PUBLISHED OPINION
Case No.: 93-3217-CR
† Petition
for Review Filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL LEE WEBSTER,
Defendant-Appellant.
†
Submitted on Briefs: September 1, 1994
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: August 8, 1995
Opinion Filed: August
8, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: ARLENE D. CONNORS
so indicate)
JUDGES: Wedemeyer, P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the cause was submitted on
the briefs of Charles H. Barr of Croen & Barr, of Milwaukee.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause was submitted on
the briefs of James E. Doyle, attorney general, and Sharon K. Ruhly,
assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED August
08, 1995 |
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,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-3217-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL
LEE WEBSTER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: ARLENE D. CONNORS,
Judge. Affirmed.
Before
Wedemeyer, P.J., Sullivan and Schudson, JJ.
SULLIVAN,
J. Michael Lee Webster appeals from a
judgment of conviction, after a jury trial, for attempted first-degree
intentional homicide and first-degree reckless injury. Webster presents three issues for review:
(1) whether the trial court lacked subject matter jurisdiction to try Webster
for the first-degree reckless injury count because the State filed the amended
information without leave of the trial court; (2) whether the evidence was
sufficient to support the jury's finding of Webster's specific intent to kill
necessary for his conviction of attempted first-degree intentional homicide;
and (3) whether the trial court erroneously exercised its discretion by
limiting Webster's cross-examination of the attempted homicide victim. We conclude that the trial court had subject
matter jurisdiction to try Webster, that there is sufficient evidence to
support the attempted homicide conviction, and that the trial court properly
exercised its discretion in limiting Webster's cross-examination. Consequently, we affirm.
On
September 20, 1991, Webster and the victim, Langston Hood, argued over the
amount of money Hood allegedly owed Webster for assisting him with his
work. After the argument, Webster left
Hood's home. Minutes later, Hood and
his employer were standing in front of Hood's home when Webster drove up in his
van. Webster exited the vehicle
brandishing a sawed-off shotgun. The
gun was loaded with shotshells containing bird shot.[1] Webster walked up to Hood and Hood asked
him, “What's up?” Webster then pointed
the shotgun at Hood; said, “You's a dead motherfucker;” and fired the gun at
him from close range. The shotgun blast
struck Hood just below the left shoulder, shattering his humerus, and tearing
out most of his biceps and his chest and shoulder muscles. Hood was conveyed to the hospital. He survived the shooting.
Police
arrested Webster and the Milwaukee County District Attorney's Office filed a
criminal complaint charging him with one count of attempted first-degree
intentional homicide. On October 4,
1991, after Webster's preliminary hearing, the State filed an information
charging him solely with the attempted homicide. On that same date, the case was scheduled for a jury trial to
commence on April 13, 1992.
On
April 1, 1992, the State filed an amended information that added a second count
charging Webster with first-degree reckless injury. The State did not obtain the trial court's permission to file the
amended information. The jury trial was
postponed and on June 15, 1992, Webster moved to dismiss the amended
information on multiplicity grounds.
The trial court denied the motion and Webster received a jury trial.
During
trial, at the close of the State's case-in-chief, Webster moved the trial court
to dismiss the attempted homicide charge for lack of sufficient evidence. The trial court denied the motion and the
jury later convicted Webster on both counts.
On the date that the trial court entered his judgment of conviction,
Webster renewed his motion to dismiss the attempted homicide charge for lack of
sufficient evidence. The trial court
denied the motion and sentenced Webster to twenty-five years in prison:
eighteen years on the attempted homicide count; and seven years on the reckless
injury count, to be served consecutively to the sentence on the attempted
homicide count.
Webster
first asks us to review whether the trial court lacked subject matter
jurisdiction to try him for the first-degree reckless injury count because the
State failed to obtain leave to file the amended information.[2] Consequently, he argues “the conviction for
first[-]degree reckless injury ... cannot stand.” The State argues that any error arising out of its failure to
obtain the trial court's permission to file the amended information does not
implicate the court's subject matter jurisdiction, but instead is a procedural
defect that Webster waived by failing to object timely. We agree with the State. The question of whether a trial court lacks
subject matter jurisdiction is a legal issue that we review de novo. Carlson v. Jones, 147 Wis.2d
630, 635, 433 N.W.2d 635, 637 (Ct. App. 1988) (questions on subject matter
jurisdiction require interpretation of constitutional and statutory provisions
and are thus questions of law).
