State v. Hatch

• Decision Date: 28 April 1988
• Docket Number: No. 87-0018-CR,87-0018-CR
• Citation: 144 Wis.2d 810,425 N.W.2d 27
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David HATCH, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 27

425 N.W.2d 27

144 Wis.2d 810

STATE of Wisconsin, Plaintiff-Respondent, v. David HATCH, Defendant-Appellant.

No. 87-0018-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 6, 1987.

Opinion Released April 28, 1988.

Opinion Filed April 28, 1988.

Review Denied.

Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.

Before DYKMAN, EICH and SUNDBY, JJ.

SUNDBY, Judge.

David Hatch appeals from a judgment convicting him of reckless use of a weapon, contrary to sec. 941.20(2)(a), Stats; kidnapping while possessing a dangerous weapon, contrary to secs. 940.31(1) and 939.63(1)(a), Stats; one count of attempted first-degree murder while possessing a dangerous weapon, contrary to secs. 940.01, 939.32(1) and 939.63(1)(a); and an order denying his motion for postconviction relief. ¹ We reverse and remand for an evidentiary hearing, at which Hatch shall be present, on that part of the order denying his motion for postconviction relief on the grounds of ineffective assistance of counsel. In all other respects we affirm the judgment and order.

I. BACKGROUND OF THE CASE

Hatch became upset with his girlfriend, April Rankins, because he believed she had had sexual intercourse with another man. Hatch drove to the home where Rankins was staying but he was turned away because of the lateness of the hour. Hatch spent the remainder of the evening talking to a friend and reading love letters from Rankins. He talked of suicide. That morning Hatch and his friend drove to the home where Rankins was staying. He was allowed to see Rankins briefly but when the occupant of the home tried to push him out, he pulled a gun. Rankins told Hatch to put the gun away and he did. Rankins then dressed and accompanied Hatch. In the car, they argued about Rankins' relationship with the other man. They drove to Hatch's home and as he was getting out, a police officer, Peter Larsen, walked up to the car. Hatch shot Larsen twice in the head. Hatch then shot Rankins twice, once in the head. He then shot himself.

The medical testimony at trial established that Rankins and Larsen were each in a "coma vigil," a comatose vegetated state, as a result of the shootings.

II. THE ISSUES

(1) Was Hatch denied a fair trial because of the admission of irrelevant and prejudicial evidence as to the effects of his crimes upon the victims?

(2) Was Hatch denied due process of law because the trial court instructed the jury and submitted verdicts to the jury treating the two counts of attempted first-degree murder as one count?

(3) Under sec. 971.04(1)(d), Stats., was Hatch required to be present at the evidentiary hearing on his postconviction motion for a new trial based on ineffective assistance of counsel?

(4) Was Hatch denied the effective assistance of counsel?

III. IRRELEVANT AND PREJUDICIAL EVIDENCE

The state introduced "before" and "after" photographs of Rankins and Larsen. Rankins' and Larsen's physicians were permitted to testify in detail as to the nature and extent of the victims' wounds, the chronic vegetative state of each of them and what was medically necessary to keep them alive. In addition, Larsen's wife testified as to his before and after condition. Hatch timely objected to such evidence.

Hatch argues that such evidence was not relevant and was so prejudicial that he was denied a fair trial. The state contends that the evidence of the permanent effect of the victims' wounds demonstrated the nature and severity of their injuries, and was relevant to show Hatch's intent to kill. It also argues that the evidence of the conditions of the victims and the medical treatment necessary to keep them alive was relevant to show the extraneous factor which prevented Hatch from actually causing death, which, the state argues, is an essential element of attempted first-degree murder.

Evidence is relevant which has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Sec. 904.01, Stats. See Bailey v. State, 65 Wis.2d 331, 351, 222 N.W.2d 871, 881-82 (1974) (introduction of bloodstained mattress was relevant to show victim was with defendant and had been molested by him).

The evidence as to the nature and extent of the victims' injuries was relevant on the issue of Hatch's intent to kill. A jury may infer an intent to kill from the facts of the assault and the severity of the injuries inflicted by the assailant. See State v. Dix, 86 Wis.2d 474, 484, 273 N.W.2d 250, 255, cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979). See also People v. Maxwell, 130 Ill.App.3d 212, 85 Ill.Dec. 632, 474 N.E.2d 46, 51 (1985) (medical testimony as to nature and extent of injuries is admissible to show intent). The evidence that Hatch shot Larsen and Rankins in the head at close range made it more probable that he intended to kill them than it would have been without such evidence.

