State v. Bansley
| Decision Date | 09 February 1989 |
| Docket Number | No. 88-0131-CR,88-0131-CR |
| Citation | 439 N.W.2d 644,149 Wis.2d 398 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. James A. BANSLEY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Green county: WILLIAM D. JOHNSTON, Judge.
Before DYKMAN, EICH, and SUNDBY, JJ.
James Bansley appeals from a judgment convicting him of second-degree murder, contrary to sec. 940.02(1), Stats., and an order denying his motion for postconviction relief. Bansley claims: (1) The trial court abused its discretion in admitting evidence of other acts of physical abuse he allegedly committed against the victim. (2) The evidence was insufficient to support his conviction of second-degree murder. (3) The trial court abused its discretion in submitting photographs to the jury which depicted autopsy and medical procedures performed upon the victim. (4) The prosecutor's closing argument violated his right to a fair trial. (5) This court should grant him a new trial in the interest of justice. (6) The trial court abused its discretion in imposing on him the maximum sentence of twenty-years imprisonment.
We decide Bansley's claims against him, affirm the judgment and deny his motion for postconviction relief.
On the evening of January 13, 1986, Bansley was babysitting his three-year old stepdaughter, Ashley Krupke. Shortly before 10 p.m. Bansley summoned the Green county emergency medical service to his home. Officers of the Monroe police department were dispatched to the residence. Ashley was unconscious and having difficulty breathing. The emergency medical service transported her to St. Clare Hospital in Monroe where she was treated by Dr. Duemler and Dr. Sehloff. She was flown to the University of Wisconsin Hospital. In flight, she was given emergency treatment by Dr. Dietrich, a critical care specialist.
Dr. Dietrich and Dr. Perloff, the medical director of the pediatric intensive care unit at University Hospital, continued to give Ashley emergency care at the University Hospital. Ashley was also treated by a neurosurgeon, a neurologist, and a general surgeon.
Ashley failed to regain consciousness and died the following day. An autopsy was performed by Dr. Huntington, a pathologist.
Bansley gave voluntary statements to officers of the Monroe police department. He was charged in Ashley's death with second-degree murder.
First, that the defendant's conduct was imminently dangerous to another;
Second, that his conduct was of such a character that it evinced a depraved mind, regardless of human life;
Third, that there was a relation of cause and effect between the death of [the victim] and the defendant's conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.
Wis J I--Criminal 1110.
Bansley does not deny that he killed Ashley. 1 He does not claim that he killed her accidently but does claim that he did not intend to harm her. He contends that his conduct constitutes homicide by reckless conduct, not second-degree murder. "Reckless conduct consists of an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury." Section 940.06(2), Stats.
Causation being conceded, the state was required to prove beyond a reasonable doubt (a) that Bansley's conduct which killed Ashley was imminently dangerous, and (b) that his conduct evinced a depraved mind, regardless of human life.
We review the evidence to determine "if any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt...." State v. Alles, 106 Wis.2d 368, 377, 316 N.W.2d 378, 382 (1982), quoted in State v. Johnson, 135 Wis.2d 453, 458, 400 N.W.2d 502, 504 (Ct.App.1986) (emphasis in original). We view the evidence in the light most favorable to the verdict. Bautista v. State, 53 Wis.2d 218, 223, 191 N.W.2d 725, 728 (1971). Under part I(a) which follows, we consider only the evidence of Ashley's fatal injuries and Bansley's conduct which the jury could have inferred caused those injuries. Evidence of Bansley's prior physical abuse of Ashley is not relevant on the issue of whether his conduct which resulted in Ashley's death was imminently dangerous. Under part I(b), however, we also consider the evidence of Bansley's prior physical abuse of Ashley because such evidence is relevant to establish the depraved mind element of second-degree murder and to corroborate the medical testimony as to Ashley of repeated acts of child abuse, or battered child syndrome.
(a) Imminently Dangerous Conduct. Bansley's conduct must have been "inherently and consciously dangerous to life and not such as might casually produce death by misadventure." Wis. J I--Criminal 1110.
"Inherent" means: "Existing as an essential constituent or characteristic; intrinsic." The American Heritage Dictionary, 661 (2d ed. 1985).
"Death need not be intended, but the conduct as well as the instrumentality used must have the potential to cause death." State v. Stawicki, 93 Wis.2d 63, 71, 286 N.W.2d 612, 615 (Ct.App.1979).
The medical personnel testified that Ashley had the following injuries: about twenty bruises, a hematoma to the back of her head, rib fractures, compression fractures of three thoracic vertebrae, an enlarged pericardial sac, a lacerated liver, retinal hemorrhaging, subdural brain hemorrhaging and diffuse brain swelling.
The medical experts agreed that the pericardium, rib and vertebrae injuries did not occur at the time Ashley's brain was injured, and that these injuries did not contribute to her death. They also agreed that the laceration of her liver was not a cause of death.
Bansley explained to city police that when Ashley sustained her fatal injuries, they were play-wrestling and she hit her head on the floor. He later gave the same version to police investigators. When the investigators told him that his story did not square with the doctors' conclusions, Bansley admitted that he became angry because Ashley was not minding him, shoved her "pretty hard," and she hit her head on a doorjamb. When he later found that she was not breathing, he picked her up by the shoulders, not supporting her head, and shook her "pretty hard" in an attempt to revive her. He also applied cardiopulmonary resuscitation.
Ashley was a three-year old child. Bansley was nineteen-years old and weighed almost 200 pounds. "[T]he relative physical characteristics of the victim and assailant [are] factors which may be considered in determining whether conduct is imminently dangerous." Virgil v. State, 84 Wis.2d 166, 176, 267 N.W.2d 852, 857 (1978) (quoting Turner v. State, 76 Wis.2d 1, 13, 250 N.W.2d 706, 713 (1977)). Bansley's physical strength was an instrumentality having the potential to cause Ashley's death.
Three of the treating physicians--Dr. Duemler, Dr. Dietrich and Dr. Perloff--testified for the state. Dr. Huntington, also testified. In child abuse cases, the testimony of medical experts as to what could not have happened or what must have happened to cause the child's injuries is "crucial." State v. Wilson, 145 Wis.2d 143, 151, 426 N.W.2d 56, 59 (Ct.App.1988). Child abuse cases are secretive and seldom provable, if ever, with direct evidence. State v. Hooper, 101 Wis.2d 517, 540, 305 N.W.2d 110, 121 (1981). The testimony of medical experts may be the only way to disprove the accused's version of what happened to the child. See State v. Johnson, 135 Wis.2d at 458, 400 N.W.2d at 504 ().
Dr. Perloff testified to a reasonable degree of medical certainty that Ashley's death was caused by a traumatic injury to the head leading to multiple injuries to the brain, associated with the stopping of breathing and a denial of oxygen to the brain. The autopsy showed that Ashley's brain had swelled from subdural bleeding, creating an intra-cranial pressure which shut off the flow of blood to the brain. Dr. Perloff testified that Ashley's brain injury was consistent with her head striking a doorjamb only if she was shoved with a force comparable to a fall from an eight to ten-foot height.
Dr. Duemler testified that it was unlikely that Ashley's brain injury could have been caused as Bansley described unless his push of Ashley was "severe."
From the severity of Ashley's injuries and the medical testimony as to the force necessary to cause those injuries, the jury could reasonably find that Bansley's conduct was imminently dangerous to Ashley's life. See State v. Hooper, 101 Wis.2d at 543, 305 N.W.2d at 123 ().
(b) Conduct Evincing a Depraved Mind. "[D]epravity of mind[,] ... exists when the conduct causing death demonstrates an utter lack of concern for the...
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