|
COURT OF APPEALS DECISION DATED AND RELEASED February 20, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3221-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CLARENCE E. HILL,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON,
Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN, J. Clarence E. Hill appeals from a judgment of
conviction, after a jury trial, for one count of first-degree reckless
homicide, contrary to § 940.02(1), Stats. He also appeals from an order denying his
motions for postconviction relief. On
appeal, Hill claims that: (1) the trial court imposed an excessive sentence;
(2) the trial court erred in giving lesser-included offense jury instructions;
(3) the trial court erred in allowing opinion testimony from Detective Brian
O'Keefe that Hill's version of events was physically impossible; and (4) the
trial court erred in excluding certain evidence. We reject Hill's assertions and affirm.
I.
Background.
Hill was charged with
first-degree intentional homicide for allegedly firing a single gunshot into
the head of his wife during an argument they were having while sitting in
Hill's parked truck. The facts were
disputed at trial. Hill claimed that
his wife had pulled a gun on him in the truck and that while he was trying to
disarm her, it accidentally went off.
Hill's wife died from a single gunshot wound to the head. The State presented a different version of
events.
The State theorized that
Hill intended to kill his wife because she was divorcing him, which would leave
him without any form of support. In
support of its theory, the State introduced evidence that the single gunshot was
a “hard contact wound,” meaning that the muzzle of the gun was in contact with
her head, in a manner which left a “defined muzzle imprint.”
II.
Analysis.
A. Sentencing.
Hill argues that the
twenty-year maximum sentence, which he received, was excessive. We reject Hill's argument. Sentencing is a matter for trial court
discretion which this court will not disturb unless there is an erroneous
exercise of that discretion. State
v. Echols, 175 Wis.2d 653, 681-82, 499 N.W.2d 631, 640-41, cert.
denied, 114 S. Ct. 246 (1993).
The primary factors the
trial court must consider in imposing sentence are: (1) the gravity of the
offense; (2) the character and rehabilitative needs of the offender; and (3)
the need for protection of the public. Id. It is clear from our review of the
sentencing transcript that the trial court adequately addressed each of these
factors. The trial court considered the
gravity of the crime—a conviction for first-degree reckless homicide. The trial court addressed the fact that,
after the shooting, Hill hid his wife's body in a basement behind a furnace and
left her there for two days. The trial
court also addressed Hill's character, noting his extensive prior record and
lack of remorse. Finally, the trial
court addressed the need to protect the public due to the nature of this crime.
Based on the foregoing,
we are convinced that the trial court did not erroneously exercise its
discretion in imposing sentence.
Further, we will find
that a sentence within the permissible range set by statute is harsh and
excessive only if it is “so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.” Ocanas v. State, 70 Wis.2d 179,
185, 233 N.W.2d 457, 461 (1975). Given
the seriousness and the impact of Hill's offense, we cannot conclude that the
sentence he received meets this standard.
We also conclude that Hill's allegation that a harsh sentence was
imposed because he elected to go to trial finds no support in the record.
B. Lesser-Included Jury Instructions.
Hill next claims that
the trial court should not have charged the jury with lesser-included
instructions. Hill claims that because
he was charged with first-degree intentional homicide, the jury should only
have been instructed on that crime. In
other words, Hill wanted to give the jury a chance to either convict him of
first-degree intentional homicide or acquit him altogether. Based on the evidence, however, and at the
State's request, the trial court charged the jury with first- and second-degree
intentional homicide as well as first- and second-degree reckless homicide.
Determining whether to
submit lesser-included offense instructions to the jury involves a two-pronged
test. State v. Carrington,
134 Wis.2d 260, 262 n.1, 397 N.W.2d 484, 485 n.1 (1986). First, the trial court must determine
whether the lesser-included offenses are actually included within the charged
offense. Id. Hill does not dispute that the three
lesser-included offenses given in this case were included within the charged
offense.
Second, the trial court
must analyze the facts to determine whether a reasonable basis exists in the
evidence for acquittal on the charged greater offense and conviction on the
lesser. Id. The trial court determined that the evidence
justified giving the lesser-included offense instructions of second-degree
intentional homicide, and first- and second-degree reckless homicide. Upon reviewing the evidence in the record,
we agree.
Under § 940.05(1), Stats., second-degree intentional
homicide occurs when one causes the death of another with intent to kill, but
where mitigating circumstances may be present.
In Hill's case, the evidence could reasonably support an acquittal of
first-degree intentional homicide, but a conviction of second-degree
intentional homicide. The jury may have
concluded that Hill intended to kill his wife, based on the forensic evidence,
but that the mitigating factor of “unnecessary defensive force” was present
because Hill feared his wife would kill him.
As noted above, Hill argued that it was his wife who had pulled the gun
on him. Hill indicated that his wife
had a motive to kill him because he was accusing her of tax fraud and had
initiated a letter writing campaign against her.
Under § 940.02(1), Stats., first-degree reckless homicide
occurs when one “recklessly causes the death of another human being under
circumstances which show utter disregard for human life.” Second-degree reckless homicide occurs
without necessarily showing the utter disregard for human life element. Section 940.06, Stats. We again agree
that a reasonable view of the evidence supported giving these
instructions. The jury may have
believed that Hill had actually pulled out the gun and, although he did not
intend to kill his wife, he recklessly discharged the gun during the struggle
between them, either with or without utter disregard for human life.
