Walker v. State

• Decision Date: 06 January 1981
• Docket Number: No. 79-047-CR,79-047-CR
• Citation: 99 Wis.2d 687,299 N.W.2d 861
• Parties: Emery L. WALKER, Plaintiff in error, v. STATE of Wisconsin, Defendant in error-Petitioner.
• Court: Wisconsin Supreme Court

Page 861

299 N.W.2d 861

99 Wis.2d 687

Emery L. WALKER, Plaintiff in error, v. STATE of Wisconsin, Defendant in error-Petitioner.

No. 79-047-CR.

Supreme Court of Wisconsin.

Argued Oct. 1, 1980.

Decided Jan. 6, 1981.

Chris C. Heikenen, Asst. Atty. Gen. (argued) with whom on briefs, was Bronson C. La Follette, Atty. Gen., for defendant in error-petitioner.

William J. Tyroler, Asst. State Public Defender, for plaintiff in error.

DAY, Justice.

This is a review of a decision of the Court of Appeals, 92 Wis.2d 690, 286 N.W.2d 2 (Ct.App.1979), reversing a judgment of conviction and order of the Circuit Court for Kenosha County, HON. HAROLD M. BODE, Circuit Judge.

The principal question on review is: Did the trial court err in denying the defendant's request for submission of a verdict of endangering safety by conduct regardless of life ¹ (endangering safety) as a lesser included offense of attempted first-degree murder? ² We hold that the refusal to submit the verdict was prejudicial error and affirm the Court of Appeals' reversal of the trial court.

The defendant also alleges that the trial court committed reversible error by instructing the jury on the loss of the self-defense privilege by provocation ³ and by giving the "natural and probable consequences" language of the model jury instruction on attempted first-degree murder. ⁴ Although these issues were not decided by the Court of Appeals, they will be discussed later in this opinion. ⁵

This prosecution followed events that occurred in the early morning hours of September 30, 1977, when Emery Walker (defendant) and Robert Piper shot each other outside the Model Tavern in Kenosha, Wisconsin. This shooting was the end result of events that began the evening before, when Donna Johnson, the defendant's friend, encountered Piper while walking down a street. She testified that Piper threatened her with a gun and asked her for "dope." At trial, Piper admitted asking her for marijuana and showing her a gun, but denied threatening her. She later related the encounter to the defendant, who then sought out Piper at a tavern. According to the defendant, on his first encounter with Piper, Piper threatened him with a gun and asked defendant to supply Piper with some drugs. Piper denied the threat. The defendant then left the tavern with his friends, drove to another friend's house and obtained a gun.

Upon returning to the tavern, the defendant went inside, talked with friends, had a brief conversation with Piper, and after five minutes, went outside. Piper followed shortly thereafter.

The witnesses gave conflicting versions of the events of the shooting which followed.

The defendant testified that once outside, he asked Piper why he pulled a gun on Miss Johnson. Piper then pulled two guns. ⁶ Defendant struck out at Piper's face and missed, the motion turning his body to Piper at a forty-five degree angle. Piper then shot him in the leg and defendant fell back. The defendant then ran, shooting back in Piper's direction. He shot three times, once toward Piper and twice in the air. Defendant also stated he did not intend to shoot Piper, but that he shot in Piper's direction after he had been shot and was running, trying to get away.

Piper, on the other hand, testified that as he approached the defendant, the defendant said, "You're a dead man" and shot him in the side. Piper then staggered back, drew his two pistols and shot at the defendant as the defendant ran away.

Randy Walker, the defendant's brother, testified that Piper fired the first shot. He stated that Piper approached defendant on the sidewalk outside the tavern with no guns in his hands. He stepped within two feet of the defendant, who shoved at Piper with his hands. Piper then drew both pistols from his pocket and shot defendant who then shot at Piper while backing away.

Two other eyewitnesses testified but neither could determine who shot first.

On September 30, 1977, the defendant was charged with attempted first-degree murder. He pled not guilty and the case was tried before a jury. At the close of evidence, the trial court submitted two verdicts to the jury: (1) guilty of attempted first-degree murder, and (2) not guilty. The jury was instructed on the privilege of self-defense, ⁷ on retreat ⁸ and on the loss of the self-defense privilege by provocation. ⁹ The latter two instructions were given over the objection of the defendant. The trial court also refused to submit the defendant's requested verdict on the lesser included offense of endangering safety.

The jury returned a verdict of guilty. Judgment of conviction was entered on March 2, 1978, and defendant was sentenced to an indeterminate term of not more than fifteen years. Post-conviction motions were denied on August 28, 1978.

