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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. 95-2418-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROGER J. DOTZ,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Counsel for Roger Dotz has filed a no merit report
pursuant to Rule 809.32, Stats.
Dotz has filed two responses alleging that the stabbing of his live-in
girlfriend was not intentional, that he was too intoxicated to form intent,
that he was ineffectively represented by trial counsel and that his
intoxication constitutes a new factor justifying a sentence reduction. Upon our independent review of the record as
mandated by Anders v. California, 386 U.S. 738 (1967), we
conclude that there is no arguable merit to any issue that could be raised on
appeal.
The no merit report
raises questions of trial court error, prosecutorial misconduct, sufficiency of
the evidence, competency of trial counsel and sentence modification.[1] In his responses, Dotz appears to contend
that he was intoxicated and that his intoxication either provides a basis for
challenging the sufficiency of the evidence because he was too intoxicated to
form intent to kill or constitutes a "new factor" justifying a
reduction of his sentence. He appears
to argue that his trial counsel was ineffective for not pursuing an
intoxication defense or arguing that intoxication was a mitigating circumstance
justifying an earlier parole eligibility date.
A jury convicted Dotz of
first-degree intentional homicide while armed.
The State presented evidence that his live-in girlfriend, Karen Kennedy,
was stabbed seven times in the bathroom of their home and died between 6:00
p.m. and 10:00 p.m. Dotz presented
an alibi defense. The State's witnesses
established that Kennedy left work between 8:00 p.m. and 8:30 p.m. and that she
lived approximately one-half hour from her work site. Another witness saw Dotz assist Kennedy in parking her car at
approximately 8:30 or 8:45 p.m.
Dotz's alibi defense
does not foreclose the possibility that he was the perpetrator. A video surveillance camera at a
neighborhood convenience store established that Dotz was in the vicinity at
9:47 p.m. Because the stabbing could
have occurred in a relatively short time span, the jury could reasonably find
that Dotz had ample opportunity to commit the crime.
The State also presented
evidence that Dotz had battered Kennedy two months before the killing. At that time, an officer advised her that he
should lock herself in the bathroom if Dotz attacked her again and she was
unable to flee the apartment. Kennedy's
body was found in the bathroom. A part
of Dotz's broken key was found on the floor outside the bathroom, the rest of
the key was still on his key chain. The
mirror on the outside of the bathroom door was broken and blood consistent with
Dotz's blood was found on the mirror.
When Dotz was
interviewed by the police, he had swollen knuckles on his right hand and scrapes
on his left wrist and right elbow. The
police found a broken metal watchband on the floor outside the bathroom. Dotz initially denied it was his. A surveillance camera at a neighborhood
convenience store showed him wearing a watch with a metal wrist band at 7:23
p.m. that evening. At trial, Dotz
admitted the watchband was his. The
State contends that the scrape on Dotz's wrist occurred when Kennedy grabbed
the watch and broke it during the struggle.
Dotz testified on his
own behalf. His testimony was impeached
with numerous instances of inconsistent statements given to the police and
contradictions with the testimony of neighbors who had no obvious motive to
falsify. Dotz denied moving Kennedy's
car although two witnesses saw him drive her car. He denied arguing with Kennedy on the day of her death although
three witnesses testified that they heard arguments between them. The prosecutor succeeded in portraying
Dotz's numerous stops at business establishments as an effort to create an
alibi.
A reviewing court must
construe the evidence in the light most favorable to the verdict and affirm the
conviction unless it can be said as a matter of law that no trier of fact
acting reasonably could be convinced of guilt beyond a reasonable doubt. See State v. Koller, 87
Wis.2d 253, 266, 274 N.W.2d 651, 658 (1979).
The evidence presented by the State was sufficient to establish beyond a
reasonable doubt that Dotz intentionally killed Kennedy.
The trial court properly
exercised its sentencing discretion when it sentenced Dotz to life imprisonment
with parole eligibility on July 21, 2035.
The court specifically considered the brutality of the crime, Dotz's
past history of domestic violence and unstable behavior, and the risk Dotz
posed to women in the community. There
is no basis for challenging the exercise of the sentencing court's
discretion. See State v.
Saribia, 118 Wis.2d 655, 673, 384 N.W.2d 527, 537 (1984).
Dotz's trial counsel was
not ineffective for presenting an alibi defense rather than an intoxication
defense. To establish an intoxication
defense, Dotz would have had to be so intoxicated that he was unable to
distinguish right and wrong or to form the intent to kill. See § 939.42, Stats.
It would not be enough for Dotz to show that he was under the influence
of alcohol. Rather, he must show that
degree of intoxication that means that he was utterly incapable of forming the
intent to kill. See State
v. Guiden, 46 Wis.2d 328, 331, 174 N.W.2d 488, 490 (1970). The witnesses who observed Dotz near the
time the crime was committed and the physical evidence do not support an
intoxication defense. Trial counsel's strategic
decision to pursue an alibi defense instead is not subject to challenge on
appeal. See Strickland v.
Washington, 466 U.S. 668, 690 (1984).
It is not reasonable to present both an alibi and an intoxication
defense, in effect telling the jury "I didn't kill her, I wasn't even
there, and even if I killed her I was too drunk to form intent at that
time."
Dotz's intoxication does
not constitute a new factor justifying a sentence modification. A "new factor" is a fact or set of
facts highly relevant to the imposition of sentence but not known to the trial
judge at the time of sentencing either because it was not then in existence or
because, even though it was then in existence, it was unknowingly overlooked by
all of the parties. See State
v. Ambrose, 181 Wis.2d 234, 240, 510 N.W.2d 758, 761 (Ct. App.
1993). A new factor must be one that
frustrates the purpose of the original sentence, something that strikes at the
very purpose of the sentence. State
v. Michels, 150 Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App.
1989). The record does not establish
that Dotz's intoxication was unknowingly overlooked by the parties at the time
of sentence or that it was highly relevant to the sentencing decision or
frustrates the purpose of the original sentence. His intoxicated condition does not reduce the brutality of the
crime, improve an assessment of his character or reduce the risk he poses for
society. Dotz exercised his right of
allocution by continuing to deny his guilt.
His counsel could not have credibly argued that intoxication mitigated
the offense under these circumstances.
Our independent review
of the record discloses no other potential issues for appeal. Therefore, we relieve Attorney Thomas E.
Hayes of further representing Dotz in this matter and affirm the judgment of
conviction.
By the Court.—Judgment
affirmed.