State v. Sarabia

• Decision Date: 30 May 1984
• Docket Number: No. 82-963-CR,82-963-CR
• Citation: 348 N.W.2d 527,118 Wis.2d 655
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Abel SARABIA, Defendant-Appellant-Cross-Petitioner.
• Court: Wisconsin Supreme Court

Page 527

348 N.W.2d 527

118 Wis.2d 655

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Abel SARABIA, Defendant-Appellant-Cross-Petitioner.

No. 82-963-CR.

Supreme Court of Wisconsin.

Argued Feb. 29, 1984.

Decided May 30, 1984.

Jeffrey M. Gabrysiak, Asst. Atty. Gen., for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on the briefs.

Robert G. LeBell, Milwaukee, for defendant-appellant and cross-petitioner.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals, 113 Wis.2d 722, 334 N.W.2d 588 (App.1983), reversing a judgment of conviction for second-degree murder and remanding for a new trial, affirming the judgment of conviction for injury by conduct regardless of life and carrying a concealed weapon, and affirming the order of the trial court denying the defendant's postconviction motions. The judgment of conviction and order denying the motions were entered by the circuit court for Rock county, Judge Edwin C. Dahlberg. We reverse in part and affirm in part the decision of the court of appeals.

The primary issue presented on appeal is whether a defendant charged with second-degree murder is entitled to lesser included offense jury instructions on manslaughter (imperfect self-defense) and homicide by reckless conduct when he testifies at trial that he did not engage in the conduct underlying the offense charged.

Testimony at trial revealed that the events leading to the crimes began on the evening of December 18, 1980. That night the defendant, Abel Sarabia, was attacked by a knife-wielding man outside the Socialite Club, a basement bar located in Beloit, Wisconsin. The defendant ran into the bar where the bartender, Clarence Owens, helped him treat his wounded hand. Before he left the bar and returned to his car, the defendant threw some money across the bar to Owens. Owens testified that the defendant said it was a tip; the defendant testified that he merely entrusted the money to Owens for safekeeping.

The next evening, December 19, 1980, the defendant, accompanied by a friend, Jose Arreguin, returned to the Socialite Club. After having a couple drinks, the defendant demanded that Owens return the money the defendant had given him the previous evening. Owens refused to give the defendant the money. Owens then walked over to the cash register and opened a drawer beneath the register where a "house gun" was usually kept. Finding no gun, Owens began walking toward the door leading to the kitchen adjoining the bar area. In the meantime, the defendant pulled out a gun and aimed it in the direction of Owens. As Owens approached the door, the defendant shot him in the upper right back area. The defendant then fired at least one other shot, hitting the kitchen door area. The defendant fled up the stairs leading from the bar to the street. He was followed by his friend, Jose Arreguin. At this point, another shot was fired, and Arreguin fell face down on the stairs. Arreguin died shortly thereafter. The defendant was charged with second-degree murder ¹ for the death of Arreguin, injury by conduct regardless of life for the wounding of Owens, and carrying a concealed weapon.

At trial the defendant admitted firing the shots at Owens, but he unequivocally denied that he had fired the last shot which struck Arreguin. The defendant testified that he heard a shot just as he was about to exit the bar. He claimed that he thought he was being fired at, but he did not feel himself hit. He further testified that he did not hear anyone following behind him on the stairs. He testified that he returned to his car, waited a few moments for Arreguin, but left because he was afraid people in the bar would shoot him. On cross-examination the defendant again denied that he fired his gun at any time while he was running up the stairs to exit the bar.

One witness, Durante Carr, testified that he saw the defendant run up the stairs with Arreguin following behind. Carr testified that, when Arreguin had gone up a few steps, the defendant turned around and shot his gun, and Arreguin fell face down on the steps. None of the witnesses had a gun or saw anyone other than the defendant with a gun during the shooting incident.

Three fired bullets were recovered from the scene of the crime, and one was removed from Arreguin's body. A ballistics expert testified that the bullets were of the .38, .357 caliber type and were consistent with the Smith & Wesson Nyclad-type bullet. The ballistics expert was unable to establish conclusively that the bullets were fired from the defendant's gun, a Smith & Wesson Combat Masterpiece, Model .38 special caliber. However, the expert stated that the general rifling characteristics of the crime scene bullets corresponded to the general rifling characteristics of bullets test-fired from the defendant's gun.

