State v. Wilson, 87-0761-CR

CourtUnited States State Supreme Court of Wisconsin
Citation440 N.W.2d 534,149 Wis.2d 878
Docket NumberNo. 87-0761-CR,87-0761-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. David James WILSON, Defendant-Appellant-Cross-Petitioner.
Decision Date30 May 1989

Barry Levenson, Asst. Atty. Gen., with whom on the briefs was Jerome S. Schmidt, Asst. Atty. Gen., and Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Jed Stone (argued), and The Law Offices of Jed Stone, Ltd., Chicago, Ill., for defendant-appellant-cross-petitioner.

CECI, Justice.

This case is before the court on petition and cross-petition for review of a decision of the court of appeals. State v. Wilson, 145 Wis.2d 143, 426 N.W.2d 56 (Ct.App.1988), which reversed the judgment and order of conviction of the defendant entered by the circuit court for Kenosha county, Jerold W. Breitenbach, Circuit Judge. Four issues are presented for review. The first issue is whether the evidence produced at trial was sufficient for the jury to find the defendant guilty of second-degree murder under section 940.02, Stats.1967. 1 We conclude that the evidence produced at trial was sufficient for the jury to find the defendant guilty of second-degree murder. The second issue is whether the circuit court erred in failing to instruct the jury on the lesser-included offense of homicide by reckless conduct, section 940.06, Stats.1967. 2 We find that the circuit court did not err in failing to instruct the jury on the lesser-included offense of homicide by reckless conduct. The third issue is whether the sixteen-year delay between the date of the alleged offense and the filing of the criminal complaint violated the defendant's right to due process. We hold that the sixteen-year delay between the date of the offense and the filing of the criminal complaint did not violate the defendant's right to due process. The fourth issue is whether the defendant was denied a fair trial as a result of the publicity generated before and during his trial. We conclude that the defendant was not denied a fair trial as a result of the publicity generated before and during his trial.

The facts of this case are as follows. On January 8, 1969, Donald John Miller, the four-year-old stepson of the defendant, died at Kenosha Memorial Hospital following emergency surgery the night before to repair a ruptured stomach. Dr. Harold Wagner, coroner of Kenosha county, performed an autopsy and concluded that the cause of death was "shock and peritonitis following rupture of the stomach due to undetermined trauma." Dr. Wagner noted that there was no apparent preexisting pathology to account for the ruptured stomach. Dr. Wagner also found calloused rib fractures. Dr. Wagner observed that Donald fell several times during the previous few weeks and that "[a]ny of these could have caused his fractured ribs and the terminably related lacerated stomach." However, Dr. Wagner then stated that absent "a specific incident of force or trauma and without a lesion on the skin, we cannot relate any of the falls directly to the above findings." In conclusion, Dr. Wagner speculated that the death may have been due to an accidental fall or falls, but the evidence available to him was inconclusive.

On January 8 and 12, 1969, Kenosha County Deputy Sheriff Robert Hubbard interviewed the defendant. The defendant told Hubbard that on the morning of January 7, 1969, Donald complained of a headache and stayed home from school. The defendant remained at home with Donald, while other family members left the house for the day. The defendant stated that he was home alone with Donald from the time defendant's wife left the house in the morning until approximately 4:00 p.m. The defendant stated that he worked outside on a car during the morning but periodically checked on Donald, who stayed in bed until lunchtime. At approximately 12:00 noon, the defendant prepared Donald a lunch of chicken noodle soup without the noodles. The defendant further stated that the only physical complaint Donald made during that time was that he was cold. The defendant did not account for Donald's fatal injuries, but did state that in the past Donald seemed uncoordinated and once had burned his fingers while reaching under a space heater for a toy.

In addition to interviewing the defendant in January, 1969, deputies from the Kenosha county sheriff's department also interviewed Donald's mother, four sisters, neighbors, and teachers. They also reviewed the medical records. However, without solid evidence of criminal conduct, the investigation was terminated by the Kenosha county sheriff's department in 1969. The investigation was briefly reopened in March, 1973, when the defendant's stepdaughters, after the defendant's arrest for sexual intercourse with a minor, told authorities that the defendant had physically abused Donald. Dr. Wagner was reinterviewed and again said that he could not link any known conduct to Donald's fatal injuries. Therefore, the investigation was once again closed without charges being sought or filed.

