State v Toliver
| Decision Date | 18 September 2001 |
| Docket Number | 00-2460 |
| Citation | 248 Wis.2d 527,635 N.W.2d 905 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Stephen Toliver, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Milwaukee County: JOHN J. DiMOTTO, Judge. Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1.
Stephen Toliver appeals from the judgment of conviction for first-degree intentional homicide, party to a crime, following a jury trial, and from the order denying his motion for postconviction relief. He raises numerous issues. We affirm.
¶2. In 1991, Commosie Thompson was running a drug business out of the residence where he and his mother, Jo-Etta Foster, lived with Stephen Toliver, Tina Rogers, and others. When Thompson discovered that he was missing $1,800 in drug sale proceeds, he paged Stephen, one of his drug runners, and informed him about the missing money; Stephen told Thompson that Rogers had taken it. Stephen and his brother, Oliver Toliver, then armed themselves, located Rogers, and took her back to the residence. There, Stephen placed his sawed-off shotgun next to Thompson and, according to his own trial testimony, as well as that of several other trial witnesses, told Thompson to shoot whomever he thought had taken the money.
¶3. Thompson did not respond to Stephen's directive. Stephen then asked him what he would like to do and Thompson responded, "Whatever is clever." Then Oliver shot Rogers in the head at point-blank range with the gun he had been carrying. Stephen then spoke, stating words that remained in dispute at trial: either "kill that bitch, kill her," "shoot the bitch," or "you done killed the bitch." Oliver then shot Rogers again in the head and, later that night, he and Stephen disposed of her body.1
¶4. In separate trials, juries found Oliver, and then Stephen, guilty of first-degree intentional homicide, party to a crime. Stephen unsuccessfully sought postconviction relief until finally, in 1999, the United States District Court for the Eastern District of Wisconsin "granted conditionally" his petition for writ of habeas corpus, "allowing the state to reinstitute Toliver's appeal and provide him appointed appellate counsel, unless he knowingly and intelligently elects to proceed pro se."Wisconsin ex rel. Toliver v. McCaughtry, 72 F. Supp. 2d 960, 979 (E.D. Wis. 1999).2 Stephen, represented by counsel, then returned to state circuit court and moved for postconviction relief. On August 24, 2000, the circuit court, in a lengthy written decision, denied Stephen's postconviction motion.
¶5. Denying Stephen's postconviction motion, the circuit court did not hold an evidentiary hearing. Instead, it relied on the evidentiary record developed in Stephen's 1993 postconviction hearing, and on an analysis of Stephen's most recent motion and the accompanying affidavits. The circuit court did so despite the fact that Stephen's 1993 hearing had taken place when he was pro se, and notwithstanding the fact that the federal court, conditionally granting Stephen's petition for the writ, had rejected this court's conclusion that "Toliver's rights were not compromised because of his agreement to proceed pro se." See State v. Toliver, No. 93-0510-CR, unpublished slip op. at 6 ;McCaughtry, 72 F. Supp. 2d at 979 ().
¶6. Stephen first argues that the trial court erred in denying his request for the lesser-included-offense instruction on felony murder.3 He contends that nine facts, viewed in the light most favorable to his theory of defense, supported the instruction. He specifies:
First, the defendant and his brother armed themselves and brought the victim, Tina Ro[]gers to Commosie Thompson's apartment. Second, in doing so, they logically took her from a situation where, at some point, she was alone with the two of them into an environment where they would be face-to-face, not only with Mr. Thompson, but with Ms. [Jo-Etta] Foster, Mr. [Corey] Henry, and Mr. [Darian] Robinson. Third, they were questioning Tina Ro[]gers with respect to the missing $1,800.00 of drug proceeds belonging to Mr. Thompson. Fourth, when the defendant's brother initially and aggressively approached Ms. Ro[]gers, the defendant intervened on Ms. Ro[]gers' behalf. Fifth, the defendant disarmed himself and asked Mr. Thompson what he wished to do. Sixth, thereafter, without testimony of any kind indicating an affirmative action on the part of the defendant, to support or direct in any way the upcoming intentional conduct of his brother, Ms. Ro[]gers was shot in her forehead at point[-]blank range by the defendant's brother who did so in a rapid manner. Seventh, all parties, including the defendant[,] indicated they were shocked by what had happened and that it was unexpected. Eighth, after the shooting, the parties who were present testified that they heard the defendant state "kill the bitch." Ninth, the defendant testified that what he, in fact, said was "you done killed the bitch."
