State v. Schenk

• Decision Date: 04 January 1972
• Docket Number: No. S,S
• Citation: 53 Wis.2d 327,193 N.W.2d 26
• Parties: STATE of Wisconsin, Respondent, v. Charles W. SCHENK, Appellant. tate 25.
• Court: Wisconsin Supreme Court

Page 26

193 N.W.2d 26

53 Wis.2d 327

STATE of Wisconsin, Respondent, v. Charles W. SCHENK, Appellant.

No. State 25.

Supreme Court of Wisconsin.

Jan. 4, 1972.

Appellant (hereafter defendant) was tried before a jury for attempted armed robbery, in violation of secs. 939.32 and 943.32(1)(b), Stats., and attempted murder, in violation of secs. 939.32 and 940.01. At the close of the testimony, defendant pleaded guilty to the charge of attempted armed robbery. The plea was accepted by the court and the charge of attempted murder was submitted to the jury. The jury returned a verdict of guilty, and the defendant was sentenced to concurrent terms of 10 and 20 years on the two convictions.

The trial court denied defendant's post-conviction motions to set aside the judgment and vacate the sentence, or alternatively grant a new trial. Defendant has appealed from the judgment of conviction for attempted murder and the order denying defendant's postconviction motions. ¹

Stanley S. Chmiel, Chmiel & O'Connell, Appleton, for appellant.

Robert W. Warren, Atty. Gen., Robert J. Vergeront, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

The facts of this case will be set forth in considering the issues raised on this appeal, which are:

(1) Sufficiency of the evidence;

(2) Failure to give a cautionary instruction, sua sponte, as to the testimony of defendant's accomplice;

(3) Refusal to allow cross-examination of defendant's accomplice on the question of bias;

(4) The display of an exhibit before it was properly in evidence and a statement by the prosecution in regard to taking a photograph thereof;

(5) An improper courtroom use of measurements; and

(6) New trial in the interest of justice.

SUFFICIENCY OF EVIDENCE.

The record reveals that on the evening of November 26, 1969, defendant and Gerald Kapitzke left the Tiger's Den Bar with the express intention of committing robbery. After driving around for awhile, they stopped in the rear parking lot to the Golden Eagle tavern. Defendant changed clothing, put a black patch over one eye, and armed with a .32 caliber automatic pistol belonging to Kapitzke, entered the rear door of the tavern. He walked up to the north end of the bar and said to the bartender, Lawrence Kieffer, 'This is a stick-up; give me the money out of the till.' After a non-cooperative reply by Kieffer, defendant fired a shot into the ceiling and said, 'I'll show you I'm not fooling.' Kieffer replied, 'If you want the money that bad I'll have to go back and get the key.' Kieffer then turned around, walked the length of the bar, turned the corner and went through a doorway to his living quarters which were located at the east end of the premises. At some point during this interval, defendant hollered, 'Hold it; that's far enough,' and fired a second shot which struck the south wall between the end of the bar and the doorway. The bullet entered the wall 19 1/2 inches west of the east wall and six feet nine inches from the floor. Kieffer testified he did not know whether or not he was completely out of the room when the second shot was fired. Defendant, however, testified that Kieffer was out of the room and that he fired the shot in the expectation that he would come back in. He further testified that he held the gun straight out when he shot and that he had never fired a pistol before to any great extent.

At the time of the incident there were two witnesses seat at the bar. Both testified that Kieffer was somewhere between the end of the bar and the doorway when the second shot was fired. One witness testified that he was between the point where the bullet hit the wall and the doorway; whereas, the other witness placed him at a position behind the point where the bullet struck the wall. Neither witness was watching the defendant when he fired the second shot. Both witnesses admitted to the possibility that Kieffer was completely out of the room when the second shot was fired. One witness testified that after defendant yelled at him, Kieffer began to run, although Kieffer himself and the other witness testified he was walking but took a fairly large step into his living quarters when he reached the end of the bar. Both defendant and Kaptizke testified that the entire incident occurred in no longer than one minute.

Thereafter, defendant ran out of the back door and got into the car. Kapitzke testified defendant told him something to the effect that there was a 'hero' in there, and either 'I took a shot at him,' or 'I might have hit him,' or 'I think I hit him.' On cross-examination, Kapitzke testified defendant said he 'probably hit someone,' or 'I might have hit him,' but that defendant never said 'I took a shot at him,' nor told him he might have fired a shot with the intent to hit anyone.

In order to sustain a conviction for attempted murder, two elements must be established: (1) A specific intent to take the life of another human being; and (2) an unequivocal act which, except for the intervention of some extraneous factor, would have resulted in the death of that individual. Sections 939.32 and 940.01, Stats. Defendant argues that the evidence was insufficient to establish the element of specific intent.

