State v. Anderson, 2005 WI 54 (Wis. 5/4/2005)
| Decision Date | 04 May 2005 |
| Docket Number | No. 2003AP3478-CR.,2003AP3478-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Derek Anderson, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
APPEAL from an order of the Circuit Court for Jefferson County, William F. Hue, Judge. Affirmed.
For the defendant-appellant there were briefs by Neil C. McGinn and William J. Tyroler, assistant state public defenders, and oral argument by Neil C. McGinn.
For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1 This case comes to us on certification from the court of appeals. The defendant, Derek Anderson, formerly known as Andrew Krnak, appealed an order of the Circuit Court for Jefferson County, William F. Hue, Judge, binding him over for trial for the murder of his father, Allen Krnak. Anderson claimed that the evidence presented at the preliminary hearing failed to establish probable cause for territorial jurisdiction in Wisconsin and venue in Jefferson County.
¶ 2 The court of appeals certified two questions to this court: 1) Whether the mens rea component of first-degree intentional homicide constitutes a "constituent element" of that crime within the meaning of Wis. Stat. § 939.03(1)(a) (1997-98),1 such that the state has territorial jurisdiction over a charge of first-degree intentional homicide if an individual commits an act in Wisconsin manifesting an intent to kill; and 2) Whether a Wisconsin county where an act manifesting intent to kill occurred may claim venue under Wis. Stat. § 971.19(2). In addition, the court of appeals noted that the State was challenging an evidentiary ruling made by the circuit court that struck certain hearsay evidence, contending that there was probable cause to establish territorial jurisdiction and venue with this evidence admitted.
¶ 3 We conclude, based on the language of § 939.03(1)(a) and its legislative history, that the mens rea element of first-degree intentional homicide constitutes a "constituent element" under § 939.03(1)(a). Section 939.03(1)(a), which requires that one of the constituent elements of an offense "takes place" in Wisconsin for the state to have territorial jurisdiction, is satisfied upon proof that the defendant committed an act in Wisconsin manifesting an intent to kill. Further, we conclude that the circuit court erred in striking certain hearsay evidence at the preliminary hearing and that with this evidence properly admitted under the residual hearsay exception, the State presented sufficient evidence of venue under Wis. Stat. § 971.19(1) because the State established that there is probable cause to believe that Anderson killed his father in Jefferson County.
¶ 4 Derek Anderson's family——Thomas (his brother), Donna (his mother), and Allen (his father)——disappeared on or around July 2, 1998. They were last seen by Anderson as they were preparing to leave their home in Jefferson County for their cabin in Waushara County over the Fourth of July holiday. In December 1999, the skeletal remains of Allen Krnak were found in a remote, wooded area of Jackson County, North Carolina. On August 18, 2003, the State filed a criminal complaint against Anderson, charging him with first-degree intentional homicide of his father on or about July 2, 1998, in the town of Sullivan, Jefferson County.2
¶ 5 The preliminary hearing was set for October 6, 2003. Prior to the preliminary hearing, the parties agreed to the following stipulation:
1. Allen Krnak was the father of the Defendant in the above captioned matter.
a. Allen Krnak is deceased.
2. The Defendant attended Western Carolina University from December 1990 through August 1991.
3. On July 2, 1998 at 3:10 p.m. a phone call was placed from the Krnak residence on Lundt Road to Allen Krnak's place of employment, Wisconsin Electric Power Company.
The following is a summary of the evidence presented at the preliminary hearing.
¶ 6 The site where Krnak's remains were found in North Carolina is a national forest, which is located approximately seven to ten miles from Western Carolina University. Anderson had previously attended school here. The cause of Krnak's death was attributed to blunt-force trauma to the head and face.
¶ 7 Anderson told law enforcement officials that his parents and brother left their place of residence on July 2, 1998, for their cabin in Waushara County and were due home on Sunday, July 5. Krnak planned to visit a friend and coworker, James Gradel, who owned lake property near the Krnaks' cabin. On July 2, just before he left work for the holiday weekend, Gradel provided Krnak with a hand-drawn map of his property and the surrounding area, as Krnak had never been there. Gradel testified that Krnak placed the map in a briefcase or other carrying device. Gradel testified that Krnak was generally in a good mood that day and was looking forward to a long Fourth of July weekend. Gradel left work around 3:00 or 3:30 p.m. and never saw Krnak again. Anderson told police that his father returned home from work around 4:30 p.m.
