COURT OF APPEALS DECISION DATED AND RELEASED APRIL 30, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
further editing. If published, the
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No. 95-2338-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHNSON W.
GREYBUFFALO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Brown County:
DONALD J. HANAWAY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Johnson Greybuffalo appeals his conviction
for first‑degree intentional homicide, § 940.01, Stats., after a jury trial.[1] Greybuffalo argues the trial court erred by
refusing to submit the lesser-included felony murder instruction to the jury
and, therefore, he is entitled to a new trial.
We reject Greybuffalo's argument and affirm his conviction.
At trial, it was
undisputed that one evening in July 1994, Greybuffalo entered the home of
five-year-old Nancy Thao and her family with the intention of burglarizing the
residence. It was also undisputed that
Nancy was killed that night by multiple stab wounds to her body. At issue was who killed her.
The State's theory at
trial was that Greybuffalo was the only burglar in the Thao residence that
evening and that he killed Nancy. The
State produced evidence that Nancy was found dead in a garbage can inside a
storage area next to the garage located next to her home. Shannon Saldana, one of the Thaos' upstairs
neighbors and a roommate of Greybuffalo, testified that on the night of Nancy's
death, Greybuffalo returned home at about 4 a.m. Saldana testified Greybuffalo stumbled and fell by the
refrigerator. She observed that
Greybuffalo was sweaty and had blood on his sweatshirt.
Saldana said she heard a
knife fall to the floor, picked it up and asked Greybuffalo what had
happened. Saldana testified Greybuffalo
told her "that he was coming back from his mother's house and that on the
way back he got jumped by six black guys and that he stabbed one of
them." Saldana said she picked up
the knife, saw that it had blood on it and proceeded to wash and boil the knife
in water on the stove because "I thought he got jumped by some black guys
and I figured it was self‑defense and I didn't want him to be in trouble
so I washed the knife off." Police
later recovered the knife from the residence.
The State also presented
physical evidence connecting Greybuffalo to the Thao residence. For example, an expert testified he identified
two fingerprints as Greybuffalo's: one
lifted from a fan and one lifted from a storm window. Also, it was undisputed that Greybuffalo was apprehended in
Madison while driving the Thaos' van.
We note that on appeal,
Greybuffalo does not contend the evidence presented at trial was insufficient
to convict him of first-degree intentional homicide. Rather, the sole issue is whether the trial court erred by not
submitting the lesser-included felony murder instruction to the jury at
Greybuffalo's request. Greybuffalo
argues such an instruction was appropriate because under Greybuffalo's theory
of defense, his roommate, Howard Joe Cooley, committed the burglary with
Greybuffalo and was the individual who stabbed Nancy.
A trial court engages in
a two-step analysis in determining whether to submit a lesser-included offense
to a jury. State v. Morgan,
195 Wis.2d 388, 433-34, 536 N.W.2d 425, 442 (Ct. App. 1995). First, the court must determine whether the
crime is a lesser-included offense of the charged crime. Id. at 434, 536 N.W.2d at
442. Next, the court must weigh whether
there is a reasonable basis in the evidence for a jury to acquit on the greater
offense and to convict on the lesser offense.
Id. If both steps
are satisfied, the trial court should submit the lesser-included instruction to
the jury if the defendant requests it. Id. A trial court commits reversible error if it
refuses to submit an instruction on an issue that is supported by the
evidence. Id. Whether the evidence adduced at trial
requires a jury charge on the lesser-included offense instruction is a question
of law that we review de novo. Id.
Here, the parties agree
that felony murder is a lesser-included offense of first-degree intentional
homicide. Therefore, we move to the
second step in the analysis:
determining whether there is a reasonable basis in the evidence for a
jury to acquit on the greater offense and to convict on the lesser offense. Id. We need not decide whether there were reasonable grounds for
conviction on the requested instruction for felony murder because we conclude
there were no reasonable grounds for acquittal on the first-degree intentional
homicide charge. See Jordan
v. State, 93 Wis.2d 449, 468, 287 N.W.2d 509, 517 (1980).
Greybuffalo contends he
could have been acquitted of first-degree intentional homicide because he
testified he did not stab the victim.
Greybuffalo explains that if a jury believed his testimony that he did
not directly participate in killing the victim and, in fact, tried to intervene
after he realized she was being stabbed, the evidence would be insufficient to
convict him of the greater offense of first-degree intentional homicide since
there would be no evidence of direct causation or intent to kill. Assuming arguendo that Greybuffalo's
analysis is correct, we nonetheless reject his argument because we conclude
that, after viewing the evidence in a light most favorable to Greybuffalo,
there is no reasonable basis in the evidence for a jury to conclude that Cooley
committed the murder and to therefore acquit on the greater offense of
first-degree intentional homicide.
When determining whether
there is a reasonable basis in the evidence to acquit on the greater charge,
the key word in the rule is reasonable.