Writs of error were filed by the defendant on January 4, 1979.

The Court of Appeals held that the trial court erred in refusing to submit a verdict on endangering safety, reversed the judgment and order of the trial court and remanded the cause for a new trial. Walker v. State, 92 Wis.2d 690, 286 N.W.2d 2 (Ct.App., 1979).

The state petitioned this Court to review that decision, which was granted on January 8, 1980. Oral argument was heard on this case and Hawthorne v. State, --- Wis.2d ---, 299 N.W.2d 860 and the cases were decided together with Cartagena v. State, --- Wis.2d ---, 299 N.W.2d 872. In each of these cases, the defendant was charged with attempted first-degree murder, claimed the privilege of self-defense and requested submission to the jury of the lesser offense of endangering safety which was denied.

After oral arguments were heard, this Court ordered the parties to submit supplemental briefs restricted to the question: Is endangering safety a lesser included offense of attempted first-degree murder, consistent with our opinion in Randolph v. State, 83 Wis.2d 630, 266 N.W.2d 334 (1978)?

In Hawthorne v. State, supra, this Court reaffirmed its prior holdings that endangering safety is a lesser included offense of attempted first-degree murder. We also noted in Hawthorne that submission of a lesser included offense is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense, and that it is prejudicial error if the Court improperly fails to submit the lesser included offense to the jury. Finally, we found that a claim of self-defense to a charge of attempted first-degree murder does not necessarily preclude submission of the included offense of endangering safety.

These were not the tests applied by the trial court. ¹⁰

The Court of Appeals correctly analyzed the evidence in this case. Walker v. State, supra. The defendant admitted to shooting Piper, but claimed that he acted in self-defense. Clearly, if the jury chose to believe the defendant's self-defense claim, it could acquit him of the greater charge. Nevertheless, this was not the only reasonable view of the evidence the jury might have taken. Had the jury found that the defendant failed to properly establish self-defense, but also found a reasonable doubt as to the element of intent to kill, then as the Court of Appeals stated:

"Without either the privilege of self-defense or an intent to kill, Walker's action falls clearly within (endangering safety)." Walker, 92 Wis.2d at 694, 286 N.W.2d 2.

The State argues on review for the first time in this litigation that the defendant is "bound" by his testimony. In its brief, the State argues that the defendant's testimony:

"... was that he acted in self-defense, and if believed, was sufficient to compel acquittal on that basis. Walker, 92 Wis.2d at 693 (286 N.W.2d 2). Consequently, self-defense was submitted to the jury along with the charge of attempted first-degree murder, and that is all the defendant was entitled to."

The "rule" that a defendant is bound by his testimony was stated by this Court in Boyer v. State, 91 Wis.2d 647, 284 N.W.2d 30 (1979), citing as authority Brook v. State, 21 Wis.2d 32, 47, 123 N.W.2d 535 (1963). The only mention of such a rule in Brook appears in a concurring opinion of a single justice where it is stated:

"In my opinion the defendant is bound by his own testimony and if his version of the affair were believed, the first shot would be an accidental incident of a physical struggle." 21 Wis.2d at 47, 123 N.W.2d 535.

But the case at bar is distinguishable from Boyer. In Boyer, the defendant denied any intentional act. He claimed his acts where wholly accidental, and if his testimony was true, he committed no crime.

Walker, on the other hand, admitted that he intentionally shot in Piper's direction, without intending to hit him, and claimed the privilege of self-defense. If the jury found unreasonable the defendant's belief that force likely to cause death or great bodily harm was necessary, ¹¹ or if it found that defendant had no claim of privilege because he provoked the attack and that he failed to withdraw from the fight and notify Piper of his withdrawal, ¹² his defense would fail.

But that would not by itself preclude the jury from finding a reasonable doubt as to the defendant's intent to kill Piper. They could instead find him guilty of endangering another's safety by conduct regardless of life. ¹³

Since this reasonable view of the evidence would support an acquittal of the greater charge and conviction on the lesser, it was prejudicial error to refuse to submit the lesser offense of endangering safety.

We therefore affirm the decision of the Court of Appeals ordering a new trial.

The defendant also challenged the trial court's instructions to the jury on the qualified and absolute loss of the self-defense privilege. The challenged instruction was given as follows:

"The criminal code of Wisconsin provides that a person who engages in unlawful conduct of a type likely to provoke others to attack him, and who thereby does provoke an attack, is not...