The case remained dormant until early 1985 when David Cole, news director of radio station WLIP in Kenosha, gave a 35-page report concerning Donald's death to the district attorney. Mr. Cole, as part of his lengthy investigation, consulted with Dr. Robert W. Huntington III, a forensic pathologist and associate professor of medicine at the University of Wisconsin Medical School, who said that he was at least 95 percent certain that Donald died as a result of child abuse. Dr. Huntington recommended reopening the formal investigation. A special prosecutor was appointed in June, 1985, and the investigation was reopened.

On August 23, 1985, at the conclusion of a John Doe hearing, a criminal complaint was issued charging the defendant with second-degree murder, contrary to section 940.02, Stats.1967, in connection with the death on January 8, 1969, of Donald John Miller. A jury trial on that charge commenced on January 20, 1986. During the trial, Dr. Morris Siegel, Donald's physician, testified that in the late afternoon of January 7, 1969, Donald's mother brought Donald to his office in a "moribund" state with a distended abdomen and that he immediately took the boy to the hospital, as he appeared to be near death. X-rays indicated the possibility of a ruptured internal organ and peritonitis. X-rays also showed five old rib fractures previously unknown to Dr. Siegel. Dr. Siegel concluded that Donald had a ruptured internal organ and peritonitis and assisted in emergency surgery which was performed late that evening. Donald's abdominal area was opened, revealing a three-centimeter stomach tear and the presence of some 1200 cubic centimeters of yellow, murky fluid containing food particles. Donald died the next morning.

Dr. Siegel testified that the stomach laceration would have had to come from a blunt abdominal blow, such as a punch or kick, probably after Donald had consumed the soup, because under ordinary circumstances a blow to the abdomen would not cause a ruptured stomach if the stomach was not distended, and an empty stomach will not rupture, as there is not enough tension. Therefore, Dr. Siegel concluded that the underlying trauma had to have happened sometime in the afternoon of January 7, 1969, hours before he saw Donald. Dr. Siegel testified that due to the unexplained ruptured stomach and the five calloused rib fractures, he asked Dr. Wagner to perform an autopsy.

Dr. Siegel noted that Donald was admitted to the hospital on two previous occasions, once as an infant for treatment of iron-deficiency anemia and subsequently for a tonsillectomy. Dr. Siegel also stated that Donald was seen in the emergency room on a few occasions for cuts and scrapes. He also noted that, on December 21, 1968, Donald was treated for an injury described by his mother as bruised testicles which resulted from falling on a chair at school. Dr. Siegel testified that Donald was generally healthy and that his mother brought the boy either to the hospital or his office when Donald needed medical attention.

Dr. Huntington testified that he reviewed the autopsy report of Dr. Wagner along with the surgery and police reports and concluded to a reasonable degree of medical certainty that Donald died as a result of child abuse. Dr. Huntington noted the presence of five healing rib fractures for which no explanation was offered, burns on the fingers, and the acute, unexplained stomach rupture. He testified that the stomach ruptured from a concentrated application of energy to the abdominal area which was unlikely to have resulted from an accident because a stomach tear such as that suffered by Donald results from a concentrated high-energy blow to the abdomen, such as that from a punch or a kick. Accidental causes, such as a fall, were ruled out by Dr. Huntington, as the force required to cause the type of stomach tear suffered by Donald would be akin to a fall from a second-story window onto an object that would concentrate the force or akin to an injury suffered in a motor vehicle accident, neither of which was supported by the evidence available.

Dr. Huntington testified that the result of a stomach tear is that the stomach contents escape into the peritoneal cavity causing peritonitis which, if not arrested within hours, is fatal. Dr. Huntington further testified that consumption of a large quantity of liquid prior to the application of blunt-force energy to the abdominal area makes the stomach more susceptible to rupture and, in this case, the underlying trauma leading to Donald's death happened after Donald had consumed the soup at lunch.

The state's other forensic pathology witness, Dr. Mary E.S. Case, testified, consistent with Dr. Siegel and Dr. Huntington, that an ordinary fall would not result in a torn stomach, but that such injury occurs more frequently from vehicular accidents or from significant falls, such as from a second-...

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