State v. Murdock

• Decision Date: 20 July 2000
• Docket Number: No. 99-0566-CR.,99-0566-CR.
• Citation: 2000 WI App 170,238 Wis.2d 301,617 N.W.2d 175
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Earl L. MURDOCK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

238 Wis.2d 301

2000 WI App 170

617 N.W.2d 175

STATE of Wisconsin, Plaintiff-Respondent, v. Earl L. MURDOCK, Defendant-Appellant.

No. 99-0566-CR.

Court of Appeals of Wisconsin.

Submitted on briefs February 11, 2000.

Decided July 20, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael R. Kloss, assistant attorney general.

Before Dykman, P.J., Vergeront and Deininger, JJ.

¶ 1. DYKMAN, P.J.

Earl L. Murdock appeals from a judgment convicting him of first-degree intentional homicide, two counts of attempted first-degree intentional homicide, criminal trespass to a dwelling and disorderly conduct, all while armed with a dangerous weapon. Murdock initially entered pleas of not guilty and not guilty by reason of mental disease or defect. After he later pleaded no contest to the criminal charges, a jury rejected Murdock's plea of not guilty by reason of mental disease or defect.

¶ 2. Murdock argues that the trial court erred by concluding that he could not waive a jury in the mental responsibility phase of the bifurcated trial without the consent of the State. We disagree and affirm. However, Murdock also contends that he is entitled to a new trial in the interests of justice on the issue of his mental responsibility because there is a substantial probability that a new trial would produce a different result. Considering the evidence as a whole, we agree. Therefore, we grant a discretionary reversal under WIS. STAT. § 752.35 (1997-98)¹ and remand with directions to conduct a new trial on the issue of Murdock's mental responsibility.

I. Background

¶ 3. In the information, Murdock was charged with first-degree reckless homicide, two counts of attempted first-degree intentional homicide, criminal trespass to a dwelling and disorderly conduct, all while armed with a dangerous weapon. The charges arose from an April 22, 1997 rampage which began when Murdock argued with his wife in their home and threatened members of his family with a knife. Murdock then went outside and stabbed a neighbor to death. Finally, he forced his way into the home of two other neighbors and stabbed both of them causing serious injuries. Murdock initially entered pleas of not guilty and not guilty by reason of mental disease or defect.

¶ 4. The State filed an amended information, replacing the charge of first-degree reckless homicide with a charge of first-degree intentional homicide. Murdock again entered pleas of not guilty and not guilty by reason of mental disease or defect to the amended information. Murdock also indicated that he wanted to have a trial to the court instead of a jury on both the guilt and the responsibility phases of the bifurcated trial, but the State was not willing to consent to the jury waiver under WIS. STAT. § 972.02(1).² Murdock then filed a motion to compel jury waiver, arguing that § 972.02(1) did not apply to the responsibility phase of a bifurcated trial because the responsibility phase was not criminal in nature. Before the trial court decided his motion, Murdock entered no contest pleas to the five criminal charges. The court found Murdock guilty of the charges in the amended information, but stayed entry of the judgment of conviction until completion of the responsibility phase. The court later denied Murdock's motion to compel jury waiver, concluding that consent of the state was required to waive a jury in the responsibility phase under § 972.02(1).

¶ 5. Beginning on January 20, 1998, the trial court held a three-day jury trial on the issue of Murdock's mental responsibility. After the opening statements, the court read a set of stipulated facts to the jury. The court stated that Murdock's wife had known him for twenty years before the stabbings, and that, for nineteen of those years, Murdock had been taking medication for mental health problems. On April 22, 1997, Murdock had not been taking his medication and, when his wife returned home in the evening, they began arguing. During the arguments, Murdock would retreat to his room and come back out, holding his head and stating: "They won. They won." In one of his trips into his room, he picked up a knife. He told his wife: "I'm going to have to hurt somebody.... Today was a really bad day. I'm going to have to hurt somebody." Murdock began waving the knife around and threatening his family, including two young children, with it. Murdock's family ran from their apartment to a neighbor's downstairs apartment. Murdock followed his family downstairs and demanded that they come out from hiding. When they did not, Murdock left.

