Zebrowski v. State
| Citation | 50 Wis.2d 715,185 N.W.2d 545 |
| Decision Date | 30 March 1971 |
| Docket Number | No. S,S |
| Parties | Clayton R. ZEBROWSKI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 122. |
| Court | United States State Supreme Court of Wisconsin |
Nathaniel D. Rothstein, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for defendant in error.
Five issues are raised on appeal:
(1) Was there sufficient evidence to establish the defendant's guilt beyond a reasonable doubt?
(2) Did the trial court err in excluding the testimony of two witnesses relating to the claimed amnesia of the defendant?
(3) Did the trial court err in refusing to permit a medical witness' testimony as to whether the wound could have been self-inflicted?
(4) Did the trial court err in refusing to instruct the jury and submit verdicts on manslaughter, homicide by reckless conduct, and homicide by reckless use of a weapon, and in refusing to instruct the jury on accident as a defense?
(5) Did the trial court err in denying defendant's motion for a new trial?
The evidence introduced at the trial established that the defendant and the deceased were homosexuals and had lived together in an upstairs flat in Milwaukee for approximately one year prior to the offense. Two men who occupied the downstairs flat in the same building, Harris and Morris, testified at the trial.
Harris testified that at approximately 1 p.m. on October 6, 1969, the deceased knocked on his door, came in and stated, 'I have been stabbed.' The deceased laid down on the couch, asked for some ice and a cold towel, and then asked Harris to call an ambulance. Harris testified he called the police and they arrived a few minutes later. The officer looked at the person on the couch and stated he was not alive. Harris told the officer that someone else lived upstairs, and the officer then went upstairs. Harris also testified that he had heard an argument upstairs between 12:30 and 1 a.m. He stated it sounded like someone was picking something up and throwing it down and that 'it sounded like somebody was throwing their body around.' He also stated he heard one of the men upstairs ask, 'What are you doing?' He heard the upstairs door open and then the knock on his door.
Morris testified that the noise upstairs started at about 9 or 9:30 p.m., and that there were loud, heavy thumps on the floor. He testified that he went to bed at approximately 10:30 p.m. and that he was not awake when the deceased entered the room nor when the police arrived.
Police Officer Strehlow testified that he arrived at the scene of the offense shortly after 1:05 a.m., along with Officer Bacich. He stated that they were admitted to the downstairs flat by Harris and asked him what had happened and where the man had come from. Upon being told that the man lived upstairs, he went up there. The door upstairs was answered by the defendant, who was holding a knife in his hand. He testified that he asked the defendant to put the knife down; told him there was a man downstairs who had been stabbed; and asked him what had happened. He stated the defendant told him that the man downstairs was his boyfriend; that they had been at a tavern earlier that evening and then came home and went to bed; that the deceased got up and stated he was going to leave, and that he had begged him not to leave; that the deceased headed for the door and he ran to the kitchen, took a knife and ran back to the front door. Officer Strehlow testified that the statement stopped there because his Sergeant entered the room, followed by Officer Bacich. At this point, the defendant was placed under arrest and made no further statements to him. He testified that during this conversation, the defendant was crying, was blurry-eyed and smelled of alcohol. He also testified that after the defendant had been taken to police headquarters and was being escorted to the Detective Bureau, the defendant asked how Roedl was. Officer Bacich told the defendant that he did not know his condition, but that he had been taken to the hospital. He then heard the defendant say, 'He won't press charges anyway; he loves me.'
Officer Bacich testified that he arrived at the scene with Officer Strehlow. He stated he heard an officer make a statement that the knife should not be touched, and at that time the defendant stated: 'You know my fingerprints are on there; I remember (Donald) standing in the * * * living room with the knife in his chest; (Donald) pulled the knife out of his chest and dropped it on the floor; I picked the knife off of the floor and kept it in my hand. * * *' He also testified that the defendant was crying and smelled of alcohol.
