State v. Perkins
| Decision Date | 04 May 2000 |
| Docket Number | No. 99-1924-CR.,99-1924-CR. |
| Citation | 614 N.W.2d 25,237 Wis.2d 313,2000 WI App 137 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Murle E. PERKINS, III, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the brief of William E. Schmaal, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and James E. Doyle, attorney general.
Before Vergeront, Roggensack and Deininger, JJ.
¶ 1.
Murle Perkins appeals a judgment which convicted him of threatening a judge, and an order which denied him postconviction relief from that judgment. He claims the State presented insufficient evidence at trial to support the jury's guilty verdict. Perkins also asks us to grant him a new trial because of the alleged inadequacy of the current pattern jury instruction regarding the crime of threatening a judge. Finally, Perkins argues that his trial counsel was ineffective for not stipulating to his prior felony convictions for purposes of a companion charge of being a felon in possession of a firearm.
¶ 2. We conclude that the evidence at trial was sufficient to support the jury's verdict that Perkins was guilty of threatening a judge, and further, that Perkins suffered no prejudice from his counsel's failure to stipulate to an element of the companion firearm charge. We also decline to exercise our discretionary authority to reverse and order a new trial because we are not convinced that the real controversy was not fully tried. Accordingly, we affirm the appealed judgment and the order denying postconviction relief.
¶ 3. Three weeks after Judge Robert Radcliffe found Perkins in contempt of court for failing to pay nearly $50,000 in child support and interest, Perkins spent the day at a bar and became intoxicated. Around 5:30 p.m., Perkins telephoned his sister-in-law from the bar and asked her to drive him to his home. She testified that he appeared to be "drunk" and seemed very "depressed." Later that evening, two of Perkins's friends contacted the Black River Falls police to report that an "exceptionally depressed" Perkins had telephoned them to say "goodbye" and that he was "tired of it, it's—it's finished."
¶ 4. A police officer dispatched to the residence observed that Perkins was intoxicated. During the course of a thirty-minute conversation, Perkins admitted to the officer that he was depressed, that he had contemplated suicide, and that he had fired a gunshot. At one point, Perkins grinned and told the officer that he would take his own life with "a shoestring," but went on to say "it would be very easy" as he glanced at a nearby gun cabinet containing several "long guns." Later in the conversation, Perkins said, "if I were gonna do—do myself, I'd—I'd shoot Judge Radcliffe first because he's a brain dead son of a bitch." The officer took Perkins into custody under a Chapter 51 emergency detention because the officer believed "that he was possibly a danger to himself and possibly to others."
¶ 5. The State subsequently charged Perkins with threatening a judge, intoxicated use of a firearm, and possessing a firearm as a convicted felon. A jury found Perkins guilty of making a threat to a judge but acquitted him on the two firearms charges. Perkins moved for postconviction relief, citing insufficient evidence and ineffective assistance of counsel. Following a hearing, the trial court denied relief, and Perkins appeals the judgment of conviction and the order denying postconviction relief.
¶ 6. The supreme court in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990), discussed the difference between a jury's obligation to acquit unless the State has proven a defendant guilty beyond a reasonable doubt, and our standard for reviewing the sufficiency of the evidence to support a jury's verdict of guilty. The court noted that when reviewing the sufficiency of the evidence, "`[t]he test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true....'" Id. at 503-04 (citation omitted). The court explained the standard of review as follows:
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
Id. at 507 (citation omitted). ¶ 7. In order to determine whether the State adduced sufficient evidence at trial to permit a jury to find Perkins guilty of threatening a judge, we must first determine what the State had to prove in order to gain a conviction. WISCONSIN STAT. § 940.203(2) (1997-98)2 provides as follows:
The Criminal Jury Instruction Committee has concluded that the statute requires proof of six elements: (1) that the defendant "threatened to cause bodily harm to" a person; (2) that the person "was a judge"; (3) that "the defendant knew that [the person] was a judge"; (4) that the judge "was acting in an official capacity," or that the threat "was in response to an action taken in the judge's official capacity"; (5) that "the defendant threatened bodily harm without the consent of" the person; and (6) that "the defendant acted intentionally." WIS JI—CRIMINAL 1240 (footnotes omitted). ¶ 8. The principal issue in this appeal, central not only to Perkins's sufficiency of the evidence challenge but also to his request for discretionary relief, relates to the first and sixth elements. What does it mean to "threaten to cause bodily harm" to a judge, and is the requirement that a defendant do so "intentionally" sufficient to avoid conflicts with the First Amendment? Perkins claims that the term "threaten" in the statute is ambiguous, and it "must be construed such that it refers to speech or conduct which objectively causes reasonable fear that the threatened purpose will be carried out, but does not include idle or careless talk, jest or exaggerated political comment." And, according to Perkins, under this definition, the evidence at trial was insufficient to prove that he made a "true threat" against Judge Radcliffe on the evening in question.
¶ 9. Perkins asserts that nothing in the legislative history or statutory context of WIS. STAT. § 940.203 provides much guidance on the question, and he notes that there are no Wisconsin appellate opinions construing the term "threaten" as used in the statute. Perkins urges us, therefore, to construe the Wisconsin statute in the same manner in which the Supreme Court has interpreted a federal statute prohibiting the making of threats against the President of the United States. See Watts v. United States, 394 U.S. 705 (1969). The federal statute makes it a crime to "knowingly and willfully" make "any threat to take the life of or to inflict bodily harm upon the President. ..." Id. at 705. A jury found the defendant in Watts guilty under the statute for saying, during a public rally at the Washington Monument, Id. at 706.
¶ 10. The Supreme Court reversed the conviction, concluding that while the statute in question was "constitutional on its face," it needed to be Id. at 707. The Court then explained why a "true threat" had not been proven on the record before it:
[T]he statute initially requires the Government to prove a true "threat." We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term.... We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
¶ 11. Perkins maintains that if we apply the Supreme Court's rationale in Watts to the present facts, we must reverse his conviction because the State did not establish that he made a "true threat" against Judge Radcliffe. Perkins claims the content and context of his remark shows that it did not constitute a "genuine, serious threat to cause bodily harm to Judge Radcliffe" because he was intoxicated when he uttered the statement; he "laughed and grinned" about the subject of killing himself; his comment was...
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State v. Perkins
...SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. This is a review of a published decision of the court of appeals, State v. Murle E. Perkins, III, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, affirming an order of the Circuit Court for Jackson County, Michael McAlpine, Circuit Court Judge. The cir......
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