State v. Mendoza
| Decision Date | 04 October 1977 |
| Docket Number | No. 75-806-CR,75-806-CR |
| Citation | 80 Wis.2d 122,258 N.W.2d 260 |
| Parties | STATE of Wisconsin, Respondent and Cross-Appellant, v. James Ray MENDOZA, Appellant and Cross-Respondent. |
| Court | Wisconsin Supreme Court |
Stephen M. Glynn (argued), James M. Shellow (argued), and Shellow & Shellow, Milwaukee, on briefs, for appellant and cross-respondent.
E. Michael McCann, Dist. Atty. for Milwaukee County, with whom on the brief were Bronson C. La Follette, Atty. Gen., William L. Gansner and David J. Becker, Asst. Attys. Gen., for respondent and cross-appellant.
November 11, 1974, James Ray Mendoza, the defendant, was found guilty by a jury of two counts of first degree murder 1 in the shooting deaths of two Milwaukee police officers. Although the crimes charged took place in the city and county of Milwaukee, the place of trial was moved to the city of Sparta in Monroe County on the sua sponte order of the trial court. November 12, 1974 Mendoza was sentenced to two consecutive terms of life imprisonment. He appeals from the judgment of conviction and orders denying post-conviction motions entered November 3, 1975.
We conclude the conviction cannot stand and a new trial must be had. Accordingly, this opinion deals with those issues which lead us to that conclusion or which are likely to be raised again at the new trial. Because sufficiency of evidence is not at issue in this case, the recitation of facts is similarly limited. 2
The issues which we deem crucial to the disposition of this appeal are as follows:
I. Did the trial court err in moving the trial from Milwaukee county, where the crime was committed, to Monroe county over the timely objection of the defendant?
II. Did the trial court err in refusing to instruct the jury on (a) manslaughter: causing death of another unnecessarily in the exercise of self-defense, (b) self-defense, or (c) manslaughter-heat of passion.
We also consider the following issues as bearing on the conduct of a new trial:
III. Was defendant entitled to rebut the testimony of a polygraph examiner, the admissibility of whose opinion defendant had stipulated to, with the testimony of another polygraph expert?
IV. Did the court err in refusing to admit evidence consisting of an expert opinion, and to instruct the jury on a statutory presumption, that the deceased officers were intoxicated?
Defendant has admitted shooting to death two off-duty Milwaukee police officers, Robert Riley and Thomas Matulis, in the early hours of July 10, 1974 in Milwaukee. Prior to the killings defendant and two friends, Jesus Fiscal and Arnaldo Hernandez, were drinking at a tavern on South 13th Street. Defendant admitted that he had been drinking beer and smoking marijuana since the afternoon of July 9. At a nearby tavern officers Riley and Matulis met with Matulis' younger brother James and his three friends, James Reichel, Gerald Krolikowski and Jerome Sobczak. This group then moved down the street to another tavern which was two doors away from where the defendant and his friends were.
When the defendant and his companions exited the tavern at about 2:00 a. m., they encountered two unidentified men who were standing directly across the street. These men were not connected with nor in close proximity to the slain officers or their group. One of the two unidentified men hurled a glass object at the defendant's group. Jesus Fiscal testified he then threw a beer bottle back across the street at the two men. The defendant then pulled out a twenty-two caliber revolver and said, "I'll scare those guys" and discharged a bullet into the air.
At the time of the incident officers Matulis and Riley were about one-half block down the street on the same side of the street as defendant. The officers were in casual dress and unarmed, as were their friends.
After hearing the gunshot, the two officers and James Matulis approached the defendant and asked him why he had shot in the air. Defendant pointed the gun at them and then he and his companions crossed the street and quickly proceeded north. The two officers and James Matulis followed them across the street. Meanwhile, Krolikowski, Reichel and Sobczak, the officers' other friends, paralleled their movements north on the other side of the street. At some point James Matulis recrossed the street joining the three who were keeping their distance.
Then, as the pursuing officers Riley and Matulis passed Riley's car, Riley entered his automobile and removed his revolver from the glove compartment. Riley rejoined Thomas Matulis on the sidewalk. The two men then identified themselves as police officers. Defendant testified he turned, placed his weapon in his pants, and ran.
The struggle which led to the shooting deaths then ensued. Evidence at trial raised at least three theories of how the struggle took place.
Defendant's version of the struggle as put forward at trial, is as follows:
One of the officers grabbed him, turned him around and started hitting him. Defendant threw his revolver to the ground and told them, "they didn't have to hit me, that they had me already." The officers continued to hit him between two cars parked at the curb. They were hitting him "with something hard" and defendant continued to protest. The defendant denied using force against the officers during the struggle. With one knee on the ground he held his hands over his head to protect himself from the blows, he testified.
The shots were about a second and a half or two seconds apart. Defendant further testified he shot the officers because they would not stop beating him. He did not run away, he said, because,
Defendant's claim he was being beaten by the two officers was partially corroborated by state's witness James Reichel, who had been with the officers prior to the struggle. He testified, However, at the time of the actual shootings Reichel could not see the actual position of the three men.
Gerald Krolikowski, another state's witness, testified the three persons engaged in the fight were the two slain officers and one of the Mexican-Americans.
The state's factual theories of the case were substantially different from the defendant's story. Two versions of the events were presented: The first theory was that the defendant was the aggressor and he killed the officers attempting to escape. Defendant had brandished a gun earlier and had threatened the police. A witness observing from a nearby house testified that during the melee she heard someone say four times in a Spanish accent, "I'm going to blow your brains out with this gun."
Another state theory alternatively presented to the jury was that the fight began between two Mexican-Americans (including defendant) and one of the officers, whereupon the officer was shot; the second officer was shot coming to his aid. This theory was based on the testimony of state witnesses who testified the men doing the beatings had hair styles similar to those of defendant and Fiscal. Several witnesses said two men were beating a third who was pushed up against the hood of a car. Bystander Donald Pachowicz, observing from his home, testified that the man pinned to the hood was the man he later found slain on the sidewalk, officer Riley. Pachowicz also heard someone say, "hit him again, hit him again," and then heard two shots.
Autopsies were conducted on the slain officers. These showed that Matulis had .14% alcohol by weight in the blood and .23% alcohol by weight in the urine. The alcohol level in the urine indicated that sometime prior to death, the blood alcohol level was .17% to .18%. Riley had .13% alcohol by weight in the blood, and .21% alcohol by weight in the urine. The alcohol in the urine indicated that sometime prior to death the blood alcohol level was .16% to .17%.
Additionally, Matulis had a recent horizontal cut on the forehead one-half inch long and scrapes on the right hand and left knee. The autopsy of Riley revealed skinned areas on both knees. A medical examination of defendant following the shootings revealed a laceration in the left perital region of the head, two centimeters long and three millimeters deep.
Among the various items of evidence removed at the scene was a clump of hair which was said to be forcibly removed. This hair was consistent only with the hair of the defendant. Other hair, said to have "fallen naturally" was consistent only with the hair of officer Matulis.
On September 9, 1974, one month before commencement of the trial, the trial court sua sponte ordered the place of trial moved from the city of Milwaukee, Milwaukee County to the city of Sparta, in Monroe County. Conceding that "the place of trial, is a matter which under the constitution is peculiarly that of the defendant" the trial court found "that the defendant will, absent drastic action in what the court considers to be an aggravated situation, be denied the right to a fair...
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