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COURT OF APPEALS DECISION DATED AND RELEASED October 30, 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. 95-2624-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TROY KEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Troy Key appeals from a judgment of conviction of
first-degree homicide. He argues that
the jury instruction contained errors on the elements of self-defense, that
plain error occurred with respect to certain evidentiary matters and trial
counsel's request for a circumstantial evidence instruction, and that his
motion for dismissal should have been granted because the prosecution failed to
prove intent to kill. We reject his
claims and affirm the judgment.
Key stabbed bartender
Rick Blundon as Blundon was escorting Key from a bar. Key had been involved in a fight at the bar earlier in the
evening which Blundon had broken up. Key
had returned to look for something, and Blundon was expelling him and telling
him to never come back to the bar. As
Key had one hand on the door, he swung backward with his free hand. He made contact with Blundon's chest. Blundon realized he had been stabbed and
sought assistance. Blundon died from
the single stab wound because the knife pierced his heart.
Key argues that the jury
was misguided when the trial court omitted references in the jury instruction
to the requirement that the defendant reasonably believed that he was
preventing or terminating an unlawful interference with his person. He contends that the jury was led to believe
that it was not necessary to consider whether Key was preventing or terminating
an unlawful interference with his person, a mitigating circumstance in the
entire crime.
In his presentation of
this issue, Key has misrepresented the trial court's action with respect to the
jury instruction on self-defense.[1] Key's brief would lead us to believe that
the trial court sua sponte modified the pattern instruction on
self-defense. In fact, the trial court
gave the pattern instruction published at the time of Key's trial, November
1993.[2] See Wis
J I—Criminal 1017 (1991). The
defect in Key's argument is that he compares the instruction given to the
pattern instruction published in 1994 which accounts for the decision in State
v. Camacho, 176 Wis.2d 860, 501 N.W.2d 380 (1993). See Wis
J I—Criminal 1017
(1994).
There was no objection
at trial to the giving of the then published pattern instruction on
self-defense. Key has waived his right
to object to the instruction given. State
v. Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988).
Even though the
instruction given did not instruct on the objective threshold element of
self-defense recognized in Camacho, Key was not prejudiced by the
omission. The instruction used in Key's
case reflected that any actual, subjectively held belief by the defendant of
the need to act in self-defense mitigated an intentional homicide, whether or
not that belief was reasonable. Camacho
held that the purely subjective view was incorrect.[3] The jury instruction was revised to reflect
this holding by adding the phrase where needed "that the defendant
reasonably believed that he was preventing or terminating an unlawful
interference with his person."[4] See Committee Comment, Wis J I—Criminal 1017, at 13 n.13
(1994). As the comment to the instruction explains,
because the instruction emphasizes what the State must do to establish guilt,
the addition of the threshold requirement "gives the [S]tate another
option in meeting its burden to prove that the defendant was not acting under
the mitigating circumstances referred to as imperfect self-defense." Id. Thus, the instruction used in Key's case was more favorable to
him. The language Key suggests should
have been included actually gives the prosecution another avenue of disproving
self-defense by demonstrating that Key could not reasonably believe that he was
terminating an unlawful interference with his person. See id.
The error, if any, was harmless.
Under the plain error
rule, § 901.03, Stats., Key
contends that trial counsel's failure to object to the presentation to the jury
of his "mug shot," failure to object to testimony of bar patron David
Duranceao, stipulation to blood and hair lab results, and request for a
circumstantial evidence instruction contributed to a lack of reliability in the
trial.[5] He claims that these errors distracted the
jury from the real issue of whether intent to kill existed.
Plain error is one that
is so fundamental that a new trial must be granted. State v. Vinson, 183 Wis.2d 297, 303, 515 N.W.2d
314, 317 (Ct. App. 1994). The error
must be both obvious and substantial, and there must be a likelihood that the
error has deprived the defendant of a basic constitutional right. Id. Key does not suggest any constitutional dimension to the
individual errors he raises. Rather,
his argument is that the combination of errors deprived him of his right to a
fair trial. We disagree.
