COURT OF APPEALS DECISION DATED AND RELEASED November
2, 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. 94-3139-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH
WHITE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane
County: P. CHARLES JONES, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
DYKMAN,
J. Joseph White appeals from a
judgment convicting him of first-degree intentional homicide as a party to the
crime, contrary to §§ 940.01(1), 939.05 and 939.63(1)(a)(2), Stats., and first-degree sexual
assault, contrary to § 940.225(1)(b) and (7), Stats. White raises
the following issues on appeal:
(1) whether the trial court erred in concluding that Dane County,
the place where the deceased's body was found, was the proper venue;
(2) whether the trial court erroneously exercised its discretion: (a) when it admitted testimony as to
White's alleged gang activity; (b) when it permitted a witness to testify
that White owned guns and a knife; and (c) when it permitted the State to
display photographs of the deceased's body; and (3) whether the trial
court erred when it gave a party to the crime jury instruction. We resolve these issues against White, and
therefore affirm.
BACKGROUND
In February 1991, a
women's body was discovered lying in a field in the Town of Deerfield in Dane
County. The victim's hands had been
severed from the body. Five days later,
two hunters found two hands lying near railroad tracks on the border of Racine
and Walworth Counties. Subsequent
testing revealed the identity of the victim and that she had been sexually
assaulted after her death. The autopsy
report concluded that her death occurred on or about February 23, 1991.
The
police charged Joseph White two-and-one-half years later with first-degree
intentional homicide and first-degree sexual assault. After a six-day jury trial in which White represented himself,
the jury found him guilty of both charges.
White appeals.
VENUE
White
argues that the trial court erred in concluding that venue was proper in Dane
County, the place where the victim's body was discovered, and instead argues
that the trial should have been held in Milwaukee County. Section 971.19(5), Stats., controls venue in murder trials
and provides: "If the act causing
death is in one county and the death ensues in another, the defendant may be
tried in either county. If neither
location can be determined, the defendant may be tried in the county where the
body is found." White contends
that the criminal complaint establishes that the death occurred in Milwaukee
County. We disagree.
The
complaint alleges that White's son stated that the victim was living in White's
house in Milwaukee County and that "the monster hurt her in the
basement" and the "monster cut her fingers." The complaint further alleges that White
told a friend that he "killed [the victim], cut off her hands in his
basement, and dumped her body by Madison ... [and that] he had murdered the
girl, had taken her body and dumped it up by Madison and that her hands were
dumped in another county." It also
alleges that White told this same friend "something to the effect of, `The
only thing that may ... me up is my son being at the house when she was in the
basement.'"
The
complaint also describes the cause of death.
It alleges that Dr. Billy J. Baumann found that:
the ante-mortem homicidal trauma inflicted to the head,
neck, trunk, and extremities of this body included slash and stab wound of the
right anterolateral aspect cutting and severing major blood vessels with
consequent massive hemorrhaging. He
found this to be a fatal wound.... Dr.
Baumann [also] found the post-mortem trauma to include stab wounds and cuts of
the anterior chest and upper abdomen, amputation of the distal left forearm and
hand and amputation of the right hand ....
From
a fair reading of these allegations, we cannot determine where the act causing
the death or the death itself occurred.
White's son's and friend's statements indicate only that the hands were
severed at White's home in Milwaukee County.
Dr. Baumann concluded that the acts causing the death were trauma and a
slash and stab wound which severed major blood vessels but that the severing of
the victim's hands and fingers occurred after the victim was killed. The complaint does not establish where the
act causing death or the death itself occurred, but only where postmortem
trauma was inflicted. Since the
victim's body was found in Dane County, that was the proper venue.
EVIDENCE OF GANG
ACTIVITY
White
argues that the trial court erroneously exercised its discretion when it
admitted evidence showing that White was a gang member. White contends that this evidence was not
relevant for the purposes of showing his relationship with the victim because
he readily admitted knowing her. He
argues that the evidence was unfairly prejudicial and not probative for the
purposes of showing motive or intent.
The State disagrees, contending that the evidence was relevant to
describe the character of White's relationship with the victim and to show
motive and intent for committing the crime.
The State contends that part of White's gang activity included forcing
the victim to prostitute herself and to give the money to White and that the
victim's failure to turn over enough money led to her death.
The
decision to admit evidence rests within the sound discretion of the trial
court. State v. Clark,
179 Wis.2d 484, 490, 507 N.W.2d 172, 174 (Ct. App. 1993). We will sustain an evidentiary ruling if the
court has exercised its discretion in accordance with accepted legal standards
and the facts of record. Id.
Generally,
evidence of prior acts will not be admitted because of the danger that the jury
will infer that the defendant has a propensity to commit crimes and has, in
fact, committed the crime at issue. State
v. Plymesser, 172 Wis.2d 583, 592, 493 N.W.2d 367, 371 (1992). First, the trial court must determine that
the proffered evidence is relevant to the case. State v. Fishnick, 127 Wis.2d 247, 254, 378 N.W.2d
272, 276 (1985). Second, the court must
determine whether the evidence is admissible under § 904.04(2), Stats., which provides:
Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
Third, the court must determine whether the proffered
evidence's probative value is substantially outweighed by the danger of unfair
prejudice under § 904.03, Stats.[1] Clark, 179 Wis.2d at 491, 507
N.W.2d at 174.
Our
review of the record shows that the trial court concluded that the evidence was
relevant for the purposes of showing the relationship between White and the
victim and White's role in the gang.
