COURT OF APPEALS DECISION DATED AND FILED December 11, 2007 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Jose M. Godina, Defendant-Appellant. |
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APPEAL
from a judgment[1]
of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 CURLEY, P.J. Jose Godina appeals the judgment of conviction for first-degree intentional homicide while armed with a dangerous weapon entered following a jury verdict. Godina argues that the trial court erred in admitting both statements he gave to the police because they were not voluntary, and later erred in instructing the jury by giving Wis JI—Criminal 835, subtitled “Provocation,” because he did nothing to provoke the victim and others to attack. Because the statements were voluntary and Godina’s actions provided a basis for the jury instruction, we affirm.
I. Background.
¶2 On July 17, 2005, Godina and several others were driving
around in
¶3 At about the same time, several other young men from the C-14
gang or who were at one point affiliated with that gang, Uriel Aleman, Juan
Garcia, and Ray Cherry, had stopped the Ford Explorer they were in near a street
corner when they observed Aleman’s brother approach while driving the white
Lincoln.[3] The white
¶4 When the white
¶5 The police arrested Godina the next day, and with Godina’s
assistance, the gun was recovered. Godina
was first interviewed by the police for approximately eight hours. He originally told the police that at the
time of the shooting he had a different caliber gun than the murder
weapon. When he was interviewed the next
day, he admitted that he had a gun similar to that used in the shooting, which
he fired numerous times at the passenger side of the Ford Explorer. Godina was charged with first-degree reckless
homicide while using a dangerous weapon.
Godina waived his preliminary hearing and filed a motion to suppress the
two statements he gave to the police. At
the hearing, one of the two detectives who took his statements testified, as
did Godina. The trial court denied the
motion. Shortly thereafter, the State
filed an amended information charging Godina with first-degree intentional
homicide while armed with a dangerous weapon.
The case was tried to a jury. Over
Godina’s objection, the trial court decided to read
II. Analysis.
A. Godina’s statements to the
detectives were voluntary.
¶6 Godina contends that the trial court erred in denying his motion to suppress the two statements he gave to the police. He claims that his statements were not voluntary for a number of reasons. First, he claims that the police, who he alleged were very aggressive in their manner, did not read him his Miranda rights before asking him questions, and he did not know that he had the right to remain silent.[4] He also argues that the length of the first interview (approximately eight hours) wore him down “both physically and psychologically,” and he points to his lack of experience with the police which made him more vulnerable than most people. Next, he claims the police threatened to call his family members as witnesses against him and said he would go to prison for the rest of his life. He also claims that his lack of sleep and having gone thirty-six hours without food contributed to his inability to resist the police pressure to confess. Finally, he argues that the room in which he was being held was small and confined and filling up with smoke as one of the detectives testified he was smoking a pipe.[5]
¶7 In reviewing a denial of a motion to suppress, this court
will uphold the trial court’s findings of fact unless they are clearly
erroneous.
¶8 The principles of law governing the voluntariness inquiry are
summarized in State v. Hoppe, 2003 WI 43, ¶36, 261 Wis. 2d 294, 661
N.W.2d 407. There, the court observed
that a defendant’s statements are voluntary “if they are the product of a free
and unconstrained will, reflecting deliberateness of choice, as opposed to the
result of a conspicuously unequal confrontation in which the pressures brought
to bear on the defendant by representatives of the State exceeded the defendant’s
ability to resist.”
¶9 A necessary prerequisite for a finding of involuntariness is
coercive or improper police conduct.
¶10 As noted, the trial court heard the testimony from one of the two detectives who took Godina’s statements and from Godina. The trial court in its remarks following the testimony and arguments of counsel stated that it was “confident” that the detective advised Godina of his constitutional rights and found that there was no improper police coercion. Addressing Godina’s contention that he did not know he could remain silent, the trial court observed that it would be hard for people to not know that they have the right to remain silent. Moreover, the trial court stated that Godina was not a child and his gang membership possibly educated him on law enforcement practices. The trial court also rejected Godina’s suggestion that the length of time he was interrogated was excessive, noting that the actual time of the first interrogation was a little over five hours. The trial court also observed that even if the police had claimed they were going to have Godina’s family members testify against him and told him he would go to prison for life, those were acceptable interrogation techniques. We agree.