Key's "mug
shot" was admitted as part of the photo array shown to a witness. Key argues that publication of the photo to
the jury was highly prejudicial because it suggested that Key had been arrested
before. The jury was not, however,
given the sole impression that Key's photo was available because he had been arrested
before or had prior convictions. On
cross-examination, the detective who displayed the photo array explained that
the photos in the array could have been taken for purposes other than arrest,
i.e., the person was a cab driver or bartender. Moreover, identity was not an issue. Key's theory of defense was that he lacked intent to kill. The photo did not bear on that issue.
Duranceao testified that
after a fight between Key and another man had been broken up by the victim,
another bar patron said, "[L]et's get out of here before he comes back
with a knife or a gun." Key argues
that the statement was highly prejudicial.
The record reflects that Duranceao's testimony was a surprise to the
prosecution because it was not responsive to the question posed about whether
anyone made any racial slurs during the fight incident. The statement was also ambiguous as to who
might come back with a knife or gun.
The prosecution made no attempt to use the statement to suggest that Key
had a propensity to use a knife or gun.
There was no highly prejudicial error from admission of the statement.
At trial, the jury heard
a stipulation regarding results of lab tests on blood stains and hair on a
towel found in Key's car. Key argues
that because the stipulation implied that the blood and hair were that of the
victim, the stipulation was highly prejudicial. Although the stipulation indicated that the victim could have
been a source of the blood and hair recovered on the towel, it explicitly
indicated that the lab results were inconclusive. The lab results did not prejudice Key on the disputed element of
intent to kill.
Key's
final claim of plain error is trial counsel's request that a circumstantial
evidence instruction be given because the wound-inflicting knife was never
recovered. Key contends that the
instruction aided the prosecution in proving its case and waived his right to a
jury trial on the issue of whether he was in possession of a dangerous weapon.
The plain error rule
does not apply to the claim of instructional error as it is restricted to
evidentiary questions. Schumacher,
144 Wis.2d at 402, 424 N.W.2d at 677.
However, the instruction was warranted by the evidence, and the trial
court properly exercised its discretion in giving the instruction. See State v. Vick,
104 Wis.2d 678, 690, 312 N.W.2d 489, 495 (1981) (trial court exercises
discretion in issuing jury instructions based on the facts and circumstances of
the case). Moreover, the instruction
did not take from the jury the determination of whether Key was in possession of
a dangerous weapon. The instruction
made no specific reference to there only being circumstantial evidence as to
the possession of a knife.
Each of Key's claims of
plain error lacks merit. The collective
effect of the non-errors does not give rise to plain error. See Mentek v. State, 71
Wis.2d 799, 809, 238 N.W.2d 752, 758 (1976).
Key makes an additional
claim of evidentiary error. He argues
that the admission of autopsy photographs was more prejudicial than probative.[6] Whether photographs should be seen by the
jury is a discretionary determination for the trial court. State v. Thompson, 142 Wis.2d
821, 841, 419 N.W.2d 564, 571 (Ct. App. 1987).
The trial court's decision should be guided by consideration of whether
the exhibit will aid the jury in proper consideration of the case, whether a
party will be unduly prejudiced by the exhibit's submission, and whether the
exhibit could be subjected to improper use by the jury. See State v. Jensen,
147 Wis.2d 240, 260, 432 N.W.2d 913, 921-22 (1988). We will uphold the trial court's discretionary determination
unless it is wholly unreasonable or the only purpose of the photographs is to
inflame and prejudice the jury. Thompson,
142 Wis.2d at 841, 419 N.W.2d at 571.
Here, the trial court
determined that although Key did not dispute that the cause of death was a
knife, the manner in which the wound was inflicted, its depth and shape, and
the force necessary to inflict it were relevant to whether there was an
intentional homicide. It found that
each photograph had probative value that outweighed its prejudicial
effect. Indeed, efforts were made to
reduce the prejudicial effect by cropping one of the photographs to eliminate
the victim's face.
We conclude that the
trial court engaged in the proper balancing.
