Wagner v. State

Decision Date15 February 1977
Docket NumberNo. 75--727--CR,75--727--CR
Citation250 N.W.2d 331,76 Wis.2d 30
PartiesCharles Clifford WAGNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Charles Clifford Wagner, plaintiff in error (hereinafter defendant), was convicted of second-degree murder contrary to sec. 940.02, Stats., following a jury trial. Motions for a new trial were denied. The defendant was sentenced to an indeterminate term of imprisonment of not more than 10 years.

Writs of error issued to review the judgment of conviction and order denying the motion for a new trial.

Mark A. Frankel, Madison (argued), for plaintiff in error; Frankel, Langhammer & Pines, Madison, on the brief.

Nadim Sahar, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.


It appears that an automobile driven by the defendant and a vehicle operated by an unknown driver were involved in a drag race down Central avenue, the main street in Marshfield, Wisconsin, on July 24, 1974, at about 11 o'clock p.m. It is alleged the vehicle operated by the defendant struck and fatally injured one George C. Fitz. This prosecution followed.

On July 24, 1974, the defendant, a resident of St. Paul, Minnesota, with his wife and two children, traveled to Marshfield, Wisconsin, to visit his parents. He had recently undergone a hernia operation, had been off work for approximately 11 weeks, and was under medication. The medication consisted of pain pills and sleeping pills. The defendant testified that he took two of the pain pills during the day and possibly one of the sleeping pills during the evening of July 24, 1974. Upon arrival at his parents' home, the defendant had supper, consumed two or three cans of beer, and at approximately 8:30 p.m., went out with two of his younger brothers, Steve Wagner and Mike Wagner, to play pool.

The trio left in the defendant's 340 cu. in. Dart Swinger, with the defendant driving. They visited a total of four bars, drinking beer and possibly some hard liquor and playing pool in each. The defendant drove between the first three bars and they walked to the fourth. At approximately 11 p.m. they decided to leave the last bar and drive back to the defendant's parents' home.

There was no direct testimony that defendant was driving. The defendant testified that he remembered nothing after drinking at the first bar. He attributed his lack of memory or 'black out' to a combination of the pain pills and the beer. Steve testified that he had blacked out and could not remember who was driving. Mike testified that he could not remember who drove, but he knew it was not him. Mike testified that he was sitting in the back seat of the car. He recalled the defendant and Steve getting in the front seat from the passenger's side, although he did not remember which one got in first.

Although Steve originally told the Marshfield police that he had been driving, he subsequently retracted that statement--first, in a signed statement wherein he stated that the defendant was driving, and second, at trial where he stated that because of the blackout he did not know who was driving. In typed statements given to Marshfield police officers shortly after the incident and signed by both Steve and Mike, they indicated that the defendant was driving. The typed statements were introduced into evidence.

The defendant's car headed south from the last bar on Central avenue and stopped at a red light. The defendant's car was in the right lane of the four lane highway. Another car pulled up to the left of the defendant's and comments were exchanged between the occupants of the two vehicles. The engines of both vehicles were revved up and when the light changed, the vehicles proceeded to drag race southward on Central avenue. Two eyewitnesses, Brent Wayne Varner and David Steven Felton, observed the drag race. The second car has never been located.

At approximately the same time as the drag race was in progress, George C. Fitz was leaving the Downtowner Bar which was located to the south on Central avenue. He was apparently in the process of crossing Central avenue to his parked car when the racing vehicles bore down on him. Fitz's exact position in the street was unclear from the record.

Mike testified that during the drag race and before the defendant's car crossed the railroad tracks, he felt an impact and the windshield shattered. He was facing backward at the time and saw nothing. Steve testified that he did not remember the car coming in contact with anything. In the signed typed statements, both Mike and Steve indicated that they recalled hitting an object, Steve believing it was a parked car.

