State v. Felton
| Decision Date | 03 February 1983 |
| Docket Number | No. 80-1458-CR,80-1458-CR |
| Citation | 110 Wis.2d 485,329 N.W.2d 161 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Rita A. FELTON, Defendant-Appellant-Cross-Petitioner. |
| Court | Wisconsin Supreme Court |
Jeffrey Gabrysiak, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.
Robert L. Gruber, Madison, for defendant-appellant-cross-petitioner.
This is a review and cross-review of an unpublished court of appeals, 106 Wis.2d 769, 318 N.W.2d 25, decision dated December 28, 1981. The appeal to the court of appeals was from a judgment of the circuit court for Portage county, James H. Levi, Circuit Judge. The defendant, Rita A. Felton, was convicted of the second degree murder of her husband, Robert Felton, in violation of sec. 940.02(1), Stats.
The appeal affirmed the judgment of guilty, but directed that the cause be remanded for the purpose of allowing the defendant to interpose the defense of not guilty by reason of mental disease or defect. The state petitioned this court for review in respect to the remand. The defendant petitioned for a cross-review, asking for a new trial on all issues because of the ineffectiveness of trial counsel. Both petitions were granted by this court. We reverse the conviction and remand for a new trial.
On January 2, 1979, Rita Felton shot her husband while he lay sleeping. She was charged with first degree murder. On July 5, 1979, her attorney filed a motion to amend her plea of not guilty to not guilty by reason of mental disease or defect. On the day the trial began, the plea of not guilty by reason of mental disease or defect was withdrawn. After a lengthy trial, the jury found Rita Felton guilty of murder in the second degree. Her defense was that she was a "battered" spouse who acted in self-defense. After the close of testimony, the trial court instructed the jury on first degree murder, second degree murder, manslaughter (imperfect self-defense)--sec. 940.05(2), Stats., and on the privilege of self-defense. There was no request for instruction on heat-of-passion manslaughter under sec. 940.05(1).
Defendant's appellate counsel filed a motion for new trial, which was denied by the trial court after an evidentiary hearing. The appeal to the court of appeals was from the conviction and the denial of the motion for a new trial.
It was contended on appeal that trial counsel was ineffective because he improvidently and without sufficient investigation withdrew the defense that the defendant should be exonerated of responsibility because of mental disease or defect. It was also alleged that counsel was ineffective when he failed, because he was unaware of the law, to consider as a defense the lesser crime of manslaughter--heat-of-passion, as provided in sec. 940.05(1), Stats.
It was also contended on the appeal that the record demonstrated erroneous and prejudicial limitations by the trial judge in counsel's questioning of witnesses in respect to acts of violence by the victim, Robert Felton. It is also urged that the admission of a statement elicited from Rita Felton in violation of Miranda was prejudicial. The court of appeals found the admission of the statement erroneous but not prejudicial; and in respect to the limitation on witnesses, it concluded that the evidence which would have been elicited in respect to Robert Felton's acts of violence was cumulative, and, hence, the exclusion was not prejudicial.
Counsel also argues that the "bridging" instruction which was given in this case and which is applicable when the evidence arguably permits a finding of first or second degree murder or manslaughter, coerces the jury into returning a murder, rather than a manslaughter, verdict.
On this review we hold that trial counsel was ineffective, and accordingly the verdict and conviction must be set aside and a new trial ordered. We reverse that portion of the decision of the court of appeals that sustained the conviction adjudging guilt.
Because the defense proffered by Rita Felton was that she was a battered spouse and because she recounted that her maltreatment had persisted throughout almost the entire course of her twenty-three-year marriage with Robert, the facts developed at trial are extensive. We recount some of them, because they are essential to an understanding of her defense and to her defense which ought to have been undertaken or ought to have been considered had counsel been effective.
