COURT OF APPEALS DECISION DATED AND RELEASED November 12, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0490-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JERMAINE M. WEBB,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Jermaine M. Webb appeals a judgment of
conviction for first-degree intentional homicide, party to a crime, contrary to
§§ 940.01(1), 939.63(1)(a) and 939.05, Stats.,
and armed robbery, party to a crime, §§ 943.32(1)(a) and 939.05, Stats.
He was sentenced to life imprisonment with parole eligibility of
February 17, 2038, 101 days credit, for the homicide and forty years
concurrent, 101 days credit, for the armed robbery. Webb's appellate counsel has filed a no merit report pursuant to Anders
v. California, 386 U.S. 738 (1967), raising four potential issues: (1) sufficiency of the evidence; (2) adequacy
of the jury instructions; (3) propriety of the trial court's evidentiary
rulings; and (4) the reasonableness of the trial court's sentencing discretion.
Webb has been provided a
copy of the report and advised of his right to file a response. He has not responded. Based upon our independent review of the
record, we conclude that the no merit properly analyzes the issues raised. The record discloses no other potential issues
of arguable merit. Accordingly, we
affirm the judgment and discharge Webb's appellate counsel of his obligation to
represent Webb further in this matter.
"[A]n appellate
court may not reverse a criminal conviction unless the evidence, viewed most
favorably to the state and the conviction, is so insufficient in probative
value ... that it can be said as a matter of law that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153
Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990).
On review of jury findings of fact, viewing the evidence most favorably
to the State and the conviction, we ask only if the evidence is inherently or
patently incredible or so lacking in probative value that no jury could have
found guilt beyond a reasonable doubt. State
v. Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990).
The armed robbery and
homicide occurred in May 1994 at 2703 West Wisconsin Avenue in the City of
Milwaukee and the victim's name was John Pickens, Jr. Because Webb's defense was that the shooting was accidental, the
underlying facts are not substantially controverted. Around midnight, a bus driver discovered an injured man lying
near the curb, bleeding from a puncture wound in the back. An investigating officer testified that he
went to Lake County, Indiana, to interview Webb, a suspect, who was in
custody. Webb told the officers that he
was with two friends in Milwaukee outside a tavern when a man they did not know
happened to be walking by after leaving the tavern. Webb's friend ran up and pushed the man into the man's car.
According to the
statement, Webb's two friends began to search the man, beat him and threatened
to kill him. One of his friends gave
Webb a sawed-off shotgun, which he was holding in his lap, pointed toward the
man. The man reached over to Webb and
pushed him in the face while attempting to exit the car and the gun went
off. Webb's friend quickly drove away
and hid the car in some bushes. Webb
stated that he did not mean to shoot the man, but his finger was on the trigger
when the man pushed him.
The officer testified
that the wound was approximately three inches left of the center of the man's
back. John Teggatz, a forensic
pathologist, testified that he performed the Pickens autopsy. Pickens had been pronounced dead in the ambulance. He had suffered a gunshot wound toward the
left back in the chest area. A large
amount of pellets and plastic wadding from the shotgun shell were recovered
from the wound. Teggatz testified: "And there has been some contact made
at the time of discharge of the skin with the muzzle." Pickens died from loss of blood due to
lacerations to his heart and lungs from the shotgun wound.
Because Webb's statement
admits fatally shooting the victim, the only issue is Webb's intent at the time
of the shooting. Shooting someone in
the back at close range supports a finding of intent to kill. See State v. Borello,
167 Wis.2d 749, 780, 482 N.W.2d 883, 895 (1992). We agree with the no merit report's analysis that there is no
arguable merit to any challenge to the sufficiency of the evidence to support
the conviction for homicide with a dangerous weapon party to a crime. Sections 940.01(1), 939.63(1)(a), and
939.05, Stats.
The record also supports
the verdict finding that Webb participated in the armed robbery. He admitted joining his accomplices who
drove off in the victim's car. His
accomplices beat the man while searching him.
Webb held the gun pointed at the victim in the back seat. Ten tapes and the car were taken from the
victim by use of force to overcome any physical resistance. Any challenge to the armed robbery
conviction party to a crime is without arguable merit. Sections 943.32(1)(a) and 939.05, Stats.
Next, we agree with the
no merit report that any challenge to the form of the verdict or jury
instructions would be without arguable merit.
A trial court has broad discretion in instructing a jury based on the
facts and circumstances of a case. La Chance
v. Thermogas Co., 120 Wis.2d 569, 577, 357 N.W.2d 1, 5 (Ct. App.
1984). The burden is on the party
asserting the error in the instructions to point out with specificity what
portions of the instructions are in error and how the instructions are in
error. Howard v. State Farm Mut.
Auto. Liab. Ins. Co., 70 Wis.2d 985, 996, 236 N.W.2d 643, 648
(1975). Here, the court granted the
defense request for lesser offense instructions on both first-degree reckless
homicide and felony murder. These
instructions are consistent with Webb's defense and put squarely before the
jury the disputed issue of Webb's intent at the time of the shooting. No arguable basis exists for challenging the
court's instructions.
No arguable basis exists
to challenge the court's ruling that Webb's custodial statement was
admissible. Detective Leroy Shaw, the
interrogating officer, testified that he and another officer interviewed Webb
in a well-lit comfortable room. Webb
was given Miranda warnings from a standard issue card. Webb indicated he understood his rights and
wished to talk to the officers without an attorney present. Their conversation lasted one and one-half
hours. No threats or promises were
made. Webb was not in restraints during
the conversation. Webb was
cooperative. Based on this testimony,
the trial court denied the suppression motion.
Because the record reveals no basis to challenge the trial court's
determination, there is no arguable merit to a challenge to the admission of
Webb's custodial statement.
Next, a challenge to
sentencing would be without arguable merit.
Sentencing is addressed to trial court discretion. State v. Echols, 175 Wis.2d
653, 681, 499 N.W.2d 631, 640 (1993), cert. denied, 510 U.S. 889. Relevant factors include the gravity of the
offense, the character of the defendant and the need for public
protection. The record reflects that
Webb had an opportunity to review the presentence report with his attorney and
agreed that it was accurate. The court
considered the seriousness of the senseless abduction and murder of an innocent
victim. Despite the seriousness of the
crime, the court considered other factors as well: Webb's age, twenty-two; his criminal history; and lack of
willingness to accept responsibility for his act. The record reflects the trial court's reasonable exercise of
discretion. Accordingly, no basis
exists to challenge the sentence.
We are satisfied that
the record reveals no potential issues of arguable merit. We therefore affirm the judgment and
discharge attorney William J. Tyroler from any obligation to represent further
Webb in this appeal.
By the Court.—Judgment
affirmed.