¶11 The trial court found that Godina was advised of his Miranda rights each time the detectives spoke to him. This finding is not clearly erroneous. So, too, the trial court’s other findings are not clearly erroneous. Although the time that Godina spent in the interrogation room was lengthy, this was due in part to the detectives needing to verify information that Godina gave them. The trial court found that the actual length of the first interrogation was slightly more than five hours, and the second interrogation was approximately two hours in length. Godina was offered food, which he declined, and beverages. He was also given numerous bathroom breaks. The testimony of the detective was that Godina was “a very friendly individual” and that they parted ways by shaking hands. The trial court implicitly found this description of the atmosphere more credible than Godina’s assertions that the police were aggressive and yelling at him. Supporting the trial court’s findings is the fact that Godina signed both statements written by the police, which contained a clause just before his signature that said, “this statement is true and correct.” The trial court noted that Godina was a gang member and heard testimony that this was not his first brush with the law. These facts counter his claim that he was naive and overpowered by police tactics. Indeed, much of what Godina told the police were half-truths, and he minimized his involvement with the shooting. Thus, under the totality of the circumstances, we conclude that Godina’s statements to the detectives were voluntary.
B. The Provocation Instruction
was appropriate.
¶12 Over Godina’s objection, the trial court read
The evidence did not support the idea that Godina had “provoked” Aleman to run over Miguel with the Green Ford Explorer. Indeed, Godina could not have provoked that attack because: (1) he was not driving the Dodge Stratus; and (2) the Dodge Stratus in which he was a passenger was in front of the green Ford Explorer and therefore cannot be said to have prompted its reckless driving. Indeed, by all accounts, Godina was a pedestrian when Aleman guided the Ford Explorer around the corner and ran over Miguel.
Nor can it be said, on the facts in the record, that Godina prompted the Ford Explorer to attempt to back up toward him and the badly injured Miguel. An eyewitness account from inside the Ford Explorer establishes that Aleman was acting not in response to anything Godina had done or was doing. Instead, Aleman was acting at Cherry’s urging, or perhaps out of his own desire to leave the scene of an accident in which he must have known he had badly injured, if not killed, a pedestrian. In short, the facts of record did not support an instruction which advised the jury that Godina, by provoking the attack, had perhaps lost his privilege to use force in self-defense or defense of others.
(Emphasis in original.) As a result, Godina argues that “it largely negated [his] defense in the action without a factual basis for doing so.”
¶13 A trial court has broad discretion in deciding whether to give
a particular jury instruction, and the court must exercise its discretion “‘to
fully and fairly inform the jury of the rules of law applicable to the case and
to assist the jury in making a reasonable analysis of the evidence.’” State v. Coleman, 206
¶14 The trial court combined
Defense of another is an issue in this case. The law of defense of another allows the defendant to threaten or intentionally use force to defend another only if:
The defendant believed that there was an actual or imminent unlawful interference with the person of Miguel Lopez; and,
The defendant believed that Miguel Lopez was entitled to use or threaten to use force in self-defense; and,
The defendant believed that the amount of force used or threatened by the defendant was necessary for the protection of Miguel Lopez; and,
The defendant’s beliefs were reasonable.
The defendant may intentionally use or threaten force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force was necessary to prevent imminent death or great bodily harm to Miguel Lopez.
You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense or defense of others against that attack.
However, if the attack which follows causes the person reasonably to believe that he or another is in imminent danger of death or great bodily harm, he may act lawfully in self-defense or defense of another. But the person may not use or threaten force intended or likely to cause death or great bodily harm unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.
¶15 As noted, Godina claims that there was no evidence to support that he engaged in any conduct that would provoke others to attack. We disagree.
¶16 Testimony in the record revealed that the reason for the car
chase was to extract some sort of vengeance on the rival C-14 gang member who
flashed his gang sign in front of members of the Mexican Posse gang. The chase was not merely a sporting event
among young men driving cars. The gang
members had to have believed that the other gang intended some sort of harm, or
there would not have been a chase in the first place. Supporting this theory is the fact that Godina
had a gun and Miguel possessed a tire iron, and when the two arrived at the
scene of the
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] In the notice of appeal, Godina indicates that he is appealing from both the judgment of conviction entered on April 17, 2006, and the corrected judgment entered on April 19, 2006.
[2] There is testimony in the record that Godina went to his sister-in-law’s house. However, Godina’s testimony at trial was that he went to his girlfriend’s sister’s house.
[3] There was testimony at trial that although Juan Garcia was a member of the C‑14 gang at one time, he was not a member at the time this incident occurred.
[4] Miranda
v.
[5] This
last issue was never raised in the trial court at the hearing on Godina’s
motion to suppress, and we decline to address it, pursuant to State
v. Rogers, 196
[6] The trial court stated it was accepting the State’s argument for giving the instruction. The argument was not on the record.