State v. Olson

• Citation: 75 Wis.2d 575,250 N.W.2d 12
• Decision Date: 01 February 1977
• Docket Number: No. 75--613--CR,75--613--CR
• Parties: STATE of Wisconsin, Respondent, v. Peter OLSON, Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 12

250 N.W.2d 12

75 Wis.2d 575

STATE of Wisconsin, Respondent, v. Peter OLSON, Appellant.

No. 75--613--CR.

Supreme Court of Wisconsin.

Argued Nov. 4, 1976.

Decided Feb. 1, 1977.

William M. Coffey and Coffey & Coffey, Milwaukee, and oral argument by Dennis P. Coffey, Milwaukee, for appellant.

Marguerite M. Moeller, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

ABRAHAMSON, Justice.

The defendant was found guilty by a jury of endangering safety by conduct regardless of life contrary to sec. 941.30, Stats.:

'Whoever endangers another's safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be fined not more than $1,000 or imprisoned not more than 5 years or both.'

The defendant was sentenced to an indeterminate term of not more than two years in the State Reformatory at Green Bay.

The factual basis for the instant verdict can be summarized as follows:

On the night of February 15, 1974, the victim, Theodore Hansen, a witness, Henry Gutmann, and the defendant, Peter Olson, were present in a tavern in the village of Shortly thereafter, Gutmann (and other patrons of the tavern) observed the defendant outside the tavern in a parking lot kicking Hansen, who was crouched against a car. No other person was outside the tavern near them. The defendant, wearing boots and grasping a door handle, was kicking and stomping on the head and shoulders of the victim, who was bleeding from the nose and mouth. The victim tried to defend by covering himself; he did not fight back. The attack continued after Hansen was rendered unconscious. Gutmann then went outside, helped Hansen to his feet and assisted him to his car. Hansen was unable to stand without aid; his face was swollen and bloody, and he was barely able to communicate. He did, however, succeed in driving home where he was able to summon aid after two phone calls to his parents, the and now experiencing breathing difficulty. make them understand who was calling. They in turn called an ambulance, and Hansen was taken to St. Michael Hospital, unable to walk unassisted, barely able to talk and now experiencing breathing difficulty.

Brown Deer in Milwaukee county. At approximately 11 p.m. the defendant approached Gutmann and asked him if he would beat someone up. Gutmann refused. Gutmann then saw the defendant walk over to Hansen and strike him across the shoulder and head without provocation. Prior to this encounter the victim and defendant were unacquainted. As Hansen turned to face the defendant the latter told him to leave the tavern immediately, which he did with the defendant following.

At the hospital he was placed immediately in the intensive care unit for about twenty-four hours and remained in the hospital for an additional five days. During this time he needed supplemental oxygen and was fed intravenously. Approximately two weeks after his discharge, the victim returned to the hospital for elective surgery to straighten his nose, which had been broken in the encounter with the defendant.

There are six issues raised on appeal:

1. Was the complaint sufficient to support the issuance of a warrant?

2. Was the evidence adduced at the preliminary hearing sufficient to support a bindover for trial?

3. Was the defendant's constitutional right to confrontation violated by the admission into evidence of the victim's hospital records without the supporting testimony of the medical personnel who made them?

4. Was the trial court's failure to charge the jury as requested by the defendant prejudicial error?

5. Was enough evidence presented at the trial to justify the conviction beyond a reasonable doubt?

6. Is the defendant entitled to a new trial in the interest of justice?

COMPLAINT

This court has frequently stated that a complaint is a self-contained charge. The document itself must set forth facts which, together with any reasonable inferences therefrom would lead a reasonable person to conclude that a crime had probably been committed and that the defendant named in the complaint was probably the culpable party. State v. Haugen, 52 Wis.2d 791, 793, 191 N.W.2d 12 (1971). ¹ The test The complaint charges that the defendant

under Wisconsin law of the sufficiency of the complaint is one of 'minimal adequacy, not in a hypertechnical but a common sense evaluation, in setting forth the essential facts establishing probable cause.' State ex rel. Evanow v. Seraphim, 40 Wis.2d 223, 226, 161 N.W.2d 369, 370 (1968). See also State v. Elson, 60 Wis.2d 54, 58, 208 N.W.2d 363 (1973).

