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COURT OF APPEALS DECISION DATED AND RELEASED May 21, 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. 95-0816-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ELIJAH ARRINGTON,
Defendant-Appellant,
IDELLA ARRINGTON,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Elijah Arrington appeals from the judgment
of conviction, following a jury trial, for first-degree reckless homicide and
physical abuse of a child, both as party to a crime. He argues that: (1) the criminal complaint was insufficient to
establish probable cause that he committed first-degree reckless homicide,
party to a crime; (2) the trial court erred in denying his motion to sever the
physical abuse of a child charge; (3) the trial court erred in denying his
motion to instruct that the jury must be unanimous concerning the act or acts
which serve as the basis for conviction; (4) the trial court erred in
overruling his objections to a detective's testimony when the detective
referred to a report; and (5) the evidence was insufficient to convict him of
the reckless homicide. We affirm.
Elijah and Idella
Arrington were convicted of the abuse and reckless homicide of Idella's
granddaughter, two and one-half year old Christine Gillespie, who died on
December 3, 1993, as a result of severe brain swelling. Evidence at the trial established that both
Elijah and Idella Arrington abused Christine over a long period of time leading
to and including the day of her fatal injuries.
Arrington first argues
that the criminal complaint did not allege sufficient facts to establish
probable cause that he committed first-degree reckless homicide, party to a crime. He contends that the complaint failed “to
state sufficient facts upon which it could be concluded that [his] actions were
such that he was aware of the fact that his conduct was reasonably certain to
result in death or great bodily harm,” and failed to sufficiently “allege that
any conduct on [his] part ... was a cause of the death.”
Whether a criminal
complaint is legally sufficient is a question of law subject to our independent
review. State v. Manthey,
169 Wis.2d 673, 685, 487 N.W.2d 44, 49 (Ct. App. 1992). A criminal complaint is legally sufficient
if it contains facts that would “‘lead a reasonable person to conclude a crime
had probably been committed and the defendant named in the complaint was probably
the culpable party.’” State v.
Stoehr, 134 Wis.2d 66, 74, 396 N.W.2d 177, 179 (1986) (citation
omitted). The test is one “of minimal
adequacy, not in a hypertechnical but in a common sense evaluation, in setting
forth the essential facts establishing probable cause.” State ex rel. Evanow v. Seraphim,
40 Wis.2d 223, 226, 161 N.W.2d 369, 370 (1968). Applying this test, we consider not only the alleged facts but
also the reasonable inferences fairly
drawn from those facts. State v.
Becker, 51 Wis.2d 659, 662, 188 N.W.2d 449, 451 (1971).
Section 940.02, Stats., provides that first-degree
reckless homicide is committed by one who “recklessly causes the death of
another human being under circumstances which show an utter disregard for human
life.” To commit this crime, a defendant
not only must cause death by actions creating an unreasonable and substantial
risk of death or great bodily harm, but also must have been “aware of that
risk.” State v. Blair,
164 Wis.2d 64, 70-71, 473 N.W.2d 566, 569 (1991). Under § 939.05, Stats.,
party to a crime permits the charging and conviction of a defendant for
directly committing the crime or intentionally aiding and abetting the
crime. “Charging a person as a party to
a crime is a way of establishing criminal liability separate from proving the
elements of the offense to which the defendant is charged as a party.” State v. Zelenka, 130 Wis.2d
34, 47, 387 N.W.2d 55, 60 (1986).
Proof
of the acts which can support liability as a party to a crime is separate from
proof of the underlying criminal act.
In Wisconsin there is no requirement that an aider and abettor share the
specific intent required for commission of the substantive offense he aids and
abets.
Id.
(citations omitted). The actions of a
party who aids and abets do not have to constitute “an essential element of the
crime executed by the principals.” Krueger
v. State, 84 Wis.2d 272, 286, 267 N.W.2d 602, 609, cert. denied,
439 U.S. 874 (1978). Further, the aider
and abettor need not be present at the crime scene. Roehl v. State, 77 Wis.2d 398, 407-408, 253 N.W.2d
210, 214 (1977).
The complaint alleges
that, according to Dr. Jeffrey Jentzen of the Milwaukee County Medical
Examiner's Office, Christine's death was caused by “closed head trauma, and
complications of battered child syndrome.”
The complaint also alleges that on December 2, 1993, the day an
ambulance took Christine from the Arrington residence to Children's Hospital
where she died the next day, Elijah Arrington stated that:
he
was feeding Christine Gillespie and she was holding the food in her mouth and
was not chewing or swallowing it, and he needed to get her attention. Elijah Arrington states that he hit her legs
more than five or six times, “I hit her arms too, and when she turned I got her
back.”
