Simpson v. State

Decision Date05 March 1974
Docket NumberNo. S,S
Citation215 N.W.2d 435,62 Wis.2d 605
PartiesRichard G. SIMPSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 162.
CourtWisconsin Supreme Court

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The convictions in this case arose out of the defendant's activity in connection with the operation of a massage and alleged prostitution parlor in Dane county known as 'Kathi's Sauna.' The defendant was employed as the custodian and 'enforcer' and his duties involved cleaning the sauna, protecting the girls from the customers, keeping the girls 'in line,' and whatever else Chico Artez, the owner, told him to do, such as running errands, banking and chauffeuring the girls to assignations for prostitution.

October 12, 1971, the defendant tied Vennie Rainey on a bed, gagged, blindfolded and in an unclothed condition. In this condition, he administered a beating to 'get her in the right state of mind.' This incident is the basis for the first count of endangering safety of conduct regardless of life, contrary to sec. 941.30, Stats. The second count, charging the same crime, resulted from a somewhat similar beating given to Sherry Miller, another employee of the sauna, on or about October 30, 1971.

During the beating of Sherry Miller, the defendant forced her to perform fellatio on himself. This act resulted in the charge of sexual perversion, contrary to sec. 944.17(1), Stats.

The two counts of party to false imprisonment, contrary to ss. 940.30 and 939.05(1) and (2)(b), Stats., arise out of the confinement of Vennie Rainey and Sherry Miller in connection with their respective treatments and beatings.

The charge of obstructing an officer, contrary to sec. 946.41(1), Stats., arises out of an incident that occurred on November 6, 1971. a police officer went to the sauna to locate a runaway juvenile girl. The defendant told the officer that the girl was not present and he did not know her, although she was actually in the room at the time and he did know her.

ISSUES

Three issues are raised on this review:

1. Was the trial court's refusal to allow lay witnesses to give opinions as to the defendant's sanity, based upon their personal observations, prejudicial error?

2. Was the trial court's refusal to instruct the jury as to the consequences of the verdict if they found the defendant not guilty by reason of mental disease or defect prejudicial error?

3. Should the legal definition of antisocial conduct be interpreted to conform to the medical defintion of antisocial personality disorder?

LAY WITNESS' OPINION TESTIMONY.

The defendant submitted that the trial judge refused to permit Vennie Rainey and Sherry Miller, the two victims, and Kathi Ghinter, a third member of the personnel of the sauna, testify as lay witnesses as to their opinion as to the sanity of the defendant. Further that such refusal was pejudicial error.

The general rule in Wisconsin is that the admission of opinion evidence rests largely in the discretion of the trial court. York v. State (1970), 45 Wis.2d 550, 559, 173 N.W.2d 693. The opinion testimony of lay witnesses has been admitted in evidence on many subjects. It has been considered on the issue of insanity. Lowe v. State (1903), 118 Wis. 641, 96 N.W. 417; Duthey v. State (1907), 131 Wis. 178, 111 N.W. 222; Robinson v. State (1910), 143 Wis. 205, 126 N.W. 750. However, the fact that lay witnesses' opinion testimony on the issue of insanity has been sanctioned, does not mean that these cases stand for the proposition that a lay witness categorically has the right to give opinion testimony on the issue of insanity.

The use of the opinion testimony of the witnesses was discussed at a conference in chambers. The trial judge stated he would permit the witnesses to give their impressions and observations, but not an opinion on the state of the defendant's sanity. Each of these witnesses were questioned extensively and the jury had the benefit of the impressions and observations of the defendant's conduct, actions, manners, expressions and conversations. The jury had the ultimate duty of determining the issue of fact as to whether the defendant was mentally responsible for his criminal actions. In order to arrive at that decision, they had the benefit of the impressions and observations of these three witnesses, and the expert opinion of two qualified psychiatrists, one of whom testified favorably to the defendant, the other unfavorably. A police sergeant of the city of Monona was also called as a witness. Counsel for the defendant asked this witness if he had any idea what the defendant meant by a certain statement. Objection was entered and the trial court instructed counsel to make the question more positive. The trial court did not sustain the objection, and counsel did not pursue the matter further.

From our examination of the record, it does not appear that any of these witnesses were ever asked for an opinion as to the defendant's state of insanity, and no offer of proof was ever made. Even if it was prejudicial error for the trial judge to refuse to permit these lay witnesses to give opinion evidence on the issue of insanity, it is incumbent upon trial counsel to make a proper record. We are of the opinion the trial judge did not abuse his discretion in refusing to permit these lay witnesses to give opinion testimony on the issue of defendant's insanity.

INSTRUCTIONS.

Defendant requested the trial court to instruct the jury that if the defendant was found not guilty by reason of mental illness or disease, he wold not be released, but committed to the Department of Health & Social Services to be placed in an...

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14 cases
  • Erdman v. State, 1535
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1987
    ...Lister, 122 N.H. 603, 448 A.2d 395 (1982)); and Wisconsin ( State v. Shoffner, 31 Wis.2d 412, 143 N.W.2d 458 (1966), Simpson v. State, 62 Wis.2d 605, 215 N.W.2d 435 (1974)).6 Georgia (Ga.Code Ann. § 17-7-131(b)(3) (1987 Supp.), Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985)); Hawaii (H......
  • State v. Magett
    • United States
    • Wisconsin Supreme Court
    • 16 Julio 2014
    ...59 Wis.2d at R205 (emphasis added). ¶ 59 A few months after the new rules took effect, this court decided Simpson v. State, 62 Wis.2d 605, 609, 215 N.W.2d 435 (1974), in which it said: The general rule in Wisconsin is that the admission of opinion evidence rests largely in the discretion of......
  • State v. Doyle
    • United States
    • Wisconsin Supreme Court
    • 6 Mayo 1980
    ...substance the defendant offered to sell her was marijuana was sufficient to establish probable cause. Moreover, in Simpson v. State, 62 Wis.2d 605, 215 N.W.2d 435 (1974), this court held "The general rule in Wisconsin is that the admission of opinion evidence rests largely in the discretion......
  • Brackin v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 29 Junio 1982
    ...13A-3-1(b), the legislature has "deliberately and positively excluded antisocial conduct from the statute." Simpson v. State, 62 Wis.2d 605, 215 N.W.2d 435, 439 (1974). Reviewing the trial judge's charge to the jury as a whole and in light of the contentions and evidence, we find no error. ......
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