Rita testified that Robert commenced beating her after they had been married for about six months. He beat her during the course of her six pregnancies and on one occasion she miscarried. On another he beat her, held her down, and threatened to burn her with a blowtorch. On occasions she would wake up and find that Robert was choking her. One time he struck her with his fist so hard that her upper denture broke and it cut through her lip. On various occasions he threatened to kill her. She was forced to commit sexual acts which she considered degrading. Several times the police were called to quell these acts of domestic violence. The police were called either by the older children or by neighbors who heard the disturbances. She testified that she was frequently bruised, and on one occasion she had several broken ribs.
In 1977, after Robert had severely beaten her, the police department removed Rita and the children from the house, and she hired a lawyer and filed for divorce. The Feltons were separated for about ten months. She testified that they got back together again because Robert was attempting to be nice to her and because she was having financial problems. Robert also persuaded her that the children would have fewer disciplinary and school problems if he were around to take care of them.
Rita testified that she had received counseling from a clergyman and was told that she should be a better wife. She stated that she felt guilty about the family problems and had the feeling that if she were a better wife Robert would not conduct himself in the way he did and would not beat her.
Apparently the relations between Robert and Rita and the rest of the family were comparatively tranquil during part of 1978; but, according to Rita's testimony and that of the children, around September of 1978 Robert's violence commenced to escalate. He struck the children and choked Greg, the seventeen-year-old son. During November and December, according to Rita, the situation got even worse. She said that Robert would wake up in the middle of the night and without provocation would commence to beat her.
She said that, about two or three weeks prior to the shooting, Robert beat her because their fifteen-year-old, Rhonda, was doing poorly in school. Rita testified that she attempted to commit suicide that night by taking a whole bottle of Librium. Greg, the seventeen-year-old, testified that his father had struck him a number of times, sometimes with his fist, and that in November and December, there were more fights and pummelings than usual.
Rhonda testified her father beat her frequently and that he commenced beating her when she was twelve or thirteen years old. At the end of November, she said her father was angry more often than usual and hit her almost every day.
There was testimony that on an earlier occasion, without apparent provocation, Robert got a gun and shot a visitor to the house in the leg.
The trial court refused to allow other non-family witnesses to testify about specific acts of violence by Robert against Rita or the children. Two neighbors, however, were allowed to testify to Robert Felton's reputation. One said he had the reputation for getting drunk and abusing his wife and his family. The other said his reputation was that he was mean and beat up his children.
The shooting occurred on the evening of January 2, 1979. That day was the ninth birthday of the two youngest children, Kim and Kelly. Rita testified that she and Robert went to the bank that morning to cash her AFDC check. The record showed that, because of advanced emphysema, Robert was totally disabled from performing his work as a concrete worker. He received a disability payment from the Social Security Administration; and Rita was the recipient of some AFDC assistance.
After cashing the check, they both went to a bar and drank beer. Rita went to a bakery and ordered birthday cakes for the twins and then stopped at a bar. When Robert came into the bar, Rita said he looked furious and that his tone of voice was "scary." After they returned home, the altercation continued, and Robert continued to shout at her because the snowmobile suits they had bought for the twins were too large. Rita said that, because she was scared, she asked Charles, her nineteen-year-old son, to stay. Charles, however, left the house to return to his own living quarters.
A fight then ensued between the deceased and Rhonda, the fifteen-year-old. According to Rita's testimony, after the fight Rhonda's lip was bleeding.
Greg, the seventeen-year-old, testified that, when his parents returned, it was obvious to him that both of them had been drinking. He also stated that his father and Rhonda got into a fight, which he broke up. Shortly thereafter, he left the house. Rhonda also testified that both of her parents were drunk and that her father was angry with her mother, and later her father came after Rhonda, hit her with his fist, and split her lip, and that Greg then came in and pulled the father off of Rhonda. She left the house with Greg.
Rita testified that she was frightened after Greg and Rhonda left the house and that Robert started yelling at her because the children were "brats." Robert followed her into the kitchen and took a swing at her, but at that point the nine-year-old twins grabbed Robert and pushed him away and into the living room.
Rita stated that at about 8 or 8:30 p.m., she went into...
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