State v. Carrington
| Decision Date | 22 December 1986 |
| Docket Number | No. 85-1378-CR,85-1378-CR |
| Citation | 134 Wis.2d 260,397 N.W.2d 484 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Paul CARRINGTON, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Marguerite M. Moeller, Asst. Atty. Gen. (argued), for plaintiff-respondent-petitioner; Stephen W. Kleinmaier, Asst. Atty. Gen., and Bronson C. La Follette, Atty. Gen., on the brief.
Elizabeth E. Stephens, Asst. State Public Defender for defendant-appellant.
This is a review of a published decision of the court of appeals, State v. Carrington, 130 Wis.2d 212, 386 N.W.2d 512 (1986), reversing a judgment of conviction of the circuit court for Milwaukee County, Laurence C. Gram, Jr., Judge. The jury found the defendant, Paul Carrington, guilty of two counts of the felony of endangering safety by conduct regardless of life while armed. Secs. 941.30, 939.63(1)(a)(3), 939.22(10), Stats. 1983-84.
The question of law presented to the court of appeals and this court is whether the reckless use of a weapon under sec. 941.20(1)(a), (3), Stats. 1983-84, a misdemeanor, is a lesser included offense of endangering safety by conduct regardless of life while armed, a felony. The circuit court refused to instruct the jury on the misdemeanor. The court of appeals concluded that the circuit court erred and ordered a new trial. We conclude that the misdemeanor is not, as a matter of law under the "elements only" test, a lesser included offense of the felony, because the misdemeanor requires proof of an element that need not be proved for the felony. Accordingly, we reverse the decision of the court of appeals and affirm the judgment of conviction of the circuit court.
Because our approach to lesser included offenses in this case assigns little, if any, significance to the factual basis of the prosecution, we may briefly summarize the facts. 1. Late in the evening on June 27, 1984, two police officers dressed in casual civilian clothing observed the defendant leaving a tavern and carrying a shotgun. One officer testified that he ordered the defendant to stop and that in response the defendant stopped, turned and pointed his gun in the direction of the two police officers; the officer fired one shot, hitting a garbage dumpster midway between himself and defendant; the defendant then fired his gun; and the officer returned four more rounds. The defendant testified that as he was leaving the tavern he heard one call of "Halt, police," followed by four shots. The defendant said that he fired one shot in the air and ducked into an alley.
We turn to the legal issue. The doctrine of lesser included offenses simultaneously serves the prosecutor, the defendant, and the public. The doctrine originated at common law as an aid to the prosecutor in cases in which the evidence failed to establish some element of the offense initially charged. The doctrine helps ensure that the defendant has notice of the crimes of which he may be convicted thereby enabling the defendant to prepare an adequate defense. The doctrine enables the court to give the jury an option to convicting or acquitting the defendant of the greater offense, when the evidence shows that the defendant may be guilty of a crime similar to but not necessarily the same as the one charged; a conviction may thus conform more accurately to the offense committed. The doctrine may implicate the due process and double jeopardy provisions of the federal and state constitutions.
The propriety of submitting an instruction to a jury on the misdemeanor in this case turns on whether the misdemeanor is a lesser offense included within the felony. A circuit court may not instruct on a lesser offense that is not included in the greater offense. Hawthorne v. State, 99 Wis.2d 673, 680, 299 N.W.2d 866 (1981).
Commentators discern three approaches courts use to identify a lesser included offense: the elements only approach (the strict statutory approach); the fact-element approach (the pleadings approach; the cognate approach); and the fact approach. 2. It is well settled that under this court's interpretation of sec. 939.66(1), Stats. 1983-84, this court uses the "elements only" test to determine whether one offense is included within another. Sec. 939.66(1) defines an included crime as "a crime which does not require proof of any fact in addition to those which must be proved for the crime charged." See State v. Richards, 123 Wis.2d 1, 5, 365 N.W.2d 7 (1985); Randolph v. State, 83 Wis.2d 630, 639-40, 266 N.W.2d 334 (1978).
The elements only test focuses on the statutes defining the offenses, not the facts of a given defendant's activity. "When determining whether a crime is a lesser included offense under sec. 939.66(1), the determinative factor is the statutorily defined elements of the respective crimes." State v. Verhasselt, 83 Wis.2d 647, 664, 266 N.W.2d 342 (1978).
