State v. Thompson

• Decision Date: 22 September 1988
• Docket Number: No. 87-1493-CR,87-1493-CR
• Citation: 431 N.W.2d 716,146 Wis.2d 554
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jerry Wayne THOMPSON, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 716

431 N.W.2d 716

146 Wis.2d 554

STATE of Wisconsin, Plaintiff-Respondent, v. Jerry Wayne THOMPSON, Defendant-Appellant. ^*

No. 87-1493-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 24, 1988.

Opinion Released Sept. 22, 1988.

Opinion Filed Sept. 22, 1988.

John E. Tradewell, Asst. State Public Defender, on brief for defendant-appellant.

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

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

EICH, Judge.

Jerry Wayne Thompson appeals from a judgment convicting him of arson and from an order denying his motions for postconviction relief. The issues are: (1) whether exclusion of evidence of a police officer's opinion that the conditions under which Thompson lived were such as to justify his temporary detention under the mental health laws denied Thompson the "right to present a defense" to the charge that he intentionally set fire to his apartment; (2) whether the trial court erred in failing to submit a jury instruction on criminal damage to property as a lesser included offense of arson; and (3) whether the fact that the court had been informed of the pretrial sentence credit to which Thompson was entitled prior to imposing sentence warrants remand for resentencing. We resolve all questions against Thompson and affirm.

Thompson, a man with a history of mental health problems, lived in a storage room in the London Hotel and Pub in the City of Janesville. His quarters were filled with large piles of garbage and were in a generally filthy condition. On June 26, 1985, a fire broke out in Thompson's room and spread to other areas of the hotel and tavern. Shortly thereafter, Thompson entered the Rock County Sheriff's office and told those present that he had "set the London Pub on fire." He later told Janesville police the same thing. He was charged with arson. At trial, Thompson testified that he set the fire in "self defense" because people had been "trying to cause my death, with suicide or malicious harassment."

The jury found Thompson guilty and the trial court denied his motions for postconviction relief. Other facts will be referred to below.

I. EXCLUSION OF EVIDENCE

While Thompson has not particularized in his brief the evidence he claims was erroneously excluded, we assume it was that summarized in an offer of proof concerning the testimony of a police officer:

The testimony of [the officer] would be that in April he examined a kitchen of a house ... where Mr. Thompson, according to the landlady, had been living. That there was garbage piled in the kitchen two feet, three feet high in one corner. The apartment had no lights that were working. The place was filthy, a mess, and not suitable for human inhabitants. That as a result of that he detained Mr. [Thompson] at the Rock County Health Care Center.

Thompson argues that rejection of this evidence denied him "the right to present a defense." We agree that a defendant's right to due process of law includes "the right to a fair opportunity to defend against the State's accusations ... to confront and cross-examine witnesses and to call witnesses in one's own behalf...." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). But a defendant has no right, constitutional or otherwise, to place irrelevant evidence before the jury. State v. Bolstad, 124 Wis.2d 576, 584, 370 N.W.2d 257, 261 (1985). The real question is whether the proffered evidence was relevant.

Determinations of relevancy are committed to the broad discretion of the trial court. State v. Denny, 120 Wis.2d 614, 626, 357 N.W.2d 12, 18 (Ct.App.1984). And we will not reverse a discretionary determination if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision. Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.App.1987). Generally, we look for reasons to sustain a trial court's discretionary ruling. Id.

The prosecutor objected to the offer of proof, arguing that the officer's testimony related to an event remote in time and place from the hotel fire (it had occurred some two months earlier), and that the fact that Thompson had lived under squalid conditions at another time and location was irrelevant to whether he intended to set fire to the hotel on the night in question. Thompson's counsel argued that the testimony was "evidence of a mental condition ... that, I believe, rendered him incapable of forming an intent." The court sustained the state's objection to the testimony.

