State v. Asfoor

Citation249 N.W.2d 529,75 Wis.2d 411
Decision Date18 January 1977
Docket NumberNo. 75--511--CR,75--511--CR
PartiesSTATE of Wisconsin, Respondent, v. Ronald A. ASFOOR, Appellant.
CourtUnited States State Supreme Court of Wisconsin

Patrick R. Doyle, La Crosse, for appellant.

Betty R. Brown, Asst. Atty. Gen. (argued), for respondent; Bronson C. La Follette, Atty. Gen., on brief.

The defendant appellant, Ronald Asfoor, was found guilty by a jury of two offenses: (1) A party to the crime of injury by negligent use of a weapon (secs. 940.24(1) and 939.05, Stats.), and (2) carrying a concealed weapon (sec. 941.23(1)). The defendant was sentenced to one year in the state prison on the negligent injury charge and six months in the county jail on the concealed weapon charge, to be served concurrently. Motions for acquittal notwithstanding the verdict and for a new trial were denied. The defendant appeals.

BEILFUSS, Chief Justice.

The defendant has raised a multitude of issues. The pertinent facts the jury could accept, disputed in some detail, are as follows:

On September 24 and 25, 1974, Bernard Kutil and Hope Olson, both former La Crosse residents, were staying at the Holiday Inn in La Crosse. Kutil invited David Layland to a party at the motel. Layland and Kutil were involved in a fist fight and Layland was quite severely beaten. Layland left and returned with Anthony Schubert. Another fight took place and Kutil again beat Layland and Schubert. Schubert left without Layland in Layland's car, stating he would be back. Schubert proceeded to the appartment of the defendant. Ronald Asfoor. His purpose was 'to get some more people and do some hostile damage to Mr. Kutil.' Andrew Jewell and the defendant's girlfriend were with the defendant when Schubert arrived. Schubert told Jewell he 'wanted to see (Kutil) get shot.' Defendant Asfoor was standing 'close by' when the statement was made. Initially Asfoor seemed 'quite noervous' about this plan, but he 'agreed to go with it' and 'agreed to drive . . . over there.' Jewell went into another room and got a shotgun and .357 Magnum pistol and took them outside to Asfoor's car. Jewell placed the shotgun in the back seat of Asfoor's 1972 White Cadillac convertible and Schubert took the holstered handgun from Jewell. Asfoor followed Jewell and Schubert as they left the apartment. When all three were in the car the defendant took the handgun from Schubert and placed it on the floorboard.

Defendant Asfoor drove the car to the Holiday Inn. When the three arrived, Kutil came out onto the balcony adjoining the room in which he was staying. Asfoor got out of the car and asked, 'Is that the smart, . . . punk?' Schubert got out of the driver's side of the car and Jewell got out on the passenger side. Jewell had the shotgun in his hands and was removing it from the case. Kutil jumped from the second floor balcony and began moving toward the threesome. Schubert then went back into the car to get the handgun. Schubert moved toward Kutil and Jewell with the handgun pointing at Kutil. Asfoor then forceably disarmed Schubert and was returning to the car when Jewell shot Kutil. Kutil was struck by thirty-three shotgun pellets in his right leg, three in his left leg and one in his left wrist. He continued moving toward the threesome and another fight ensued. Prior to the arrival of the La Crosse police, Jewell, Schubert and Asfoor agreed that they would tell the police that they found Kutil going through Asfoor's car. When the police arrived Jewell recited the concocted story and Asfoor agreed by nodding his head and saying 'yes.' The police took the shotgun out of the back seat and asked Asfoor whether there were any other guns in the car. Asfoor said there were and was instructed to give them to the police. He reached under the right front seat and removed a bowie knife which he gave the police. He then removed a holster from the same place and finally, from the same place, removed the .357 Magnum handgun. Prior to taking the handgun out from underneath the seat he removed the cartridges. Asfoor, Schubert and Jewell were arrested.

A complaint was issued on September 25, 1974. In addition to the aforementioned charges of carrying a concealed weapon and party to the crime of injury by negligent use of a firearm, the complaint charged Asfoor with party to the crime of injury by conduct regardless of life, a violation of secs. 940.23 and 939.05, Stats. An information was filed on October 2, 1974.

