COURT OF APPEALS DECISION DATED AND RELEASED February 26, 1997 |
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Nos. 95-3280-CR
95-3281-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KARSHRA C. ARMSTRONG,
Defendant-Appellant.
APPEALS from judgments
of the circuit court for Racine County:
DENNIS J. BARRY, Judge. Affirmed.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Karshra
C. Armstrong appeals from judgments of conviction of first-degree intentional
homicide and delivery of cocaine, both while armed with a dangerous weapon and
as party to a crime. He argues that his
due process rights were violated because his custodial interview was not
electronically recorded, that instructional and evidentiary errors occurred at
trial, and that a mistrial should have been declared when the prosecutor's
closing argument commented on his failure to testify. We reject his claims and affirm the judgments.
The death of Robert
Wilmington occurred during a drug transaction with Armstrong. Drugs were delivered to Wilmington as he sat
in his truck on a street corner.
Wilmington attempted to leave without paying for the drugs. Armstrong or his accomplice, Demetrius
Johnson, fired a gun at Wilmington's pickup truck. Wilmington died from a gunshot wound to the head.
Armstrong first argues
that the statement he gave to police should have been suppressed because it was
not electronically recorded. He claims
that his due process rights under Art. I, § 8 of the Wisconsin Constitution,
can only be protected by the adoption of a rule requiring electronic recording
of custodial interrogations conducted in a place of detention. He points out that Alaska courts have
adopted such a rule. See Stephan
v. State, 711 P.2d 1156, 1158-59 (Alaska 1985).
We decline to adopt the
rule Armstrong suggests. This court is
not charged with the adoption of new rules regarding procedural
safeguards. The law-developing or law-declaring
function is exclusively delegated to the Wisconsin Supreme Court. See State v. Perez, 170
Wis.2d 130, 137, 487 N.W.2d 630, 632 (Ct. App. 1992). Additionally, this State follows the test for the need to
preserve evidence set forth in California v. Trombetta, 467 U.S.
479, 489 (1984). See State
v. Greenwold, 189 Wis.2d 59, 67, 525 N.W.2d 294, 297 (Ct. App.
1994). Even the Alaska Supreme Court
concluded that interrogations need not be electronically recorded to satisfy
the due process standard recognized in Trombetta. See Stephan, 711 P.2d at 1160.
Finally, the majority of
jurisdictions which have addressed whether electronically recording statements
is a constitutional necessity have rejected that requirement. See State v. Kilmer,
439 S.E.2d 881, 893 n.16 (W. Va. 1993) (and cases cited therein); see also
State v. Kekona, 886 P.2d 740, 745-46 (Haw. 1994); Commonwealth
v. Fryar, 610 N.E.2d 903, 909-10 n.8 (Mass. 1993); People v.
Eccles, 367 N.W.2d 355, 356 (Mich. Ct. App. 1984); State v. Grey,
907 P.2d 951, 955-56 (Mont. 1995); Jimenz v. State, 775 P.2d 694,
696-97 (Nev. 1989). We share not only
the opinion of those courts that electronically recording statements is good
police work but also their views that it is not constitutionally required.
Armstrong contends that
the jury should have been instructed on the lesser included offense of
first-degree reckless homicide because there was evidence that the gun was shot
indiscriminately at the truck. Whether a
lesser included offense instruction should be submitted to a jury is a question
of law which we determine de novo.
See State v. Echols, 152 Wis.2d 725, 739, 449
N.W.2d 320, 325 (Ct. App. 1989). The
instruction is appropriate only when there are reasonable grounds in the
evidence both for the acquittal on the greater charge and conviction on the
lesser offense. See id. The lesser included offense instruction is
not to be given where the physical evidence leads to only one conclusion:
Where a defendant's testimony appears to offer a reasonable basis for
submission of instructions on a lesser offense, but the physical evidence
contradicts that testimony so as to leave no reasonable basis for a finding of
the lesser offense, the refusal to give such instructions is not error.
Boyer
v. State, 91 Wis.2d 647, 669, 284 N.W.2d 30, 39 (1979). Moreover, the “evidence must throw doubt
upon the greater offense. Juries cannot
rightly convict of the lesser offense merely from sympathy or for the purpose
of reaching an agreement.” State
v. Melvin, 49 Wis.2d 246, 253, 181 N.W.2d 490, 494 (1970).
We focus here on whether
there were reasonable grounds in the evidence for the jury to conclude that the
shooter, either Armstrong or his accomplice, Johnson, lacked the intent to
kill.[1] Intent may be inferred from conduct. See Schimmel v. State, 84
Wis.2d 287, 300, 267 N.W.2d 271, 277 (1978), overruled on other grounds by Steele
v. State, 97 Wis.2d 72, 76, 294 N.W.2d 2, 3 (1980). The aiming of a gun at a vital part of the
body and discharging it gives rise to only one inference—that the person
intended the natural, usual, and ordinary consequences of such an act. See State v. Kramar,
149 Wis.2d 767, 793, 440 N.W.2d 317, 328 (1989).
Armstrong characterizes
the evidence as demonstrating that in an apparent attempt to scare the driver,
the gun was fired indiscriminately at the truck from sixteen to eighteen feet
away. There was no direct testimony
that the gun was fired indiscriminately.
An eyewitness reported that as the truck pulled away, Armstrong pulled a
gun, aimed at the person in the truck, and fired twice. One bullet hole was found in the middle of
the rear window of the pickup truck.
Another bullet hole was found in the metal frame of the cab of the truck
just to the left of the rear window.
The victim was killed by a shot to the head. This evidence is consistent with the finding that the shooter
took calculated aim at the driver's head and did not act merely recklessly.
