State v. Dunlap
| Decision Date | 23 February 1999 |
| Docket Number | No. 96-1283-CR-NM,96-1283-CR-NM |
| Citation | 592 N.W.2d 318,224 Wis.2d 935 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Emmett Kapries DUNLAP, Defendant-Appellant, Gregory Darnell Perkins, Defendant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
Emmett Dunlap appeals his conviction for second-degree intentional homicide, as a party to the crime, after a trial by jury, having received a thirty-eight-year prison term. The jury found Dunlap not guilty of a second count of false imprisonment, party to a crime. Dunlap's counsel has filed a no merit report under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Dunlap received a copy of the report and has filed a response. Counsel's no merit report raises six possible arguments: (1) the State furnished insufficient evidence of probable cause at the preliminary hearing; (2) the prosecution improperly charged a crime in the information not found in the criminal complaint; (3) the evidence did not prove Dunlap's guilt beyond a reasonable doubt; (4) the trial court improperly instructed the jury concerning how it should weigh and consider the various possible verdicts; (5) trial counsel ineffectively failed to employ a private investigator; and (6) trial counsel erroneously failed to call exculpatory witnesses. Upon review of the record, we are satisfied that the no merit report properly analyzes these issues and that they have no arguable merit. Accordingly, we adopt the no merit report's analysis of those issues and will not discuss them further, except to the extent Dunlap addresses them in his response.
In his pro se responses, Dunlap raises multiple arguments: (1) Dunlap's accomplice's mother lied during the trial about Dunlap's role in the crime; (2) Dunlap was innocent of the homicide by virtue of duress; (3) the jury wrongly received a lesser-included offense instruction; (4) the prosecution wrongly charged a different crime in the information than in the criminal complaint; (5) the victim had already died by the time Dunlap took any part in the matter; (6) trial counsel should have obtained an expert witness to investigate the time of the victim's death; and (7) everyone thought the victim was already dead by the time Dunlap took any part in the matter. Most of these arguments center on several long-standing but seldom-arising principles of substantive criminal law that Dunlap believes exonerate him of guilt in the homicide: (1) Dunlap took part in the homicide under threat of death by another; (2) Dunlap participated in the homicide at a time when the victim was already dead; and (3) Dunlap and the other participants believed, right or wrong, that the victim was already dead at the time they took part in the homicide. We conclude that Dunlap's pro se arguments have no merit. We therefore reject Dunlap's arguments, affirm his conviction, and discharge his appellate counsel of his obligation to represent Dunlap further in this appeal.
On February 14, 1995, Dunlap, Milton Gordon, Gregory Perkins, Perkins's girlfriend Tasha Jones, Perkins's mother, and Perkins's mother's boyfriend were drinking alcohol at Perkins's house. Perkins and Jones began to argue, possibly over Jones's flirting with men that evening. According to Perkins's mother, Perkins struck Jones with his fist; Dunlap testified that Perkins and Jones were just playing around. In any event, Dunlap observed a handgun in Perkins's hand. Dunlap admitted then telling Perkins, "If you're going to shoot her, shoot her"; Dunlap testified that he was joking and drunk. A moment later, Perkins raised the handgun and fired, hitting Jones in the head. The mother's memory was hazy. She thought Perkins stated, "I shot her, mama"; he may have also stated "she is dead." The mother went into the bedroom and saw Jones lying unclothed on the bed, "breathing real hard," and gasping for air. She told Perkins to call the paramedics. He balked, stating he feared jail. Instead, Dunlap and Gordon helped Perkins wrap Jones in a blanket, carry her outside, and put her in the trunk of a car. They drove a few minutes to a bridge, took her from the trunk, placed her on the ledge, and pushed her off. She hit the frozen ground thirty-feet below, her unclothed body still draped in the blanket. The prosecution's medical expert testified that Jones was alive when she hit the ground; she died later from the combined effects of the fall and the gunshot wound. The expert could not say whether Jones would have survived the gunshot wound alone.