“Criminal
subject[]matter jurisdiction is the `power of the court to inquire into the
charged crime, to apply the applicable law and to declare the
punishment.'” State v. Aniton,
183 Wis.2d 125, 129, 515 N.W.2d 302, 303 (Ct. App. 1994) (citation
omitted). A circuit court's
jurisdiction over criminal matters is derived from Article VII, Section 8 of
the Wisconsin Constitution[3]
and § 753.03, Stats.[4] See also State v. LeQue,
150 Wis.2d 256, 261-62, 442 N.W.2d 494, 497 (Ct. App. 1989). The circuit court's subject matter
jurisdiction attaches upon the filing of the criminal complaint. Aniton, 183 Wis.2d at 129, 515
N.W.2d at 303-04. The circuit court “lacks
criminal subject[]matter jurisdiction only where the complaint does not charge
an offense known to law.” Id.
at 129, 515 N.W.2d at 304. Further,
“[o]nce criminal subject[]matter jurisdiction attaches, it continues until a
final disposition of the case.” Id.
at 129-30, 515 N.W.2d at 304.
Webster
does not allege that either the complaint, information, or amended information
fails to charge an offense known to the law.
Instead he argues that the State failed to obtain the trial court's
permission to file the post-arraignment amended information, and that this
failure deprived the trial court of subject matter jurisdiction over the
amended information.
Section
971.29(1), Stats.,[5]
provides: “A complaint or information may be amended at any time prior to
arraignment without leave of the court.”
In Whitaker v. State, 83 Wis.2d 368, 265 N.W.2d 575
(1978), the supreme court declared that § 971.29 “does not directly
address the question of the amendment of the information after arraignment and
before trial. It neither authorizes nor
prohibits such amendment.” Id.
at 372, 265 N.W.2d at 578.
Nevertheless, the court held: “Subsection (1) of sec. 971.29 should be
read to permit amendment of the information before trial and within a
reasonable time after arraignment, with leave of the court, provided the
defendant's rights are not prejudiced, including the right to notice, speedy
trial, and the opportunity to defend.” Id.
at 374, 265 N.W.2d at 579; see Wagner v. State, 60 Wis.2d
722, 726, 211 N.W.2d 449, 452 (1973) (“The rule in this state is ... that the
trial court may allow amendment of an information ... in the absence of
prejudice to the defendant.”).
The
failure of the State to obtain the permission of the trial court to file a
post-arraignment amended information does not deprive the trial court of
subject matter jurisdiction because, once subject matter attaches with the
filing of the criminal complaint, it continues until the final disposition of
the case. Aniton, 183
Wis.2d at 129-30, 515 N.W.2d at 304.
Accordingly, while the failure to obtain the trial court's permission to
file an amended information is a procedural defect, this failure neither
implicates a lack of subject matter jurisdiction, nor is it reversible error
without a showing of prejudice on the part of the defendant. See Whitaker, 83 Wis.2d
at 374, 265 N.W.2d at 579; Wagner, 60 Wis.2d at 276, 211 N.W.2d
at 452.
Further,
alleged trial court errors resulting from non-jurisdictional procedural defects
are waived by a defendant if not properly preserved with a timely and specific
objection. See, e.g., State
v. Washington, 142 Wis.2d 630, 635-36, 419 N.W.2d 275, 277 (Ct. App.
1987) (discussing waiver). In the
present case, Webster never objected to the State's filing of the amended
information without leave of the trial court.
He objected only on multiplicity grounds. Accordingly, Webster waived the procedural-defect issue and we
decline to exercise our power of discretionary review. See § 752.35, Stats. (If it appears from the record
“that the real controversy has not been fully tried, or that it is probable
that justice has for any reason miscarried,”
the court of appeals may reverse the judgment or order.).
Webster
next argues the evidence was insufficient to support the jury's finding of his
specific intent to commit attempted first-degree intentional homicide when he
shot Hood with the sawed-off shotgun.