Thompson sums up his position on appeal as follows: "[The evidence] would have ... provided the jury with insight into the mental processes of the defendant of a type they could evaluate without expert testimony and shown the jury that defendant's rambling, often incoherent[,] trial testimony was not faked for the purposes of pulling the wool over the jury's eyes." But Thompson did not plead not guilty by reason of mental disease or defect, and he does not suggest that he was mentally incompetent to testify or to stand trial. And we do not believe that the officer's testimony would provide any basis for establishing that Thompson lacked the requisite intent to start the fire. Indeed, as the state points out, the thrust of Thompson's own testimony was that he had deliberately set the fire in order to "defend himself" from persons or institutions he believed were trying to kill him.

Evidence that a police officer was once sufficiently concerned about the squalor in which Thompson lived that he took him to a mental health facility for observation would serve no purpose other than to reinforce a conclusion that Thompson may have been mentally unbalanced. And that conclusion was starkly apparent from his own rambling and frequently incoherent testimony. While the reason Thompson set the fire may have been the result of his mental problems, his intent to start the fire is a different matter.

Evidence is relevant when it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Sec. 904.01, Stats. The fact that Thompson may have been mentally unbalanced has no tendency to make the formation of the requisite intent more or less probable than it would have been without the evidence. The trial court properly exercised its discretion when it sustained the prosecutor's objection to the offer of proof.

II. LESSER INCLUDED OFFENSE

Thompson requested an instruction on criminal damage to property as a lesser included offense of arson. Wisconsin courts use the "elements only" test to determine whether one crime is a lesser included offense of another. The test focuses on the language of the statutes defining the offenses, and the "paramount inquiry" is the meaning of the words of the statutes. State v. Carrington, 134 Wis.2d 260, 265, 397 N.W.2d 484, 487 (1986). We place the statutes "side by side" to differentiate and compare the elements of the crimes. Id. at 265-66, 397 N.W.2d at 487. Then, if the lesser crime is "statutorily included in the greater offense and contain[s] no [additional] element[s]," the lesser crime is an included offense of the greater. Id. at 265, 397 N.W.2d at 486. Section 939.66(1), Stats., codifies the rule in its definition of a lesser included offense as: "A crime which does not require proof of any fact in addition to those which must be proved for the crime charged." In simplest terms, "for one crime to be included in another, it must be 'utterly impossible' to commit the greater crime without committing the lesser." Hagenkord v. State, 100 Wis.2d 452, 481 302 N.W.2d 421, 436 (1981), quoting Randolph v. State, 83 Wis.2d 630, 645, 266 N.W.2d 334, 341 (1978) (citation omitted).

Before a defendant is entitled to an instruction on the lesser offense, however, there must be a reasonable basis for conviction on the lesser charge and acquittal on the greater. State v. Zdiarstek, 53 Wis.2d 776, 786, 193 N.W.2d 833, 838 (1972).

The trial court ruled that the criminal damage charge was not included in the arson charge because it required proof of an additional element to those which must be proved to establish arson. Section 943.01(1), Stats., makes it a Class A misdemeanor to "intentionally cause[ ] damage to ... physical property of another without the person's consent...." Under sec. 943.01(2)(d), if the property is diminished or reduced in value by more than $1,000, the offense becomes a Class D felony, subject to greater penalties. The trial court ruled that proof of the monetary amount of the damage was an "additional element" within the meaning of the rules just discussed, and thus criminal damage to property could not be a lesser included offense of arson. We believe this was error, for the monetary provision is a penalty enhancer, not an element of the crime.

In Block v. State, 41 Wis.2d 205, 212, 163 N.W.2d 196, 199 (1968), the supreme court held that another common penalty enhancer--the defendant's status as a repeater--is not in itself part of a criminal charge, but "only renders the defendant eligible for an increase in penalty for the crime of which he [or she] is convicted." The court so held in spite of its recognition of the requirement that recidivism, like the value of the property in a theft charge, or, as here, the reduction in value of the damaged property, must be proved at trial. Id. (See also Harms v. State, 36 Wis.2d 282, 285, 153 N.W.2d 78, 80 (1967), where the court recognized that "[t]he habitual criminality statute increases the penalty for a particular [offense], but in no way changes the [general] nature of the crime.") And, in Moore v. State, 55 Wis.2d 1, 5-6, 197 N.W.2d 820, 822-23 (1972), the court, although not discussing the effect of the "value of the property" provisions increasing the punishment for theft, held...