State v. Hudgins
| Decision Date | 19 October 1994 |
| Docket Number | No. 94-0283-CR,94-0283-CR |
| Citation | 188 Wis.2d 605,526 N.W.2d 280 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Wayne E. HUDGINS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before ANDERSON, P.J., BROWN and SNYDER, JJ.
Wayne E. Hudgins appeals from a judgment of conviction of first-degree homicide, hostage taking, three counts of first-degree sexual assault, two counts of endangering safety, theft of a firearm, resisting arrest, disorderly conduct, and criminal damage to property. He also appeals from an order denying his motion for postconviction relief. He argues that it was a misuse of discretion to admit a videotape and two photographs, that his statement given to police from his hospital bed should have been suppressed, that the cumulative effect of the alleged errors entitle him to a new trial in the interests of justice, that the multiple counts of sexual assault and endangering safety were multiplicitous, and that his sentence constitutes cruel and unusual punishment. We reject his claims and affirm the judgment and order.
The convictions arise out of Hudgins's conduct on October 6, 1992 at the residence of Jennifer, age 15, and Tim, age 13. Tim was killed with an athletic free-weight in the basement of the home. Jennifer was tied up, sexually assaulted and held hostage. Hudgins broke into a gun case in the house and removed three or four guns. He fired two shots from a window and held the police at bay with talk of suicide and threats to kill police officers. Jennifer was released after the police promised that a television crew was coming. The SWAT team of the Fond du Lac police department responded. While negotiations were conducted, Hudgins was shot and then transported to the hospital.
Before trial, Hudgins sought to exclude from evidence the portion of a videotape taken by the police department which showed the place where Tim's body was discovered. The videotape depicted a pool of blood, bloodstained free-weights and a blood-spattered wall. Hudgins also sought to exclude two autopsy photographs. He argues that this evidence was cumulative and offered only for its inflammatory nature.
Whether photographic evidence should be admitted and displayed to the jury is a discretionary determination for the trial court. See State v. Thompson, 142 Wis.2d 821, 841, 419 N.W.2d 564, 571 (Ct.App.1987). The trial court's decision should be guided by consideration of whether the exhibit will aid the jury in proper consideration of the case, whether a party will be unduly prejudiced by the exhibit's submission, and whether the exhibit could be subjected to improper use by the jury. See State v. Jensen, 147 Wis.2d 240, 260, 432 N.W.2d 913, 921-22 (1988). We will uphold a trial court's discretionary determination unless it is wholly unreasonable or the only purpose of the photographs is to inflame and prejudice the jury. Thompson, 142 Wis.2d at 841, 419 N.W.2d at 571.
There is no dispute that the videotape and autopsy photos were relevant evidence. We view Hudgins's objection as an attempt to stifle the prosecution's presentation of the evidence. The evidence was only prejudicial because it was evidence against Hudgins.
Nearly all evidence operates to the prejudice of the party against whom it is offered. The test is whether the resulting prejudice of relevant evidence is fair or unfair.
In most instances, as the probative value of relevant evidence increases, so will the fairness of its prejudicial effect. Thus, the standard for unfair prejudice is not whether the evidence harms the opposing party's case, but rather whether the evidence tends to influence the outcome of the case by 'improper means.'
State v. Johnson, 184 Wis.2d 324, 340, 516 N.W.2d 463, 468 (Ct.App.1994) (citations omitted).
Hudgins's theory of defense was that he was guilty of second-degree homicide because the killing resulted from an uncontrollable rage brought on by adequate provocation. 1 The videotape and autopsy photos reveal that the victim's skull was caved in on both sides and that he was repeatedly stabbed. The spatter marks depicted on the videotape support the coroner's conclusion that the victim was struck while he was lying on the floor. Thus, the evidence was highly probative to disprove Hudgins's defense of adequate provocation by establishing that the number and severity of the wounds inflicted went far beyond the degree of provocation. The relevance reduces the inflammatory nature of the evidence and the risk that it would influence the jury by improper means. The trial court properly exercised its discretion in admitting the evidence.
Hudgins claims that the statement he gave to police officers while in the hospital was involuntary because of his weakened physical condition and unstable emotional condition at the time. 2 In determining whether a confession was voluntarily made, the inquiry is whether the confession was procured by coercive means or whether it was the product of improper pressures exercised by the police. State v. Clappes, 136 Wis.2d 222, 235-36, 401 N.W.2d 759, 765 (1987).
The trial court found that there was no evidence of police coercion in obtaining Hudgins's statement. This finding is not clearly erroneous. The questioning took place almost nine days after the incident. It was preceded by Miranda 3 warnings. A break was taken during the interview so Hudgins could rest. There were no threats or promises by the police.
We recognize that the determination of whether a confession is voluntary is made by examining the totality of the circumstances and requires the court to balance the personal characteristics of the defendant against the pressures imposed by the police in order to induce him or her to respond to the questioning. Clappes, 136 Wis.2d at 236, 401 N.W.2d at 766. The mere fact that a defendant is recovering from injuries in a hospital room does not render the defendant's statement involuntary. See id. at 240, 136 Wis.2d 222, 401 N.W.2d at 767 (). Thus, because there was no evidence of either physical or psychological coercive tactics by the police, the balancing test becomes virtually unnecessary. See id. at 239-40, 136 Wis.2d 222, 401 N.W.2d at 767. We conclude that the trial court properly determined that Hudgins's statement was voluntarily given and admissible at trial.
We need not address Hudgins's claim that he is entitled to a new trial in the interests of justice. He argues that the cumulative effect of the evidentiary errors prevented the real controversy from being tried. We have found no error with respect to those claims. A defendant is not entitled to a new trial in the interests of justice based on a combination of non-errors. Each of the arguments is without substance, and adding them together adds nothing. Mentek v. State, 71 Wis.2d 799, 809, 238 N.W.2d 752, 758 (1976).
We turn to Hudgins's claim that the five counts of sexual assault and two counts of endangering safety were multiplicitous. The issue of whether multiple charges violates the constitutional prohibitions against double jeopardy is one of law that we review without deference to the trial court. State v. Kanarowski, 170 Wis.2d 504, 509, 489 N.W.2d 660, 662 (Ct.App.1992). Multiplicity violative of the constitutional prohibitions against double jeopardy exists when a defendant is charged in more than one count for a single offense. State v. Hirsch, 140 Wis.2d 468, 471, 410 N.W.2d 638, 639 (Ct.App.1987). We apply a two-pronged test to determine whether a charge is multiplicitous. Id. First, we must determine whether additional offenses are identical in law and in fact. Id. The second prong requires consideration of the legislative intent regarding the appropriate unit of prosecution under the statute. Id. at 471, 410 N.W.2d at 639-40.
To determine whether the prosecution has legitimately broken down a single course of conduct into multiple offenses, we examine whether each charged offense requires proof of an element or fact which the other does not. Kanarowski, 170 Wis.2d at 510, 489 N.W.2d at 662. We consider the alleged acts in terms of the nearness to each other in time, place and character. See State v. Eisch, 96 Wis.2d 25, 31, 291 N.W.2d 800, 803 (1980). If the additional fact test favors the State, then the presumption is that the legislature intended to allow multiple charges for the same act. Kanarowski, 170 Wis.2d at 512-13, 489 N.W.2d at 663. The presumption may be overcome by showing a legislative intent to the contrary. Id. at 513, 489 N.W.2d at 663.
Hudgins was charged with five counts of sexual contact and intercourse with Jennifer. He was found guilty of three counts. The charges are obviously...
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