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COURT OF APPEALS DECISION DATED AND RELEASED February 27, 1996 |
NOTICE |
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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. 95-0286-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
EDDIE J. SHUMAKER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JANINE P. GESKE and
MAXINE A. WHITE, Judges. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER CURIAM. Eddie J. Shumaker appeals from a judgment of
conviction, after a jury trial, for four counts of first-degree intentional
homicide while using a dangerous weapon, as party to a crime, contrary to §§
940.01(1), 939.63(1)(a)2, and 939.05, Stats. He also appeals from an order denying his
postconviction motion. Shumaker claims
that: (1) his sentence was excessive;[1]
(2) he did not knowingly, voluntarily and intelligently waive his rights
in giving his statement; (3) the trial court erred in admitting certain
evidence; (4) the evidence was insufficient to convict him; and (5) we should
exercise our discretionary authority under § 752.35, Stats., to reverse his conviction. We reject his claims and affirm.
I.
Background.
Shumaker was involved in
a planned armed robbery of a drug house with several other individuals. In the end, three teenage girls and one male
“drug dealer” were killed. Another
“drug dealer” was seriously injured, but survived. Shumaker was charged with the murders and with attempted murder
as party to a crime. The jury convicted
on the four murder counts, but acquitted Shumaker of the attempted murder.
Shumaker was sentenced
to four consecutive 25-year sentences, with a parole eligibility date of July
7, 2093. Shumaker filed a
postconviction motion seeking sentence modification, which was denied. He now appeals. Any additional relevant facts will be provided as necessary
throughout this opinion.
II.
Analysis.
A. Sentence.
Shumaker claims that the
100-year sentence he received was too harsh.
We reject this claim. Our review
is limited to a two-step inquiry. We
first determine whether the trial court properly exercised its discretion in
imposing the sentence. If so, we then
consider whether that discretion was erroneously exercised by imposing an
excessive sentence. State v.
Glotz, 122 Wis.2d 519, 524, 362 N.W.2d 179, 182 (Ct. App. 1984).
It is clear from the
record that the trial court properly exercised its discretion in imposing
sentence. It examined the three primary
factors—gravity of the offense, protection of the public, and the
rehabilitative needs of the defendant. See State v. Curbello-Rodriquez,
119 Wis.2d 414, 433, 351 N.W.2d 758, 767 (Ct. App. 1984). In addition, in order to find that a
sentence was excessive requires us to conclude that the sentence is “so
excessive and unusual and 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). Under the
circumstances of the instant case, we cannot so conclude. The crimes committed were vicious,
execution-style slayings. Four people,
including three teenage girls who were innocent bystanders, were killed. Accordingly, we reject Shumaker's claim that
his sentence was excessive.
B. Shumaker's Statement.
Shumaker next argues
that the statement elicited from him should have been suppressed because he did
not knowingly, voluntarily, and intelligently waive his Miranda
rights. We reject his claim.
Detective Eugene Farmer
testified that he orally advised Shumaker of each of the Miranda
rights, that Shumaker said he understood each of these rights, and that
Shumaker agreed to speak to the police.
Based on our review of the record, the trial court's findings of fact in
accord with this testimony are not clearly erroneous. This testimony, therefore, is sufficient to satisfy the State's
burden of proving that Shumaker waived his rights. State v. Jones, 192 Wis.2d 78, ___, 532 N.W.2d 79,
94 (1995), amended upon denial of motion for reconsideration by,
No. 92-1316-CR (per curiam order) (Wis. June 29, 1995) (holding that State
must show defendant waived rights by a preponderance of the evidence). The State also produced witnesses who
testified that Shumaker voluntarily gave the statement and that no coercive
methods were used to elicit the statement.
Shumaker offered no evidence to refute either that he waived his rights
or that the statement was not given voluntarily. Therefore, it was not erroneous for the trial court to admit
Shumaker's statement into evidence.
C. Evidentiary
Issues.
Shumaker next claims
that the trial court erred in admitting certain evidence—the trial court should
not have allowed a jury view of the scene of the crime; the trial court should
not have allowed a demonstration of weapons similar to those used to commit the
crimes; and the trial court should not have admitted the statement of Tyrone
Anderson. We again reject Shumaker's
contentions.
“A trial court possesses
great discretion in determining whether to admit or exclude evidence. We will reverse such a determination only if
the trial court erroneously exercises its discretion.” State v. Morgan, 195 Wis.2d
388, 416, 536 N.W.2d 425, 435 (Ct. App. 1995).
The trial court decided
to allow the jury view because it thought the view would be extremely helpful
to the jury and assist them in conceptualizing the relationship of the rooms
and the testimony of the various witnesses.
Shumaker's main complaints were that the jury view created sympathy for
the victims and the view was not necessary because everyone knows the general
layout of a ground floor, duplex flat.
We are not persuaded by either contention.
