State v. Zdiarstek
| Citation | 193 N.W.2d 833,53 Wis.2d 776 |
| Decision Date | 01 February 1972 |
| Docket Number | No. S,S |
| Parties | STATE of Wisconsin, Respondent, v. Robert ZDIARSTEK, Appellant. tate 164. |
| Court | United States State Supreme Court of Wisconsin |
Robert Zdiarstek, appellant, (hereafter defendant) was tried before a jury and found guilty of battery to a peace officer, contrary to sec. 940.205, Stats. Postconviction motions were denied. Defendant was adjudged guilty and sentenced to the Wisconsin state prison for an indeterminate term of not to exceed four years. The maximum sentence of two years under sec. 940.205, and an additional sentence of two years pursuant to sec. 939.62 () was imposed. The defendant has appealed from the judgment of conviction.
Fred A. Reiter, Smith, Smith & Roels, De Pere, for appellant.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.
Defendant's conviction is based upon an incident which occurred on May 12, 1970, at the Brown county jail.
A jailer testified that he came on duty as jailer at 7 a.m., at which time he began his regular procedure of placing razors in the cellblocks and opening the security gate in each block to enable the prisoners to shower and shave. The prisoners are then 'locked out,' i.e., all the prisoners go into what is called a day room and both the individual cell doors and the security gate are locked. At approximately 8:30 a.m. the jailer locked out the prisoners in cellblock 1 and proceeded to do the same in cellblock 2 where the defendant and other prisoners were confined. After opening the outer gate, the jailer noticed that the razor which is generally placed on the ledge of the security door was not there, but was laying on top of the sink. The defendant and another prisoner, Heard, were standing near the sink. The jailer requested the defendant to hand him the razor, which the defendant did, but defendant then grabbed his left forearm. Heard came over, grabbed the jailer's other arm, and the two prisoners attempted to pull him into the cellblock. The jailer pulled back, pulling the defendant and Heard with him out into the hallway where he slammed into a control panel. He was then turned around and pushed across the main hall where he hit against a doorjam and fell to the floor in the washroom. He was struggling with the two prisoners when a sergeant came to his aid. The sergeant apparently managed to pull both prisoners off momentarily and then became occupied with Heard out in the hallway. Defendant then managed to remove the jailer's keys and ran down the hallway. The jailer ran after him and hollered at one of the trustees to close the outer gate. The jailer further testified that at no time did the defendant attack him with the razor and he could not recall if defendant had struck, hit, kicked or jumped on him. The jailer sustained four broken ribs and a multiple fracture of his shoulder blade. His badge and keyholder had been torn off, his shirt had been ripped and he experienced severe pain along his right side and back. He was hospitalized for twenty days and was unable to return to work for three months.
The physician who treated the jailer at the emergency room at St. Vincent's Hospital, testified the jailer had four broken ribs and multiple fractures of his scapula or shoulder bone. He was of the opinion that slamming into a doorjam could cause these injuries. He also testified it would require a good jolt to break the scapula.
The sergeant testified that at approximately 8:30 a.m., in response to a cry for help from the jailer, he ran down the corridor from the jailer's office to cellblock 2, where he observed the jailer in a sitting position with Heard and the defendant standing over him. He did not observe any punches being thrown or any kicking, only a lot of motion which gave the appearance that the men were fighting. The sergeant grabbed both prisoners and pushed them away but was then himself grabbed from behind, apparently by Heard, and pulled into the hall outside the washroom door, where he began struggling with Heard. He was able to free himself just as the defendant was running down the hall with the jailer's keys.
Defendant testified that he handed the razor to the jailer and then asked him if he was going to let him make a phone call or if he would contact a lawyer for him. The jailer replied, 'I just haven't found time yet.' Defendant then stated he wanted to make a phone call and grabbed the jailer by the shirt to get his attention. Defendant stated that he grabbed the jailer because his requests to contract his attorney during the previous week had apparently been ignored. The jailer pulled back and the defendant went with him. Heard then came up from behind the defendant and grabbed the jailer. The backward motion pulled both the defendant and Heard with the jailer until he hit a doorjam and fell to the floor. Defendant and Heard were standing over him and the jailer had ahold of Heard's foot. As defendant turned to escape, the sergeant entered the washroom and grabbed both him and Heard. Defendant then broke for the door and attempted to escape. Defendant further testified that he never hit the jailer or forcibly knocked him down.
On rebuttal, the jailer testified that the jail records indicated defendant had contacted his attorney on May 4th. He did not recall being asked by the defendant just prior to the incident to contact his attorney or of making a statement to the defendant that he would do so when he got time. He further stated that the impact with the control panel and the doorjam resulted from being pushed by the defendant and Heard.
ISSUES.
The following issues are raised on appeal:
(1) Whether the method of jury selection was constitutionally infirm;
(2) Whether the jury instructions were erroneous;
(3) Sufficiency of the evidence;
(4) Refusal to submit a lesser-included crime; and
(5) A new trial in the interest of justice.
MANNER OF SELECTING JURORS.
Defendant contends that the use of registered voter lists as a basis for selecting potential jurors resulted in an arbitrary and unconstitutional exclusion of younger persons as potential jurors. In support of this contention, defendant asserts that it is common knowledge that most persons do not register to vote until many years after they are eligible therefor; furthermore, younger persons are more often excused by the court from jury duty than are older persons.
While the intentional and systematic exclusion of any identifiable group in the community which may be the subject of prejudice is constitutionally impermissible, the burden of such a showing is on the party challenging the manner of jury selection. McKissick v. State (1971), 49 Wis.2d 537, 182 N.W.2d 282; State v. Bond (1969), 41 Wis.2d 219, 225, 163 N.W.2d 601. In Bond, this court specifically approved a procedure for selecting prospective jurors based on poll lists. In the instant case, defendant relies on mere assertions, unsubstantiated by any facts. Therefore, the argument fails.
ERRONEOUS JURY INSTRUCTIONS.
Defendant contends that certain portions of the court's instructions to the jury were misleading and erroneous. The first challenged instruction is that part of Wis JI--Criminal, Part II, 1220, which defines the element of intent:
This instruction was given at the specific request of the defendant and over the objection of the state. At one point during a conference over the proposed instructions, defense counsel did object to paragraph two of sec. 1220 insofar as it failed to instruct that the acts of a defendant must be a substantial factor in causing the bodily harm. However, the court pointed out that sec. 1220 did include such an instruction, which defense counsel acknowledged.
On appeal, defendant contends that the average juror equates the word 'intend' with 'desire.' It is argued the jury is then faced with a dilemma because it is instructed, by the italicized portion of sec. 1220, that 'the defendant must 'intend' and that he can 'intend' even though he does not 'desire' to do so.' Defendant suggests that the only way in which the jury can resolve this conflict is to conclude that if the defendant intended to do the act, but did not intend the harm and the act caused the harm, then the defendant must have intended the harm regardless of whether defendant foresaw or believed that such harm would result from the act. In support of this theory, defendant points out that the jury, on four occasions, requested further instructions and were reread the instructions on the four elements of battery, again on the second and third elements, and twice more on the next to the last paragraph of sec. 1220.
However, a fair reading of the challenged portion of sec. 1220, 1 requires a belief by the defendant that the act, if successful, will cause harm although no harm is intended. Thus the jury is entitled to find the requisite intent in two situations: (1) Where the defendant intends the harm, or (2) where the defendant believes that the act, if successful, will cause harm even though the ...
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