The two eyewitnesses testified that while the drag race was in progress, and in the vicinity of the Downtowner, they observed the two vehicles suddenly swerve to the left approximately one-half of a traffic lane. Varner testified that he heard a thud when the vehicles swerved and saw a light colored object thrown up from the car in the right lane. Felton heard the thud but did not see the object. Varner then testified, 'Well, both of us ran down to where, right in front of the Downtowner; and I saw a man lying there.' The man was later identified to be the fatally injured George C. Fitz.

The vehicles did not stop, but continued south over the railroad tracks and out of sight. Richard John Cooper, who lived approximately two--three blocks from Central avenue, testified that at the time and date in question he heard the squealing of tires and loud roar of mufflers on Central avenue; observed what was later identified as the defendant's car cross the railroad tracks causing sparks to fly; and observed the car go by his house at approximately fifty miles per hour. The latter observation concerning speed was objected to by the defense. Cooper was eventually instrumental in leading the police to the defendant's car.

Mike testified that after the impact they continued on Toward his parents' home. The car hit a cement post in an alley and stopped. Mike and Steve pushed it out and eventually pushed it into their parents' yard. Both Mike and Steve testified that the defendant was driving at that time. The trio entered the house.

Ivo M. Wagner, the defendant's father testified that the boys came in after 11 p.m. The defendant walked straight through the kitchen into the dining room and flopped down on the couch apparently unconscious. Mike and Steve came in and Mike said that they had just sideswiped a car. Mike left, and Mr. Wagner began to discuss the matter with Steve. Mike bicycled back to Central avenue to find out what they had hit. He returned with the information that a man had been hit and killed on Central avenue. While Mike, Steve and Mr. Wagner were discussing what to do, the police arrived.

Marshfield police officers, Kenneth Wortman, Kenneth A. Fuller and Donald R. Haralson testified for the State. Wortman and Fuller testified that they were called to investigate the accident and found George C. Fitz fatally injured, lying in the gutter on the south-bound side of Central avenue. Cooper approached Fuller and Indicated that he thought he knew where one of cars that was involved was located.

Fuller departed with Cooper and went to the 400 block of Cedar street where he found the defendant's car parked on the lawn at 408 Cedar. He examined the car, finding that the right hood was bent in; there was blood along the hood and door post; the right front windshield reinforcing post was bent and bloody; and the antenna was broken off. Fuller did not state that the windshield was broken, but that fact was later established. Fuller called Wortman for assistance; the car was impounded; and Mike, Steve and the defendant were taken into custody. Mike and defendant were taken into custody first. Because the defendant was unconscious, he was transported by ambulance to the hospital. Steve was taken into custody shortly thereafter by Wortman after attempting to evade arrest.

Delores Pearl Larson, deputy coroner for Wood county, testified as to the extensive fatal injuries incurred by Fitz, and as to her opinion that the cause of death was a 'cerebral hemorrhage dur to a skull fracture.' Larson testified that a blood sample for the purposes of alcohol content analysis had been taken from the deceased. Out of the presence of the jury, the defense, in an offer of proof, established that the deceased's blood alcohol content was .145 percent. The defense's attempt to introduce that information into evidence was subsequently denied by the trial court.

Medical technologists, Steven Hilgart and Foster Soper, and Doctor Ronald Laessig, all testified as to an analysis of the alcohol content of the defendant's blood, establishing it at approximately .178 percent at about two hours after the incident. Dr. Laessig estimated that at the time of the incident, the defendant's blood alcohol content was approximately .21 percent.

The State called a total of seventeen witnesses and rested its case. The defense proceeded with its case, calling as witnesses only the defendant and his wife. A number of motions were made by the defense at the close of the State's case and at the end of the trial. Each was denied. Over the objections of the defense, a contemporaneous tape recording of the charge to the jury was made and was taken into the jury room to be used by the jury during its deliberations.


In view of our disposition of this case, it is only necessary that we direct our attention to two of the several issues presented by the defendant. They are as follows:

1. Based upon the evidence presented, could the jury find the defendant guilty, beyond a reasonable doubt, of second-degree murder?

2. Was it reversible error for the trial court to allow tape-recorded jury instructions to go into the jury room?



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