Thus, Stephen argues that while these facts "clearly establish the basis upon which, as party to a crime, [he] was involved in the kidnapping/false imprisonment/attempted armed robbery of Tina Ro[]gers," they also provide a reasonable basis: (1)for the jury to conclude that Rogers' death was "due to the unexpected, irrational and intentional actions of his brother"; and (2)for his (Stephen's) acquittal on first-degree intentional homicide and conviction on the lesser-included offense of felony murder.
¶7. We have carefully considered Stephen's claim, keeping in mind that an instruction regarding a theory of defense ordinarily is required where there is "`any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.'" United States v. Lehman, 468 F.2d 93, 108 (7th Cir. 1972) (citation omitted). With further assistance from the parties at oral argument, we have evaluated whether the felony-murder instruction was supported by sufficient evidence and, in doing so, recognized that we must not, in the words of State v. Mendoza, 80 Wis.2d 122, 152, 258 N.W.2d 260 (1977), "weigh the evidence" or "look to the `totality' of the evidence ... in determining whether the instruction was warranted." Rather, we must view the evidence in the light most favorable to Stephen and the giving of the felony-murder instruction. See State v. Jones, 147 Wis.2d 806, 809, 434 N.W.2d 380 (1989).
¶8. The supreme court has explained:
A circuit court has broad discretion in deciding whether to give a requested jury instruction. However, a circuit court must exercise its discretion in order "to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence." In addition, a criminal defendant is entitled to a jury instruction on a theory of defense if: (1)the defense relates to a legal theory of a defense, as opposed to an interpretation of evidence; (2)the request is timely made; (3)the defense is not adequately covered by other instructions; and (4)the defense is supported by sufficient evidence.
State v. Coleman, 206 Wis.2d 199, 212, 556 N.W.2d 701 (1996) (citations omitted). Evidence to support the instruction is sufficient if "a reasonable construction of the evidence will support the defendant's theory `viewed in the most favorable light it will reasonably admit of from the standpoint of the accused.'" Mendoza, 80 Wis.2d at 153 (citation omitted).
¶9. We conclude that although Stephen correctly contends that his conduct could have constituted felony murder, he has failed to clear the first hurdle that must be cleared in order to gain the lesser-included-offense instruction: a reasonable basis for acquittal on first-degree intentional homicide, party to a crime.4
¶10. Stephen argues that "[i]t would be ... totally reasonable for a jury to decide that, when [he] placed his shotgun on the table and asked Mr. Thompson to shoot whoever he believed was responsible for the taking of his [Thompson's] money, ... this did not, in fact, direct his brother to shoot Tina Ro[]gers." He relies on State v. Chambers, 183 Wis.2d 316, 515 N.W.2d 531 (Ct. App. 1994). In Chambers, after Chambers and his accomplice had committed a burglary, they ran from the police, then separated, and Chambers hid under a porch some distance from his accomplice. Id. at 319. While Chambers remained under the porch, his accomplice shot and killed one of the pursuing officers. Id. Chambers was convicted of felony murder, party to a crime. Id. Thus, Stephen argues that "there is certainly a well-established precedent upon which he could be convicted, under the facts of his case, for felony murder."
¶11. As the State points out, however, no lesser-included-offense instruction was at issue in Chambers; this court only considered whether the evidence was sufficient for Chambers' conviction for felony murder, party to a crime. Id. at 318. Indeed, the State does not dispute that, assuming Stephen committed a requisite underlying felony, the elements of felony murder would have been established in the instant case. But that is not the issue. As the State correctly argues, to determine in this case whether the trial court erred in denying the felony-murder instruction, the issue is whether the evidence provided any reasonable basis for Stephen's acquittal for first-degree intentional...
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