Under the elements only test, the lesser offense must be statutorily included in the greater offense and contain no element in addition to the elements constituting the greater offense. "[A]n offense is a 'lesser included' one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the 'greater' offense." Hagenkord v. State, 100 Wis.2d 452, 481, 302 N.W.2d 421 (1981). The elements only test was recently restated in Hagenkord, 100 Wis.2d at 481, 302 N.W.2d 421, as follows:
This court is committed to the "elements only" analysis of whether one offense is included within another. The test focuses not on the peculiar factual nature of a given defendant's criminal activity, but on whether the lesser offense is statutorily within the greater.... Stated in other words, an offense is a "lesser included" one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the "greater" offense.... Conversely, an offense is not a lesser-included one if it contains an additional statutory element. This court has stated this test often and clearly. Randolph v. State, 83 Wis.2d 630, 266 N.W.2d 334 (1978); State v. Verhasselt, 83 Wis.2d 647, 266 N.W.2d 342 (1978); and State v. Smith, 55 Wis.2d 304, 310, 198 N.W.2d 630 (1972). In Randolph, the court additionally capsulized the rule by the formulation that "for one crime to be included in another, it must be 'utterly impossible' to commit the greater crime without committing the lesser."
The paramount inquiry in the elements only test is the meaning of the words of the statute. The elements only test requires the court to place the statutes defining the greater and lesser offenses side by side, to interpret the statutes creating the greater and lesser offenses, to differentiate the elements contained therein, and finally to compare those elements.
One commentator has suggested that the elements only test contravenes the statutory language of sec. 939.66(1). Note, Criminal Law--Critique of Wisconsin's Lesser Included Offense Rule, 1979 Wis.L.Rev. 896, 910-11. Several commentators criticize the elements only test as being too rigid and as lacking the flexibility which permits a fact finder to fit the verdict to the conduct proved. 3. Other commentators recognize the elements only test as providing the significant advantages of judicial economy and certainty. Once a decision establishes that a crime is a lesser included offense, that decision settles the issue for all cases and all parties absent a modification of the statutes defining the crimes.
We recognize that although the elements only test is easy to state and appears easy to apply, the question whether a crime is a lesser included offense arises frequently. The parties disagree on how to apply the elements only test in this case.
The crime charged in this case, endangering safety by conduct regardless of life while armed, is a composite of three statutes: secs. 941.30, 939.63(1)(a)3 and 939.22(10), Stats. 1983-84. Sec. 941.30 makes it a felony to endanger another's safety by conduct regardless of life; 4. sec. 939.63(1)(a)3 increases the penalty for anyone committing a crime while possessing, using or threatening to use a dangerous weapon; 5 and sec. 939.22(10) defines the term dangerous weapon. 6..
The felony endangering safety by conduct regardless of life has three statutory elements:
(1) the defendant's conduct is imminently dangerous to another;
(2) the defendant's conduct is of such a character that it evinces a depraved mind, regardless of human life;
(3) the defendant endangers the safety of another by such conduct. Wis. J.I.-Criminal No. 1345 (1962).
An additional element must be proved to establish that the defendant is guilty of endangering safety by conduct regardless of life while armed:
(4) the defendant commits the crime of endangering safety by conduct regardless of life while possessing, using or threatening to use a dangerous weapon. Wis. J.I.-Criminal No. 990 (1980).
The crime which the defendant claims is a lesser included offense is reckless use of a weapon, a misdemeanor defined in sec. 941.20(1)(a), (3). 7. This crime has two elements:
(1) the defendant engages in reckless conduct in the operation or handling of a firearm, airgun, knife or bow and arrow; and
(2) the defendant endangers another's safety by his conduct in the operation or handling of such a weapon. Wis. J.I.-Criminal No. 1321 (1969).
The misdemeanor requires that the operation or handling of one of the four specified dangerous weapons, in this case a firearm, be the reckless conduct that endangers another's safety. The first three elements of the felony, in contrast, do not require that a dangerous weapon be used to endanger the safety of another. The felonious conduct endangering the safety of another might involve a dangerous weapon, but it need not. In fact, if a dangerous weapon was essential to the first...
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