COURT OF APPEALS DECISION DATED AND RELEASED December
13, 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. 95-1511-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
EUGENE
A. PAGOIS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.
SNYDER,
J. Eugene
A. Pagois appeals from a judgment convicting him of two counts of misdemeanor
battery under § 940.19(1), Stats.,
and from an order denying him postconviction relief. On appeal, Pagois seeks to have his conviction vacated and
remanded for a new trial. Pagois argues
that the trial court erred in refusing his request for the voluntary
intoxication jury instruction and in its response to the jury's question
regarding Pagois' intoxication relative to his intent. We conclude that the trial court acted
within its discretion in refusing Pagois' request for the voluntary
intoxication instruction and that he was not prejudiced by the explanatory
instruction given to the jury. Therefore,
we affirm.
The
battery charges stemmed from an incident which occurred early on New Year's
Day. Pagois and his friend Joseph
Jucius began drinking beer in a tavern around 1:00 p.m. on December 31, 1993. They moved to a second tavern and had
consumed more than twelve cans of beer and approximately seven to nine “shots”
prior to leaving at approximately 7:00 p.m. to have dinner at Jucius'
cottage. Around 8:30 p.m., Pagois and
Jucius returned to the second tavern and resumed their drinking.
Sometime
after midnight there was an argument over a pool game involving a number of
persons, including Pagois and Jucius.
Jucius said that as he left the tavern after the argument, Pagois pushed
him down a flight of stairs and proceeded to punch and kick him.[1]
Jucius also indicated that Pagois told him never to return to the apartment
that the two men shared in Chicago.
Pagois then left the scene, stating that he was going to go to Chicago.
A
few blocks from the tavern, Pagois encountered Frank Jorgensen in a parking
lot. Pagois asked Jorgensen for
directions to the train station.
Jorgensen stated that Pagois appeared “like a normal person out in the
night. I mean he wasn't stumbling drunk
or anything.” Jorgensen was unable to
give Pagois directions and the two men parted, Pagois purportedly headed to
Chicago and Jorgensen towards his daughter's home.
About
100 yards from where he encountered Pagois, Jorgensen came upon Jucius and two
men who were helping Jucius up. At that
point, Pagois ran up to the group of men and began hitting Jucius. Pagois also struck Jorgensen, who had
attempted to pull Pagois away from Jucius.
Pagois walked off after striking Jorgensen. Shortly thereafter, Pagois was picked up by Sergeant Ide of the
Kenosha County Sheriff's Department.
Ide
returned Pagois to the parking lot and Jucius identified Pagois as the person
who had beaten him. Pagois was hostile
and uncooperative from the time he was returned to the scene by Ide until
Deputy Nobles transferred him to the county jail. Both Nobles and another officer testified that Pagois appeared
intoxicated but that he was fully aware of his surroundings and his
predicament.
Nobles
testified that Pagois had a “strong odor of alcohol [and] slurred speech.” Ide stated that he noticed the odor of
intoxicants on Pagois' breath as soon as he began to converse with him but that
Pagois' ability to walk was not impaired.
Nobles also testified that on a number of occasions Pagois asked to be
allowed to see Jucius in order to talk him out of filing charges for the
beating.
After
Pagois was placed in the back of the rescue squad for transfer to the hospital,
he repeatedly gestured obscenely at Nobles.
This behavior was also directed at another officer, Sergeant Gallo, who
accompanied Pagois while he was being treated at the hospital. While handcuffed to a gurney, Pagois
threatened Gallo. Gallo observed that
Pagois had “glassy eyes, slurred speech, [and] the odor of intoxicant[s]” about
him.
Pagois
was convicted of two counts of battery.
After denial of his motion for postconviction relief, this appeal
followed.
Pagois
first argues that the trial court erred in refusing to give the jury an
instruction regarding a defense of voluntary intoxication. The initial determination of whether an
instruction is sufficiently supported by the evidence is a question of
law. State v. Holt, 128
Wis.2d 110, 126, 382 N.W.2d 679, 687 (Ct. App. 1985). We therefore owe no deference to the trial court's determination
of the question. Id. at
127, 382 N.W.2d at 687.
The
Wisconsin criminal jury instructions enunciate a three-pronged test to
determine whether a special defense jury instruction should be given. The instruction must be granted when:
a) it
relates to the legal theory of a defense as opposed to the interpretation of
the evidence urged by the defense, and
b) it
is supported by the evidence, and
c) it is not adequately covered by the other
instructions in the case.
Wis J I—Criminal 700 (law note); see State v. Davidson,
44 Wis.2d 177, 191-92, 170 N.W.2d 755, 763 (1969). If the three elements have been satisfied, then the instruction
must be given. The trial court
determined that the instruction was not warranted because the evidence of
Pagois' intoxication was not sufficient to require the giving of the
instruction. Our independent review of
this issue will focus on this determination.
