State v. Webster

• Decision Date: 08 August 1995
• Docket Number: No. 93-3217-CR,93-3217-CR
• Citation: 538 N.W.2d 810,196 Wis. 2d 308
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael Lee WEBSTER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 810

538 N.W.2d 810

196 Wis.2d 308

STATE of Wisconsin, Plaintiff-Respondent, v. Michael Lee WEBSTER, Defendant-Appellant. ^d

No. 93-3217-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 1, 1994.

Opinion Released Aug. 8, 1995.

Opinion Filed Aug. 8, 1995.

For the defendant-appellant the cause was submitted on the briefs of Charles H. Barr of Croen & Barr, Milwaukee.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and Sharon K. Ruhly, Assistant Attorney General.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

SULLIVAN, Judge.

Michael Lee Webster appeals from a judgment of conviction, after a jury trial, for attempted first- intentional homicide and first-degree reckless injury. Webster presents three issues for review: (1) whether the trial court lacked subject matter jurisdiction to try Webster for the first-degree reckless injury count because the State filed the amended information without leave of the trial court; (2) whether the evidence was sufficient to support the jury's finding of Webster's specific intent to kill necessary for his conviction of attempted first-degree intentional homicide; and (3) whether the trial court erroneously exercised its discretion by limiting Webster's cross-examination of the attempted homicide victim. We conclude that the trial court had subject matter jurisdiction to try Webster, that there is sufficient evidence to support the attempted homicide conviction, and that the trial court properly exercised its discretion in limiting Webster's cross-examination. Consequently, we affirm.

On September 20, 1991, Webster and the victim, Langston Hood, argued over the amount of money Hood allegedly owed Webster for assisting him with his work. After the argument, Webster left Hood's home. Minutes later, Hood and his employer were standing in front of Hood's home when Webster drove up in his van. Webster exited the vehicle brandishing a sawed-off shotgun. The gun was loaded with shotshells containing bird shot. ¹ Webster walked up to Hood and Hood asked him, "What's up?" Webster then pointed the shotgun at Hood; said, "You's a dead motherfucker;" and fired the gun at him from close range. The shotgun blast struck Hood just below the left shoulder, shattering his humerus, and tearing out most of his biceps and his chest and shoulder muscles. Hood was conveyed to the hospital. He survived the shooting.

Police arrested Webster and the Milwaukee County District Attorney's Office filed a criminal complaint charging him with one count of attempted first-degree intentional homicide. On October 4, 1991, after Webster's preliminary hearing, the State filed an information charging him solely with the attempted homicide. On that same date, the case was scheduled for a jury trial to commence on April 13, 1992.

On April 1, 1992, the State filed an amended information that added a second count charging Webster with first-degree reckless injury. The State did not obtain the trial court's permission to file the amended information. The jury trial was postponed and on June 15, 1992, Webster moved to dismiss the amended information on multiplicity grounds. The trial court denied the motion and Webster received a jury trial.

During trial, at the close of the State's case-in-chief, Webster moved the trial court to dismiss the attempted homicide charge for lack of sufficient evidence. The trial court denied the motion and the jury later convicted Webster on both counts. On the date that the trial court entered his judgment of conviction, Webster renewed his motion to dismiss the attempted homicide charge for lack of sufficient evidence. The trial court denied the motion and sentenced Webster to twenty-five years in prison: eighteen years on the attempted homicide count; and seven years on the reckless injury count, to be served consecutively to the sentence on the attempted homicide count.

Webster first asks us to review whether the trial court lacked subject matter jurisdiction to try him for the first-degree reckless injury count because the State failed to obtain leave to file the amended information. ² Consequently, he argues "the conviction for first[-]degree reckless injury ... cannot stand." The State argues that any error arising out of its failure to obtain the trial court's permission to file the amended information does not implicate the court's subject matter jurisdiction, but instead is a procedural defect that Webster waived by failing to object timely. We agree with the State. The question of whether a trial court lacks subject matter jurisdiction is a legal issue that we review de novo. Carlson v. Jones, 147 Wis.2d 630, 635, 433 N.W.2d 635, 637 (Ct.App.1988) (questions on subject matter jurisdiction require interpretation of constitutional and statutory provisions and are thus questions of law).

