Werner v. State

• Citation: 66 Wis.2d 736,226 N.W.2d 402
• Decision Date: 04 March 1975
• Docket Number: No. S,S
• Parties: Warren H. WERNER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 128.
• Court: United States State Supreme Court of Wisconsin

Page 402

226 N.W.2d 402

66 Wis.2d 736

Warren H. WERNER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 128.

Supreme Court of Wisconsin.

March 4, 1975.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison, for plaintiff in error.

R. W. Warren, Atty. Gen. and David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.

WILKIE, Chief Justice.

The plaintiff in error, Warren H. Werner (hereinafter defendant), was sentenced to a prison term of not less than five and not more than fifteen years following his conviction for second-degree murder in violation of sec. 940.02, Stats. We reverse because of the error that was made in the instructions to the jury by the trial court.

There are certain undisputed facts about the incident that underlie this conviction. During the evening of October 3, 1972, defendant and his brother Ronald Werner were at a tavern located in the unincorporated village of Poniatowski in Marathon county. They were there with the victim, Russell Karlen, and the victim's brother Allen (Ozzie) Karlen. After approximately two hours of drinking, at 10 or 10:30 the four began to heatedly argue about the relative merits of certain cars. The argument subsided after a time. Then as a favor to the bartender, defendant left the tavern and drove down the road to buy some orange juice for use in mixed drinks. Before reentering the tavern, defendant armed himself with a sheathed hunting knife that had been in his car. He placed the knife in his pants pocket. He testified that he needed the knife in case of trouble because his left index finger had been injured at work, rendering his left hand useless in a fight. He felt the knife would be an 'equalizer.' Back in the tavern, he showed the knife to two people, saying he had it 'in case any trouble started.'

Shortly after defendant returned, the argument between the two sets of brothers recommenced, and after a time, Ronald Werner and Ozzie Karlen left the tavern and went outside. Back inside, Russell Karlen grabbed defendant by his shirt collar and warned him to stay out of the fight. A patron of the tavern broke up this little affray. Soon, however, both defendant and Russell Karlen were outside along with Ronald Werner and Ozzie Karlen, and another tavern patron named Russell Behrens. Ronald and Ozzie began fighting and Russell Karlen pushed defendant backwards and defendant fell. In the altercation between these two that followed, defendant stabbed Russell Karlen in the inner portion of the upper left thigh with the hunting knife he had taken from the car. The knife's blade was five inches long and the wound inflicted, pointing up towards the abdomen, indicated the knife had been plunged into the leg up to the hilt. Both the femoral artery and vein were severed and Karlen immediately began severe hemorrhaging. He bled to death before arrival at the hospital. There was no evidence that either Russell or Ozzie Karlen or Ronald Werner had any weapons; the defendant was apparently the only one who was armed. Sometime after the stabbing, defendant started crying.

At this point, there is a dispute as to what occurred. At the trial defendant did not dispute that he stabbed and killed Russell Karlen. Rather, he tried to represent himself as a peacemaker and Russell Karlen as a troublemaker. He contended (a) that he acted reasonably in the exercise of a privilege of self defense, and (b) that he did not know he had a knife in his hand when he committed the fatal stabbing.

Defendant testified that upon leaving the tavern he tried unsuccessfully to prevent his brother and Ozzie Karlen from fighting. This testimony was corroborated by two witnesses. Further, he said that Russell Karlen was the aggressor in his own fight and that Russell had punched him four or five times as hard as he could, each time knocking him back on the ground, before the stabbing took place. Concerning the actual stabbing, defendant testified as follows in response to his own attorney's questions:

'A. He (Russell Karlen) started coming at me every time. I wouldn't hardly get up and he would just keep knocking me down. And I went down and my hand hit something.

'Q. What did your hand hit?

'A. I don't know.

'Q. Where was it that you hand hit something?

'A. I was laying on the ground, when I went down I caught myself and my hand just hit something.

'Q. What did you do with whatever your hand hit?

'A. I just--I grabbed it.

'Q. What did you do with it then?

'A. Russell was coming at me again and I just--I swung out at him. I tried to stop him.

'Q. Would you show the jury to the best of your recollection how you swung out at him?

