State v. Wells

• Decision Date: 07 June 1971
• Docket Number: No. S,S
• Citation: State v. Wells, 51 Wis.2d 477, 187 N.W.2d 328 (Wis. 1971)
• Parties: STATE of Wisconsin, Respondent, v. Clifton WELLS, Appellant. tate 107.
• Court: Wisconsin Supreme Court

Page 328

187 N.W.2d 328

51 Wis.2d 477

STATE of Wisconsin, Respondent, v.Clifton WELLS, Appellant.

No. State 107.

Supreme Court of Wisconsin.

June 7, 1971.

Rehearing Denied Sept. 8, 1971.

On June 13, 1969, after a trial to the court, the defendant, Clifton Wells, was convicted of armed robbery and first-degree murder, and sentenced to thirty years' imprisonment on the armed robbery conviction and a consecutive term of life imprisonment on the murder conviction.

The crime for which the defendant was convicted occurred on Sunday morning, November 3, 1968, at the residence of the victim, Mr. Frederick Gens, an 81-year-old resident of the city of Milwaukee.

The case of the state was built upon the testimony of the defendant's accomplice, Miss Kristy Ruhe, who waived immunity and testified, and two eyewitnesses, John Eiland and Lee Pharm, plus the hospital records of Mr. Gens, received in evidence by stipulation.

Kristy Ruhe testified that, prior to the date of the crimes, the defendant informed her of his plan to rob an old man who lived at 1429 West Juneau, Milwaukee.She testified that the defendant, on the date of the crimes, told her they were going to 1429 West Juneau to rob the old man; that she was to knock on the door and tell the old man the defendant wanted to speak to him; that the defendant threatened her life if she did not go through with the plan; and that he picked up an empty bottle and the two of them left.She testified the defendant concealed himself on the front porch, and she knocked on the door.When Mr. Gens answered, she told him the defendant would like to speak to him.The old man stepped out on the porch and, according to her testimony, the defendant then struck him on the head with the bottle.She left then, she testified, but before leaving, saw the defendant strike one blow to the head of the old man and raise the bottle as if to strike again.

On eyewitness, John Eiland, who had been working underneath a car in the parking lot next to the Gens' residence, testified that his attention was attracted by noise from the porch and the sound of someone groaning 'don't, don't.'He testified that he crawled out from under the car in time to see the defendant strike the old man on the head two or three times with the bottle causing the old man to fall on his stomach on the floor of the porch.He testified the bottle appeared to be a 'family-sized' coke bottle.He testified he saw the defendant strike the old man two or three more times after the victim lay, face down, on the porch floor.He testified that he shouted at the defendant, 'don't kill the old man, don't beat him to death. * * *'He testified the defendant then reached into the victim's pocket and took a wallet from it.

The other eyewitness, Lee Pharm, who was in the building about 100 feet away, testified that his attention was attracted by the noise of a beating which sounded to him like the noise made by children jumping up and down on the top of an automobile.He testified he saw the defendant, whom he knew from having seen and spoken to him around the neighborhood previously, deliver several blows with the bottle to the head of the old man.He testified that he saw the defendant take something from the pocket of the old man before defendant fled from the scene.After the defendant left, Mr. Gens staggered along the wall back into the house, leaving blood all over the porch.As he entered the house, he was met by his landlady.She sat him down on the bed and went for help.Mr. Gens was then taken to the hospital.

The county emergency hospital records received into evidence by stipulation showed the victim was admitted to the hospital shortly after 10:00 a.m. where it was discovered that he had been beaten extensively about the head and chest, suffering, among other injuries, four deep scalp lacerations and a fractured skull.His condition worsened, and he died at 7:15 p.m. that evening.An autopsy revealed that death was caused by a skull fracture with hemorrhage and cerebral damage.

The defendant took the stand in his own defense and denied any involvement in the crime.He stated that, after the taverns closed early Sunday morning, November 3, 1968, he went to an 'after hours place' staying there until nine or ten o'clock Sunday morning.He claimed to have gone from the 'after hours place' to the home of one Charles Carpenter.In rebuttal, the state produced the testimony of Frank Watson, one of defendant's claimed companions on the previous Saturday night, who stated that he had not been with the defendant that evening as the defendant had claimed.The state produced Charles Carpenter who testified he had seen the defendant at a gambling party early Sunday morning, but that he and the defendant had parted company at 8:00 a.m. on Sunday morning, November 3rd, and that he had not seen the defendant again that day.

