State v. Whiting
| Decision Date | 13 January 1987 |
| Docket Number | No. 86-0269-CR,86-0269-CR |
| Citation | 136 Wis.2d 400,402 N.W.2d 723 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Randolph J. WHITING, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Bronson C. La Follette, Atty. General, and Sally L. Wellman, Asst. Atty. Gen., Madison, for plaintiff-respondent.
Before CANE, P.J., and LaROCQUE and SUNDBY, JJ.
Randolph Whiting appeals a first-degree murder conviction, a life sentence, and orders denying post-conviction relief. He contends that: (1) The trial court erred by giving the party-to-a-crime instruction; 1. (2) the trial court erred by admitting preliminary examination testimony of a witness who invoked the fifth amendment at trial; (3) the state improperly used and failed to correct false testimony; (4) the trial court erred by admitting a witness's prior statement; (5) the trial court improperly restricted cross-examination of a witness on bias; (6) he was denied his right to a unanimous jury verdict; and (7) he is entitled to a new trial in the interests of justice because the real controversy has not been tried. We reject Whiting's arguments, and we affirm the trial court's judgment of conviction and sentence as well as its orders denying post-conviction relief.
On the afternoon of December 26, 1983, Whiting was drinking, playing darts, and shooting pool with Mark Hinton and Denice Stumpner at The Back Forty, a tavern in Green Bay. Whiting, Hinton, and Stumpner were members of a motorcycle group. The bar's owner, Mark Lukensmeyer, was tending bar. At about 8:30 p.m., Chris Shavlik relieved Lukensmeyer at the bar, and Lukensmeyer began drinking and socializing with customers.
According to one version of the facts, Margaret Anderson arrived with her date, Terry Apfel, at about 11:30 p.m. After sitting and drinking for a time, Anderson became involved in a fight with some other women. Shavlik advised Apfel to take Anderson out of the bar before anything happened to her. The two left at approximately 12 to 12:30 a.m.
Bar closing time was 12:45 a.m. After everyone had left, Shavlik and Lukensmeyer left the bar. When Shavlik stepped into the alley next to the bar she saw Apfel, who was apparently angry with Anderson. He asked Shavlik if she would beat up Anderson. Apfel then pulled Anderson out of his car by the hair, threw her to the ground, and kicked her with steel-toed boots. He pushed Anderson toward Whiting, Stumpner, and Hinton, who were standing in the alley, and told them they could have her. Apfel then left. Lukensmeyer told Shavlik to leave and she complied, leaving Anderson in the alley with the four men, Lukensmeyer, Whiting, Hinton, and Stumpner.
Lukensmeyer and Hinton testified to the events leading to Anderson's subsequent death. The significant differences in their testimony regarded Lukensmeyer's role in the killing.
Hinton testified at trial to the following version of the crime. After Anderson had been turned over to the men, Lukensmeyer opened the bar and Hinton helped carry Anderson inside. Anderson was then sexually assaulted. Hinton claimed to have fallen asleep at the bar during the assault. He testified that Whiting woke him up and asked him to "take charge of the situation" because Lukensmeyer was beating Anderson with a pool cue and had apparently "lost control."
After the beating stopped, the four discussed what to do with Anderson. Although someone allegedly suggested taking her to the hospital, Lukensmeyer said he knew of a place to take her. Lukensmeyer drove Anderson and the three men to a meat packing plant. Contrary to an earlier statement implicating only Whiting, Hinton first testified at trial that both Whiting and Lukensmeyer got out of the car, taking Anderson with them. Whiting returned to the car before Lukensmeyer. The four left without Anderson.
The authorities found Anderson's body later that day near a manure pit at the packing plant. An autopsy revealed that she had been severely beaten and sexually abused, but that her death was caused by a slash wound to her neck. Hinton testified that he did not know Anderson's throat was going to be cut when she was taken out of the car.
Hinton testified further that he and Lukensmeyer later agreed to "leave each other out of it." Lukensmeyer asked Hinton to tell the police that Lukensmeyer was in his car sleeping while Anderson was being beaten. Lukensmeyer reportedly told Hinton that he had already gotten rid of all the evidence that would point toward him, that he had burned his coat, and purchased a new pair of snow tires. Hinton's original statements to police reflected his agreement not to implicate Lukensmeyer.