The standard of review that we apply when testing the sufficiency of the
evidence is recited in State v. Poellinger, 153 Wis.2d 493, 451
N.W.2d 752 (1990):
[I]n
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
Id.
at 507, 451 N.W.2d at 757-758 (citations omitted). Stated another way:
“[t]his court will only substitute its judgment for that of the trier of
fact when the fact finder relied upon evidence that was inherently or patently
incredible—that kind of evidence which conflicts with the law of nature or with
fully-established or conceded facts.” State
v. Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App.
1990). Additionally, the trier of fact
is the sole arbiter of the credibility of witnesses and alone is charged with
the duty of weighing the evidence. See
Poellinger, 153 Wis.2d at 506, 451 N.W.2d at 756.
“There
are two elements to the `attempt' to commit a crime; `a criminal intent and
some acts in furtherance of the intent.'”
State v. Kordas, 191 Wis.2d 124, 129, 528 N.W.2d 483, 485
(Ct. App. 1995) (citation omitted).
This court previously discussed the “symbiotic” relationship between
attempted first-degree intentional homicide and “completed” first-degree
intentional homicide:
The law of attempted first-degree [intentional homicide]
is not conceptually different from that of completed first-degree [intentional
homicide]. Both require an intent on
the part of the defendant to take the life of another. In order to prove the crime of attempted
first-degree [intentional homicide], the state must establish that the
defendant's action would have caused the death of another except for the
intervention of some extraneous factor.
State v. Camacho, 170 Wis.2d 53, 66 n.7, 487 N.W.2d 67, 73 n.7 (Ct. App. 1992), rev'd
on other grounds, 176 Wis.2d 860, 501 N.W.2d 380 (1993). To prove the mens rea element of
attempted first-degree homicide, the State must establish that the defendant
“acted with the intent to kill,” that is, “the defendant had the mental purpose
to take the life of another human being or was aware that his conduct was
practically certain to cause the death of another human being.” See Wis
J I—Criminal 1010; see also § 939.23, Stats. (defining criminal intent). This “[i]ntent may be inferred from the
defendant's conduct, including his words and gestures taken in the context of
the circumstances.” State v. Stewart, 143 Wis.2d 28, 35, 420
N.W.2d 44, 47 (1988). “The acts of the
accused, however, `must not be so few or of such an equivocal nature as to
render doubtful the existence of the requisite criminal intent.'” Id. at 35-36, 420 N.W.2d at 47
(citation omitted). Further, “`[s]ince
all attempts to commit crimes are failures to do so, a failure excuses a
defendant who attempts a crime only when his actual attempt is incomplete,
rather than unsuccessful.'” State
v. Dix, 86 Wis.2d 474, 483, 273 N.W.2d 250, 255 (1979) (citation
omitted).
Webster
argues that he precisely aimed the shotgun at Hood's armpit, and that the gun
was loaded only with shotshells filled with bird shot. Thus, he argues that his actions did not
evince the necessary “intent to kill” required to convict him of attempted
first-degree homicide. Accordingly, he
states in his reply brief, that the evidence is insufficient to support his
conviction because it:
clearly established that Mr. Webster walked unimpeded to
a point directly in front of Langston Hood, raised the shotgun and shot him
from point blank range; that nothing and nobody interfered with Mr. Webster;
and that the only thing Mr. Hood did was to raise his arms. If it is clear that Mr. Webster intended
to kill Mr. Hood, why was the attempt unsuccessful.
Webster's argument is specious. The jury could clearly determine that
Webster intended to kill Hood when he fired a sawed-off shotgun at Hood's upper
torso from close range. See Fells
v. State, 65 Wis.2d 525, 534, 223 N.W.2d 507, 512 (1974) (“`When one
intentionally points a loaded gun at the vital part of the body of another and
discharges it, it cannot be said that [that person] did not intend the natural,
usual, and ordinary consequences.'” (citation omitted)).
We
reach this conclusion because it is a fundamental presumption in Wisconsin
criminal law “that a person intends the natural and probable consequences of
those acts he voluntarily and knowingly performs.” Dix, 86 Wis.2d at 482-83, 273 N.W.2d at 254. This presumption is applicable to attempted
first-degree intentional homicide cases, as well as “completed” homicide
cases. Id. Further, it is irrelevant on the issue of
his guilt that his actions were “unsuccessful” (i.e., that he did not kill
Hood), because he completed the act of firing a sawed-off shotgun at another
person from close range. Id.
at 483, 273 N.W.2d at 254.
