State v. LaTender

• Decision Date: 09 January 1979
• Docket Number: No. 76-134-CR,76-134-CR
• Citation: 273 N.W.2d 260,86 Wis.2d 410
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lowell S. LaTENDER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 260

273 N.W.2d 260

86 Wis.2d 410

STATE of Wisconsin, Plaintiff-Respondent, v. Lowell S. LaTENDER, Defendant-Appellant.

No. 76-134-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 29, 1978.

Decided Jan. 9, 1979.

Lowell S. LaTender, defendant-appellant, was convicted, following a jury trial, of first-degree murder contrary to sec. 940.01, Stats.; of four counts of endangering safety by conduct regardless of life contrary to sec. 941.30, and one count of reckless use of a firearm contrary to sec. 941.20.

He was sentenced to life imprisonment on the first-degree murder conviction; five years' imprisonment on one conviction of endangering safety, to be served consecutive to the sentence for murder; three-year sentences of imprisonment on two of the endangering safety convictions, to be served concurrently with each other, but consecutive to the previously imposed sentences; a one-year sentence of imprisonment on the fourth endangering safety conviction, to be served consecutive to previously imposed sentences; and a six-months' sentence of imprisonment on the reckless use of a firearm conviction to be served consecutive to the previously imposed sentences.

An appeal has been taken from the judgment of conviction and the order of the trial court denying the appellant's motions for a new trial, reduction of sentence, and judgment of acquittal notwithstanding the verdict.

Jerome A. Maeder, Kenneth J. Andraski and Jerome A. Maeder, S. C., Wausau, on brief, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., on brief, for plaintiff-respondent.

HANSEN, Justice.

On appeal the appellant challenges the jurisdiction of the trial court, the sentences imposed and the sufficiency of the evidence.

There were six different victims in these prosecutions. The result is a somewhat lengthy statement of facts.

Appellant is a Menominee Indian who, at the time of the events which led to these convictions, was living on the Menominee Reservation. The charges against him arose out of events which occurred on November 1, 1975, on the Menominee Reservation. The facts we relate were testified to at a jury trial held in Columbia county on June 1-4, 1976.

Appellant and his girl friend, Brenda LaRock, met Gordon Long, the victim in one of the endangering safety counts, and his wife in a tavern about 2 p.m. on November 1st. Appellant and Long argued at that time over control of the pool table. About 4 p.m. the same day as Audrey Long was driving the car with her husband and daughter, and Mike Long and Wendell LaRock as passengers they passed appellant walking along the highway. Mrs. Long stopped and picked appellant up at LaRock's request. They drove him to Neil Hawpetoss' house near Keshena Falls where appellant was then residing. Appellant went into the house and returned to the car with a gun and some beer. Gordon Long testified that the gun looked like an M-16; his wife described it as a machine gun.

They drove appellant back to the LaRock home so he could ask Brenda where the clips for the gun were. Audrey Long testified that after they all went into the house she got the gun from the car, took it in to Brenda and asked her to hide it. Brenda admitted that Mrs. Long had brought the gun into the house but said she thought Mrs. Long was just trying to do something "sneaky." Appellant brought the gun back to the car and they all returned to the Keshena Falls home. Appellant and Brenda went into the house and appellant returned alone with a gun clip. Brenda remained in the house and Audrey and Mike Long and Audrey's daughter remained in the car while appellant, Gordon Long and Wendell LaRock went over to the riverbank near the house. The three men took turns shooting the gun at a rock in the river.

Gordon Long said that he took only one shot then handed the gun back to appellant and said, " 'boy, that's a pretty good gun.' " He said appellant responded, " 'Don't call me boy,' " and pointed the gun at Long's stomach. He testified appellant then said, " 'Who am I?' " and when Long replied that he didn't know who he was appellant shot across the river again, then shot along the right side of Long's head with the gun barrel about a foot away. Long said appellant next aimed the gun between his eyes with the muzzle about six inches away and said " 'I could drop you where you stand.' " Long said he replied, " 'I know you could.' " He said appellant held the gun there from 30 to 60 seconds but calmed somewhat and lowered the gun when Long said " 'I don't know who you are, you are just a brother.' " Appellant then invited Long into the house. Long left with his wife as soon as appellant entered the house and went to the police to report the incident. Long testified that he was not an Indian but that he had a little Indian blood. He thought the incident occurred between 4:30 and 5 p.m.

