State v. Blair, 90-2650-CR

• Decision Date: 23 July 1991
• Docket Number: No. 90-2650-CR,90-2650-CR
• Citation: 473 N.W.2d 566,164 Wis.2d 64
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Bruce BLAIR, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 566

473 N.W.2d 566

164 Wis.2d 64

STATE of Wisconsin, Plaintiff-Respondent, v. Bruce BLAIR, Defendant-Appellant. ^d

No. 90-2650-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 7, 1991.

Opinion Released July 23, 1991.

Opinion Filed July 23, 1991.

Robert N. Meyeroff, Milwaukee, for defendant-appellant.

James E. Doyle, Atty. Gen., and Christopher G. Wren, Asst. Atty. Gen., for plaintiff-respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Bruce Blair appeals from a judgment entered on a jury verdict convicting him of first-degree reckless homicide while possessing a dangerous weapon in violation of sections 940.02(1) and 939.63(1)(a)2, Stats. He raises two issues. First, he contends that there was insufficient evidence to support the jury's verdict. Second, he argues that the trial court erroneously precluded him from offering expert testimony concerning the vagaries of eye-witness testimony. We affirm.

I.

Blair was convicted of killing Raymond Harris. Bruce Bullock was the only witness to the incident who testified. Whether there was sufficient evidence for the jury to have found Blair guilty of first-degree reckless homicide turns on an evaluation of Bullock's testimony and the testimony of the physician who did the autopsy on Harris.

Bullock testified that at around 8 p.m. on February 22, 1989, he was in the Shangri-La, a Milwaukee tavern. Harris, a man whom Bullock had known for several years, was also in the tavern. Bullock left the tavern, and Blair, whom Bullock had also known for a couple of years but to whom he had never spoken, was standing outside. A short time later, Harris left the tavern. Harris was confronted by Blair who, according to Bullock's testimony, cursed Harris. Bullock told the jury what happened next, as Blair and Harris stood just inside the tavern's outer door:

Q What's the next thing you saw after [Blair] said those words?

A I seen him put [sic ] out a gun.

Q And what did you see [Blair] do with the gun?

A He started hitting [Harris] with it.

Bullock testified that Blair hit Harris "about" three times on the head with the gun, and that "after about the third hit, the gun went off." According to Bullock, Harris fell down and Blair ran away. Bullock testified that he "panicked" and walked away without helping Harris. There was no testimony as to how Blair was holding the gun or what parts of the gun struck Harris. Indeed, Bullock testified that the gun was small and that he did not even realize that it was a firearm until it discharged.

By stipulation, the preliminary-examination testimony of Dr. John Teggatz, the physician who did the autopsy on Harris, was read to the jury. Dr. Teggatz testified that Harris died from a gunshot wound to his chest, and that the bullet's track had "an extremely steep angle," going "from top nearly straight down through the lung through the heart into the abdomen through portions of the liver and ending in about the upper left abdomen." Additionally, Dr. Teggatz told the jury that Harris "had a realtively [sic ] minor head trauma," which he described as "one actual cut, a laceration as well as surrounding abrasions" of the scalp tissue without "any internal brain injuries." He testified that Harris' head injuries were contemporaneous with his death, were caused "by a blunt object," and were "consistent" with his being struck with the "butt of a gun."

II.

A. Sufficiency of the evidence. Blair's argument that there was not enough evidence to support the jury's verdict centers on his contention that hitting Harris in the head three times with a loaded pistol, which then discharged, is not within the purview of first-degree reckless homicide, section 940.02(1), Stats. (1989-90). ¹ Section 940.02(1), Stats. (1989-90), provides:

Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.