¶ 8 On July 2, 1998, at 3:10 p.m., a phone call was placed from the Krnak residence in Jefferson County to Allen Krnak's place of employment. Anderson initially told police that he did not recall phoning his father at work on July 2, 1998. However, Anderson later informed his aunt that he called his father at work that day because he was at his parents' residence working on his car and needed to find a tool. In addition, Anderson told police that his brother returned home from work between 3:20 and 3:25 p.m. and his mother returned home shortly after 4:00 p.m.
¶ 9 Another one of Krnak's coworkers, Bill Connelly, testified that he had a conversation with Krnak shortly before 4:00 p.m. on July 2, 1998, and that Krnak seemed "extremely kind of distressed." Connelly testified that he had known Krnak since 1972 and could not remember ever seeing him that upset before. According to Connelly, Krnak told him that "I have to fly out of here" and that "[w]e may have to go to a funeral." Connelly testified that he recalled that Krnak had an Army buddy who was ill in Minnesota, although he was unclear if that was the reason why Krnak was upset. Krnak was scheduled to leave work at 4:00 p.m.
¶ 10 During the criminal investigation, Detective Howe of the Jefferson County Sheriff's Department asked Anderson to prepare an activity log to account for his whereabouts over the Fourth of July weekend. The entry in the activity log for Thursday, July 2, indicated that after spending some time at UW-Whitewater, Anderson arrived at his parents' residence at about 4:00 p.m. Anderson stated that when he arrived:
Tom was working on my computer. Mom got home shortly after I did and started packing for the weekend. I worked on my Mustang for a few hours and then watched TV. Dad got home before 5 and loaded up the truck. Tom grabbed his stuff on the way out the door and drove down the driveway. It was probably 5:15 by now. This was the last I saw of them.
¶ 11 Anderson indicated that on Friday, July 3, he mainly worked on his car, watched television, and played on his computer. Anderson noted that on Saturday, July 4, he worked on his car, drank alcohol, and watched the fireworks. On Sunday, July 5, Anderson indicated that he worked on his car some more, watched television, made a campfire, and cooked some brats. Anderson stated that his family was
¶ 12 Anderson indicated that on Monday, July 6, he woke up early because classes were starting and he had a 10:45 a.m. class. He indicated that he noticed that his family had yet to return home, thought this "was odd," but went to school anyway. Anderson indicated that when he returned home from classes at 4:00 p.m. he began to get worried. He stated:
Tom wasn't home yet which was strange since he always gets home at 3:30. Nothing had changed at home so I started to get worried. Mom and dad didn't get home on time so about 5:00 I drove up to the cabin. I was definitely worried by now since dad always calls if plans change. There wasn't anyone home at the cabin. And I talked to the neighbors . . . . They didn't remember seeing anyone home all weekend. I called the Waushara Co. Sheriff to see if there had been an accident. They had no report and said to check the State Patrol and check with relatives in the area. I also stopped at a deputy's house a mile down the road and asked him to watch for Tom's truck. He hadn't remembered any activity at the cabin for awhile. When I got home I called one of mom's relatives. They hadn't seen anybody so I called the State Patrol. They had no reports of an accident and said to wait. A Jeff. Co. deputy came by Tuesday to check if anyone was home here. I guess Aunt Mary didn't realize I was here.
¶ 13 On July 10, 1998, Anderson contacted Warden Scott Bowe in Sauk County. He informed Bowe that his parents and brother were missing and needed help locating them. Anderson informed Bowe that his family might have been in the Mirror Lake area scouting hunting ground. Anderson told Bowe that his parents were driving a pickup truck and described the pickup truck. Anderson told Bowe that his family left for their cabin in Waushara County on July 2 and were due home July 5, but he believed that they never made it to their cabin.
¶ 14 Bowe asked Anderson why he was contacting a conservation warden and Anderson responded that the sheriff's department was not being helpful.3 Anderson provided Bowe with a list of possible locations where his family may have gone. Relying on the information provided by Anderson, Bowe located the pickup truck in about...
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