'on 2/15/74 at 7751 N. Teutonia Ave., Village of Brown Deer, county of Milwaukee, did feloniously endanger the safety of another, Theodore Hansen, by conduct imminently dangerous to said person and evincing a depraved mind, regardless of human life, contrary to Wisconsin statutes 941.30.'

The complainant states that

'he is a police officer employed by the Brown Deer Police Department and bases this complaint on the following:

'Based upon statements made to your complainant by Theodore Hanson (sic), a citizen, who he believes to be a truthful and honest person who stated that on the above stated date and location he personally observed the defendant whom he did not personally know until that time, hit him in the back and ask him to come outside; that upon exiting the building at said location he personally observed the defendant beat him with his fists and kick him; that he was knocked unconscious; further that he was then conveyed to Saint Michael's (sic) Hospital where he was treated in the intensive care unit for a variety of injuries, from 2/15/74 through the date of this complaint.'

Under the statute there are three elements in the crime charged:

"First, that the defendant's conduct was imminently dangerous to another;

"Second, that his conduct was of such a character that it evinced a depraved mind, regardless of human life;

"Third, that the defendant endangered the safety of another by such conduct." State v. Dolan, 44 Wis.2d 68, 73, 170 N.W.2d 822, 825 (1969), quoting with approval Wis. J.I.--Criminal II, 1345.

The qualities of the conduct being imminently dangerous and evincing a depraved mind regardless of life are found in the act itself and the circumstances of its commission. State v. Weso, 60 Wis.2d 404, 409, 210 N.W.2d 442 (1973). The imminently dangerous aspects of the defendant's conduct may readily be inferred from the complaint, which states that the defendant beat and kicked the victim into a state of unconsciousness with the resulting injuries requiring extended hospitalization and intensive care. This court has variously described 'a depraved mind regardless of human life' as deficient of moral sense; devoid of regard for the moral or societal duties of a human being; indifferent to or lacking concern for the life or safety of another; marked by lack of justification or excuse, debasement, corruption, perversion, or deterioration; unreasonable and lacking in judgment, balance and a moral sense. State v. Weso, supra at 410--412, 210 N.W.2d at 444. The complaint states that the victim and the defendant were previously unacquainted and that the victim was kicked and beaten unconscious, and required hospital care. It could reasonably be inferred from these facts that there was probable cause to believe that the beating was excessive and lacked justification and that the defendant's conduct was unreasonable and displayed a lack of concern for the The complaint is the first of many steps in a criminal prosecution. Its essential function is informative, not adjudicative. 'It is enough that a fair-minded magistrate could conclude that the facts and circumstances alleged justify further criminal proceedings and that the charges are not merely capricious.' State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 444, 173 N.W.2d 175, 180 (1970). We conclude that this complaint adequately stated facts sufficient, together with reasonable inferences therefrom, to justify the issuance of a warrant charging the defendant with a violation of sec. 941.30, Stats.

life or safety of another and a lack of moral sense and judgment. That the complaint sufficiently states that the defendant's conduct did endanger the victim's safety, the third element, is not disputed.

PRELIMINARY HEARING

The defendant contends that the evidence adduced at the preliminary hearing was insufficient to support a bindover for trial. The purpose of a preliminary hearing is to determine if there is probable cause, a reasonable probability, to believe a felony has been committed by the defendant. ²

The scope of appellate review of the sufficiency of the evidence adduced at the preliminary hearing is set forth in State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 583, 215 N.W.2d 390, 394 (1974):

'It is well established in this state that the evidence at a preliminary hearing need not be sufficient to prove the charge against the defendant beyond a reasonable doubt. The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence.'

At the preliminary hearing the victim and a patron of the tavern testified that the defendant, without provocation, hit the victim in the tavern, ordered him to leave, followed him outside and there kicked and beat him. As a result of the attack the victim received injury to his head, face and neck; he was bleeding, experiencing great pain, and having great difficulty breathing. He was confined in a hospital for six days. In addition to this evidence the judge could observe the size...