State v. Horton, 87-2444-CR

• Citation: 151 Wis.2d 250,445 N.W.2d 46
• Decision Date: 07 June 1989
• Docket Number: No. 87-2444-CR,87-2444-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Steven R. HORTON, Defendant-Appellant.dd
• Court: Court of Appeals of Wisconsin

Page 46

445 N.W.2d 46

151 Wis.2d 250

STATE of Wisconsin, Plaintiff-Respondent, v. Steven R. HORTON, Defendant-Appellant.dd

No. 87-2444-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 5, 1988.

Opinion Released June 7, 1989.

Opinion Filed June 7, 1989.

Glenn L. Cushing, Asst. State Public Defender, on the briefs, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and James M. Freimuth, Asst. Atty. Gen., on the brief, for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Steven Horton, then seventeen years old, was charged with first-degree murder and attempted first-degree murder following the juvenile court's waiver of its jurisdiction. The case was tried to a jury, which convicted Horton of the lesser-included offenses of second-degree murder and endangering safety by conduct regardless of life, both while using a dangerous weapon. Horton raises four claims of error: (1) the preliminary hearing was not timely held, resulting in the circuit court losing personal jurisdiction; (2) the prosecutor used a peremptory strike to remove the one black potential juror in the jury pool from the petit jury, violating Horton's right to an impartial jury drawn from a fair cross-section of the community; (3) the trial court refused to instruct the jury on the elements of manslaughter, imperfect self-defense, depriving him of his right to all lesser-included instructions that were reasonably supported by the evidence; and (4) the evidence was insufficient to support the jury's finding that Horton's knife was designed as a weapon. We reject all four claims and affirm.

The variety of Horton's claims of error requires that we set forth the facts of this case in some detail. In April of 1986, Horton was arrested at his home after two youths, Brian Bacher and Michael Willems, were stabbed at a birthday party. Horton waived his right to remain silent and gave a lengthy statement in which he admitted stabbing both young men with a sharp-bladed steak knife. He stated that he was attacked by one of the youths and was able to wrestle him to the ground, but was then compelled to stab him when approached by a second young man who also seemed like he wanted to fight. After stabbing the second youth, Horton ran away.

Later, Horton accompanied the officers to look for his knife and its sheath, which he had thrown onto a golf course. The sheath was recovered but the knife was not found.

A delinquency petition was filed, as was a request that the juvenile court waive jurisdiction. Following the jurisdictional waiver, Horton made an initial appearance in adult court and bond was set at $100,000. Pursuant to sec. 970.03(2), Stats., a preliminary hearing was scheduled within ten days of the initial appearance, but before it could be held all proceedings were stayed by this court upon its acceptance of Horton's interlocutory appeal from the waiver determination.

During the pendency of the appeal process, the trial court scheduled intermittent status conferences to keep track of the case. At the November 14 conference, defense counsel informed the trial court that the Wisconsin Supreme Court now had the matter under advisement. The trial court then told the parties that the matter would next be scheduled for a January status conference. Defense counsel voiced no objection, noting that it would be at least thirty days until the file was remitted.

The file was remitted to the trial court and the stay of proceedings was lifted on December 4 or 5. ¹ On January 8, 1987, a final status conference was held and a preliminary hearing scheduled for January 13. Defense counsel objected on the grounds that the preliminary hearing ought to have been scheduled no later than ten days after remittitur.

The preliminary hearing was held, and the case eventually proceeded to jury trial. Both parties agree that the jury pool from which Horton's petit jury was drawn contained only one black person. The prosecutor used his last peremptory strike to remove this person from the jury. Defense counsel moved for a mistrial. The trial court noted that the question would be closer if Horton were black, but in fact Horton is white. The motion for a mistrial was denied.

During its case-in-chief, the state put Horton's post-arrest statement in evidence by having one of the arresting officers read it to the jury. It also introduced the knife sheath recovered during the search of the golf course.

Horton took the stand in his own defense. He repudiated his post-arrest statement, asserting that he had made up the story because he was scared. In fact, he told the jury, he was extremely intoxicated when he stabbed the two youths, so intoxicated that he did not remember stabbing Bacher. He stabbed Willems, without knowing why, when Willems went to throw beer in his face. His weapon, he testified, was a fishing knife that he carried as a tool to assist him in vandalizing video machines.