On January 17, 1975, the newly elected district attorney moved that the counts charging party to the crimes of injury by negligent use of a firearm and conduct regardless of life be dismissed. The trial judge noted that the district attorney was moving to dismiss the felony charges and retain only the misdemeanor. After a discussion on the record where the judge pointed out he strongly disagreed with the motion to dismiss, it was granted. The judge stated he would bet his 'bottom dollar that a jury would find guilt,' and that the defendant knew full well if he got before a jury 'he was probably in trouble.' Subsequent to the dismissal, it became known that Asfoor and members of his family had contributed to the district attorney's election campaign fund. This issue received editorial and front page coverage in the La Crosse papers. Because of the publicity and the possible conflict of interest, the district attorney requested that a special prosecutor be appointed. A special prosecutor was appointed and at the same time the court, sua sponte, ordered that the dismissal of the two charges be vacated. The court stated that if the special prosecutor believed these two counts should be dismissed he could bring such a motion and it would be granted. The defense attorney maintained that the court lost jurisdiction as to these counts when the motion for dismissal was granted, and if they were to be reissued it would have to be by the county court. A motion for change of venue was a granted. Subsequently, after reviewing the charges, the district attorney pro tem decided that the charge as to party to the crime of injury by conduct regardless of life should be dismissed. This motion was granted.

The evidence was somewhat conflicting concerning what occurred prior to the shooting. Anthony Schubert was given immunity and was called by the state; however, the defense confronted him with prior inconsistent statements. Schubert also testified that Asfoor threatened to beat him up if he testified against Asfoor. On May 15, 1975, the jury found Asfoor guilty of both charges. Postconviction motions were made and denied. The defendant was sentenced to one year in the Wisconsin State Prison on the negligent shooting charge and six months in the county jail concurrently on the concealed weapons charge. The sentence was stayed pending appeal.

The defendant presents fourteen issues which he contends are grounds for reversal. We have rephrased them to some degree and view them as eight issues:

1. Whether the trial court lost jurisdiction over the charge of injury by negligent use of a weapon when it dismissed it.

2. Whether the complaint stated probable cause to support the charges of injury by negligent use of a weapon and going armed with a concealed weapon.

3. Whether the crime of injury by negligent use of a weapon committed by intentionally aiding and abetting requires specific intent and whether this is a crime known to law.

4. Whether there was error in the submission of jury instructions concerning both charges.

5. Whether the evidence was sufficient to support a finding of guilt.

6. Whether secs. 940.24(1) and 941.23(1), Stats., as applied, are vague, overbroad and indefinite and therefore unconstitutional.

7. Whether the trial judge was biased.

8. Whether the sentence classification of secs. 940.24 and 940.08, Stats., is a deprivation of equal protection of the laws.

The defendant contends that the trial court lost its jurisdiction over the sec. 940.24(1), Stats., charge, injury by negligent use of a weapon, when it dismissed it on January 17, 1975. In support of this argument he cites 22 C.J.S. Criminal Law sec. 165. The following quote from that section is helpful:

'As a general rule the jurisdiction of a court depends on the state of facts existing at the time it is invoked, and once jurisdiction of the person and subject matter attaches it continues until final disposition or determination of the case in the mode prescribed by law.' Id. at p. 422.

Once jurisdiction has attached it continues until final disposition. The dismissal by the circuit judge of two of the three counts in the information was not the final disposition. Jeopardy had not attached. 1 1 The dismissal was without prejudice and the charges could be reinstated. The circuit court had subject-matter jurisdiction as to the original charges. Wis. Const., art. VII, sec. 8. It had the power to determine the facts and apply the law. 2 The court also had personal jurisdiction over the defendant because it had not dismissed all of the charges against him. After the dismissal, Asfoor still remained personally before the court. 3 Because the court had personal jurisdiction over the defendant and had subject-matter jurisdiction as to all the charges, it had the power to vacate its order dismissing the charges. The trial court had both personal and subject-matter jurisdiction.

A more appropriate question is whether the court erred in vacating the dismissal. The district attorney brought the motion before the court seeking the appointment of a special prosecutor. Because of a possible conflict of interest, it was recognized that a special prosecutor was appropriate. In appointing the special prosecutor the trial court also reinstated the original charges. In effect, the court was putting the case in the posture it had been before actions possibly influenced by a conflict of interest arose. The court did not initiate any charges, it merely reinstated those issued by the...

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