The
complaint also alleges that Idella Arrington stated that “Elijah does more
hitting than me. He usually uses
something like a strap when he hits Christine.
Chris gets a beating at least once a day.” The complaint also describes numerous burn marks, scars, bruises,
and other injuries on Christine's body.
We conclude that the
complaint contains sufficient factual allegations to establish probable cause
that Elijah Arrington, as party to a crime, committed first-degree reckless
homicide. One reasonably infers from
the complaint that the Arringtons' repeated beatings resulted in Christine's
death from complications of battered child syndrome and, further, that Elijah
Arrington would have been aware that his and Idella's actions created an
unreasonable and substantial risk of death or great bodily harm.
Arrington next argues
that the trial court should have severed the physical abuse of a child
charge. He concedes that the joinder of
the charges was permissible under § 971.12, Stats., but maintains that he suffered “substantial prejudice
as a result of the joinder.” He
contends that because intent is not an element of first-degree reckless
homicide, evidence of his prior acts of mistreatment of Christine was
irrelevant and prejudicial on the homicide charge.
When deciding the
propriety of severance, a trial court must weigh the potential prejudice
against the “interests of the public in conducting a trial on multiple
counts.” State v. Locke,
177 Wis.2d 590, 597, 502 N.W.2d 891, 894 (Ct. App. 1993). We will uphold the trial court's denial of
severance unless the trial court erroneously exercised discretion and the
denial caused “substantial prejudice” to the appellant. Id.
We see no erroneous
exercise of discretion. Evidence
regarding Elijah Arrington's continual abuse of Christine was relevant to both
charges. It was probative not only of
physical abuse, but also of the conduct causing complications of battered child
syndrome resulting in Christine's death.
Moreover, the evidence of physical abuse was relevant to Elijah
Arrington's absence of mistake or accident that, in turn, was probative of his
awareness of the risk of death or great bodily harm. Joinder of the charges was proper.
Arrington next argues
that “the trial court should have granted [his] motion to instruct the jury
that [it] must be unanimous concerning the act or acts which serve as a basis
for conviction” for physical abuse of a child.
The trial court denied Arrington's request stating, “I do not think it
is appropriate ... that all twelve jurors must conclude that the same specific
acts constituted the crime.” See
§ 805.13(3), Stats.
On appeal, Arrington
offers little more than a lengthy quotation from State v. Marcum,
166 Wis.2d 908, 480 N.W.2d 545 (Ct. App. 1992), and then, in an inadvertent or
inexplicably abbreviated paragraph, merely states:
As in Marcum, there was nothing
in this case to focus the jury's attention onto a specific act during that time
period alleged in Count III (i.e. May 1, 1993 to December 2, 1993). In fact, the State presented evidence of a
number of incidents during that period of time which could conceivably be
considered physical abuse of a child.
The refusal of the trial court to specifically instruct the jury as to
unanimity leaves open the possibility that three jurors convicted on count III
believing that Elijah did as
Marcum is
distinguishable. Marcum
presented an issue of whether counsel was ineffective for failing to object to
the standard unanimity instruction where the defendant was charged with
numerous sexual assault counts and the standard instruction did not clarify
that jurors had to be unanimous about which specific act formed the basis for
each count of sexual assault. Here, by
contrast, a single count of physical abuse of a child encompassed all of the
alleged actions of the defendants related to a continuing course of
conduct. Arrington offers no reply to
the State's argument that “jurors need not reach unanimous agreement on
specific acts when the alleged crime is a series of conceptually similar acts
collectively constituting a continuous course of criminal conduct underlying a
single charged count.” See State
v. McMahon, 186 Wis.2d 68, 81, 519 N.W.2d 621, 627 (Ct. App. 1994).[1] Accordingly, we reject Arrington's argument
that the trial court erred by denying his request for a unanimity instruction
on the abuse charge.
Arrington next argues
that “the trial court erred in overruling [his] hearsay and confrontation
clause objections to Detective Welch reading from his police report and in
impairing [his] cross-examination of the officer by ordering him to provide the
detective with a copy of his report during cross-examination.” The State elicited testimony from Milwaukee
Police Detective Thomas Welch regarding his interview of Sandra Harrington, a
neighbor, who had testified that she had not seen Elijah Arrington employ
“excessive” measures in disciplining Christine. According to Detective Welch, however, Harrington had told him
that she both observed and heard Arrington beating Christine. Arrington contends that the trial court
improperly allowed Detective Welch to utilize his police report of the
Harrington interview and that the report was inadmissible hearsay. We disagree.