First, Shumaker failed
to make a convincing argument that the view would create sympathy for the
victims. At the time of the jury view,
the duplex had been cleaned, repaired and re-rented. The bodies, the blood, the guns and other evidence were no longer
present. Hence, we fail to see how the
jury view would garner sympathy for the victims. Second, Shumaker does not offer any support for his argument that
everyone knows the layout of a typical duplex and we therefore reject it.
The trial court did not
erroneously exercise its discretion in allowing the jury view. It provided a reasonable basis for doing so,
which is in accord with the law. See
State v. Coulthard, 171 Wis.2d 573, 588, 492 N.W.2d 329, 336 (Ct.
App. 1992) (the purpose of a jury view is to assist the jury in understanding
the evidence). Given the variety of
testimony regarding the rooms inside the duplex, and what happened where, the
first-hand view of the scene of the crimes certainly would assist the jury in
understanding the evidence.
We reach the same
conclusion regarding the weapons demonstration. The trial court permitted Reginald Templin, a firearms expert
from the State Crime Laboratory, to demonstrate the mechanical functioning of
the kinds of guns used to commit the crimes involved in this case. The trial court thought the demonstration
would help the jury understand how the firearms work, why ejected bullet
casings wind up where they do, and why certain markings are made on bullets and
casings. Shumaker claimed such a demonstration
would confuse the jury because the actual weapons used to commit the crimes
were not used in the demonstration.[2] The trial court, however, expressly advised
the jury that the firearms being demonstrated were not recovered from the scene
of the crime, but were taken from the crime lab's collection for purposes of
conducting the demonstration.
Accordingly, Shumaker's confusion argument is without merit.
We conclude that the
trial court did not erroneously exercise its discretion in allowing the
demonstration because it had a reasonable basis for doing so, which was in
accord with the law. See State
v. Baldwin, 101 Wis.2d 441, 455, 304 N.W.2d 742, 750 (1981) (an expert
demonstration may be permitted when it will assist the trier of fact to
determine a fact in issue). In the
instant case, the jury heard testimony about several different types of weapons
and testimony about the numerous bullet casings recovered from the scene. Hence, the demonstration undoubtedly would
assist them in deciding the case.
Finally, we also reject
Shumaker's claim that the trial court should not have admitted Tyrone
Anderson's statement regarding conversations between Shumaker and his
co-defendant, Emmett White. Anderson
testified that Shumaker and White planned to either kill another co-defendant,
Elliot House, if he were lying to them, or to rob the individuals who House
claimed had stolen his money. The trial
court ruled that the statement was admissible as a statement of a co-conspirator
made during the course and in furtherance of the conspiracy. The trial court's ruling was not an
erroneous exercise of discretion. The
testimony clearly indicates that Shumaker and White conspired to either kill
House or commit a robbery. This was the
entire purpose for their trip to the drug house. There is nothing in the record or in Shumaker's brief to
contradict this conclusion.
We also reject
Shumaker's claim that the statement should not have been used to convict him of
murdering the three teenage girls because the conspiracy evidences only an
intent to commit robbery. A party to a
conspiracy is liable not only for the crime he intended to commit, but also for
any other crime committed as a natural and probable consequence of the intended
crime. State v. Nutley,
24 Wis.2d 527, 556, 129 N.W.2d 155, 167 (1964), cert. denied, 380 U.S.
918 (1965). Murder often occurs as a
natural and probable consequence of a robbery in which one or more of the
robbers is armed. State v.
Dyelski, 154 Wis.2d 306, 310-11, 452 N.W.2d 794, 796 (Ct. App.
1990). In the instant case, both White
and Shumaker were armed. Accordingly,
Shumaker's contention is without merit.
D. Sufficiency of the
Evidence.
Next, Shumaker claims
the evidence was not sufficient to convict him of the three counts of homicide
relating to the three teenage girls, because the physical evidence demonstrated
that the girls were killed from bullets from the gun White was using. We reject Shumaker's contention.
[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.
State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990)
(citations omitted). Although Shumaker
is correct about the fact that the evidence demonstrated that the three teenage
girls died from shots fired from the weapon of his co-defendant, this fact does
not absolve Shumaker of responsibility.
Shumaker was charged as party to a crime. There is evidence in the record from which a reasonable jury
could conclude that Shumaker intended to aid or assist White in committing the
murders. Shumaker conspired with White
from the beginning to commit either murder or robbery. Shumaker brandished a weapon and
discharged his weapon. Shumaker
apparently stopped shooting to watch White firing the assault rifle at the
victims, “because it looked so pretty.”
When it was over, Shumaker drove the getaway car, aiding and abetting
the escape of the person he knew had just murdered the girls.
From this evidence, a
jury could reasonably find Shumaker guilty of being a party to these
murders. Accordingly, we reject his
claim that the evidence is insufficient to support his conviction.
E. Discretionary
Reversal.
Finally, Shumaker claims
that we should reverse his conviction in the interests of justice, pursuant to
the discretionary reversal statute, § 752.35, Stats. He has provided us with no reason for doing
so.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.