Under § 904.03, Stats.,
relevant evidence may be excluded "if its probative value is substantially
outweighed by the danger of unfair prejudice ...." This balancing test first requires that the
trial court determine the probative value of the evidence, which is generally a
product of the relevance and need for the evidence in the context of the
trial. See Daniel D. Blinka, Wisconsin Evidence 91 (1991). Here, the prosecution was obligated to prove
all elements of the crime. See State
v. Plymesser, 172 Wis.2d 583, 594, 493 N.W.2d 367, 372 (1992) (prosecution
must prove all the elements of a crime even if the defendant does not dispute
all the elements). Moreover, the nature
of the wound was particularly relevant to the element of intent in terms of
force and effect of use of the knife.
The balancing test of
the probative value and danger of unfair prejudice favors admissibility. See Lievrouw v. Roth,
157 Wis.2d 332, 350, 459 N.W.2d 850, 856 (Ct. App. 1990). "Unfair prejudice does not mean damage
to a party's cause. ... Rather, unfair
prejudice results where the proffered evidence ... would have a tendency to
influence the outcome by improper means ...." State v. Mordica, 168 Wis.2d 593, 605, 484 N.W.2d
352, 357 (Ct. App. 1992) (citation and quoted source omitted). The trial court considered whether the
gruesome nature of the photos would unduly influence the jury and determined
that it would not. The trial court
properly exercised its discretion in admitting the autopsy photos.
Key's final argument is
that the evidence was insufficient on the element of intent to kill. He contends that the prosecution failed to
establish his subjective awareness that death was practically certain to result
because the prosecution never established that he intended to stab the victim
in the heart. Our review of the
sufficiency of the evidence is to determine whether the evidence, viewed most
favorably to the State and the conviction, is so insufficient in probative
value and force that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Ray, 166 Wis.2d 855,
861, 481 N.W.2d 288, 291 (Ct. App. 1992).
It was not necessary for
the prosecution to prove that Key intended to stab the victim in the
heart. Intent may be inferred from the
act of stabbing another, particularly in the chest area. Zebrowksi v. State, 50 Wis.2d
715, 722, 185 N.W.2d 545, 549 (1971). See
also State v. Dix, 86 Wis.2d 474, 483, 273 N.W.2d 250, 254
(presumption of intent to kill when there is an assault with a deadly weapon), cert.
denied, 444 U.S. 898 (1979).
There was medical
testimony that the victim suffered a stab wound to the center of his chest
which nicked the heart. It was opined
that a moderate to great force was used in the stabbing. Further, several witnesses testified that
Key was looking at the victim when he struck at his chest. It was for the jury to determine the weight
of the contrary testimony which Key relies on as exhibiting a lack of intent. We must accept the reasonable inferences
drawn from the evidence by the jury. See
State v. Poellinger, 153 Wis.2d 493, 506-07, 451 N.W.2d 752,
757-58 (1990). Here, the evidence
supports an inference that Key acted with intent to kill.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Appellate counsel's misrepresentation surpasses the bounds of advocacy. It violates SCR 20:3.3 (1996).
[2] The pertinent
portions of the instruction as given are as follows:
As applied to this case, the effect of the law of self-defense
is that if the defendant reasonably believed the force used was necessary to
prevent imminent death or great bodily harm to himself, the defendant is not
guilty of any homicide offense.
If the defendant caused the death of Ricky A. Blundon with the
intent to kill and actually believed the force used was necessary to prevent
imminent death or great bodily harm to himself, but the belief or the amount of
force used was unreasonable, the defendant is guilty of second degree
intentional homicide.
If the defendant caused the death of Ricky A. Blundon with the
intent to kill, and did not actually believe the force used was necessary to
prevent imminent death or great bodily harm to himself, the defendant is guilty
of first degree intentional homicide.
....
The third element requires that the defendant did not actually
believe the force used was necessary to prevent imminent death or great bodily
harm to himself. This requires the
State to prove either:
One, that the defendant did not actually believe that he was in
imminent danger of death or great bodily harm; or:
Two, that the defendant did not actually believe that the force
used was necessary to prevent imminent danger of death or great bodily harm to
himself.
While first degree intentional homicide -- when, or rather when
first degree intentional homicide is considered, the reasonableness of the
defendant's belief is not in issue. You
are to be concerned only with what the defendant actually believed, whether the
belief is reasonable is important only if you later consider whether the
defendant is guilty of second degree intentional homicide.