Since the law cannot enter the subjective mind of an individual accused, intent must be evidence by inferences from the words and conduct of the actor and the circumstances surrounding the act. State v. Wells (1971), 51 Wis.2d 477, 187 N.W.2d 328; State v. Vinson (1955), 269 Wis. 305, 68 N.W.2d 712, 70 N.W.2d 1. The general rule is that an accused is presumed to intend the natural and probable consequences of his acts, voluntarily and knowingly performed, Hawpetoss v. State (1971), 52 Wis.2d 71, 187 N.W.2d 823; Zebrowski v. State (1971), 50 Wis.2d 715, 185 N.W.2d 545, although evidence of a contrary intention may rebut the presumption. Gelhaar v. State (1969), 41 Wis.2d 230, 163 N.W.2d 609; Greer v. State (1968), 40 Wis.2d 72, 161 N.W.2d 255; State v. Wells, supra. In the instant case, the jury was adequately instructed in this regard.

The evidence, taken most favorably to the state, supports a finding that Kieffer was somewhere between the corner of the bar and the door to his living quarters when the second shot was fired. McKissick v. State (1971), 49 Wis.2d 537, 549, 550, 182 N.W.2d 282; Zebrowski v. State, supra, 50 Wis.2d p. 723, 185 N.W.2d 545. Although Kieffer and the two witnesses admitted the possibility that Kieffer was out of the room at that time, contrary possibilities, in themselves, do not preclude a jury from finding a fact. State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379. The jury was entitled to consider and accept as true, evidence as to the location of the bullet hole, the short period of time in which the entire incident occurred, and defendant's statement to Kapitzke acknowledging that he might have hit Kieffer. Although Kapitzke contradicted himself with respect to the exact words told him by defendant, his testimony was not so self-contradictory so as to preclude the jury from finding that defendant believed he might have hit Kieffer. There is sufficient credible evidence so that the jury, acting reasonably, could be convinced of the defendant's guilt beyond a reasonable doubt. Zebrowski v. State, supra; Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183.

CAUTIONARY INSTRUCTION AS TO THE TESTIMONY OF DEFENDANT'S ACCOMPLICE.

Appellant concedes that no request was made of the trial court for a cautionary instruction as to the testimony of defendant's accomplice, Kapitzke, but argues it was error not to have given such an instruction.

This court has consistently held that it would consider the failure to timely object to jury instructions as a waiver of any alleged defects in those instructions. Kimmons v. State (1971), 51 Wis.2d 266, 268, 186 N.W.2d 308; Mitchell v. State (1970) 47 Wis.2d 695, 699, 700, 177 N.W.2d 833. Therefore, since the defendant neither submitted requested instructions, nor objected to those given or requested additional instructions, we conclude that the defendant has waived his right to object to the instructions as given.

CROSS-EXAMINATION OF ACCOMPLICE.

Cross-examination of the accomplice, Kapitzke, established that he had been granted immunity from prosecution. Further cross-examination was attempted, to establish bias and self-interest, and such examination was foreclosed by the trial judge.

Appellant asserts it was error for the trial court to have so restricted the cross-examination of Kapitzke.

This court has recognized the expanded rule of relevancy as set forth in 1 Wharton's, Anderson, Criminal Evidence (12th ed.), pp. 284--287, sec. 148; Oseman v. State (1966), 32 Wis.2d 523, 145 N.W.2d 766; Berg v. State (1969), 41 Wis.2d 729, 739, 165 N.W.2d 189; Zebrowski v. State, supra, 50 Wis.2d p. 724, 185 N.W.2d 545. Also this court has adopted Rule 303 of the American Law Institute Model Code of Evidence; Whitty v. State (1967), 34 Wis.2d 278, 294, 149 N.W.2d 557, which permits the trial court to exclude relevant evidence under certain circumstances, and in the exercise of its discretion. In Boller v. Cofrances (1969), 42 Wis.2d 170, 166 N.W.2d 129, this court considered the scope of cross-examination and quoted with approval the rationale of Neider v. Spoehr (1969), 41 Wis.2d 610, 618, 165 N.W.2d 171. In Boller, supra, 42 Wis.2d p. 181, 166 N.W.2d p. 134, it was stated:

'. . . If the question is relevant and is otherwise admissible and the information solicited is within the knowledge of the witness, it should be within the sound discretion of the trial judge to determine whether or not questions on cross-examination prevent an orderly and cogent presentation of the evidence . . .'

The effect of the foregoing decisions is to leave the question of admission or exclusion of evidence to the discretion of the trial judge. Therefore, under these rules we review the trial judge's decision to foreclose...