At the close of the trial, the defendant requested nine lesser included offense instructions, including manslaughter (imperfect self-defense) and homicide by reckless conduct, with regard to the second-degree murder charge. The trial court declined to grant the request for the instructions, finding that no reasonable view of the evidence would permit a jury to acquit the defendant of the second-degree murder charge and convict of a lesser included offense. In so deciding, the trial court noted the defendant's testimony that he did not cause Arreguin's death and the testimony adduced by the state supporting the charge of second-degree murder. The defendant was convicted on all three charges. A judgment of conviction was entered on September 9, 1981. The defendant filed motions for postconviction relief, alleging numerous errors during the trial. The trial court denied the motions. The defendant then appealed the judgment of conviction and the order of the trial court denying the defendant's postconviction motions to the court of appeals.

The court of appeals affirmed the trial court on all issues except the defendant's requested lesser included offense instructions on the second-degree murder charge. The court of appeals determined that the evidence was sufficient for the jury reasonably to acquit the defendant of second-degree murder and to find him guilty of manslaughter (imperfect self-defense) or homicide by reckless conduct. Accordingly, the court of appeals reversed the conviction for second-degree murder and remanded the case for a new trial, with directions to give those lesser included instructions. The court affirmed the convictions for injury by conduct regardless of life and carrying a concealed weapon.

Submission of a lesser included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense. Jordan v. State, 93 Wis.2d 449, 468, 287 N.W.2d 509 (1980). This rule was stated in detail in State v. Bergenthal, 47 Wis.2d 668, 674-75, 178 N.W.2d 16 (1970) (footnotes omitted), cert. denied, 402 U.S. 972, 91 S.Ct. 1657, 29 L.Ed.2d 136 (1971):

" '... [I]f the evidence, in one reasonable view, would suffice to prove guilt of the higher degree beyond a reasonable doubt, and if, under a different, but reasonable view, the evidence would suffice to prove guilt of the lower degree beyond a reasonable doubt, but leave a reasonable doubt as to some element included in the higher degree but not in the lower, the court should, if requested, submit the lower degree as well as the higher....'

"The key word in the rule is 'reasonable.' The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if 'under a different, but reasonable view,' the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower should the lesser crime also be submitted to the jury. However, there is not to be read into the rule the requirement that 'there are not reasonable grounds on the evidence to convict of the greater offense.' That goes too far. Where the defendant is able to demonstrate that there is no reasonable view of the evidence that warrants conviction on the greater offense, and the trial court agrees, there remains no issue on such charge to go to the jury. The purpose of multiple verdicts is to cover situations where under different, but reasonable, views of the evidence there are grounds either for conviction of the greater or of the lesser offense. The lesser degree verdict is not to be submitted to the jury unless there exists reasonable grounds for conviction of the lesser offense and acquittal on the greater."

In this regard, we have further stated:

"To protect the defendant from violation of due process or denial of the right to trial by jury, this court has held that neither the trial court nor the appellate court may look to the totality of the evidence. The question is rather:

" '... whether a reasonable construction of the evidence will support the defendant's theory viewed in the most favorable light it will "reasonably admit ... from the standpoint of the accused." Ross v. State, supra. [61 Wis.2d 160, 211 N.W.2d 827 (1973) ] If this question is answered affirmatively, then it is for the jury, not the trial court or this court, to determine whether to believe defendant's version of events [supporting the submission of lesser included offense instructions].' State v. Mendoza, 80 Wis.2d 122, 153, 258 N.W.2d 260 (1977)."

Hawthorne v. State, 99 Wis.2d 673, 684, 299 N.W.2d 866 (1981) (emphasis added).

We believe that the decision whether to give a lesser included offense instruction is also dependent upon the nature of the crime charged, coupled with the testimony of the defendant. A special situation arises, as in this case, where the defendant presents wholly exculpatory testimony as to the charged offense but requests a lesser included offense...