Larson
v. State, 86 Wis.2d 187, 271
N.W.2d 647 (1978), defines the amount of evidence needed to warrant an
instruction to the jury. In Larson,
the court stated that the “instruction is proper only where, viewing the
evidence in the light most favorable to the defendant, a jury could reasonably
have found that he was so intoxicated that he lacked the intent to [commit the
charged crime].” Id. at
195, 271 N.W.2d at 650.
It
is important to note that not just any evidence of intoxication is relevant to
a determination of whether the defendant was incapable of forming the requisite
intent. In State v. Guiden,
46 Wis.2d 328, 331, 174 N.W.2d 488, 490 (1970), the court made it clear that:
The “intoxicated or drugged condition” to which the
statute [§ 939.42, Stats.] refers
is not the condition of alcohol-induced incandescence or being well-lit that
lowers the threshold of inhibitions or stirs the impulse to criminal
adventures. It is that degree of
complete drunkenness which makes a person incapable of forming intent to
perform an act or commit a crime. To be
relieved from responsibility for criminal acts it is not enough for a defendant
to establish that he was under the influence of intoxicating beverages. He must establish that degree of
intoxication that means he was utterly incapable of forming the intent
requisite to the commission of the crime charged.
Therefore, the evidence presented by the defendant must
be proof of intoxication beyond statements such as “‘I suppose kind of tipsy,’
‘I was feeling kind of high,’ ‘I was sort of half intoxicated.’” Id.
The
standard to be applied by the trial court in determining whether the evidence
is sufficient to warrant an intoxication defense instruction was given in State
v. Schulz, 102 Wis.2d 423, 307 N.W.2d 151 (1981). There the court stated that “[t]he test which
the trial court must apply is whether, construing all the evidence produced
most favorably to the defendant, a reasonable juror could conclude that the
defendant's state of intoxication—in the words of the statute—‘negative[d] the
existence of a state of mind essential to the crime.’” Id. at 430, 307 N.W.2d at 156.
Here,
the trial court concluded that the evidence introduced as to Pagois'
intoxication was not sufficient to warrant the giving of the instruction. Although there was evidence submitted which
showed that Pagois was intoxicated, it was tempered by evidence that Pagois
knew what he was doing. Pagois
displayed a clear memory of the events of the evening, he was able to
comprehend his predicament, and his physical appearance did not betray a state
of intoxication so profound as to prevent him from forming an intent to
act.
Pagois'
account of the evening, though differing from that of Jucius and Jorgensen, was
highly detailed and complete. Pagois
realized that he might be charged with battery and reacted quickly, requesting
to speak with Jucius to talk him out of pressing charges.
The
testimony of the officers present indicates that Pagois was intoxicated but
that he was coherent and aware of his situation. He was able to walk without stumbling and to speak clearly. Testimony supported Pagois being in control
of his faculties and being able to form intent. We conclude that the trial court properly exercised its
discretion in determining that the intoxication defense instruction was not appropriate.
Pagois
also argues that the trial court erred in its response to the jury's request
for clarification on the issue of a defense of intoxication. A trial court has wide discretion in the
giving of instructions. State v.
Pruitt, 95 Wis.2d 69, 80, 289 N.W.2d 343, 348 (Ct. App. 1980). If the court's instructions adequately cover
the applicable law, the refusal to give special instructions will not be
considered error. Id. at
80-81, 289 N.W.2d at 348. This court
will sustain a discretionary decision if the trial court examined the relevant
facts, applied a proper standard of law, and, using a demonstrated rational
process, reached a reasonable conclusion.
Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175,
184 (1982).
During
its deliberations, the jury sent the trial judge a question which asked,
“[D]oes the law take into consideration alcohol intoxication relative to
intent? And if so, what are the
guidelines?” After discussion with
counsel, the trial court responded:
The fact of intoxication alone does not relieve one of
responsibility for acts otherwise criminal.
Please read again the instruction which has been submitted to you
describing the elements of the crimes charged.
You are to determine whether the elements of the charges have been
proved by the State beyond a reasonable doubt.
If the elements have been proved beyond a reasonable doubt, you should
find the defendant guilty. If not, then
you must find the defendant not guilty.
We
conclude that this response to the jury was in line with the trial court's
initial determination that the intoxication defense instruction was not
warranted by the evidence. Read in
conjunction with the trial court's previous ruling that there was insufficient
evidence to support the giving of the instruction, this statement served only
to remove the issue of a defense of intoxication from the jury's
consideration. Having determined that
the evidence presented did not warrant the giving of the intoxication defense
instruction, the trial court's subsequent response to the jury's question was
proper and did not prejudice Pagois.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.