COURT OF APPEALS DECISION DATED AND RELEASED September
7, 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. 94-3327-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN
D. BOBBITT, JR.,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: GERALD C. NICHOL, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
PER
CURIAM. Defendant, John D. Bobbitt,
Jr., presents the following issue:
Was the evidence
insufficient to support the defendant's conviction for First Degree Recklessly
Endangering Safety because the evidence did not show, beyond a reasonable
doubt, that the defendant acted with "utter disregard for human
life"?
The
State agrees that this is the issue before us.
We conclude that the evidence was sufficient to support Bobbitt's
conviction. We affirm.
On
March 8, 1991, Bobbitt was involved in a robbery in Waukesha County. He drove the victim's vehicle to Madison and
abandoned it when it ran out of gas. At
a gas station, he approached a customer and obtained a ride to near the Capitol
Square, where they were stopped by the police.
At the command of the police, the operator got out of the car but
Bobbitt slid into the driver's seat and drove off, with the police in
pursuit. The chase ended abruptly,
after about thirteen blocks, when Bobbitt struck the side of another vehicle.
Bobbitt
argues that the evidence was insufficient to convict him of first-degree
reckless endangerment, contrary to § 941.30(1), Stats. An element of
first-degree reckless endangerment is "utter disregard for human
life." Id. Bobbitt argues that the State did not show
beyond a reasonable doubt that he operated the motor vehicle with "utter
disregard for human life." The
evidence as to his operation of the motor vehicle is undisputed. With the police in pursuit, Bobbitt turned
off the Capitol Square onto Hamilton Street, turned right onto Gorham Street,
and operated the vehicle against traffic on a one-way street. As he tried to elude the pursuing police
officer, he constantly accelerated until he reached speeds of seventy to
eighty-five miles per hour, just before the accident which stopped his
vehicle. Bobbitt admitted he knew he
was on a one-way street proceeding in the wrong direction. Despite this knowledge, he did not try to
take one of the intersecting streets.
The police officer testified that he did not see Bobbitt's brake lights
go on at any time during the chase, nor did he observe Bobbitt slow the vehicle
at any time.
The
vehicle Bobbitt struck was operated by Mohamed Nassik. His wife, Tamie, who was in the final month
of her pregnancy, was a passenger.
Fortunately, Tamie was uninjured; Mohamed suffered a fractured sternum.
Bobbitt
relies on Balistreri v. State, 83 Wis.2d 440, 265 N.W.2d 290
(1978). The supreme court reversed
Balistreri's conviction because during a high speed chase in downtown
Milwaukee he had tried to avoid collisions by turning on his lights, honking his
horn, and applying his brakes. The
supreme court concluded that Balistreri's operation of his vehicle showed
"some regard" for human life.
Id. at 457, 265 N.W.2d at 298.
Bobbitt
also cites Wagner v. State, 76 Wis.2d 30, 250 N.W.2d 331 (1977),
where the supreme court reversed Wagner's conviction for second-degree murder
after he hit and killed a pedestrian, because the undisputed evidence showed
that Wagner had swerved to avoid hitting the pedestrian he killed and thus
demonstrated "some concern for the life and safety of others." Id. at 44, 250 N.W.2d at 339.
We
must review the evidence in the light most favorable to the verdict:
The test is not whether this court is convinced of the
defendant's guilt beyond a reasonable doubt, but whether this court can
conclude that the trier of fact could, acting reasonably, be convinced to the
required degree of certitude by the evidence which it had a right to believe
and accept as true. Reversal is only
required when the evidence considered most favorably to the state and the
conviction is so insufficient in probative value and force that it can be said
as a matter of law that no trier of facts acting reasonably could be convinced
... "beyond a reasonable doubt."
State v. Stanfield, 105 Wis.2d 553, 564, 314 N.W.2d 339, 344 (1982)
(quoting State v. Burkman, 96 Wis2d 630, 643, 292 N.W.2d 641, 647
(1980)), overruled on other grounds by State v. Poellinger,
153 Wis.2d 493, 451 N.W.2d 752 (1990).
Bobbitt
argues that the State does not dispute that he successfully weaved to avoid
oncoming traffic during the high speed chase down Gorham Street. Bobbitt is incorrect. The State argues that the trial court
properly relied on Tamie Nassik's testimony that the lights on the vehicle
operated by Bobbitt did not indicate that Bobbitt was making any effort to
avoid the car in which she was riding.
Bobbitt testified that he swerved to attempt to avoid the Nassik
vehicle. The jury was entitled to
believe Tamie Nassik and reject Bobbitt's testimony. See State v. Fry, 131 Wis.2d 153, 182-83,
388 N.W.2d 565, 578, cert. denied, 479 U.S. 989 (1986).
In
any event, Bobbitt demonstrated utter disregard for the Nassiks' lives when he
jumped from the car as it headed toward the Nassik vehicle. His car was still going fast enough that the
impact with the Nassik car sheared off everything behind the front seat. The two halves of the Nassik vehicle came to
rest some twenty or thirty yards apart.
The
trial court concluded that, with the exception of the fatalities, this case
closely parallels State v. Spears, 147 Wis.2d 429, 433 N.W.2d 595
(Ct. App. 1988). Spears was convicted
of two counts of second-degree murder when he operated his vehicle under the
influence on a crowded street in the City of LaCrosse at speeds up to eighty
miles per hour, attempted to brake at an intersection, hit two parked cars, and
accelerated again, passing through the parking lot where his car struck and
killed two pedestrians. An element of
second-degree murder was that defendant's conduct demonstrated a depraved
mind. Id. at 436, 433
N.W.2d at 598. That element is
identical to "utter disregard for human life." Wis J
I--Criminal 1020 n.5. The
majority of the court concluded that Spears's conduct evinced a depraved mind.
Bobbitt
admits that his objective was to elude the police because he had on him
evidence tying him to the robbery in Waukesha County. The evidence was such that the trial court could have found that
Bobbitt had no concern for the safety of anyone else using the street. His objective was to elude police,
regardless of the consequences to others.
The
trial court analyzed the law and the facts comprehensively. We conclude that adopting the trial court's
decision will be helpful to an understanding of the facts and the law. We therefore adopt the trial court's
decision.
By
the Court.--Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
AN
EXHIBIT HAS BEEN ATTACHED TO THIS OPINION.
THE EXHIBIT CAN BE OBTAINED UNDER SEPARATE COVER BY CONTACTING THE
WISCONSIN COURT OF APPEALS.
COURT OF APPEALS
OF WISCONSIN
ROOM 231, STATE
CAPITOL EAST
POST OFFICE BOX
1688
MADISON,
WISCONSIN 53701-1688
TELEPHONE: (608) 266-1880
FAX: (608) 267-0640
Marilyn L. Graves,
Clerk
Court of Appeals