White v. State

• Decision Date: 06 February 1970
• Docket Number: Nos. S,s. S
• Citation: 45 Wis.2d 672,173 N.W.2d 649
• Parties: Willie May WHITE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 32, 33.
• Court: Wisconsin Supreme Court

Page 649

173 N.W.2d 649

45 Wis.2d 672

Willie May WHITE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Nos. State 32, 33.

Supreme Court of Wisconsin.

Feb. 6, 1970.

These cases are before us on a writ of error to review a judgment convicting Willie May White, hereinafter referred to as the defendant, of first-degree murder, contrary to sec. 940.01, Stats. She was sentenced to life imprisonment. The judgment was entered on September 28, 1968, and an order denying a motion for a new trial was entered on May 14, 1969. A writ of error was brought in respect to the order as well as the judgment.

The conviction arises out of the stabbing of Robert White by his wife, the defendant, Willie May White, on March 8, 1968. Prior to the stabbing, the defendant and her husband left their home together for the purpose of having their income tax returns prepared. When they found the tax service office was closed, they went to a tavern next door and later went to another tavern called the 'Cash Bar.' While there, Robert met a friend, Ozell Gates. During the evening, the defendant returned from the ladies' room, and she found her husband and his friend gone. Her husband had previously told her that he was going to the home of Clydie Ellison. The defendant told a friend at the tavern that she was 'going down there and tell him that I was going home.' When she arrived at the Ellison home, there were six persons there, including her husband, Robert. Upon gaining entry at the rear door, she walked through the kitchen and found her husband in an adjoining room, described as a living room or, alternatively, as a bedroom.

Ronda June Campbell and Ozell Gates testified that, upon entering the living room, the defendant stabbed her husband. Ronda June testified that, immediately before th stabbing, the defendant took a knife out of her pocket and said, 'I told you not to leave me.' Gates did not see the defendant take the knife from her pocket. Both of these witnesses testified that, after the stabbing, Robert grappled with the defendant and a struggle ensued into the adjoining kitchen, where Robert fell to the floor. He was later pronounced dead.

The defendant, Willie May, testified that she went to the Clydie Ellison home only to inform her husband that she was returning home. She stated that when she did so, her husband pulled her from the living room, pushed her into the kitchen, and attempted to throw her down the steps. Only at that time, she claims, she pulled a knife out of her purse and stabbed her husband.

Another witness, Nora Gates, testified that, when the defendant entered the room, she grabbed her husband from behind and said, 'You son of a bitch, you don't walk off and leave me like that.' Nora, however, saw nothing in the defendant's hand when she first entered the room. She stated:

'* * * they started scuffling into the living room, into the kitchen, and then after she got to the kitchen door, they scuffled back from the kitchen door by the kitchen table, then I seen Willie Mae when she raised her hand, and then I got up off the bed, and the phone rung, and I went in and answered the phone, and I asked who it was, and she says 'long distance call,' and when I came back out, I told my girl friend to go answer the phone, and she went in there and answered the phone, and then I looked in the kitchen and I seen Willie Mae. She was bloody and he was bloody and I didn't know which one was cut.'

The defense called the county medical examiner, Dr. Helen Young, who testified that Robert had died of a massive internal hemorrhage following the cutting of the innominate artery at the base of the neck. The doctor's testimony was susceptible to various interpretations. She stated that there would not have been an immediate effect as the result of a stab wound, apparently meaning by that that until the blood pressure dropped there would be no diminution of Robert White's bodily activities. She did state, however, that initially a good percentage of the hemorrhage would be internal. At another point she testified there would be substantial bleeding externally as soon as the knife was removed.

At the close of the defendant's case, the defendant's attorney argued to the court that the evidence would not support a finding of first-degree murder and urged a finding of a lesser degree of homicide. The court, however, concluded that sufficient intent to establish first-degree murder was shown by the testimony. He concluded that the testimony, which he believed, led to the conclusion that the defendant had carried a knife with her, that she deliberately stabbed her husband, that the blood which appeared in great quantities in the vicinity of the doorway and was absent in the bedroom was explainable by the fact that a peak point of bleeding could occur at an appreciable interval after the initial stabbing and the profusion of the blood in the kitchen was attributable to the struggle of defendant and her husband in the kitchen, and that he had finally fallen to the floor there.

On motions after verdict, the court denied the defendant's motion for a new trial and considered in detail each of the allegations of error. He concluded that the evidence was sufficient and that it was not in the interests of justice to order a new trial. Writs of error were issued to review the judgment and order.

Karius, Kmiec & Kay, Milwaukee, for plaintiff in error; Marjan R. Kmiec, Milwaukee, of counsel.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Michael Ash, Asst. Dist. Atty., Milwaukee, for defendant in error.

HEFFERNAN, Justice.

We are satisfied after extensively reviewing the facts, portions of which are set forth in the statement above, that the evidence was clearly sufficient to sustain a verdict of first-degree murder. We have frequently said:

'* * * when the question of the sufficiency of the evidence is presented on appeal in a criminal case the only question for this court is whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendants' guilt beyond a reasonable doubt. * * * This ultimate test is the same whether the trier of the facts is a court or a jury. * * * The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.

'* * * Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt. " Lock v. State (1966), 31 Wis.2d 110, 114, 115, 142 N.W.2d 183, 185.

Applying this test, it appears clear that the evidence of Ronda June Campbell and Ozell Gates substantiates beyond a reasonable doubt the trial court's conclusion that the defendant walked into the living room and stabbed her husband almost immediately after entering the apartment. Admittedly, the testimony of the defendant was to the contrary. We have a clear contradiction in the testimony, and it was the function of the trial judge to resolve these doubts on the basis of his appraisal of the credibility of the evidence under the test stated in Gauthier v. State (1965), 28 Wis.2d 412, 416, 137 N.W.2d 101, 104:

'The credibility of the witnesses is properly the function of the jury or the trier of fact * * *. It is only when the evidence that the trier of fact has relied upon is inherently or patently incredible that the appellate court will substitute its judgment for that of the fact finder, who has the great advantage of being present at the trial.' See, also Lemerond v. State (1969), 44 Wis.2d 158, 162, 170 N.W.2d 700.

On the other hand, it is the claim of the defendant that, even under the test of Gauthier, the testimony of Ozell Gates and Ronda June Campbell must be disbelieved as being patently incredible. This contention is based on the fact that the blood stains...