State v. Spears

Decision Date03 November 1988
Docket NumberNo. 88-0401-CR,88-0401-CR
Citation147 Wis.2d 429,433 N.W.2d 595
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Kenneth SPEARS, Defendant-Appellant. d
CourtWisconsin Court of Appeals

Michael Yovovich, Asst. State Public Defender, on the briefs, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and David J. Becker, Asst. Atty. Gen., on the brief, for plaintiff-respondent.


EICH, Judge.

Kenneth Spears appeals from a judgment convicting him of two counts of second degree murder (causing death by "conduct imminently dangerous to another and evincing a depraved mind, regardless of human life") in violation of sec. 940.02(1), Stats. Spears was convicted on his plea of no contest to the charges. He argues on appeal that there was an inadequate factual basis to support the plea, and also that the trial court abused its discretion in sentencing him to two consecutive sixteen-year prison terms. We reject both arguments and affirm the judgment and order.

Spears was charged after he struck and killed two pedestrians while driving through a parking lot in downtown La Crosse at a high rate of speed. According to his trial counsel, because the facts surrounding the deaths would support both the state's "theory" of second degree murder, and his own "theory" that he should have been charged with the lesser offense of homicide by reckless conduct, Spears decided to enter an "Alford " plea to the murder charges. Such a plea, first recognized in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and later in Wisconsin in State v. Johnson, 105 Wis.2d 657, 314 N.W.2d 897 (Ct.App.1981), allows a guilty (or no contest) plea to be entered by a defendant "even when accompanied by protestations of innocence." Id. at 661, 314 N.W.2d at 899. In that event, the plea is said to constitute only a waiver of trial and not an admission of guilt. Id.

Under the plea agreement, Spears would plead no contest to the two second degree murder charges and the state would be free to argue for whatever sentence it deemed appropriate, up to the maximum prison term of forty years--twenty (consecutive) for each count. After a lengthy colloquy with Spears, and after hearing the prosecutor's factual representations and the testimony of several witnesses, the trial court accepted the plea. The court proceeded to sentence Spears to two consecutive sixteen-year prison terms, and this appeal followed. Other facts will be referred to below.


Whether to permit a defendant to withdraw an accepted plea of guilty or no contest is discretionary with the trial court, and we will not upset the court's ruling unless an abuse of discretion is shown. Hatcher v. State, 83 Wis.2d 559, 564-65, 266 N.W.2d 320, 323 (1978). The question on appeal is not whether the plea should have been accepted in the first place, but rather "whether there was an abuse of discretion in the trial court's denial of the motion to withdraw." White v. State, 85 Wis.2d 485, 491, 271 N.W.2d 97, 100 (1978). And the defendant has the burden of showing, by clear and convincing evidence, that "the withdrawal of the plea is necessary to correct a manifest injustice." Johnson, 105 Wis.2d at 666, 314 N.W.2d at 902, quoting State v. Schill, 93 Wis.2d 361, 383, 286 N.W.2d 836, 847 (1980).

When a defendant enters an Alford plea, maintaining his or her innocence of the charge while at the same time pleading guilty or no contest to it, the procedure clashes with the long-held rule that a plea may not be accepted absent a determination that " 'the conduct which the defendant admits constitutes the offense charged....' " Ernst v. State, 43 Wis.2d 661, 673, 674, 170 N.W.2d 713, 718, 719 (1969) (citation omitted). As a result, before such a plea may be accepted, the trial court must determine that "the evidence the state would offer at trial is strong proof of guilt." Johnson, 105 Wis.2d at 663, 314 N.W.2d at 900.

The Johnson court's discussion sheds light on the meaning of the phrase "strong proof of guilt." First, it is not the equivalent of proof beyond a reasonable doubt. Id., 105 Wis.2d at 664, 314 N.W.2d at 901. Indeed, the court suggested that the trial court's conclusion in that case that there was a factual basis for the plea "was equivalent to a finding that the proof of guilt was strong." Id. Second, the Johnson court framed the inquiry as whether the record "indicates that a sufficient factual basis was established at the plea proceeding to substantially negate [the] defendant's claim of innocence." Id. at 664, 314 N.W.2d at 901.