The court concluded that the evidence was prejudicial but nonetheless
admissible. We agree.
The
State presented evidence that White was a gang member and supported the
victim's initiation into the gang. The
evidence further showed that part of the victim's initiation included pledging
$1,000 to the gang which she would make through prostitution. The State also presented testimony that the
victim's failure to give this money to the gang or White could result in a
punishment. Another witness testified
that White had several women working for him and that one of them was not
making enough money.
We
agree that the evidence was relevant to show that not only did White know the
victim, but the nature of that relationship.
We also conclude that the evidence provided a reason why White might
have killed the victim. We agree that
the evidence's prejudicial effect was not sufficient to overcome its probative
value. We conclude that the trial
court's decision to admit this evidence was the product of a reasoned decision
and, therefore, it was not an erroneous exercise of discretion.
WEAPONS
White
argues that the trial court erroneously exercised its discretion in permitting
a witness to testify that White owned guns and a knife. Before the trial began, the court ordered
that no evidence regarding White's gun ownership be admitted. When a witness testified that White owned
"[a] Rambo knife and a few guns," White objected and the court
instructed the jury to disregard the portion of the statement regarding the
guns. White contends that this
testimony was inadmissible, highly prejudicial and warranted a mistrial.
White's
argument is without merit. In the first
instance, the trial court's order did not preclude the State from offering
evidence that White owned a knife. This
evidence was relevant to show that White owned a weapon which could have been
used to kill the victim and sever her hands and fingers. Second, while the statement about White's
gun ownership violated the pretrial order, the court immediately instructed the
jury to disregard that specific evidence.
Further, before deliberations, the court told the jury to
"[d]isregard all stricken testimony." We must presume that the jury will follow an adequate curative
instruction and disregard improper statements.
See State v. Kennedy, 105 Wis.2d 625, 641, 314
N.W.2d 884, 891 (Ct. App. 1981) (quoted source omitted) (possible prejudice to
a defendant is presumptively erased from the jury's mind when the court gives
admonitory instructions). White has not
given us any reason to believe that the jury did not follow this
admonishment. Therefore, we conclude
that the trial court did not erroneously exercise its discretion by allowing
the jury to hear evidence of White's ownership of a knife.
JURY
INSTRUCTION
White
argues that the trial court erroneously exercised its discretion by giving the
jury a party to the crime instruction.
He contends that the State's case suggested that only White committed
the crime. He also argues that the
instruction only served to confuse the jury.
We disagree.
A
trial court has wide discretion in instructing a jury. State v. Lenarchick, 74 Wis.2d
425, 455, 247 N.W.2d 80, 96 (1976).
Jury instructions are intended to reflect theories of law pertinent to
the evidence, which a jury is required to follow in reaching a verdict. Harrison v. State, 78 Wis.2d
189, 209-10, 254 N.W.2d 220, 228-29 (1977).
The theory of law appropriate to a particular case turns on the facts of
record. Id. at 210, 254
N.W.2d at 229.
The
trial court instructed the jury that a person concerned in the commission of a
crime is a principal and may be charged with and convicted of the commission of
the crime although the person did not directly commit it. See § 939.05, Stats.
In Harrison, 78 Wis.2d at 209, 254 N.W.2d at 228, the
defendant had been charged as a principal, but the evidence he presented could
have exonerated him as a principal and left him with responsibility as a party
to the crime. The court concluded that
the party to the crime instruction was appropriate under the facts, and the
jury could properly have found him guilty as a principal under any or all of
the alternatives. Id.
The
same situation is present in the instant case.
White offered evidence showing that there may have been more than one
set of footprints at the place where the victim's body was found. The State also offered evidence of White's
gang membership which, with the footprint evidence, supports a conclusion that
others may have been involved in the murder.
Therefore, a jury may have reasonably concluded that White was assisted
by another person when he committed the crime or, alternatively, that White was
an accomplice to another person's murderous acts. Accordingly, we conclude that a factual basis supporting the
instruction existed and, therefore, the trial court's use of the instruction
was not an erroneous exercise of discretion.
PHOTOGRAPHS OF THE DECEASED
Finally, White argues
that the trial court erroneously exercised its discretion when it permitted the
State to display photographs of the victim's body after it was discovered,
including pictures of her severed hands and forearms. White contends that these photographs were not relevant to the
issue of who murdered the victim and any probative value they might have had
was substantially outweighed by their prejudicial value. We disagree.
Whether
photographs should be viewed by the jury is left within the sound discretion of
the trial court. State v. Hagen,
181 Wis.2d 934, 946, 512 N.W.2d 180, 184 (Ct. App. 1994). We will not disturb the court's decision
unless it is wholly unreasonable or the only purpose of the photographs is to
inflame and prejudice the jury. Id.
We
have viewed the photographs, and while we agree that they are unpleasant, we do
not find them to be so offensive that their being displayed was unduly
prejudicial. The trial court concluded
that the jury was entitled to see how the body was actually found, what it was
that White was alleged to have done, and what he was charged with doing. White argues that the photographs were only
relevant to show that the victim was deceased, a fact not in dispute. He contends that the real issue was who
perpetrated the crime and not how it was committed. But the photographs were relevant to show how the murder was
committed, to show that the death was an intentional act, and the lengths to
which White went to avoid victim identification. Accordingly, the court did not erroneously exercise its
discretion when it permitted the State to display the photographs.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports.
[1] Section 904.03, Stats., provides:
"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."