If you are satisfied beyond a reasonable doubt that the defendant caused the death of Ricky A. Blundon, with the intent to kill, and that the defendant was not acting with the actual belief that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of first degree intentional homicide.
[3] In State v. Camacho, 176 Wis.2d 860, 881, 501 N.W.2d 380, 388 (1993), the court held that in order to prevail with a claim of self-defense, the defendant must show as an objective threshold element a reasonable belief that he was preventing or terminating an unlawful interference with his person.
[4] Portions of the
revised instruction corresponding to those portions of the instructions given
as quoted in note 2 are reprinted here.
The additional language is noted by italics.
As applied to this case, the effect of the law of self-defense
is that if the defendant reasonably believed that he was preventing or terminating
an unlawful interference with his person and reasonably believed the force
used was necessary to prevent imminent death or great bodily harm to himself,
the defendant is not guilty of any homicide offense.
If the defendant caused the death of (name of victim)
with the intent to kill, reasonably believed that he was preventing or
terminating an unlawful interference with his person, and actually believed
the force used was necessary to prevent imminent death or great bodily harm to
himself, the defendant is guilty of second degree intentional homicide.
If the defendant caused the death of (name of victim)
with the intent to kill and did not reasonably believe that he was
preventing or terminating an unlawful interference with his person, or did
not actually believe the force used was necessary to prevent imminent death or
great bodily harm to himself, the defendant is guilty of first degree
intentional homicide.
....
The third element requires that the defendant did not reasonably
believe that he was preventing or terminating an unlawful interference with his
person or did not actually believe the force used was necessary to prevent
imminent death or great bodily harm to himself. This requires the State to prove any one of the following:
1) that
the defendant did not reasonably believe he was preventing or terminating an
unlawful interference with his person; or
2) that
the defendant did not actually believe he was in imminent danger of death or
great bodily harm; or
3) that
the defendant did not actually believe the force used was necessary to prevent
imminent danger of death or great bodily harm to himself.
When first degree intentional homicide is considered, the
reasonableness of the defendant's believe is an issue only with respect to
the belief that the defendant was preventing or terminating an unlawful
interference with his person. The
reasonableness of that belief must be determined from the standpoint of the
defendant at the time of his acts and not from the viewpoint of the jury
now. The standard is what a person of
ordinary intelligence and prudence would have believed in the position of the
defendant under the circumstances existing at the time of the alleged offense.
With respect to the belief that the unlawful interference
presented an imminent danger of death or great bodily harm and the belief that
the force used was necessary to prevent or terminate such danger, the
reasonableness of the belief is not an issue.
You are to be concerned only with what the defendant actually
believed. Whether these belief[s] are
reasonable is important only if you later consider whether the defendant is
guilty of second degree intentional homicide.
If you are satisfied beyond a reasonable doubt that the defendant
caused the death of (name of victim) with the intent to kill and that
the defendant either did not reasonably believe that he was preventing or
terminating an unlawful interference with his person or did not actually
believe that the force used was necessary to prevent imminent death or great
bodily harm to himself, you should find the defendant guilty of first degree
intentional homicide.
Wis J I—Criminal 1017 (1994).
[5] This issue is raised for the first time on appeal and should have been raised before the trial court in a postconviction motion raising either plain error or ineffective assistance of trial counsel. See State v. Smith, 170 Wis.2d 701, 714 n.5, 490 N.W.2d 40, 46 (Ct. App. 1992), cert. denied, 507 U.S. 1035 (1993). See also § 974.02(2), Stats.; State v. Monje, 109 Wis.2d 138, 153-54, 325 N.W.2d 695, 327 N.W.2d 641 (1982) (on motion for reconsideration) (only sufficiency of the evidence or issues previously raised may be appealed by filing a notice of appeal without a postconviction motion under Rule 809.30, Stats.). However, waiver may be overlooked if indeed plain error exists. See State v. Neuser, 191 Wis.2d 131, 140, 528 N.W.2d 49, 53 (Ct. App. 1995).