Thus,
because Webster fired the sawed-off shotgun into Hood's upper torso, “that fact
alone establishes intent to kill, in the absence of evidence rebutting this
presumption.” Fells, 65
Wis.2d at 534, 223 N.W.2d at 512. This
presumption is not the only evidence supporting the jury's finding. There was evidence that just prior to
pulling the shotgun's trigger, Webster said, “You's a dead motherfucker” to
Hood. Webster's “words and gestures”
further buttress the presumption that Webster intended to kill Hood. See Stewart, 143 Wis.2d
at 35, 420 N.W.2d at 47.
Nonetheless,
Webster raises essentially two strands of evidence that he argues rebuts the
presumption of his intent: (1) that he was only aiming at Hood's shoulder and
armpit area, and that this is not a “vital part of the body;” and (2) that the
shotgun was loaded only with shotshells containing bird shot, which, he argues,
“is one of the least likely types of ammunition to be employed for killing
another human being.” We are not
persuaded.
First,
the evidence is not clear that Webster aimed the shotgun only at Hood's armpit
area. Hood testified that he raised his
arms when he saw the gun and that the shotgun was aimed directly at the left
side of his chest when Webster pulled the trigger. Such testimony is not patently incredible and the jury could
conclude that Webster did not aim the gun at Hood's armpit, but rather at
Hood's chest. See Poellinger,
153 Wis.2d at 506, 451 N.W.2d at 756 (only jury can weigh evidence).
Further, a reasonable
jury could conclude that a defendant who aims a sawed-off shotgun from close
range at a person's upper torso and then pulls the trigger evinces an intent to
kill that person. A sawed-off
shotgun fired at close range is sui generis.[6] Used in such a manner, a shotgun is not a
“precision” weapon such as a handgun or long rifle. Indeed, the evidence showed that the bird shot propelled from
Webster's shotgun both shattered Hood's humerus and shredded his biceps and his
chest and shoulder muscles. From this
evidence the jury could reasonably conclude that Webster intended to kill Hood.
Further,
the fact that the shotgun was loaded with shotshells filled with bird shot does
not necessarily rebut the presumption that Webster intended to kill Hood. While we acknowledge that bird shot when
fired from long range may not be particularly lethal when compared to other
types of ammunition, Webster did not fire the shotgun at Hood from long
range—he fired it at close range. A
jury could clearly and reasonably conclude that a person who fires bird shot at
another person's upper torso from close range intends to kill that
person. See State v.
Gallo, 582 P.2d 558, 565 (Wash Ct. App. 1978) (stating gun loaded with
bird shot “could be” lethal). But cf.
Blount v. State, 376 S.W.2d 844, 848 (Tex. Crim. App. 1964)
(discussing how firing a shotgun loaded with “No. 8 bird shot” at victim “too
far off” may not show intent to kill, although gun could still be deadly
weapon) (citation omitted), overruled on other grounds by, Boazman
v. State, 501 S.W.2d 894 (Tex. Crim. App. 1973); Smith v. State,
102 So. 2d 699, 700-01 (Miss. 1958) (holding that evidence of defendant firing
shotgun filled with No. 8 bird shot from a distance of sixty feet is not
sufficient to show defendant had intent to kill). In sum, there is sufficient evidence to support the jury's
finding that Webster evinced the necessary intent to kill Hood. See Poellinger, 153
Wis.2d at 507, 451 N.W.2d at 757-58.
Finally,
Webster argues that the trial court erroneously exercised its discretion by
limiting his cross-examination of the victim.
During Webster's cross-examination of Hood, he attempted to inquire
about whether Hood complied with state and federal income tax, minimum wage,
and social security laws. Webster
argued that because Hood considered Webster his employee, Hood was required to
comply with these laws, and that any testimony on his failure to do so was
relevant to Hood's credibility. The
trial court ruled that such testimony was inadmissible because it was
irrelevant, lacked probative value, and would mislead the jury. We agree with the trial court.