However, we reject the state's argument that the permanent effect of the shootings upon the victims was relevant to show Hatch's intent. The fact that the shootings so damaged the brain of each of the victims as to leave each in a chronic vegetated state shows nothing as to Hatch's intent.

We also reject the state's argument that evidence of the victims' permanent conditions and the medical treatment necessary to keep them alive was admissible to establish the extraneous factor which prevented accomplishment of Hatch's intent to kill. The intervention of an extraneous factor is not an element of the crime of attempt. State v. Stewart, 143 Wis.2d 28, 31, 420 N.W.2d 44, 45 (1988).

In Hamiel v. State, 92 Wis.2d 656, 285 N.W.2d 639 (1979), the defendant was charged with attempted robbery. Hamiel claimed that the state was required to establish as a necessary element of the crime the existence of a specific intervening extrinsic force. Id. at 662, 285 N.W.2d at 644. The court said, "whether another person or some other intervening extrinsic force are present and actually frustrate the accused person's attempt is not material to the inquiry of the defendant's guilt." Id. at 667, 285 N.W.2d at 646.

The evidence offered by the state, if believed by the jury, established that Hatch had the requisite intent to kill Larsen and that he had taken sufficient steps to do so that it was improbable that he would have voluntarily withdrawn from that intent. See Stewart, 143 Wis.2d at 31, 420 N.W.2d at 45. The state's evidence that only medical science prevented the accomplishment of his intent was immaterial. "Failure, if and by whatever means the actor's efforts are frustrated, is relevant and significant only insofar as it may negate any inference that the actor did in fact possess the necessary criminal intent to commit the crime in question." Id. at 36, 420 N.W.2d at 47, quoting Berry v. State, 90 Wis.2d 316, 327, 280 N.W.2d 204, 209 (1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980). The evidence as to the permanent conditions of the victims and the medical treatment necessary to keep them alive was not admissible to show an essential element of the crimes of attempted first-degree murder. It was error to admit the evidence.

We may not reverse Hatch's conviction or grant him a new trial on the ground of the improper admission of evidence unless we are of the opinion, after an examination of the entire action or proceeding, that the error has affected Hatch's substantial rights. Secs. 805.18(2) and 972.11(1), Stats.

We have reviewed the evidence the state presented as to the effects of the shootings upon Larsen and Rankins. We conclude that the evidence inevitably "appeal[ed] to the jury's sympathies, arouse[d] its sense of horror, [and] provoke[d] its instinct to punish." State v. Gulrud, 140 Wis.2d 721, 736, 412 N.W.2d 139, 145 (Ct.App.1987). See also Simpson v. State, 83 Wis.2d 494, 507, 266 N.W.2d 270, 275 (1978) (photographs of victim in hospital setting five weeks after shooting, "necessarily raised some feeling of sympathy for the victim"); People v. Nickolopoulos, 25 Ill.2d 451, 185 N.E.2d 209, 210-11 (1962) (evidence of victim's condition in the hospital was highly prejudicial and deprived defendant of fair trial); Haggenjos v. State, 441 N.E.2d 430, 435 (Ind.1982) (Hunter, J., concurring) (probative value of victim's recitation of hospitalization and surgery "attenuated"). The evidence was such that Hatch's rights could have been substantially affected.

However, the evidence, properly admitted, that Hatch intended to kill Larsen is so overwhelming that the error of admitting the prejudicial evidence did not affect his substantial rights. See State v. Grant, 139 Wis.2d 45, 53-54, 406 N.W.2d 744, 748 (1987) (viewing the error in the context of the entire trial, and considering the strength of the untainted evidence, error was harmless). There is no "reasonable possibility that the error contributed to [Hatch's] conviction." State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 232 (1985).

Jay Kurth, a Beloit fire department paramedic, assisted in transporting Rankins and Hatch to the Beloit Memorial Hospital. He testified that Hatch asked him what kind of a job he did on the police officer and the girl. He then stated, "I hope they both die." After Hatch was treated, Kurth transported him to a hospital in Rockford. Kurth testified that Hatch told him that he shot the officer twice to make sure he was dead and wouldn't be able to "come back at me." Hatch stated that the officer had not had time to draw his weapon and that "[h]e fell to the ground and I shot him while he was down." Hatch also stated: "No cop is going to arrest me. All they wanna do is take my money. I hate cops and girls that go out with other guys."

Phillip Licary, a police officer for the City of Beloit, arrived at the scene...