"Criminal subject[ ]matter jurisdiction is the 'power of the court to inquire into the charged crime, to apply the applicable law and to declare the punishment.' " State v. Aniton, 183 Wis.2d 125, 129, 515 N.W.2d 302, 303 (Ct.App.1994) (citation omitted). A circuit court's jurisdiction over criminal matters is derived from Article VII, Section 8 of the Wisconsin Constitution ³ and § 753.03, STATS. ⁴ See also State v. LeQue, 150 Wis.2d 256, 261-62, 442 N.W.2d 494, 497 (Ct.App.1989). The circuit court's subject matter jurisdiction attaches upon the filing of the criminal complaint. Aniton, 183 Wis.2d at 129, 515 N.W.2d at 303-04. The circuit court "lacks criminal subject[ ]matter jurisdiction only where the complaint does not charge an offense known to law." Id. at 129, 515 N.W.2d at 304. Further, "[o]nce criminal subject[ ]matter jurisdiction attaches, it continues until a final disposition of the case." Id. at 129-30, 515 N.W.2d at 304.

Webster does not allege that either the complaint, information, or amended information fails to charge an offense known to the law. Instead he argues that the State failed to obtain the trial court's permission to file the post-arraignment amended information, and that this failure deprived the trial court of subject matter jurisdiction over the amended information.

Section 971.29(1), STATS., ⁵ provides: "A complaint or information may be amended at any time prior to arraignment without leave of the court." In Whitaker v. State, 83 Wis.2d 368, 265 N.W.2d 575 (1978), the supreme court declared that § 971.29 "does not directly address the question of the amendment of the information after arraignment and before trial. It neither authorizes nor prohibits such amendment." Id. at 372, 265 N.W.2d at 578. Nevertheless, the court held: "Subsection (1) of sec. 971.29 should be read to permit amendment of the information before trial and within a reasonable time after arraignment, with leave of the court, provided the defendant's rights are not prejudiced, including the right to notice, speedy trial, and the opportunity to defend." Id. at 374, 265 N.W.2d at 579; see Wagner v. State, 60 Wis.2d 722, 726, 211 N.W.2d 449, 452 (1973) ("The rule in this state is ... that the trial court may allow amendment of an information ... in the absence of prejudice to the defendant.").

The failure of the State to obtain the permission of the trial court to file a post-arraignment amended information does not deprive the trial court of subject matter jurisdiction because, once subject matter attaches with the filing of the criminal complaint, it continues until the final disposition of the case. Aniton, 183 Wis.2d at 129-30, 515 N.W.2d at 304. Accordingly, while the failure to obtain the trial court's permission to file an amended information is a procedural defect, this failure neither implicates a lack of subject matter jurisdiction, nor is it reversible error without a showing of prejudice on the part of the defendant. See Whitaker, 83 Wis.2d at 374, 265 N.W.2d at 579; Wagner, 60 Wis.2d at 726, 211 N.W.2d at 452.

Further, alleged trial court errors resulting from non-jurisdictional procedural defects are waived by a defendant if not properly preserved with a timely and specific objection. See, e.g., State v. Washington, 142 Wis.2d 630, 635-36, 419 N.W.2d 275, 277 (Ct.App.1987) (discussing waiver). In the present case, Webster never objected to the State's filing of the amended information without leave of the trial court. He objected only on multiplicity grounds. Accordingly, Webster waived the procedural-defect issue and we decline to exercise our power of discretionary review. See § 752.35, STATS. (If it appears from the record "that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried," the court of appeals may reverse the judgment or order.).

Webster next argues the evidence was insufficient to support the jury's finding of his specific intent to commit attempted first-degree intentional homicide when he shot Hood with the sawed-off shotgun. The standard of review that we apply when testing the sufficiency of the evidence is recited in State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990):

[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

Id. at 507, 451 N.W.2d at 757-758 (citations omitted). Stated another way: "[t]his court will only substitute its judgment for that of the trier of fact when the fact...