State v. Weeks

• Decision Date: 22 October 1991
• Docket Number: No. 91-0103-CR,91-0103-CR
• Citation: 165 Wis.2d 200,477 N.W.2d 642
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gerald L. WEEKS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 642

477 N.W.2d 642

165 Wis.2d 200

STATE of Wisconsin, Plaintiff-Respondent, v. Gerald L. WEEKS, Defendant-Appellant.

No. 91-0103-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 2, 1991.

Opinion Released Oct. 22, 1991.

Opinion Filed Oct. 22, 1991.

[165 Wis.2d 202] Donna L. Hintze, Asst. State Public Defender, Milwaukee, for defendant-appellant.

James E. Doyle, Atty. Gen., with Thomas J. Balistreri, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

SULLIVAN, Judge.

The defendant was found guilty by a jury of two counts of armed robbery, sec. 943.32(1)(b) and (2), Stats., and one count of attempted ¹ first-degree intentional homicide, secs. 940.01(1), Stats. ² All three counts were charged as party to a crime pursuant to sec. 939.05, Stats. The defendant does not challenge the convictions for armed robbery. The defendant's sole argument on appeal is that the trial court committed prejudicial error when it denied his request to instruct the jury on first-degree recklessly endangering safety, secs. 941.30(1) and 939.24(1), Stats. ³ We disagree and affirm.

FACTS

On August 20, 1989, Gerald L. Weeks, the defendant, along with several accomplices, robbed a tavern called the Hi-Lo Club. According to the record, three men entered the tavern: one man went behind the bar and ordered the bartender to open the cash register; the second man, carrying a shotgun, stood by the tavern's outside entrance; and the third man stood by the jukebox with a sawed-off shotgun. Weeks waited at an automobile outside the tavern with a fifth accomplice.

The owners of the tavern, Harvey Schmidt and his wife Sylvia, were in the living quarters adjacent to the tavern at the time of the robbery. After hearing the commotion, Harvey Schmidt went into the tavern to investigate. He closed the door connecting the living quarters and the tavern behind him. Harvey Schmidt was first ordered by one of the robbers to raise his hands and then was told to cover his eyes.

                When he did not comply quickly enough, the man near the jukebox covered Harvey Schmidt's eyes with his own hands.  This man stepped back when the man at the door said, "We better get out of here."   Harvey Schmidt testified that he then heard his wife open the adjoining door.  He testified that she saw what was happening and slammed the door very quickly.  The door closed just as the man near the jukebox turned and shot through the midsection of the door.  The robbers then fled in the car waiting outside
                

Sylvia Schmidt testified that she was on the phone when she and her husband first heard the noise in the tavern and when he went to investigate the commotion. She later hung up the phone and opened the connecting door between the tavern and apartment. She testified that when she opened the door, she saw her husband five to six feet in front of her, a man behind the register, and another man at the jukebox with a sawed-off shotgun pointed at her husband. She stated that when the man with the sawed-off shotgun turned toward her, she slammed the door. He shot through the door, and pellets and wood splinters struck Sylvia Schmidt in the upper thigh, abdomen, breast, neck and face. She stated that the man did not look at her before turning and firing.

Two individuals who had stopped outside the tavern identified Weeks. Weeks testified that he was "just riding along" with his friends and did not know about the plan to rob the tavern. At trial, the defense requested a jury instruction for the lesser-included crime of first-degree recklessly endangering safety. The court denied the request. Weeks subsequently moved for a new trial in a postconviction motion asserting that the court erred in not submitting this instruction. This motion was denied; Weeks appeals the denial of this motion.

The issues on appeal are: (1) is First-Degree Recklessly Endangering Safety, sec. 941.30(1), Stats., a lesser-included crime of First-Degree Intentional Homicide, sec. 940.01(1), Stats.; (2) does the expanded definition of "with intent to" in the revised statute apply to and define the "have an intent to" provision of the attempt statute, sec. 939.32, Stats.; and (3) was the defendant unfairly prejudiced by the exclusion of the lesser-included crime jury instruction?