The facts here are
analogous to those in State v. Moffett, 147 Wis.2d 343, 433
N.W.2d 572 (1989). There the victim
tried to thwart a robbery by getting into his car. See id. at 347, 433 N.W.2d at 573. The robber fired a bullet through the car
window, hitting the victim in the neck.
See id.
The court concluded that there was no reasonable basis in the evidence
to support an acquittal on the greater offense of attempted first-degree
murder. See id. at
352, 433 N.W.2d at 575.
Similarly here, a shot
was fired through a car window and aimed at a vital part of the victim's
body. We acknowledge that the distance
from which the shot was fired was greater than that in Moffett. However, the distance was not so great as to
negate intent. We conclude it was not
error to deny Armstrong's request for an instruction on the lesser included
offense.
Armstrong next argues
that there was insufficient evidence to instruct the jury on party to a crime
liability as an aider and abettor. Even
accepting his argument, the error was not prejudicial.
This issue is governed
by Griffin v. United States, 502 U.S. 46 (1991). There, the instructions given told the jury
that it could return a verdict of guilty against the defendant if it found her
to have participated in either one of the two objects of a drug conspiracy. See id. at 48. The Court held that the due process clause
does not require that general guilty verdicts in a multiple-object conspiracy
be set aside if the evidence is insufficient to support a conviction as to one
object. See id. at
60; see also State v. Wulff, ___ Wis.2d ___, 557 N.W.2d
813 (1977). Here, even if there was
insufficient evidence to instruct the jury on party to a crime liability as an
aider and abettor, like Griffin, the jury was instructed on more
theories than that which is possibly supported by the evidence.
For this same reason, we
reject Armstrong's claim that submission of the aiding and abetting instruction
prevented the real controversy from being tried. The prosecution's closing argument advanced the theory that
Armstrong was guilty for having directly committed the shooting. The evidence supports that theory. The real controversy was tried.
Two evidentiary errors
are alleged. Evidentiary rulings,
particularly relevancy determinations, are left to the discretion of the trial
court and will not be upset on appeal unless the court misused its
discretion. See Shawn B.N.
v. State, 173 Wis.2d 343, 366-67, 497 N.W.2d 141, 149 (Ct. App.
1992). We will affirm the trial court's
discretionary ruling if it is supported by a logical rationale, is based on
facts of record and involves no error of law.
See id. at 367, 497 N.W.2d at 149.
The first involves
Armstrong's statement to police that he and Johnson were both members of the
Vice Lords gang.[2] Armstrong argues that evidence of mutual
gang affiliation was irrelevant to proving the elements of aiding and abetting
liability and far more prejudicial than probative. The trial court found the evidence relevant to Armstrong's
ability to identify Johnson and the potential aiding and abetting of the drug sale. Evidence of the gang affiliation was
relevant to an aiding and abetting theory of liability because it established
that the two had a mind set to work together and back each other up if there
was trouble. It also established the
circumstances of the crime. The
prejudice was minimized by the fact that both were said to be gang
members. Thus, the evidence did not
give any cause to assume that Armstrong, rather than Johnson, was the shooter
simply because Armstrong was a gang member.
Further, there was ample evidence that Armstrong directly committed the
crime rendering the error in admission of the gang evidence, if any, harmless.
The other evidentiary
claim of error is the admission of evidence that Armstrong carried a pager when
he surrendered to police eight days after the shooting. Armstrong argues that his possession of a
pager and the police officer's testimony that a pager is often a tool of a drug
dealer should have been excluded. He
contends the inference of drug dealing is highly prejudicial. The error, if any, in admitting this
evidence was undoubtedly harmless.
Armstrong's statement to police admitted that he was selling drugs to
the victim. In addition, the eyewitness
saw Armstrong engaged in what she believed to be a drug deal. Regardless of the evidence of the pager, the
only reasonable inference from the evidence was that Armstrong was dealing
drugs.
The final claim is that
during closing argument the prosecutor improperly commented on Armstrong's
failure to testify. During his
argument, the prosecutor referred to a gap in time between the shooting and
when Armstrong surfaced in Chicago, Illinois.
The prosecutor remarked, “Where is that day and a half gap? I don't know, I can't tell you. I don't have the ability to find out.” Outside the presence of the jury Armstrong
objected and moved for a mistrial.
A reference to a
defendant's decision not to testify violates the Fifth Amendment only if “`the
language used was manifestly intended or was of such character that the jury
would naturally and necessarily take it to be a comment on the failure of the
accused to testify.'” State v.
Werlein, 136 Wis.2d 445, 456, 401 N.W.2d 848, 853 (Ct. App. 1987) (quoted source
omitted). The decision of whether to
grant a motion for a mistrial lies within the sound discretion of the trial
court. The trial court must determine,
in light of the whole proceeding, whether the claimed error was sufficiently
prejudicial to warrant a new trial. See
State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct. App.
1995).
We view the prosecutor's
comment to be innocuous in light of the principal issues of the trial. The comment was not a manifest attempt to
comment on Armstrong's failure to testify.
The prosecutor may have wanted to show flight or consciousness of guilt
by Armstrong's “disappearance.” Even
that concept had little impact on the determination of guilt or innocence
because Armstrong voluntarily surrendered to police and gave a statement. Moreover, the prosecutor's comment was
isolated. In the final instructions,
the jury was instructed not to draw any inferences from Armstrong's decision
not to testify. Danger of prejudice is
cured when admonitory instructions are given because juries are presumed to
follow all of the instructions given. See
State v. Grande, 169 Wis.2d 422, 436, 485 N.W.2d 282, 286-87 (Ct. App.
1992). We conclude that the comment in
closing argument was harmless.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.