'A. He was coming at me. I just took it and hit at his legs.

'Q. What position were you in at this time?

'A. I believe I was on my knees. I was just starting to--I was just starting to get back up.'

After the stabbing defendant told bystanders he had only hit Karlen with his hand.

No one actually witnessed the stabbing and any preceding scuffle, except when Russell Karlen initially shoved defendant. A sheriff investigating the incident said that shortly after the stabbing defendant said he was shoved by Karlen and that then defendant his Karlen. Defendant never said at that time that Karlen had punched him. Accounts differed as to whether defendant was injured in any way as a result of the alleged blows struck by Karlen. Police pictures of defendant taken after the stabbing reveal a slight cut above his eye and possibly slight puffiness of the nose, but any injuries appeared minor. As shown by this picture, the defendant does not look like a person who had just been severely beaten. The physician who performed the autopsy on Russell Karlen found no evidence of trauma on the defendant's hands that would indicate they had been involved in striking another person.

One bystander, Leonard Bornheimer, testified that after the stabbing:

'I asked him (the defendant) what he cut him with. He said his hand. And he said, 'Come here, you'll get the same thing.' . . .'

Furthermore, Bornheimer and the tavern keeper's wife both testified that about ten minutes after the stabbing, defendant said he hoped Karlen would die. The tavern keeper's wife was attempting to give first aid to the victim when she heard the following:

'I heard him say, everybody was shouting and Warren said, 'The son of a bitch ought to die.' I said, 'Warren, you don't mean that."

Defendant denied making either statement, but upon cross examination admitted that he possibly made the latter statement 'in the confusion.'

Three issues are raised about alleged errors in the conduct of the trial:

I. Did the trial court err in refusing to admit testimony concerning specific acts of violent behavior of the victim?

II. Did the trial court err in refusing to submit the offense of homicide by reckless conduct, sec. 940.06, Stats., to the jury?

III. Does an error in the self defense instruction, not objected to, require reversal and a new trial?

Testimony on specific acts of violent behavior of the victim.

Numerous witnesses, including defendant, stated their opinions concerning Russell Karlen's reputation in the community for violence and turbulence. Defendant argues, however, that the trial court should have allowed testimony relating to specific instances of Karlen's past misconduct. The trial court did not err in this respect.

Defendant relies principally on the recent case of McMorris v. State, ¹ where this court held that a defendant who establishes a factual basis for the issue of self defense may testify as to his personal knowledge of prior specific acts of violence by the victim of the assault. The purpose in allowing such testimony is not to support an inference about the victim's actual conduct during the incident; rather, the testimony relates to the defendant's state of mind, showing what his beliefs were concerning the victim's character. Such evidence helps the jury determine whether the defendant 'acted as a reasonably prudent person would under similar beliefs and circumstances' in the exercise of a privilege of self defense. ² As the court held, however, 'The admission of such evidence rests in the exercise of sound and reasonable discretion by the trial court.' ³

Defendant cannot rely on McMorris because no attempt was actually made at the trial here to elicit testimony from defendant concerning specific prior instances of the victim's violent conduct. Accordingly, the trial court never had the opportunity of ruling on the admissibility of any such evidence.

Although the trial court did rule that two other witnesses could not testify concerning specific prior instances of the victim's violent conduct, these rulings in no way prevented the defense attorney from trying to elicit such testimony from defendant. The justification for excluding such testimony of other witnesses rests on a completely different ground from the rationale for allowing the defendant to so testify. Evidence of prior specific conduct may not be used to prove that the victim acted in conformity with that conduct. The defendant may testify concerning specific conduct within his knowledge to show his state of mind. However, it is noteworthy here that the defense attorney never mentioned this latter rationale when arguing evidence questions during trial.

It is true that in support of a post-verdict motion for a new trial, defendant's appellate counsel made an 'offer of proof' wherein defendant testified to a number of fights he knew the victim had been involved in. However, as the court said in Robinson v. State, ⁴ 'Error cannot be predicated on omission of testimony which was never proffered as evidence for the jury to hear.'

Defendant also argues the trial court erred in excluding testimony of witnesses other than defendant concerning specific prior instances of violence by the victim. Defendant again mistakenly relies on McMorris...