From the judgments of conviction and sentence and the order denying postconviction motions, the defendant appeals.

Joseph C. Niebler, Milwaukee, for appellant; Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, of counsel.

Robert W. Warren, Atty. Gen., William A. Platz and Thomas J. Balistreri, Asst. Attys.Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

The record in this case sets forth the standard operating procedures that mark the mugging-type robbery.

There is the selection of the victim.Senior citizens, particularly those living alone and suffering the infirmities of advancing years, are preferred targets.Here the victim, Frederick Gens, was an 81-year-old man, living alone in a rented room.

There is the selection of the time and place.By advance surveillance or 'stakeout,' a time and place are selected when it is predictable that the victim will be alone.Here the time of the assault was 9:30 a.m., on a Sunday morning; the place, the porch of the rooming house where the victim lived.

There is the use of an accomplice as decoy and lookout.The role of the accomplice is to engage the attention and disarm the suspicions of the selected victim, as well as to serve as lookout for the police or other unwelcome intruders.Here a woman associate was used to persuade the victim to step out onto his porch, and to keep watch.She fled, however, soon after beating commenced.

There is the selection of the weapon to be used.The function of the weapon in a mugging is to make it unlikely that the victim wil have time to shout for help or have any chance to make any resistance.Thus, a gun, if selected, is as likely to be wielded as a club against the skull as it is to be pointed at the victim.Here the weapon chosen was a family-sized soda water bottle.

There is an immediate resort to violence.Typically, the mugger, without warning, jumps on the victim and commences beating him into a state of helplessness.Unlike the professional bank robber, the mugger hits first, asks questions afterwards.Here the defendant leaped at the victim, beat him about the head, knocked him down, beat him some more, and took his wallet (containing $16.00 in currency).

There is a savagery to the beatings administered.The brutal beatings that characterize most muggings go beyond the purpose of securing silence or preventing resistance.The degree and type of violence used goes far beyond the jostling of the targeted victim by a pickpocket or purse snatcher.Here the defendant, after he had clubbed the 81-year-old victim to the floor of the porch, jumped on him as he lay prone, and continued or renewed beating him about the head.

There is the trip to the hospital for the victim.Unless beaten to death on the scene, the mugging victim usually requires hospital treatment because of the brutal beating he suffered.Here the victim was admitted to the county emergency hospital shortly after 10:00 a.m. where it was ascertained that he had been beaten extensively about the head and chest, suffering, among other injuries, four deep scalp lacerations and a fractured skull.It is stipulated that he died of the skull fracture and cerebral damage.

Given a record establishing the death of a victim of a mugging-type robbery, postconviction counsel argues that only third-degree murder--murder while engaged in the commission of a felony (sec. 940.03, Stats.)--was established, not first-degree murder--causing the death of another human being with intent to kill that person (sec. 940.01, Stats.).Counsel argues that the defendant may have intended to beat up Mr. Gens and take his money, but did not intend to take his life.In other words, the defendant may have intended to take his victim to the threshold, but did not intend to push him over it.The contention is that the defendant must be held to have intended only to take his victim up to the doorstep of death, even though he turned out to be a poor judge of distance.

Seldom is an intent to kill ascertainable from the lips of the intender.Never can it be established by a retroactive mind-reading effort to determine what the actor was thinking when he planned and executed the act.That would require a crystal ball that recreated the past rather than sought to peer into the future.So as an objective test to determine the subjective intent of the doer of a deed, the courts rely upon a presumption, well stated by this court to be:

'In the absence of evidence to the contrary, he who takes the life of another by the infliction of a wound naturally and probably calculated to produce death is presumed to have intended that result and to be guilty of murder in the first degree under our statutes. * * *'Farino v. State(1931), 203 Wis. 374, 380, 234 N.W. 366, 368.See, also: Gelhaar v. State(1969), 41 Wis.2d 230, 163 N.W.2d 609;Greer v. State(1968), 40 Wis.2d 72, 161 N.W.2d 255.

Evidence of contrary intention may rebut the presumption.See: Melli v. State(1936), 220 Wis. 419, 265 N.W. 79;Gelhaar v....