Audrey Long testified that she saw appellant aim the gun between her husband's eyes, then saw him lower the gun and shoot it with the barrel level next to Long's ear. She said she went into the house to get Brenda to talk to appellant but that Brenda refused. Brenda admitted that Mrs. Long came into the house and asked if appellant would do anything to them. At this point appellant and LaRock came back to the house and the Longs left.

Brenda LaRock testified that while she was in the house she heard shooting but did not watch and did not see any of the events described.

Appellant testified that he had not known Long before but that he had gotten the impression he was a 'sneak.' He said he was looking for the shell clips so he could show the gun off to Long and LaRock. He said the gun was an AR-15 he had found near Gresham Abbey. He said he was shooting across the river when Long said " 'Boy, . . . that's pretty cool.' " He said he then turned toward Long and fired one shot with the gun pointed up and to the side of Long's head with the muzzle extending beyond Long's head so he couldn't hit him. He said he then spun around and rapidly fired four shots across the river until a clicking sound told him the gun was empty. He said he took the clip out and snapped it in again to make sure. He said at this point he aimed the gun between Long's eyes and said, jokingly, to scare Long, " 'You fool, you want to die,' " or " 'you want to get shot.' " He said Long then apologized and he asked Long in for a drink but Long left.

A Menominee county deputy sheriff testified that he was notified that the Longs wanted to make a complaint around 5:30 p.m. He said when he took the complaint from Long between 6 and 6:30 p.m. Long appeared to be sober but nervous.

Shortly after the Longs left a second group arrived which included two Menominee Indians, Mark Vigue and John Haack, and three whites, Terry Erickson, Wanda Bero and Donald Bohardt. Vigue, Haack and Erickson were the victims in three of the endangering safety counts; Wanda Bero, the victim in the reckless use of a firearm count; and Donald Bohardt, the victim in the first-degree murder count. The five had spent the afternoon drinking at Haack's home and went to appellant's at Haack's suggestion to see if he wanted to join them. Haack went into the house alone. Haack was subpoenaed but did not appear at trial to testify.

Brenda LaRock testified that Haack asked them if they wanted to buy some marijuana. She said appellant said no. She further testified that Haack said some people from Neopit were in the car and appellant told Haack to tell them to come in. Haack refused so appellant went to the porch. Mark Vigue then came in and he asked if they wanted to smoke marijuana and appellant answered that they didn't. Appellant, LaRock, Vigue and Haack then went outside but she remained in the house.

Vigue testified that he went into the house because appellant came out onto the porch and waved for them to come in. When he entered the house appellant motioned for him to throw him the gun clip which was laying on a table, and he did so. They went outside and were about to get into the car to leave when appellant came out carrying the gun.

Appellant testified that Haack asked if they wanted some dope and that he replied they did not. He offered Haack a beer and Haack accepted and said he would call the others in. Haack went out but returned saying the others didn't want to come in. Appellant asked who was out there and Haack replied they were from Neopit. Appellant went to the door and motioned them in and Mark Vigue came in and Haack introduced him to appellant. The car horn honked and he asked who else was out there; Haack replied that Terry Erickson was, then left. He followed Haack out with the gun because he knew Terry Erickson pushed dope and Erickson had tried to sell him some the night before.

Mark Vigue also testified that as he and Haack were about to get into the car appellant came out of the house with the gun, approached them and, without saying anything, hit him alongside the head with the gun barrel. Haack asked appellant why he did that and appellant turned to Haack and started hitting him with his fists in the face. Appellant yelled at Haack for bringing white honkies or white dogs there. He said Haack sustained a cut lip and a scratch where his glasses broke. Appellant ordered everyone out of the car and demanded they turn over their marijuana. Appellant laid the gun on the roof of the car aimed at Terry Erickson and said he was going to put one between his eyes; Erickson ducked so appellant placed the gun barrel to Vigue's throat and said " 'You know what I mean.' " Vigue said he replied, " 'What?' " and appellant lowered the gun, fired a shot by his feet and said, " 'Now you know what I mean.' " Vigue responded that he did and appellant said, " 'Well then, do it.' " Appellant turned to berate Haack again and then walked behind the car and fired a couple shots at the ground. He shot again through the back window as Erickson was...