The record reflects that
as soon as Detective Welch was called to the stand, Elijah Arrington's trial
counsel stated, “Your Honor, before we start, the witness has his report face
up in front of him. I ask that not be
referred to until a foundation is laid and that not be on his desk with
him.” The trial court responded, “Just
turn—okay, that's fine. It's been
turned over and you may proceed, counsel.”
Detective Welch then did not refer to his report until the prosecutor
asked him, ”Did [Harrington] say approximately how many times she had observed
Elijah Arrington strike Christine Gillespie?”
Detective Welch responded that he could not specifically recall without
referring to his report. The trial
court then, and throughout the balance of his brief testimony, permitted
Detective Welch to refer to his report of the Harrington interview to refresh
his recollection.
We conclude that the
trial court acted properly. As the
supreme court has explained, “if a witness can locate a writing which refreshes
his memory as to the facts and he can then testify from his independent
recollection, his testimony and not the writing is admitted in evidence, as
present recollection refreshed.” State
v. Wind, 60 Wis.2d 267, 274, 208 N.W.2d 357, 362 (1973).
Arrington's additional
argument that the trial court erred in ordering that Detective Welch be
provided with a copy of his report during cross-examination is misguided. Apparently, at some point during his
testimony, Detective Welch had given the report to Elijah Arrington's trial
counsel. The record establishes that
trial counsel then was asking Detective Welch specific questions regarding
whether he had written quoted statements in his report. When Detective Welch responded, “That's
what's in the report, to the best of my recollection, since it's not in front
of me,” the trial court stated, “Why don't you give back the copy so if you're
going to be asking those kinds of questions—would you please give the report
back to the officer, please.” The trial
court properly exercised discretion in allowing Detective Welch to refer to the
report when asked whether he had written specific words.[2]
Finally, Arrington argues
that the evidence was insufficient to convict him of first-degree reckless
homicide, party to a crime. He contends
that “no reasonable interpretation of [his] conduct may result in the
conclusion that this type of behavior created a substantial risk of great
bodily harm or death.” He concedes,
however, that his “reasons why the evidence was insufficient ... are nearly
identical to those set forth in support of [his] motion to dismiss the
complaint.” Again, we reject his
argument.
As the supreme court has
explained:
in
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).
“[V]iewed most favorably
to the State and the conviction,” the evidence clearly was sufficient to
convict Elijah Arrington of first-degree reckless homicide, party to a
crime. The evidence included testimony
from several witnesses that Elijah Arrington frequently hit Christine with
objects including a rubber strip, a plastic strip, and a comb. The rubber strip, which tested positive for
human blood, was over an inch wide and was slightly curved as if bent around an
adult hand by the force of striking.
The evidence established that Arrington beat and whipped Christine with
these objects. A detective read from
his report of Arrington's statement describing his actions the morning of
Christine's fatal injuries:
This morning, I did spank Christine with
that red plastic strip. I was feeding
her and she was just holding her food in her mouth and not chewing or
swallowing.
I needed to get her attention. I used the strip and spanked her legs and
arms. I hit her legs more than five or
six times. I hit her arms, too, and
when she turned, I got her back, but that was not on purpose.... Subject demonstrated how hard he hit
Christine with the plastic. It made a
whooshing sound as it whipped the air.
Witnesses
stated that Elijah Arrington punched Christine with a closed fist, and slapped
her “real hard” numerous times. The
evidence also included portions of Idella Arrington's statement relating that
Christine was beaten at least once a day and that Elijah Arrington did more
hitting than she did.
This evidence, in
combination with substantial additional evidence that including medical
testimony detailing the bruising, brain swelling, burning, scarring, and
subdural hemorrhaging, established that Christine died from complications of
battered child syndrome. A reasonable
jury could have found that Elijah Arrington's conduct, both directly and as a
party to this crime, caused Christine's death.
Accordingly, we reject his claim that the evidence was insufficient to
support the conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] In fact, in his reply brief to this court, not only does Arrington fail to counter the State's argument, he also alters his argument by arguing extensively that reckless homicide cannot be committed as a continuing offense and, therefore, that he was entitled to a unanimity instruction on the homicide count. Arrington failed, however, to raise this issue with specific reference to the homicide charge in the trial court, and failed to present this argument in his brief-in-chief to this court. Accordingly, we will not address the unanimity issue with reference to the homicide charge. See § 805.13(3), Stats.