State v. Dix

• Decision Date: 09 January 1979
• Docket Number: No. 76-659-CR,76-659-CR
• Citation: 273 N.W.2d 250,86 Wis.2d 474
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kaiser DIX, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 250

273 N.W.2d 250

86 Wis.2d 474

STATE of Wisconsin, Plaintiff-Respondent, v. Kaiser DIX, Defendant-Appellant.

No. 76-659-CR.

Supreme Court of Wisconsin.

Argued Nov. 28, 1978.

Decided Jan. 9, 1979.

Kaiser Dix, the defendant-appellant, was convicted, following a jury trial, of two counts of attempted first-degree murder, contrary to secs. 939.32(1) and 940.01(1), Stats., and two counts of armed robbery, contrary to sec. 943.32(1) (a) and (2). He was sentenced to consecutive terms not to exceed twenty-five years each on the attempted murder convictions, and concurrent terms of not to exceed twenty-five years each, were imposed on the two armed robbery convictions. Several postconviction motions were denied. Dix appeals from the judgment of conviction and the denial of his motions for postconviction relief.

Jack E. Schairer, Asst. State Public Defender (argued), with whom on the briefs was Howard B. Eisenberg, State Public Defender, for defendant-appellant.

Edward S. Marion, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

HANSEN, Justice.

On January 11, 1975, in the early morning hours, Kaiser Dix was arrested at the scene of an auto accident. He was charged with attempted first-degree murder and armed robbery in connection with two incidents which occurred shortly before his arrest. Dix entered pleas of not guilty and not guilty by reason of mental disease or defect. Several police officers, the two victims and their doctors testified at trial.

The first victim, Karen Nielsen, testified that she was attacked as she returned home from bowling about 1:26 a. m. on January 11, 1975. She was stabbed by her attacker and told to shut up when she screamed. She attempted to fight off the attack by swinging her bowling bag at the man. He fled with the bag which contained a beer can with change in it. Karen Nielsen was stabbed seven times, three times in the arm, once in the shoulder, once in the back, once in the hip and once in the ribs. She was hospitalized for about a week with a punctured lung.

Linda Knudson was attacked at about 2 a. m. on the same date and in a similar manner. She said she was walking from her car to her front door when a man came up behind her, grabbed her around the neck and put a knife to her throat. He told her to shut up and she told him he could have her purse. He started shoving her around to the back of the house, then told her to get on the ground. She began to scream and he stabbed her, six times in all, twice in the hand, three times in the back and once on the leg. He took her purse and fled. Linda was treated at an emergency room and released.

Linda Knudson had been able to supply police with a description of the car that had pulled into a parking lot next to her home just prior to the attack. Tire marks in that parking lot matched those at the scene of Dix's accident. Dix permitted police to search his car and the beer can of coins was found along with a knife. The next day Linda Knudson's purse was found in a yard near the scene of the accident. When arrested, Dix had blood and cuts on his hands. Both victims were able to identify Dix at the hospital.

Dix also relied upon an alibi as a defense. He testified that he had spent part of the evening drinking at the Holiday Inn in Kenosha, had picked up a woman hitch-hiker on his way home and had dropped her off at her home. He said he then was chased and shot at by someone driving a gold Nova, which accounted for his running off the road. He said he found the bowling bag by the side of the road and had kept the coins but left the bag where he found it. He also attempted to show that he was subject to black-outs which lasted several hours and after which he would have no memory of the events that occurred. The jury found Dix guilty on all four counts.

At the sanity portion of the trial, the defense presented a psychiatrist who testified that Dix suffered from a disassociative reaction which was triggered by sound following use of a Mood-altering substance such as alcohol. He said that during these episodes another personality would take over and do things Dix would normally not be able to do. He said because of this mental disease or defect, while under the influence of alcohol, Dix was unable to conform his conduct to the requirements of law. The psychiatrist explained that partial amnesia would follow these episodes and that Dix would distort the facts he remembered and create a different version of the events.