This provision, enacted in 1988, became effective on January 1, 1989. 1987 Wis.Act 399 secs. 472zkco, 3204(57)(ag). It was part of a general revision of the homicide laws in Wisconsin, and resulted from a project undertaken by the Judicial Council. ² Dickey, Schultz & Fullin, The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis.L.Rev. 1323, 1325, 1351. As the Judicial Council Committee note to section 940.02(1), Stats. (1989-90), indicates, first-degree reckless homicide is "analogous to the prior offense of 2nd-degree murder" that was prohibited by section 940.02(1), Stats. (1985-86). Judicial Council Committee Note, 1988, sec. 940.02, Stats. Under section 940.02(1), Stats. (1985-86), it was a Class B felony to cause someone's death "[b]y conduct imminently dangerous to another and evincing a depraved mind, regardless of human life." The change in language was prompted by a perceived lack of clarity in the old second-degree murder statute:

The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. ³ The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan, 44 Wis.2d 68 (1969); State v. Weso, 60 Wis.2d 404 (1973).

Judicial Council Committee Note, 1988, sec. 940.02, Stats. The use of the word "reckless" in section 940.02(1), Stats. (1989-90), indicates that "criminal recklessness" is an element of first-degree reckless homicide. See sec. 939.24(2), Stats. (1989-90). A person acts with "criminal recklessness" when he or she "creates an unreasonable and substantial risk of death or great bodily harm to another human being and [he or she] is aware of that risk." Section 939.24(1), Stats. (1989-90). "Recklessness requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor's subjective awareness of that risk." Judicial Council Committee Note, 1988, sec. 939.24, Stats. There are thus four ultimate elements to the crime of first-degree reckless homicide:

1. the defendant caused someone's death;

2. by actions that created "an unreasonable and substantial risk of death or great bodily harm";

3. that the defendant was "aware of that risk"; and

4. the circumstances "show[ed] [the defendant's] utter disregard for human life."

Sections 940.02(1), 939.24(1), Stats. (1989-90). The jury here was instructed accordingly, pursuant to Wis J I--Criminal 1020. ⁴

Since Blair does not claim the trial court's instructions were improper, our review is limited:

[A]n appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-758 (1990). Blair argues that the evidence was insufficient to prove him guilty of first-degree reckless homicide. He supports this argument by contentions in his legal submissions that he did not intend to shoot Harris. ⁵

Section 940.02(1), Stats. (1989-90), encompasses those homicides where death is not intended as long as the defendant knowingly creates "an unreasonable and substantial risk of death or great bodily harm" to another person (the "criminal recklessness" element from section 939.24(1), Stats. (1989-90)) under circumstances that "show utter disregard for human life." See State v. Dolan, 44 Wis.2d 68, 73, 170 N.W.2d 822, 825 (1969) (The distinction between first-degree murder and second-degree murder prior to the revision of the homicide laws is that the former required there be a "design to effect death" even though both crimes required that there be an intentional act that evinces a "depraved mind regardless of human life."). Blair, however, seizes upon language approved in Wangerin v. State, 73 Wis.2d 427, 434, 243 N.W.2d 448, 451 (1976) (emphasis omitted), to the effect that in order for conduct to evince a depraved mind regardless of human life, the conduct must be "consciously dangerous to life and not such as might casually produce death by misadventure" as supporting his contention that the accidental discharge of the gun removes his actions from the purview of section 940.02(1), Stats. We disagree.

The key word in the phrase approved by Wangerin is "casually." As Wangerin points out, the central inquiry is whether the actor intended to cause harm. Id., 73 Wis.2d at 434-435, 243 N.W.2d at 452. Thus, Wangerin distinguished Seidler v. State, 64 Wis.2d 456, 219 N.W.2d 320 (1974), where a two-year-old child died after being thrown against a bed's metal frame or bedpost but where there was no evidence that the defendant "consciously threw her at the hard and unyielding portions of the bed," id., 64 Wis.2d at 463, 219 N.W.2d at 324, see Wangerin, 73 Wis.2d at 434, 243 N.W.2d at 451-452, from Wangerin where the defendant consciously beat the deceased, Wangerin, 73 Wis.2d at 435, 243 N.W.2d at 452. Here, in contrast to Seidler and akin to Wangerin, Blair consciously beat Harris over the head with a loaded pistol. It does not take any special clairvoyance to recognize that using a gun in that way creates a substantial risk of...