmail scheme in which he would follow her "tricks," obtain the license numbers of their automobiles, and blackmail them. Plantz said that he had engaged in blackmail before and that he had followed her previous "trick" and had his license number. She told him she was not interested in blackmail, but that if he wanted to engage in sex, he should take her to her apartment.
They went to her apartment and disrobed. The defendant testified that Plantz then said he only wanted to talk, and again began talking about blackmail. She said that she told him she was not interested in blackmail, and that if he did not want to have sexual relations, he should leave. She further testified that he told her a stretch mark on her abdomen was ugly and also told her that he only had five dollars. She then told him to leave, and he dressed and started down the stairs.
According to the defendant, Plantz then came back into the room, pushed her backwards onto the bed and said he was going to have intercourse with her. The defendant said she threatened to call for her boyfriend, who was not really in the building, and Plantz allegedly told her to go ahead. She said she then struggled free of Plantz, and he went to the door and blocked it.
She then went to the dresser, withdrew a pistol and cocked it to frighten him into leaving. He chuckled, asked whether the gun was real, and came toward her, reaching for the gun. She backed up and as she did, stumbled "just a little" on the shag carpet, and the gun went off.
The testimony of Plantz and the defendant was in substantial agreement as to what happened after Plantz was shot. The defendant screamed. Plantz ran down the stairs and outside to his car. The defendant followed, asking him how badly he was hurt and whether he knew where he was. He drove away without answering, traveled about two blocks, got out of his car to seek assistance and fell onto the street. He was found immediately and taken to a hospital where he underwent surgery and spent five weeks recovering.
The defendant testified that when Plantz drove away she telephoned a girlfriend who lived nearby and that the friend came over to her apartment. The parties stipulated that the resident of the downstairs apartment, who was unavailable at the time of trial, would have testified that he heard an automobile pull away and then heard two women go up the stairs and heard one of them say,
Plantz told the police a number of versions of the shooting. When he was found in the street, he told the police he had been shot by a black man in a tavern. Asked where the tavern was, he answered only with an obscenity. He later told police three black men had gotten into his car, had tried to rob him and had then shot him. Still later he said that two men and a woman had tried to rob him. He gave police descriptions of the purported robbers.
Several days after the shooting, when it appeared that Plantz might die, he talked with a minister who urged him to tell the truth. He then told police that he had been shot by a prostitute, but that the shooting had occurred in his car in an alleyway. Sometime thereafter he told the version of the shooting reflected in his trial testimony. He had fabricated the earlier stories, he testified, to keep the truth from his wife.
The defendant was arrested approximately three weeks after the shooting. She testified that she had not turned herself in because she had to arrange for her three young children to be cared for. She was charged with attempted first-degree murder, contrary to secs. 940.01 and 939.32, Stats.
After the closing arguments of counsel at the conclusion of the trial, the trial court, over the objection of defense counsel, instructed the jury on the offense of injury by conduct regardless of life, contrary to sec. 940.23, Stats., as a lesser included offense of attempted first-degree murder.
On this review the defendant argues that the trial court erred (1) in instructing the jury that injury by conduct regardless of life is a lesser included offense of attempted murder, and (2) in refusing to instruct the jury with regard to the offenses of reckless use of a weapon and injury by negligent use of a weapon; and further argues that the evidence does not support the verdict and the judgment of conviction.
The state argues that the defendant has waived the right to assert that the trial court erred when it instructed the jury that injury by conduct regardless of life, contrary to sec. 940.23, Stats., was a lesser included offense of attempted first-degree murder because the defendant did not make proper objection at the trial.
It is well established that an error in jury instructions may be reviewed on appeal, even where there was no timely objection in the trial court, when the error is so plain or fundamental as to affect the substantial rights of the defendant. Claybrooks v. State, 50 Wis.2d 79, 84, 85, 183 N.W.2d 139 (1971). Further, this court has held that an objection to jury instructions will not be waived when the instruction misstates the law, rather than being simply imperfect or incomplete. Lambert v. State, 73 Wis.2d 590, 243 N.W.2d 524 (1976).
In the instant case, the trial court instructed the jury that ". . . injury by conduct regardless of life in violation of Section 940.23 of the Criminal Code of Wisconsin . . . is a lesser included offense under the offense charged in the Information." If this statement is erroneous as a matter of law, then the instructions have both misstated the law and affected the substantial rights of the defendant. We therefore reach the merits of the issue.
The parties agree that the instructions of the trial court were proper only if the lesser offense was an included offense within the greater. A trial court may not instruct or submit a verdict on a lesser not included offense. Clark v. State, 62 Wis.2d 194, 205, 214 N.W.2d 450 (1974).
Lesser included offenses are defined by sec. 939.66, Stats., which provides:
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