The court-appointed psychiatrist's written report was given to the jury. He stated that Dix had an explosive personality and a probable history of problem drinking. The report further stated that Dix might be subject to episodes of alcoholic amnesia and if that were so he would be unable to conform his conduct to the requirements of law while intoxicated.

The jury found that Dix was not suffering from a mental disease or defect at the time he committed a crime. The finding is not challenged on appeal.

Motions after verdict included a challenge to a jury instruction and charges of misconduct by the judge and the bailiffs. The facts relating to these issues will be further considered.

The issues on appeal are:

1. Was the evidence sufficient to sustain the attempted murder and armed robbery convictions as to Linda Knudson?

2. Did the court commit reversible error in elaborating on the standard jury instruction on attempt?

3. Is it a denial of due process to require the defendant to shoulder the burden of proving mental disease or defect?

4. Is the appellant entitled to a new trial because of alleged communications (a) between the bailiffs and the jury? (b) between the judge and a juror?

Appellant contends that the state failed to prove the elements necessary for convictions of attempted first-degree murder and armed robbery.

The test for sufficiency of the evidence is whether:

" ' . . . the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendants' guilt beyond a reasonable doubt. . . . The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.

" ' . . . Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of facts acting reasonably could be convinced to that degree of certitude which the law defines as "beyond a reasonable doubt. " ' . . . " Krueger v. State, 84 Wis.2d 272, 282, 283, 267 N.W.2d 602, 607 (1978).

Two elements must be established to sustain a conviction of attempted first-degree murder: (1) A specific intent to take the life of another, and (2) an unequivocal act which, except for the intervention of some extraneous factor, would have resulted in the death of that person. Simpson v. State, 83 Wis.2d 494, 514, 266 N.W.2d 270 (1978). The presumption that a person intends the natural and probable consequences of those acts he voluntarily and knowingly performs may be applied in an attempt murder case. Id. at 514, 266 N.W.2d 270; Smith v. State, 69 Wis.2d 297, 304, 230 N.W.2d 858 (1975). Where the act is an assault with a deadly weapon the presumption is that there was an intent to kill. Fells v. State, 65 Wis.2d 525, 534, 223 N.W.2d 507 (1974); Zebrowski v. State, 50 Wis.2d 715, 722, 185 N.W.2d 545 (1971). It is necessary that this intent be voiced by the actor where his actions imply a threat to cause physical injury. Fells, supra, 65 Wis.2d at 535, 536, 223 N.W.2d 507.

Appellant argues that the state failed to prove the unequivocal act element because the knife wounds inflicted upon Knudson were not of a sufficiently aggravated nature. Appellant cites nine attempted murder cases as examples of conduct which provided justification for the charge. A gun is involved in each of those cases. The fact that a knife was used here is not sufficient basis on which to distinguish the case. Appellant misunderstands the nature of the charge. Attempted first-degree murder does not require that injuries of any particular degree of severity result. Convictions for attempted first-degree murder have resulted where the defendant attempted to shoot someone but failed and the victim went unscathed. See, e. g., Robinson v. State, 52 Wis.2d 478, 190 N.W.2d 193 (1971); Holmes v. State, 63 Wis.2d 389, 217 N.W.2d 657 (1974). As the court explained in Huebner v. State, 33 Wis.2d 505, 520, 147 N.W.2d 646, 653 (1967) " . . . Since all attempts to commit crimes are failures to do so, a failure excuses a defendant who attempts a crime only when his actual attempt is incomplete, rather than unsuccessful. Within the contemplation of this section an attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his control or one unknown to him. . . . "

An unequivocal act is clearly shown here. Appellant forced Linda Knudson to the ground and stabbed her three times in the back, twice in the hand and once in the leg. Although the resulting wounds did not require hospitalization, they were serious enough to require stitches and the wounds in her back were deep enough to require drainage tubes. The evidence does not suggest that the appellant was purposely avoiding inflicting a mortal wound. Linda testified that she struggled and screamed while she was being stabbed. When Dix first attacked Linda in front of her house she offered him her purse. The stabbing took place after he had forced her to the back of the house, out of sight. The jury could reasonably infer...