“A
trial court possesses wide discretion in determining whether to admit or
exclude evidence, and we will reverse such determinations only upon an
erroneous exercise of that discretion.”
State v. Evans, 187 Wis.2d 66, 77, 522 N.W.2d 554, 557
(Ct. App. 1994). “The trial court
properly exercises its discretion if its determination is made according to
accepted legal standards and if it is in accordance with the facts on the
record.” Id.
Any
testimony on Hood's compliance with employment law was collateral to any fact
at issue in Webster's attempted first-degree intentional homicide trial. While Webster argues Hood's compliance with
such laws was relevant to Hood's credibility, the possible probative value of
such testimony on this issue was both de minimis and could mislead the
jury. As such, the trial court could
properly exclude it. See Rule 904.03, Stats.[7]
By
the Court.—Judgment affirmed.
[1] Bird shot is
“[a] general term used to indicate any shot smaller than buckshot.” Edward
Matunas, American Ammunition and
Ballistics 212 (1979). Buckshot
are “[l]ead pellets ranging in size from .20 inch to .36 inch diameter normally
loaded in shotshells.” Id.
at 205.
[2] Subject matter
jurisdiction is a separate but related concept to the circuit court's
competency to act—the court's “`lesser power' to exercise subject matter
jurisdiction in a particular case.” Kotecki
& Radtke, S.C. v. Johnson, 192 Wis.2d 429, 438 n.6, 531 N.W.2d 606,
610 n.6 (Ct. App. 1995). Webster does not contest the trial court's
competency to hear his trial.
[3] Wis. Const. art. VII, § 8 (amended
1977), provides:
Except as otherwise provided by law, the circuit court
shall have original jurisdiction in all matters civil and criminal within this
state and such appellate jurisdiction in the circuit as the legislature may
prescribe by law. The circuit court may
issue all writs necessary in aid of its jurisdiction.
[4] Section 753.03, Stats., provides:
The circuit courts have the general jurisdiction
prescribed for them by article VII of the constitution and have power to issue
all writs, process and commissions provided in article VII of the constitution
or by the statutes, or which may be necessary to the due execution of the
powers vested in them. The circuit
courts have power to hear and determine, within their respective circuits, all
civil and criminal actions and proceedings unless exclusive jurisdiction is
given to some other court; and they have all the powers, according to the
usages of courts of law and equity, necessary to the full and complete
jurisdiction of the causes and parties and the full and complete administration
of justice, and to carry into effect their judgments, orders and other determinations,
subject to review by the court of appeals or the supreme court as provided by
law. The courts and the judges thereof
have power to award all such writs, process and commissions, throughout the
state, returnable in the proper county.
[5] Section 971.29, Stats., reads:
Amending the charge. (1) A complaint or information may be amended at any time
prior to arraignment without leave of the court.
(2) At the trial, the court may
allow amendment of the complaint, indictment or information to conform to the
proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed
amended to conform to the proof if no objection to the relevance of the
evidence was timely raised upon the trial.
(3) Upon allowing an amendment
to the complaint or indictment or information, the court may direct other
amendments thereby rendered necessary and may proceed with or postpone the
trial.
[6] In support of
the notion that a sawed-off shotgun is “of its own kind or class,” we note our
statement in a previous case that “[t]he mere possession of an item
identifiable as a sawed-off shotgun ... is ... an ominous presence, and has no
place nor possible use in the community.”
State v. Johnson, 171 Wis.2d 175, 183 n.7, 491 N.W.2d 110,
113 n.7 (Ct. App. 1992).
Further,
other jurisdictions recognize the uniqueness of a sawed-off shotgun. Cf.
State v. Sullivan, 596 So.2d 177, 189-90 (La. 1992) (“The
deliberate pointing and firing of a [sawed-off] shotgun at a victim at
point-blank range is sufficient to establish beyond a reasonable doubt the
element of specific intent to kill.”); Smith v. State, 398 A.2d
426, 430 (Md. Ct. Spec. App. 1979) (concluding that a defendant firing a
sawed-off shotgun from point-blank range at victim shows intent to kill).
[7] Rule 904.03, Stats. provides:
Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.