LESSER-INCLUDED OFFENSE

The defendant argues by analogy that since the court in Hawthorne v. State, 99 Wis.2d 673, 682, 299 N.W.2d 866, 870 (1981) ⁴ found that the old Endangering Safety by Conduct Regardless of Life statute was a lesser-included offense of the old Attempted First-Degree Murder statute, the revised Recklessly Endangering Safety statute, sec. 941.30, Stats., is a lesser-included offense of the revised First-Degree Intentional Homicide statute, sec. 940.01, Stats. We agree. The notes to the adopted Senate Bill found in the introductory comments on Wisconsin's new homicide law explicitly set forth the proposition advanced by the defendant. ⁵

DEFINITION OF "HAVE AN INTENT TO"

Former sec. 939.23(4), Stats. (1985-86), defined " 'with intent to' or 'with intent that' [to mean] that the actor either has a purpose to do the thing or cause the result To interpret the attempt statute narrowly could limit attempted homicides to those instances where the actor only has the intent to attain the result of another's death. Using the common law example of a prime minister and his carriage driver, an actor attempting to kill the prime minister could not be successfully prosecuted for attempted homicide of the driver under a narrow interpretation of the attempt statute even though the actor was aware that his conduct was practically certain to cause the death of the driver because the actor did not have the intent to kill the driver. See Dickey, Schultz & Fullin, Clarity in the Law of Homicide, 1989 Wis.L.Rev. at 1337 n. 59. We conclude that a narrow reading of the attempt statute ignores legislative intent in light of related statutes.

                specified or believes that his act, if successful, will cause that result."   The revised sec. 939.23(4), Stats., defining criminal intent, replaces the above-italicized verbiage with "is aware that his or her conduct is practically[165 Wis.2d 207]  certain to" cause that result.  In addition to conforming to the Model Penal Code, the revised statutory language was intended to expand the definition of intent and apply criminal statutes to those defendants who had not formed the actual mental purpose to cause the crime but were aware that their intentional acts were practically certain to cause the result.  See, e.g., Dickey, Schultz & Fullin, The Importance of Clarity in the Law of Homicide:  The Wisconsin Revision, 1989 Wis.L.Rev. 1323, 1336.   This expanded definition of "with intent to" presents the question of whether the new definition applies to and defines the "have an intent to" element of the unrevised attempt statute
                

The meaning of the "have an intent to" language in the attempt statute, sec. 939.32(3), Stats., should be defined and interpreted in relation to all criminal statutes, Chapters 939 through 951. See Omernik v. State, 64 Wis.2d 6, 12, 218 N.W.2d 734, 738 (1974). We therefore conclude that the meanings of "with intent to" found in sec. 940.01(1), Stats. (1987-88) and "with intent that," both defined in sec. 939.23(4), Stats. (1987-88), must be relied upon in determining the meaning of the "have an intent to" language found in the attempt statute. ⁶ This interpretation will ensure the fulfillment of legislative intent and avoid the anomalous carriage driver scenario.

JURY INSTRUCTION

The defendant argues that the trial court erred when it denied his request for the jury instruction for the lesser-included offense of First-Degree Recklessly Endangering Safety. "[W]hether the evidence adduced at trial permits the giving of a lesser-included offense instruction" is a question of law that we review without deference to the trial court. State v. Wilson, 149 Wis.2d 878, 898, 440 N.W.2d 534, 541 (1989). "It is error for a court to refuse to instruct on an issue which is raised by the evidence." Id. at 898, 440 N.W.2d at 542.

It is well settled law that multiple verdicts are to be provided to a jury when there is a reasonable basis for a criminal conviction on either the greater or lesser-included offenses. State v. Bergenthal, 47 Wis.2d 668, 674, 178 N.W.2d 16, 20 (1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1657, 29 L.Ed.2d 136 (1971). If a "reasonable view" of the evidence is sufficient to support a guilty verdict beyond a reasonable doubt for the greater- and lesser-included offenses, then no lesser-included instruction need be given. However, if a "reasonable view" of the evidence supports a guilty verdict of the lesser-included offense beyond a reasonable doubt but casts reasonable doubt as to some element or elements of the greater-included offense, then both verdict questions should be submitted to the jury upon request. Id. In other words, "[t]he lesser degree verdict [question] is not to be submitted to the jury unless there exists reasonable grounds for conviction of the lesser offense and acquittal on the greater." Id. at 675, 178 N.W.2d at 21.

The key word in the rule is "reasonable." The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury.... However, there is not to be read into the rule the requirement that "there are not reasonable grounds on the evidence to convict of the greater offense." That goes too far. Where the defendant is able to demonstrate that there is no reasonable view of the evidence that warrants conviction on the greater offense, and the trial court agrees, there remains no issue on such charge to go to the jury.

Id. at 675, 178 N.W.2d at 20-21 (citation omitted).

The standard of review for sufficiency of the evidence in a criminal case requires the appellate court to view the evidence from the standpoint most...