State v. Bergenthal

• Decision Date: 26 June 1970
• Docket Number: No. S,S
• Citation: 178 N.W.2d 16,47 Wis.2d 668
• Parties: STATE of Wisconsin, Respondent, v. August BERGENTHAL, Appellant. tate 24.
• Court: Wisconsin Supreme Court

Page 16

178 N.W.2d 16

47 Wis.2d 668

STATE of Wisconsin, Respondent, v. August BERGENTHAL, Appellant.

No. State 24.

Supreme Court of Wisconsin.

June 26, 1970.

Rehearing Denied Sept. 1, 1970.

On November 8, 1968, the defendant entered pleas of not guilty and not guilty by reason of insanity to charges of first degree murder and attempted murder. A bifurcated trial was held. The jury found the defendant guilty of first degree murder and guilty of endangering safety by conduct regardless of human life. The jury found the defendant sane at the time of the commission of the offenses. On April 14, 1969, the trial court sentenced the defendant to consecutive terms of life imprisonment on the murder charge and five years' imprisonment on the charge of endangering safety by conduct regardless of life. Defendant appeals from the judgment of conviction and sentences imposed.

The following synopsis of facts does not aspire to completeness. The statement of facts in defendant's brief takes forty-three pages; the statement of facts in the state's brief takes twenty-eight pages. The record in this case is 3,211 pages in length. The events on the evening of the commission of the offense are described as follows:

On September 20, 1968, at approximately 7:30 p.m., Russell Wirth was at his home with his wife, Mary. They were seated in the kitchen. The doorbell rang, and Russell Wirth went to answer the door. He returned to the kitchen to inform his wife that the defendant was there, was in some trouble, and that dinner would be delayed. Russell Wirth then went into the living room while his wife went up the back stairs to make a long distance phone call.

The wife, Mary Wirth, testified that as she passed near the front stairway in the upstairs hallway she heard voices coming from the living room and heard her husband say, 'But, Augie, that was so long ago.' She started down the front stairway, and testified that she could see her husband and the defendant sitting on the couch, half facing each other. She observed the defendant holding a pistol aimed at her husband's chest, and heard the defendant say, 'You are not going to live.' She testified that she ran up the stairs and grabbed a plate from a table. As she ran down the stairs, she saw the defendant fire two shots at her husband. The defendant was half standing over her husband, who was still on the couch. She ran over and hit the defendant on the head with the plate. The defendant turned, ran into the foyer and fired a number of shots at Mary Wirth, one striking her in the leg. The defendant ran from the house. Mary Wirth testified that she called a telephone operator and an ambulance and the police later arrived at the Wirth residence. Mrs. Wirth and her husband were conveyed to a hospital. On the same night, Russell Wirth was pronounced dead, death resulting from a single gunshot wound in the chest. Mary Wirth was confined in the hospital for approximately one month, recovering from the bullet wound in her leg.

The defendant took the stand in his own behalf on the guilt phase of the trial. He testified that he remembered being on the front steps of the Wirth residence, and Russell Wirth inviting him into the home. Wirth excused himself and went into the kitchen. Wirth returned and sat on the couch with the defendant. The defendant testified that he reached to his belt and pulled out a gun which he had purchased three weeks earlier. He pointed it at Russell Wirth and said something like, 'I am going to have to shoot you,' or 'I may have to shoot you.' The defendant described a shot being fired, and the impact of Wirth's body falling upon him, but was unable to recall which occurred first. The defendant recalled seeing blood, a struggle for the gun and trying to free himself from Wirth's grip. The defendant testified that he saw Mary Wirth coming into the room; he did not recall firing any shots at Mary Wirth; he testified that he turned and walked from the house. He described his subsequent trip to Chicago, to Los Angeles, to San Diego and his surrender to police authorities there.

Roland J. Steinle, Jr., Robert E. Hackett, Jr., and Gerald P. Boyle, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann. Dist. Atty., Milwaukee County, Michael Ash, Asst. Dist. Atty., Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

On motions after verdict, one hundred claims of error were asserted in the trial court. In a motion before this court to stay execution of the sentence, defendant's counsel asserted that ninety-nine survived to be raised on this appeal. Those not commented upon the this opinion were considered and found to be repititious, without merit or without significant effect upon the verdict and judgment reached.