After making the deal with Lukensmeyer, Hinton told Whiting that he would not implicate Lukensmeyer. Hinton stated that this conversation may have encouraged Whiting to flee. After Whiting disappeared from the area, Hinton made his statement to the police. He admitted that in so doing he may have "pointed the finger" at Whiting. At Whiting's trial, Hinton explained that he was no longer leaving Lukensmeyer out of the story because he himself "wasn't being left out of it." Hinton stated that he heard his name "come up a lot" on television news coverage during the first week of Whiting's trial.
Lukensmeyer's trial testimony differed in several respects. Lukensmeyer testified that after he left the bar at closing time, he went to his girlfriend's car and slept for about two hours. He claimed that he was awakened by Hinton who asked for a ride for himself, Stumpner, Whiting, and the victim, Anderson. When asked whether they got into the car, Lukensmeyer refused to answer, claiming his fifth amendment privilege against self-incrimination. Lukensmeyer continued to assert the privilege when asked whether he drove the four people to the packing plant, whether anyone got out of the car at the manure pit, and whether one less person was in the car when they left the pit area.
Lukensmeyer testified that later the same day he took a cab to The Back Forty, arriving at approximately 1:45 p.m., to clean and open the bar. He placed the garbage bags behind the building. When he arrived home that evening about 7 p.m., his girlfriend mentioned that there was blood in the back seat of the car. Lukensmeyer drove the car to his brother's house in DePere and left it there.
Lukensmeyer testified that the next day, Wednesday, December 28, 1983, he received a call from Hinton and Whiting. They asked him to help them tow another car. Lukensmeyer helped tow the car, and the men went to The Back Forty and then to a garage to put new snow tires on the car Lukensmeyer had driven.
Lukensmeyer claimed his fifth amendment privilege when asked whether he cleaned up the car he had driven and disposed of the garbage and tires. He also asserted his fifth amendment privilege when asked if he burned the coat he was wearing the night of Anderson's death. Lukensmeyer specifically denied re-entering the bar after Chris Shavlik locked it up at closing time.
When the state rested its case, the defense immediately rested without introducing any evidence. At the ensuing instruction conference, the state requested the party-to-a-crime instruction. The trial court agreed to give the party-to-a-crime instruction as well as instructions on first- and second-degree murder. The jury returned a guilty verdict of first-degree murder. Whiting was sentenced to life in prison.
The trial court later denied post-conviction motions on issues raised in this appeal.
Whiting first challenges the party-to-a-crime instruction on the basis of insufficient evidence. We conclude that there was sufficient evidence to support the jury's guilty verdict under either the party-to-a- crime theory or the theory that Whiting actually slit Anderson's throat, causing her death.
Until Hinton testified at trial, the state had proceeded under the theory that Whiting had actually caused Anderson's death by slitting her throat. However, Hinton testified for the first time at trial that Lukensmeyer, not Whiting, had beaten Anderson at the tavern, that both Lukensmeyer and Whiting had gotten out of the car at the manure pit, and that Lukensmeyer had been the last of the two to return to the car. As a result of these new facts, the state requested a party-to-a-crime instruction, after both sides had rested, at the jury instruction conference. The court granted the request over Whiting's objection. In its closing statement, the prosecution argued that its theory had always been that Whiting slashed Anderson's throat, but if the jury believed Hinton's testimony, it could infer that Whiting had been a party to the crime.
The test of whether sufficient evidence supports the jury's guilty verdict is not whether the appellate court is convinced beyond a reasonable doubt of the defendant's guilt. Rather, the test is whether we can conclude that the trier of fact could, acting reasonably, be convinced to the required degree of certainty by evidence that it had a right to believe and accept as true. State v. Marshall, 92 Wis.2d 101, 120, 284 N.W.2d 592, 600 (1979). A conviction may be based in whole or in part on circumstantial evidence. Id. at 121, 284 N.W.2d at 601.
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