Detective Adamczewski, who questioned the defendant at his home at approximately 1:45 a.m., testified that after advising the defendant of his constitutional rights he questioned the defendant for about 10 or 15 minutes. He stated the defendant told him that he and the deceased had dinner that evening at his mother's home and left about 4:45 p.m. They went to a tavern, had about 10 drinks, and returned to their home at about 12:45 a.m. They went to bed and then got into an argument about the deceased's car keys. Detective Adamczewski testified that he then asked the defendant why he stabbed Roedl; that the defendant did not reply and started to cry; and that after crying for about three or four minutes the defendant struck his knee with his fist and stated, 'I was his b_ _, goddamit, and I loved him.' He testified that he was unable to ask the defendant anymore questions because he was crying. He stated that in his opinion the defendant was sober.
The defendant was then taken to police headquarters and was questioned by Detective Wolf. Detective Wolf testified that he questioned the defendant at about 3 a.m. for about 45 minutes to an hour. He advised the defendant of his constitutional rights and told him he was arrested for murder. He testified that the defendant told him the following: He and the deceased left their home at about 5:45 p.m. on October 5th and visited the defendant's mother; they left after a short time and went to a tavern; they stayed there until about 9:30 p.m. and then drove to their apartment. They had a brief argument about the defendant's wanting to borrow Roedl's car keys to go back downtown. Roedl refused to give him the keys and they went to bed. The defendant then became disturbed about the noise downstairs and asked Roedl to go downstairs and tell the people there to quiet down. The defendant watched Roedl go downstairs and tell someone there to turn the stereo down and heard someone tell Roedl they didn't have to. Roedl then returned to the upstairs flat. The defendant was upset because Roedl had not been more aggressive; he went to the kitchen, took out a steak knife and searched for a rifle. Roedl told him not to go downstairs because he would just cause more trouble. The defendant then stated that he didn't remember anything else until he saw Roedl walk out of the apartment and down the stairs. Detective Wolf testified that he then asked the defendant whether he had stabbed the deceased, and that the defendant gave no response.
Two women testified that they had met the defendant and the deceased at a tavern on October 5, 1969, and had observed them there from about 6:30 until 9:30 p.m. Each of them testified that the defendant returned at about 10:30 or 11 p.m. and that they left with the defendant at about 11:30 and went to the defendant's apartment. They had something to eat and drink and left about 12 midnight. They testified that there was no trouble between the defendant and Roedl while they were there, and that the conversation between them had been friendly. One of the women testified that in her opinion the defendant was intoxicated.
The deceased died of internal hemorrhage due to a stab wound in the chest. The deceased had type AB blood. Tests done on the knife found in the defendant's hand revealed that the blood on it was type AB. There was testimony that persons with type AB blood comprised about five percent of the total population of the country.
The defendant did not testify in his own behalf.
The defendant now contends that the evidence of his guilt was circumstantial, and that the state failed to prove the element of intent requisite for a conviction of first-degree murder. Defendant argues that the record is devoid of evidence of animosity between the defendant and the deceased and shows rather that the two men got along amicably.
This court has held that circumstantial evidence can be as forceful as eyewitness testimony and can form a rational basis for conviction. State v. Davidson (1969), 44 Wis.2d 177, 199, 170 N.W.2d 755. The defendant told the investigating officer that he had a knife and advanced toward the deceased. He was found a short time later with the knife in his hand. The requisite intent can be inferred from the act of stabbing the deceased alone. The defendant is presumed to intend the natural and probable consequences of his act. Gelhaar v. State (1969), 41 Wis.2d 230, 243, 163 N.W.2d 609. There was no evidence in this case to rebut that presumption. There was ample evidence on the basis of which the jury could have concluded that the defendant stabbed Roedl during a quarrel. One of the neighbors who lived downstairs testified that earlier that night he had heard quite a bit of noise upstairs: 'Loud, heavy thumps on the floor * * * yelling, so forth.' The other downstairs neighbor heard the two men arguing between 12:30 and 1 a.m., shortly...
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