Perkins's mother and Dunlap agreed that Perkins was drunk when he pulled the trigger. They differed, however, on other points. According to the mother, Dunlap stated "If you're going to shoot the bitch, shoot her." Dunlap testified that he stated "If you're going to shoot her, shoot her," advice that he considered a drunken jest and on which he never expected Perkins to act. The mother testified that Dunlap was the one who suggested throwing Jones off the bridge. She testified that Dunlap stated at the house that Jones was alive and that he later told her Jones was still alive when they pushed her off the bridge. Dunlap disclaimed prior knowledge that they were headed to the bridge. He testified Perkins forced him to help dispose of Jones at gunpoint: Perkins came out of the bedroom panic stricken, waiving the gun back and forth, ordering everyone to help him dispose of the body and conceal the crime. The mother corroborated part of this, confirming that Perkins threatened to shoot at least anyone who left the house. Dunlap claimed he feared Perkins would kill anyone who did not help. Dunlap also limited his role. While he helped put Jones on the ledge, he denied helping push her off; he claimed that he hesitated to take part in that final act and managed to evade it in the darkness, evidently without Perkins's knowledge and despite his gun-wielding commands. Dunlap told police he did not know with certainty whether Jones was alive or dead when they put her in the trunk. He testified at trial that he thought she was dead. The mother testified she warned everyone as they carried Jones out the door that she was alive.
Dunlap first argues that Perkins's mother lied during the trial. Dunlap states that the mother falsely implicated him in a furtive, misguided attempt to diminish her son's culpability and curry favor for her son's benefit. Juries, however, not appellate courts, determine the credibility of witnesses and the weight of their testimony. Gedicks v. State, 62 Wis.2d 74, 79, 214 N.W.2d 569, 572 (1974). We may overrule a jury verdict only if the jury relied on evidence that was inherently or patently incredible. Beavers v. State, 63 Wis.2d 597, 603-04, 217 N.W.2d 307, 310 (1974). Here, as the above-described testimony indicates, Perkins's mother testified about Dunlap's role in the homicide. Her testimony did not differ from his in ways material to the outcome; their testimonies both confirmed his complicity in the incident, whether voluntary or involuntary. Dunlap himself admitted that he had a role, defending his actions on the ground that his accomplice coerced him by threat of death. Further, Dunlap has not indicated what information Perkins's mother provided that was both false and material to his conviction. Dunlap's own testimony furnished a good deal of incriminating evidence. This testimony, by itself, corroborated key points of the mother's testimony. Under these circumstances, Dunlap has given this court no basis to overturn the jury's evaluation of Pekins's mother's testimony.
Dunlap next argues that he is innocent of the homicide. He bases his innocence on coercion; on fear for his own life. He maintains that his accomplice compelled his participation in the homicide under threat of death. While Dunlap claims innocence on the basis of coercion, he misapprehends the role duress or coercion plays in the law of homicide. As Justice Holmes stated, Dunlap's misconception is one of the "oldest fallacies of the law." See The Eliza Lines, 199 U.S. 119, 130, 26 S.Ct. 8, 50 L.Ed. 115 (1905) (Holmes, J.), quoted in R OLLIN M. PERKINS, CRIMINAL LAW 949 (2d ed.1969). At common law, duress or compulsion, even the threat of instant death, did not excuse the intentional killing of an innocent person. See PERKINS at 951. In the words of Sir William Blackstone, the killer "ought rather to die himself than escape by the murder of an innocent." See PERKINS at 951 (quoting 4 BLACKSTONE'S COMMENTARIES *30) While Wisconsin has made coercion a mitigating factor, it still does not exonerate the killer; it merely reduces his crime from first-degree intentional homicide to second-degree intentional homicide. See §§ 939.46(1) and 940.05, STATS. Here, the jury convicted Dunlap of second-degree intentional homicide and thereby accepted his claim of coercion. Dunlap has already received the full measure of what the law allows--mitigation, not exoneration.
Dunlap next argues that he did not want a lesser-included offense submitted to the jury. He wanted to argue coercion as a defense to the first-degree intentional homicide charge, free of any lesser-included offense. He claims that his trial counsel was ineffective for having disobeyed his wishes on the matter. Dunlap must satisfy a two-pronged standard to show ineffective trial counsel; he must show both deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Dunlap has shown neither. As noted above, Dunlap misapprehends the role that duress or coercion plays in the law homicide. Coercion is an exonerating factor for...
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