State v. Block

Decision Date01 October 1986
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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 P. BLOCK, Defendant-Appellant. 86-0204-CR.
CourtWisconsin Court of Appeals

Circuit Court, Kenosha County

Affirmed

Appeal from a judgment and an order of the circuit court for Kenosha county: Robert V. Baker, Judge.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

PER CURIAM.

James P. Block was convicted of the first-degree murder of Christine Acevedo. On this appeal from the judgment of conviction and order denying his motion for a new trial, Block challenges the admissibility of statements given by him to police and the trial court's refusal to instruct the jury on manslaughter as a lesser-included offense. We do not find Block's arguments persuasive, and, therefore, we affirm the judgment and order.

The trial court found that Block was in custody throughout his questioning despite the fact that he voluntarily went to the police station upon an officer's request. That determination is not at issue on appeal. Block does, however, contend that police lacked probable cause to arrest so that any statements must be suppressed as the product of an illegal arrest.

If the historical facts are undisputed, whether probable cause to arrest exists is a question of law. State v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243, 250 (Ct. App. 1981). When some of the facts are disputed, we first determine whether the circuit court's factual findings are clearly erroneous and then examine those findings and the undisputed facts independently. See id. at 260, 311 N.W.2d at 249; see also Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643-44, 340 N.W.2d 575, 577 (Ct. App. 1983).

'Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.' State v. Doyle, 96 Wis.2d 272, 285, 291 N.W.2d 545, 551 (1980), quoting Leroux v. State, 58 Wis.2d 671, 684, 207 N.W.2d 589, 596 (1973). The evidence need not rise to the level of beyond a reasonable doubt but must be more than a bare suspicion. See Drogsvold, 104 Wis.2d at 254, 311 N.W.2d at 247. The requisite information need not be known by the arresting officer. Rather, an arrest will be sustained when the collective information possessed by the police department meets the probable cause standard. Id. at 255, 311 N.W.2d at 247.

The police had probable cause to arrest Block at the time of his questioning. Acevedo's body had been found. Police had been told that Block had admitted responsibility for her death to a friend. Such information clearly would lead a reasonable officer to believe that the defendant had probably committed a crime. The police, in questioning Block, were acting on more than a bare suspicion. Block's arrest was not illegal. Therefore, the trial court did not err in denying the request to suppress Block's statements.

The second issue is whether the trial court erred in refusing Block's request that the lesser-included offense of manslaughter be submitted to the jury. Whether to instruct the jury on a lesser-included charge is a question of law. State v. Salter, 118 Wis.2d 67, 83, 346 N.W.2d 318, 326 (Ct. App. 1984). A two-step analysis should be used by the trial court. State v. Carrington, 130 Wis.2d 212, 218, 386 N.W.2d 512, 515 (Ct. App. 1986). First, the trial court must determine whether the proposed lesser offense is statutorily included within the greater offense. Id. That test is met in this case as manslaughter is a lesser-included crime within the offense of first-degree murder. See, e.g., State v. Lee, 108 Wis.2d 1, 321 N.W.2d 108 (1982). The second question for the trial court is whether the evidence viewed most favorably to the accused provides a reasonable ground both for acquittal on the greater charge and for conviction on the lesser charge. Carrington at 219, 386 N.W.2d at 515.

The crime of manslaughter is committed when a person causes the death of another without intent to kill and while in the heat of passion. Sec. 940.05(1), Stats. The heat of passion defense has a subjective and objective facet. State v. Heisler, 116 Wis.2d 657, 660, 344 N.W.2d 190, 192 (Ct. App. 1983). The defendant has the burden of production as to each test. Id. The objective test requires a showing that sufficient provocation existed to cause an ordinary, reasonable person to be overcome by the highest degree of exasperation, rage, anger, sudden resentment or terror. Id....

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