State v. Edmunds

• Citation: 229 Wis.2d 67,598 N.W.2d 290
• Decision Date: 24 June 1999
• Docket Number: No. 98-2171-CR.,98-2171-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Audrey A. EDMUNDS, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

229 Wis.2d 67

598 N.W.2d 290

STATE of Wisconsin, Plaintiff-Respondent, v. Audrey A. EDMUNDS, Defendant-Appellant.¹

No. 98-2171-CR.

Court of Appeals of Wisconsin.

Oral argument April 15, 1999.

Decided June 24, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Dean A. Strang of Fitzgerald & Strang, S.C. of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Susan M. Crawford, assistant attorney general.

Before Dykman, P.J., Vergeront and Roggensack, JJ.

ROGGENSACK, J.

Audrey Edmunds appeals her conviction of first-degree reckless homicide, pursuant to § 940.02, STATS., based on the death of a seven-month-old infant, who was in her care and died as the result of the "shaken baby syndrome." Edmunds bases her appeal on an allegation of insufficient evidence to prove utter disregard for human life, the admission of a prior bad act, the exclusion of evidence of the child's parents' demeanors, a juror excused during the trial, and a jury instruction. Because we conclude that the evidence was sufficient to prove the utter disregard element of § 940.02, and that no error occurred in regard to the circuit court's evidentiary rulings, juror removal or jury instructions, we affirm the judgment of conviction and the order denying Edmunds's postconviction motions.

BACKGROUND

Edmunds was the child care provider for a seven-month-old infant, Natalie, who suffered fatal injuries on October 16, 1995. At approximately 7:25 that morning, Natalie was delivered to Edmunds's house by her mother. Earlier in the morning, she had had part of her usual bottle, but she was fussy when she arrived at Edmunds's house. Natalie's mother attempted to calm her, but James Hennings, who was delivering his own daughter to Edmunds's house for the day, said that Natalie was crying when he arrived. He also reported that Natalie was alert and followed the adults with her eyes, as they moved about the room.

Edmunds testified that after Natalie's mother left, the baby continued to cry and didn't seem to want any more of her bottle, so at approximately 8:00 a.m., Edmunds put Natalie in the master bedroom, propped the bottle in her mouth and left the room to dress her own daughters. She said that when she returned to the bedroom at 8:35 a.m., Natalie was limp and unresponsive. At 8:41 a.m., she called 911, and rescue personnel arrived at 8:44 a.m. Although Natalie was flown to University Hospital, the doctors were unable to save her and she died that night.

At trial, Edmunds denied that she had shaken or struck Natalie. As her defense, she implied that Natalie's parents, Tom and Cindy Beard, had injured their daughter. She pursued her attempt to shift the blame for Natalie's injuries in counsel's opening statement where he asserted that Edmunds was a "good and patient" child care provider of significant experience, who had never done an "unloving" act to a child. Based on this defense, the court permitted the State to introduce evidence of an incident at the Waunakee library where Edmunds hit a one-and-one-half-year old child on the head with a book and then did nothing to console the crying child.

There was also extensive medical testimony about the cause of Natalie's death and the timing of the acts which injured her. An autopsy showed that her head injuries were extremely severe. For example, she had extensive retinal hemorrhaging of both eyes; retinal folds, due to the retinas being torn from the backs of her eyes; bruising on her scalp from an impact injury; and extensive subdural and subaracnoid hemorrhages. The physicians who testified for the State said that her major injuries resulted from "extremely vigorous shaking" and as the result of "severe force," comparable to that exerted in an automobile accident or in falling from a second story window. There was no evidence that the severe injuries Natalie sustained could have been the result of an accident, rather than intentional, forceful conduct, directed specifically at Natalie. At the time she was injured, Natalie was not quite seven months old, weighed twenty-two pounds and was twenty-four inches tall.

DISCUSSION

Standard of Review.