Hawthorne v. State, 99 Wis.2d 673, 683, 299 N.W.2d 866,
870 (1981). The rule does not suggest
some near automatic inclusion of all lesser-included offenses as additional
options to a jury. Id. At the same time, to protect the defendant
from violation of due process or denial of the right to trial by jury, our
supreme court has held that neither the trial court nor the appellate court may
look to the totality of the evidence. See
id. at 684, 299 N.W.2d at 871.
Rather, the question is whether a reasonable construction of the
evidence will support the defendant's theory, viewed in a light most favorable
to the defendant. See id. Therefore, we do not consider the testimony
and physical evidence that points to Greybuffalo as the individual who stabbed
Nancy. Instead, we must examine the
evidence that supports Greybuffalo's theory of defense.
With these standards in
mind, we note that the only evidence supporting Greybuffalo's theory of defense
is his testimony. Greybuffalo's version
of events is as follows: He was staying
with Cooley, Rhae Lynn Delveaux and Saldana in the upstairs residence of a
rental property. On the night of
Nancy's death, Greybuffalo and Cooley discussed burglarizing the Thao
residence, which was located on the first floor of the rental property. Later, they walked around the building
trying to find an entry point.
Greybuffalo noticed a window was slightly open and indicated to Cooley
that they could enter the house through it.
Greybuffalo cut the screen with a straight razor he had in his
possession. Then, he reached through
the opening in the screen and pushed a storm window up. Next, Greybuffalo asked Cooley to help him
into the house. Cooley cupped his hands
so that Greybuffalo could step on them and lifted him through the window. Greybuffalo crawled through the window and
immediately knocked over a guitar case, which he handed out the window to
Cooley.
Next, Greybuffalo walked
through the bedroom he had entered through the window and went to the living
room to let Cooley in through the front door.
After Greybuffalo let Cooley in, the two men looked around the living
room for things they could take.
Greybuffalo saw a large purse and looked through it, finding two smaller
purses inside. Greybuffalo eventually
found food stamps in the purses, which he took. Greybuffalo also looked around the kitchen area and opened a door
to a room at the far end. He saw
several people sleeping inside.
After
returning to the living room several times, Greybuffalo ultimately heard what
he described as a "muffled scream."
Greybuffalo saw Cooley in a room and that he was holding something. Greybuffalo walked into the room and saw
Cooley "stabbing somebody" with a knife. Greybuffalo pulled the body from the bed, away from Cooley, and
"wanted to stop what was happening."
Greybuffalo looked at the body and saw that she was very bloody. Greybuffalo told Cooley he was leaving and
took the body and a bundle of blankets.
Cooley opened the front door for Greybuffalo. Next, Greybuffalo exited the front door, walked toward the garage
and set the body down in front of the garage.
Greybuffalo then turned
around and went upstairs to his residence.
Greybuffalo saw Cooley on the steps and returned to the residence after
Cooley. Greybuffalo went upstairs to
change and get blood off of him. Then,
he changed shirts and left the bloody shirt on the floor of the bathroom. Next, he exited the bathroom and saw
Shannon, his roommate, who had just entered the residence. Greybuffalo handed Cooley some food stamps. Then, Shannon stopped Greybuffalo and asked
him if he had stabbed anybody.
Greybuffalo told her no and proceeded to leave the residence. He had two sets of keys he had taken from
the Thao residence and tried the keys in two vans; the keys fit the Thaos' blue
van. Greybuffalo took the van and drove
away. When asked at trial where he
drove, Greybuffalo answered, "I'm -- I'm not sure. I don't recall." Greybuffalo testified he does remember
eventually driving to Madison, to the home of his friend, Leon Thomas.
Although Greybuffalo's
testimony was that Cooley killed Nancy, he is not automatically entitled to a
lesser-included instruction on that basis alone. See Hawthorne, 99 Wis.2d at 685, 299 N.W.2d at 871,
citing Brook v. State, 21 Wis.2d 32, 43-44, 123 N.W.2d 535, 541
(1963) (The issue whether trial court erred by failing to give lesser-included
instruction boils down to whether the physical facts brought out by the state
contradict the defendant's testimony so as to leave no reasonable basis for a finding
of the lesser included offense.). In State
v. Parker, 55 Wis.2d 131, 197 N.W.2d 742 (1972), our supreme court
considered whether a trial court erred by denying the defendant's request for a
lesser-included offense instruction on third-degree murder. Parker held that:
[S]ince
the physical evidence contradicted the defendant's testimony and since his
credibility concerning the entire incident is exceedingly dubious, only an
"unreasonable view of the evidence" would give credence to the
defendant's version of the shooting and require the submission of a lesser
included crime.
State
v. Estrada, 63 Wis.2d 476, 483, 217 N.W.2d 359, 363 (1974)
(explaining the holding in Parker). We conclude the court's reasoning in Parker is
applicable to this case because the physical evidence contradicts Greybuffalo's
testimony and Greybuffalo's credibility concerning the entire incident is
exceedingly dubious, and therefore, only an unreasonable view of the evidence
would give credence to Greybuffalo's version of the stabbing and require the
submission of the lesser-included crime of felony murder.