¶ 6. In the meantime, Norbert Grams, Jr., had left home to get a pack of cigarettes. The next anyone saw of Murdock, he had parked Grams's station wagon in front of Shirley and Edwin Smith's house and was dragging Grams's body from the back seat of the car. Murdock had stabbed Grams approximately twenty times. Grams was still alive when Murdock pulled him from the car. He tried to crawl away, but died shortly thereafter. Murdock then forced his way into the Smiths' house and demanded money. Shirley Smith told the police that Murdock "went berserk stabbing" the Smiths. When she dialed 911, Murdock knocked the phone from her hand, but the police quickly arrived.

¶ 7. After the trial court read the stipulated facts, two medical experts testified: Dr. Smail, a court-appointed psychologist, and Dr. Palermo, a psychiatrist hired by the defense. Smail concluded that Murdock suffered from a schizoaffective disorder that caused him to lack substantial capacity to appreciate the wrongfulness of his acts and to conform his behavior to the requirements of the law. Smail stated that he believed that Murdock was in an agitated psychotic state throughout the incidents on April 22, 1997, even though he behaved normally at several points. Smail based his conclusion on an interview with Murdock, on the criminal complaint and police reports, and on Murdock's mental health records for the ten to twelve years prior to the incident that were provided by the defense.

¶ 8. Smail also explained that after Murdock was arrested and brought to jail, he was seen by a doctor who classified Murdock as being psychotic and prescribed psychotropic medication. On April 24, 1997, Murdock was in such an agitated psychotic state that he was placed in leather restraints. Smail acknowledged that Murdock's mental health history included drug and alcohol abuse. However, he pointed out that there was no evidence that Murdock had used drugs on April 22, 1997. In addition, although Murdock had some alcohol earlier in the day on April 22, the police reports gave no indication that Murdock was intoxicated, and Murdock's recovery from his agitated state took much longer than it should have if it was caused by intoxication. Finally, Smail stated that he did not think that Murdock was malingering, but instead was genuinely mentally ill.

¶ 9. Dr. Palermo also testified that, at the time of the offenses, Murdock did not have the mental capacity to distinguish right from wrong, to appreciate the nature of his actions, and to conform to the requirements of the law. He stated that Murdock was suffering from schizophrenia, paranoid/catatonic type, with occasional destructive homicidal excitement. Palermo based his conclusions on an interview with Murdock, and a review of the police reports, county jail records, and the medical history documents provided by the defense. Palermo said that, at the time Murdock demanded money from the Smiths, he knew he had done something wrong and wanted to run away. However, Palermo said such behavior was consistent with his conclusion regarding Murdock's mental state because a person in Murdock's state could be temporarily shocked back into reality by the realization of what he or she had done. Palermo ruled out alcohol use as the cause of Murdock's behavior because Murdock had only had alcohol in the morning before his rampage. Palermo also explained that he ruled out use of drugs, such as angel dust, that might cause strange behavior, because such drugs would cause effects for thirteen or fourteen hours and then be washed out of a person's system, which was not consistent with Murdock's behavior.

¶ 10. Murdock's mother and brother also testified. Murdock's mother said that she remembered him having mental health problems since 1983. She described a time in 1986 when Murdock came to visit her. He kicked down her door with a wild look in his eyes. Without saying anything he went straight to her kitchen, found a hammer and attacked her with it. Her boyfriend tackled Murdock, but Murdock began choking him until Murdock's mother was able to grab the hammer and knock Murdock out with it. Murdock's mother and her boyfriend ran, but Murdock quickly caught up with them after waking up and asked his mother, "Mama, who is behind you. Who's hurting you?" Murdock's mother said that he was hospitalized after the incident. She also said that Murdock had come to visit her in Chicago on April 21, 1997, with a strange look in his eyes, but would not respond to her questions and quickly turned around and left. Murdock's brother testified that he was also at his mother's house when Murdock visited on April 21. He said that Murdock had a weird stare, but that he did not think Murdock was under the influence of drugs or alcohol at the time.

¶ 11. Edwin Smith also testified. Smith described the night that Murdock attacked him and his wife. Smith said that, before the attack, he had had little interaction with Murdock, but had no personal disagreements with him. Smith also stated that any time he saw Murdock outside, Murdock had a can of beer in his hand.

¶ 12. Finally, three police officers testified. Officer Santiago, a plain-clothes officer, explained...