Defense counsel submitted an instruction on the lesser-included offense of manslaughter, imperfect self-defense. The trial court did not give this instruction.

The trial court did instruct the jury that Horton stood accused of committing first-degree murder and attempted first-degree murder while armed with a dangerous weapon. It defined "dangerous weapon" as any device designed as a weapon and capable of producing death or bodily harm. The jury determined that Horton's knife was a dangerous weapon.

Horton first argues that the circuit court lost personal jurisdiction over him when it did not schedule a preliminary hearing within ten days after remittitur. Section 970.03(2), Stats., states:

The preliminary examination shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500. On stipulation of the parties or on motion and for cause, the court may extend such time.

Horton concedes that sec. 970.03 does not require a preliminary hearing within ten days of arraignment when that period is interrupted by an appellate court's stay of proceedings but asserts that sec. 970.03 does require a preliminary hearing within ten days of the record's remittitur to the circuit court. We disagree. ²

Failure to hold a preliminary hearing within the statutory time limits results in a loss of personal jurisdiction. Armstrong v. State, 55 Wis.2d 282, 285, 198 N.W.2d 357, 358 (1972). However, the right to a preliminary examination is purely a statutory right. State v. Dunn, 121 Wis.2d 389, 394, 359 N.W.2d 151, 153 (1984). Application of a statute to undisputed facts is a question of law that we review de novo. Tenpas v. DNR, 148 Wis.2d 579, 582, 436 N.W.2d 297, 298 (1989).

Because the right to a preliminary hearing is solely a statutory right, the statutory scheme or statutory declarations must govern. State v. Solomon, 158 Wis. 146, 149, 147 N.W. 640, 641 (1914). If the procedure argued by Horton does not fit into the statutory scheme, we will not read such a procedure into the statute. See id. at 150, 147 N.W. at 642.

Litigants do not know and cannot predict the date upon which appellate resolution will occur nor the date upon which the record will reach the trial court. Therefore, if a defendant undertakes an interlocutory appeal while he is in custody, he subverts one of the primary purposes of sec. 970.03(2), Stats.: providing an expeditious means for the discharge of an accused if it does not appear probable that he has committed the crime or crimes for which he is being held. State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63, 66 (1967). It therefore appears to us that the reason for the ten-day provision--expeditious determination--disappears when an interlocutory appeal is successfully commenced prior to the preliminary hearing. We conclude that the appeal process is not contemplated by sec. 970.03(2). If proceedings are stayed by an appellate court before the preliminary hearing is held, sec. 970.03(2) sets no mandatory date upon which the preliminary hearing must be held.

A valid preliminary examination is an essential step in a criminal prosecution of a felony. Gates v. State, 91 Wis.2d 512, 522, 283 N.W.2d 474, 478 (Ct.App.1979). Whether some other statutory, or even constitutional, provision requires that the preliminary hearing be held after remittitur in a fashion more timely than occurred here has not been suggested by Horton. See Dunn, 121 Wis.2d at 394 & n. 6, 359 N.W.2d at 153. We therefore do not address that issue.

As a second ground for reversal of his convictions, Horton argues that the state's use of a peremptory strike to remove the one black potential juror from the petit jury (the jury actually chosen) violated the Sixth Amendment of the United States Constitution and art. 1, secs. 5 and 7 of the Wisconsin Constitution.

Horton begins his argument by acknowledging that an equal protection challenge to the state's use of its peremptory strike would fall. To show an equal protection violation based on peremptory strikes, a defendant must first show that he is a member of the systematically excluded group. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986). Horton is white, the excluded juror black. Horton has therefore raised no equal protection challenge to the prosecutor's use of the peremptory strike.

The sixth amendment, on which Horton's challenge is grounded, guarantees a defendant the right to an impartial jury. Horton asserts that upon his showing a strike of all (in this case, one) black potential jurors, he has made a prima facie case that the sixth amendment guarantee was violated because the strike ensured that one segment of a fair cross-section of the community was not represented on his petit jury. We disagree.

The United States Supreme Court has interpreted the sixth amendment to...