Charged with first degree murder and attempted murder, the defendant entered pleas of not guilty, and not guilty by reason of insanity. So a bifurcated trial was held. As the trial was divided, so will be this opinion, dealing first with the phase of the trial related to guilt or innocence per se.

TRIAL AS TO GUILT.

The guilt phase of the trial lasted twelve days, and included six night sessions. Over thirty witnesses took the stand, and over one hundred exhibits were introduced into evidence. As to the jury verdict finding the defendant guilty of first degree murder and endangering safety by conduct regardless of life, the defendant makes the following significant claims of error.

SUBMISSION OF LESSER OFFENSES.

Defendant claims it was prejudicial error for the trial court to refuse to submit to the jury alternatives of second degree murder, homicide by reckless conduct, and reckless use of a weapon. Multiple verdicts are to be submitted to the jury when there is a reasonable basis in the evidence for a conviction of either the greater or the lesser offense. The rationale of the rule has been stated by this court as follows:

'* * * if the evidence, in one reasonable view, would suffice to prove guilt of the higher degree beyond a reasonable doubt, and if, under a different, but reasonable view, the evidence would suffice to prove guilt of the lower degree beyond a reasonable doubt, but leave a reasonable doubt as to some element included in the higher degree but not in the lower, the court should, if requested, submit the lower degree as well as the higher. * * *' ¹

The key word in the rule is 'reasonable.' The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if 'under a different, but reasonable view,' the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury. However, there is not to be read into the rule the requirement that 'there are not reasonable grounds on the evidence to convict of the greater offense.' ² That goes too far. Where the defendant is able to demonstrate that there is no reasonable view of the evidence that warrants conviction on the greater offense, and the trial court agrees, there remains no issue on such charge to go to the jury. The purpose of multiple verdicts is to cover situations where under different, but reasonable, views of the evidence there are grounds either for conviction of the greater or of the lesser offense. The lesser degree verdict is not to be submitted to the jury unless there exists reasonable grounds for conviction of the lesser offense and acquittal on the greater.

On the challenge to the form of the verdict, the dispute here revolves around the requirement that for first degree murder the state must prove that the defendant had '* * * the mental purpose to take the life of another human being.' ³ The defendant argues that there is evidence in the record to give credence to the theory that a struggle took place between defendant and Russell Wirth, the victim, before the fatal shooting. Powder burns on a couch, the path of the bullet and statements of the defendant make up such evidentiary support for the theory of a struggle. However, a review of the evidence on the issue of intent leads us to conclude, as did the trial court, that there is no reasonable basis for finding that the defendant lacked the intent to murder Russell Wirth. The defendant had purchased a gun three weeks earlier; the defendant had told a family friend that he was going to kill Russell Wirth; the victim's wife saw the defendant holding the gun to Russell Wirth's chest, and heard the defendant state, 'You are not going to live'; the defendant admitted holding the gun at Russell Wirth's chest; the defendant admitting saying to Russell Wirth, 'I am going to have to shoot you'; the defendant admitted shooting Russell Wirth. The defendant's testimony indicates that any struggle which took place occurred after the first shot was fired. The defendant confessed to the murder a number of times; he told a priest in San Diego he would kill Russell Wirth again; he told San Diego police the grievances which he held against Russell Wirth and stated that they were the reasons for shooting him. The trial court concluded: 'There was in the Court's opinion no evidence presented which would provide reasonable grounds for conviction of a lesser degree and thus have justified the submission of a lesser degree of homicide. * * *' We reach the same conclusion.

IMPEACHMENT OF WIDOW.

The defendant argues that the trial court unduly restricted the impeachment of Mary Wirth, the widow of the victim and the person wounded by the defendant. The widow had testified that she did not know if she had refused to speak to police officers concerning the shootings until she had spoken to her attorney. The trial court barred an attempt, on cross-examination, to impeach this testimony. However, Police Officer Wroblewski did testify that Mary Wirth had declined to answer...