Because the evidence
supports charging with each of the lesser-included offenses given in this case,
we reject Hill's contentions on this issue.
C. Admitting Opinion Evidence.
Hill next claims that
the trial court erred in allowing Detective Brian O'Keefe to testify that, in
his opinion, the shooting could not have happened the way Hill said it
did. O'Keefe explained that if the gun
had been twisted as Hill described, it could not have caused the hard contact
wound. We reject Hill's claim because
he waived his right to complain on this ground by failing to object at the time
O'Keefe testified. State v.
Boshcka, 178 Wis.2d 628, 643, 496 N.W.2d 627, 632 (Ct. App. 1992); §
901.03(1)(a), Stats.[1]
D. Exclusion of Evidence.
Hill's final claim is
that the trial court erred in excluding certain evidence of his wife's alleged
income tax fraud and of her prior prison record. Hill claimed that his wife had forged his name in filing past income
tax returns, and that this evidence, together with her fear of having to return
to prison, motivated her to pull the gun on him and attack him. The trial court ruled that this evidence is
irrelevant and would only serve to confuse the jury.
Whether to admit
evidence of “other acts” is addressed to the discretion of the trial court, and
we will not disturb the trial court's decision unless it erroneously exercised
its discretion. State v. C.V.C.,
153 Wis.2d 145, 161, 450 N.W.2d 463, 469 (Ct. App. 1989). In passing on admissibility, the trial court
applies a two-part test—first, whether the evidence fits into one of the
exceptions set forth in § 904.04(2), Stats.;
and second, whether the danger of unfair prejudice from admitting the evidence
will substantially outweigh any probative value under § 904.03, Stats.
Id. at 161-62, 450 N.W.2d at 469.
Hill argues that the
evidence lends substance to his contention about his wife's motive and that it
was germane to the issue of his credibility.
We are persuaded by Hill's contentions. We agree that this evidence may be relevant to motive, which is
one of the exceptions in § 904.04(2), Stats.,
and probably should have been admitted.
Nonetheless, we conclude that excluding it was harmless error because it
is not reasonably possible that it would have altered the jury's verdict. State v. Dyess, 124 Wis.2d
525, 543, 370 N.W.2d 222, 231-32 (1985).
The undisputed evidence of the hard contact wound to his wife's head
belies Hill's contention that the gun discharged accidentally during a
struggle. In addition, Hill's
post-crime behavior of hiding his wife's lifeless body in the basement of a
vacant home repudiates Hill's contentions.
For these reasons, we affirm.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
No. 94-3221-CR (D)
SCHUDSON, J. (dissenting). I
agree with the majority's conclusion that, under § 904.04(2), Stats., the trial court erred in
excluding evidence regarding the victim's alleged motive to pull a gun on
Hill. I disagree that the error was
harmless.
Hill sought to introduce
evidence in an attempt to establish that:
his wife had signed his name to joint tax returns; he had received a
recent notice of tax irregularities; his wife had been in federal prison for
tax fraud, completing parole in 1988; and his wife had told him that “she did
not want to go to prison again.” On
appeal, he argues:
The proffered evidence, if believed,
offered a plausible scenario as to why the victim in this case might have
produced a gun, and set in motion the chain of events that lead to her
death. The jury's resolution of this
credibility question may well have been influenced and assisted by this
evidence.
In the absence of the documentary evidence
which [Hill] sought to have admitted, the jury had only [Hill's] word as to why
these things had happened. In the
absence of documentary evidence the jury was, undoubtedly, no more willing to take
[Hill's] word as to why the victim acted as she did than it would have accepted
the claim of a defendant in a similar case, caught with a smoking gun in his
hand, that the victim had a gun as well.
In that case, any reasonable jury would have wanted to see the other
gun: the proof of the defendant's
story. In this case as well, the jury
wanted to see proof. [Hill] had that
proof, but was prevented, by an order of the court, from presenting it to the
jury.
The State's response is
curious indeed. The State argues that
such evidence “does not prove that defendant's wife committed a crime and felt
a need to cover it up by threatening or shooting defendant.” But, of course, Hill's evidence does not
have to prove that in order to corroborate his theory of defense. The State further argues that the victim's
alleged statement that she “was not going to go back to prison” presents the
underlying assumption “that prison is undesirable.” Thus, incredibly, the State maintains that the evidence was
irrelevant given that Hill “did not proffer any evidence about the specific
prison experience of Mrs. Hill that made it noteworthy among prison experiences
as being particularly undesirable.”
Contending that any
error was harmless, the State points to the strength of its evidence including
the fact that it “provided evidence of a motive for defendant to pull the gun
on his wife.” Clearly, therefore,
Hill's attempt to substantiate his account of his wife's motive to pull a gun
on him was crucial to his defense. The
State views the excluded evidence as “cumulative,” at best, arguing that “both
items of [Hill's] proffered evidence—the tax form signatures and Mrs. Hill's
alleged statement about avoiding a return to prison—depended totally for their
defense value on the credibility of defendant.” More logically, however, in the estimation of a jury, it was the
other way around—i.e., Hill's credibility depended on the excluded
corroborative evidence.
Accordingly, I
respectfully dissent.