COURT OF APPEALS DECISION DATED AND RELEASED February 27, 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. 95-1439-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAWN DOBBS,
Defendant-Appellant,
UNDREA D. HARRIS,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Dawn Marie Dobbs appeals from a judgment
entered after a jury found her guilty of one count of first-degree intentional
homicide, party to a crime, contrary to §§ 940.01(1) and 939.05, Stats.
Dobbs claims: (1) the trial court erred in admitting her statement
because it was involuntarily made; and (2) the evidence was insufficient
to sustain the conviction. Because the
trial court did not err in admitting the statement and because the evidence is
sufficient to sustain the conviction, we affirm.
I. BACKGROUND
On February 12, 1994,
Dobbs was arrested for conspiracy to commit first-degree intentional homicide
of her live-in boyfriend, Ray Thomas.
Dobbs claims she repeatedly asked for a lawyer and that the only reason
she signed a waiver form was because she was concerned about her children. She also claims that the officers who took
her statement told her that if she did not talk to them, she would never see
her children again.
The officers who took
her statement, however, testified that Dobbs never asked for an attorney, that
they did not make any threats regarding her children or any other subject, that
they advised Dobbs of her Miranda[1]
rights and that she voluntarily waived her rights and wanted to give a
statement. The trial court found the
officers more credible and determined that Dobbs intelligently, knowingly and
voluntarily waived her Miranda rights and voluntarily gave a
statement. Hence, the statement was
admitted at the trial. The jury convicted
Dobbs. She now appeals.
II. DISCUSSION
A. Statement.
Dobbs claims that she
did not make a knowing, intelligent and voluntary waiver of her rights and that
she was coerced into giving a statement.
We will not overturn the trial court's findings of fact unless they are clearly erroneous. See § 805.17(2), Stats.
The ultimate question of whether Dobbs waived her rights and whether the
statement was coerced, however, are questions of law that we independently
review. State v. Lee,
122 Wis.2d 266, 274, 362 N.W.2d 149, 152 (1985).
The trial court made
specific findings relevant to this issue:
that Dobbs did not ask for a lawyer; that prior to making her statement,
she was advised of her rights; that she understood those rights and that she knowingly,
voluntarily, and intelligently waived those rights; that she voluntarily gave
her statement; and that she was not forced or coerced into making a statement
by the police. Our review of the record
shows there is ample support for these findings and, therefore, they are not
clearly erroneous. They were based
essentially on a credibility determination, which is always left to the trial
court. Gehr v. City of Sheboygan,
81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977).
Based on these findings,
we agree that the State satisfied their burden of proving that Dobbs
voluntarily, knowingly and intelligently waived her rights. The State showed that she was advised of her
rights, that she understood them, and that she waived them. This is all that is required under the law
to satisfy the State's burden in this regard.
See State v. Lee, 175 Wis.2d 348, 360, 499 N.W.2d
250, 255 (Ct. App. 1993).
We also conclude that
based on the trial court's findings, Dobbs voluntarily gave a statement and was
not coerced by the police officers. The
trial court, again based on credibility determinations, found that no improper
police procedures were used in obtaining Dobbs's statement, and that she
offered the statement of her own free will.
These findings are not clearly erroneous and support the conclusion that
Dobbs's statement was voluntarily given.
Therefore, we reject her claim that the trial court erred in admitting
her statement at trial.
B. Sufficiency
of the Evidence.
Dobbs also claims that
the evidence was insufficient to support her conviction. Dobbs argues that she was not a
co-conspirator of co-defendant, Dan Johnson.
Rather, she contends that she was coerced into assisting Johnson with
the murder because she feared for her life.
[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). Based on this
standard, we cannot accept Dobbs's contentions. Dobbs was charged as “party to a crime.” Accordingly, in order to convict her of
first-degree intentional homicide, the jury had to find only that she aided and
abetted or conspired to commit the crime with her co-defendant. State v. Hecht, 116 Wis.2d
605, 619, 342 N.W.2d 721, 729 (1984).
The record documents a
series of significant facts upon which a jury could reasonably convict
Dobbs: she had a prior sexual
relationship with co-defendant, Johnson; she, Johnson and another co-defendant
planned how they would kill Thomas; she got the gun, which was the murder
weapon, and handed it to Johnson; she admitted that she did not tell the police
the truth initially because she was “involved” in the crime; and she wanted
Thomas dead. Other witnesses confirmed
the relationship between Dobbs and Johnson; another witness overheard the
planning of the murder and testified that he heard Johnson talking about
killing Thomas with Dobbs in the room; and another witness saw Dobbs hand the
gun to Johnson.
Based on the foregoing
facts, a reasonable jury could have found that Dobbs was a party to this crime
and that she was not coerced as she claimed.
Accordingly, we reject her claim that the evidence is insufficient to
support the conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.