[1, 2]

In examining the sufficiency of the evidence, we do not substitute our judgment for that of the jury merely because evidence is in conflict or because there is evidence which might have supported a different result. Rather, we review whether the evidence is so insufficient in probative value and force that as a matter of law no jury could have found guilt beyond a reasonable doubt. State v. Pankow, 144 Wis. 2d 23, 30, 422 N.W.2d 913, 914 (Ct. App. 1988) (citing State v. Wyss, 124 Wis. 2d 681, 693, 370 N.W.2d 745, 751 (1985)). We view the evidence, and all reasonable inferences therefrom, in the light most favorable to sustaining the jury's verdict. Pankow, 144 Wis. 2d at 30, 422 N.W.2d at 914, (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). [3, 4]

The decision about whether to admit or reject evidence is submitted to the sound discretion of the circuit court. State v. Alsteen, 108 Wis. 2d 723, 727, 324 N.W.2d 426, 428 (1982). We will uphold a circuit court's discretionary decision if it examined the relevant facts of record, applied the correct legal standard and reached a conclusion that a reasonable judge could reach. State v. Gray, 225 Wis. 2d 39, 48, 590 N.W.2d 918, 925 (1999); State v. Sullivan, 216 Wis. 2d 768, 780-81, 576 N.W.2d 30, 36 (1998).

[5-7]

When a claim is made that a defendant's constitutional rights have been violated, we review that claim de novo. State v. Burton, 112 Wis. 2d 560, 565, 334 N.W.2d 263, 265 (1983). And, while the specific jury instructions given in any case are within the discretion of the circuit court, we review de novo whether those instructions correctly state the applicable law. State v. McCoy, 143 Wis. 2d 274, 289, 421 N.W.2d 107, 112 (1988); State v. Simplot, 180 Wis. 2d 383, 404, 509 N.W.2d 338, 346 (Ct. App. 1993). Furthermore, whether to dismiss a juror during trial is a matter committed to the sound discretion of the circuit court. State v. Williams, 220 Wis. 2d 458, 466, 583 N.W.2d 845, 848 (Ct. App. 1998).

Utter Disregard.

Edmunds argues that even if the jury believed she shook Natalie with sufficient force to cause the injuries Natalie sustained, that conduct is insufficient to prove the "utter disregard" element of first-degree reckless homicide for the following reasons: (1) there is no evidence that Edmunds knew shaking would cause such catastrophic consequences for Natalie; (2) shaking is insufficient conduct to support the utter disregard element; and (3) she called 911 when she saw Natalie was unresponsive.

In order to obtain a conviction under § 940.02, STATS., the State must prove the four elements 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."

State v. Blair, 164 Wis. 2d 64, 70-71, 473 N.W.2d 566, 569 (Ct. App. 1991).

The "reckless" standard in § 940.02, STATS., requires "criminal recklessness," and encompasses the second and third elements of first-degree reckless homicide. See Blair, 164 Wis. 2d at 70, 473 N.W. at 569. 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 . . . is aware of that risk.'" Id. (quoting § 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.'" Blair, 164 Wis. 2d at 70, 473 N.W.2d at 569 (quoting Judicial Council Committee Note, 1988, § 939.24).

The element of utter disregard was first enacted in 1988, effective January 1, 1989. 1987 Wis. Act 399 §§ 472zkco, 3204(57)(ag). The legislative history surrounding the enactment of the utter disregard standard notes that first-degree reckless homicide is "analogous to the prior offense of second-degree murder" that was earlier prescribed under § 940.02(1), STATS., 1985-86. Judicial Council Committee Note, 1988, § 940.02. The standard set in § 940.02(1) for second-degree murder was conduct described as "evincing a depraved mind, regardless of human life." The "depraved mind" language was changed in 1988 to clarify that a mental disorder was not involved in the commission of the crime. Blair, 164 Wis. 2d at 69,473 N.W.2d at 569.

[8]

In determining whether utter disregard for human life was proven, we note that the State does not have to prove utter disregard "in fact"; rather, the State satisfies its burden when it proves that the conduct of the defendant and the surrounding circumstances, as generally considered by mankind, are sufficient to evince utter disregard for human life. State v. Weso, 60 Wis. 2d 404, 411, 210 N.W.2d 442, 445 (1973). Therefore, we apply an objective standard to the conduct which caused Natalie's injuries. Furthermore, even though there are four elements of the crime of first-degree reckless homicide, it is only the fourth element for which Edmunds claims there was a failure of proof, namely, "circumstances showing Edmunds's utter disregard for human life."²

As we explained earlier, the element of utter disregard in first-degree reckless homicide encompasses the same proof requirements as second-degree murder did under the earlier version of § 940.02, STATS., 1985-86; therefore, the second-degree murder cases offer guidance about the sufficiency of proof adduced. Utter disregard is proved through an examination of the act, or acts, that caused death and the totality of the circumstances that surrounded that conduct. See State v. Wilson, 149...