"A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts ... even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference." In re Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132, 145 (1975), cert. denied, 429 U.S. 1108, 97 S.Ct. 1142, 51 L.Ed.2d 561 (1977). Applying these principles, we are satisfied that the trial court did not abuse its discretion when it denied Spears's motion to withdraw his plea.

The elements of second degree murder are: (a) causing death (b) by conduct imminently dangerous to another (c) that evinces a depraved mind regardless of human life. Sec. 940.02(1), Stats. Spears does not challenge the causal connection between his actions on the night in question and the victims' death. And while his brief suggests that his conduct that evening was not imminently dangerous to others, * he concentrates his argument on the third element, contending that the record in this case is inadequate as a matter of law to establish a factual basis for a finding that his conduct evinced a depraved mind regardless of human life, citing Wagner v. State, 76 Wis.2d 30, 250 N.W.2d 331 (1977), and Balistreri v. State, 83 Wis.2d 440, 265 N.W.2d 290 (1978). We are not persuaded.

The requirement that the defendant's conduct was of such a character to evince a "depraved mind regardless of human life" is met "when the conduct causing death demonstrates an utter lack of concern for the life and safety of another and for which conduct there is no justification or excuse." Wis J I--Criminal 1110 (1966). In Wagner, the defendant was involved in a "drag race" with another vehicle on a city street at 11:00 P.M. when he struck and killed a pedestrian. He was charged with second degree murder. There were only two eyewitnesses, both of whom testified that they saw the racing cars "suddenly swerve to the left approximately one-half of a traffic lane" immediately before striking the victim. Id., 76 Wis.2d at 33, 250 N.W.2d at 334. The court, noting that while the defendant's actions demonstrated a "conscious disregard for safety of another," nonetheless concluded that he could not be convicted of second degree murder because his conduct did not evince a "depraved mind," which the court defined as "a state of mind '... devoid of regard for the life of another....' " Id. at 46-47, 250 N.W.2d at 340, quoting State v. Weso, 60 Wis.2d 404, 411, 210 N.W.2d 442, 445 (1973). The basis for the court's ruling was the undisputed fact that the defendant had swerved to avoid hitting the pedestrian: "his attempt to avoid striking the victim by swerving to the left indicates some regard for the life of the victim." Wagner, 76 Wis.2d at 47, 250 N.W.2d at 340.

Balistreri involved a police chase through downtown Milwaukee. The defendant, who was being pursued by one police car, drove down a one-way street going the wrong way. He swerved to avoid an oncoming vehicle, forcing three pedestrians in a crosswalk to jump to the curb for their safety. Several minutes later, he struck another automobile at an intersection. There were no deaths or serious injuries, and the defendant was charged with endangering safety by conduct regardless of life, an offense also requiring proof of "conduct imminently dangerous to another and evincing a depraved mind, regardless of human life." Sec. 941.30, Stats. The evidence was undisputed that the defendant turned on his headlights and swerved to avoid the squad car on the one- way street, and that he sounded his horn and braked in an attempt to avoid colliding with the other vehicle. In light of these facts, the court held that the "depraved mind regardless of life" element of the crime had not been established because "[t]hese actions show some regard for the life of others." Id., 83 Wis.2d at 457-58, 265 N.W.2d at 298, citing Wagner.

Spears contends that because the record in this case would support a "reasonable hypothesis" that, like the defendants in Wagner and Balistreri, he was aware of the pedestrians and attempted to take evasive action before striking them, he cannot, as a matter of law, be considered to have evinced a depraved mind regardless of life. In the alternative, he raises the undeniably inconsistent argument that the record also supports the equally reasonable "hypothesis" that his car was wholly out of control at the time he struck the pedestrians, thus making any evasive action impossible. He maintains that under either view, the factual basis for his plea was inadequate. We turn to the record.

Several witnesses testified at the plea hearing. Sandra Scott, a rear-seat passenger in Spears's car, stated that the incident began when, after they left a tavern, another passenger criticized the car's condition and Spears, attempting to show the passenger "what the car could do," put the accelerator to the floor as they were crossing a bridge approaching one of the major intersections in downtown La Crosse. Scott looked at the speedometer and saw that it was registering "about 80" and noted that as they approached the intersection at the foot of the bridge, "he still had [the accelerator] down." According to Scott, Spears attempted to brake the car as they approached...

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