The physical evidence
contradicts Greybuffalo's testimony.
For example, no physical evidence was found that linked Cooley to the
crime scene. The fingerprint expert who
made 1,277 examinations of fifty-three pieces of evidence compared the prints
on the evidence to Cooley's fingerprints and concluded that none of the
fingerprints collected at the scene matched his fingerprints.
The police also found in
the yard next to the building a folding chair with footprints on it. One expert testified five of the prints on
the chair were consistent with the shoes Greybuffalo was wearing on the night
of Nancy's death. When asked about the
chair and the prints on it, Greybuffalo testified that he did not put the chair
under Nancy's window and did not recall stepping on a chair.
In
addition to the physical evidence contradicting Greybuffalo's testimony,
Greybuffalo's credibility concerning the entire incident is exceedingly
dubious. Greybuffalo testified that he
"might have told [Thomas] that I was jumped on the west side of Green Bay
somewhere." He testified he does
not recall if he told anyone else the story about being jumped by a group of
men, which was an alibi Greybuffalo testified he and Cooley discussed before
they burglarized the Thao residence.
Greybuffalo said that if he was stopped, his plan was to "tell the
police or anybody who stopped me that I was going to my mother's house and that
I had been jumped." When asked at trial
what that story was supposed to accomplish, Greybuffalo responded, "You
could say alibi on my part."
Greybuffalo's testimony
regarding this alibi is exceedingly dubious because the story, which
Greybuffalo claims he created before the burglary, anticipates that Greybuffalo
would appear to have been involved in a fight and would need to explain his
bloody appearance. Yet, Greybuffalo
testified that he and Cooley planned only to burglarize the Thao residence,
that he intended to use the razor solely to enter the house, and that he did
not know Cooley had a knife on him. It
is unreasonable that Greybuffalo would create an alibi about being jumped
before the burglary, with its unexpected bloody consequences, took place.
Greybuffalo also
testified at trial that he had lied several times during the
investigation. Greybuffalo said when he
was first apprehended by police in Madison, he told them his name was
Saldana. Also, Greybuffalo stated at
trial that he told police in a statement during the investigation that Cooley
was not in the Thao residence the night of Nancy's death. Conversely, his testimony at trial was that
Cooley was not only inside the residence, but also killed Nancy. Greybuffalo also admitted he lied to his
friend, Thomas, when he told Thomas the van he was driving belonged to his
aunt.
Additionally,
Greybuffalo was able to remember in detail some events, but claimed not to
remember other events. For example, he
testified he does not remember going to his stepmother's house early the
morning after the burglary, shopping at a grocery store with food stamps,
returning to his stepmother's house with groceries, and visiting an
ex-girlfriend. However, Greybuffalo
acknowledged at trial that it is possible he visited both his stepmother and
his ex-girlfriend. Greybuffalo also
testified he left Nancy's body outside the garage door, but stipulated at trial
that the body was found in a garbage can inside a storage area next to the
garage. Greybuffalo testified he did
not believe Cooley hid the body in the garbage can.
In sum, we conclude the
physical evidence contradicts Greybuffalo's testimony and Greybuffalo's
credibility concerning the entire incident is exceedingly dubious. Therefore, only an unreasonable view of the
evidence would give credence to Greybuffalo's version of the stabbing and
require the submission of a lesser-included crime. See Estrada, 63 Wis.2d at 483, 217 N.W.2d at
363. There was no reasonable basis in
the evidence for a jury to acquit Greybuffalo of first-degree intentional
homicide, and, therefore, the lesser-included felony murder instruction need
not have been given. See Morgan,
195 Wis.2d at 434, 536 N.W.2d at 442 (in second step of analysis, court must
weigh whether there is a reasonable basis in the evidence for a jury to acquit
on the greater offense and to convict on the lesser offense). Thus, we reject Greybuffalo's challenge to
his conviction for first-degree intentional homicide.
Because we conclude the
lesser-included instruction need not have been offered because Greybuffalo's
testimony was contrary to the physical evidence and his credibility was
exceedingly dubious, we do not consider the State's alternative arguments in
support of the trial court's decision to deny Greybuffalo's request for the
lesser-included instruction.[2]
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] Greybuffalo was also convicted of misdemeanor escape, armed burglary and operating a motor vehicle without the owner's consent. He has not appealed those convictions.
[2] The State offers a number of alternative theories for affirming the trial court's decision to deny Greybuffalo's request for a lesser-included offense instruction, including: (1) as a matter of law, homicide was the natural and probable consequence of the armed burglary, which, according to Greybuffalo, was the crime he and Cooley intended to commit; (2) no reasonable ground exists in the evidence to conclude other than that the homicide was the natural and probable consequence of the armed burglary; and (3) Greybuffalo has not demonstrated that there exists a reasonable ground in the evidence for acquittal of first-degree reckless homicide.