*1 error, in error. State, Defendant Lofton, Plaintiff on, March Submitted No. 76-015-CR. briefs 8, 1978. 6, 1978. Decided June reported 576.) (Also W. 2d 266 N. *4 plaintiff For the in error the cause was submitted on Eisenberg, public of Howard B. de- briefs state public fender, Lukoff, and Mark assistant state defender. For the defendant error the cause on was submitted attorney general, Follette, the brief of Bronson C. La Magee-Heilprin, general. attorney and Pamela assistant BEILFUSS, J. The C. that the contends complaint support did not sufficient facts to state charge degree murder; of first that sufficient evidence presented preliminary hearing support at support charging a bindover or to the information first degree testimony murder; and that at the of trial close county granted court should have the motion to dis- ground miss on sufficient evidencehad not been presented charge degree on first murder. In ad- argues dition, the defendant trial court should granted have a mistrial because of statements made prosecutor during stage closing the rebuttal of his argument; refusing that the trial court erred in in- jury struct the on the lesser included crime of homicide by negligent weapon; use she is entitled justice. to a new trial in the interest of argues complaint The defendant that allege is insuf- showing ficient because it fails to facts that she shot with the intent to kill. degree
The two elements first murder are that the defendant intended to kill the victim and that the de- fendant 940.01, caused the death of the Sec. victim. *5 challenge sufficiency Lofton does not Gloria Stats.1 only element; complaint of to the she second argues that to intent to kill. it failed show an alleges
City of Police Detective Beloit David Grenke complaint, part: in in 29, 1974, on about he was called to “That or December Beloit, Drive,
the Wisconsin, residence at 1802 Arbor Jossie White upon disturbance; his to a that reference residence, to arrival at the a was taken White this officer nearby backyard; they thereupon individual that saw an appeared with what to be a hole bullet his chest on to blood shirt and individual rushed said Hospital; according the Beloit to information from County Coroner of Rock also records Hospital, Beloit Mr. within of his ar- White minutes died ; rival hereupon “That this affiant commenced an extensive investigation possible to witnesses the incident at the residence; affiant this has interviewed one witnesses the disturbance indicated that who defendant, Lofton, engaged Gloria and her sister were argument in an with deceased and that said witness gun heard fire saw the flash of a between persons three heretofore mentioned, namely Lof- Gloria ton, deceased; her sister and the January 3, “That on 1975, affiant this interviewed another witness to said incident who indicated af- this argument fiant that there defendant, was an between the the deceased and sister; the defendant’s that said wit- immediately ness further indicated after that inci- dent, presence in the of others, the defendant indicated sorry that she was and that she didn’t mean to shoot the deceased.” First-degree “940.01 (1) murder. Whoever causes the death being another human person with intent kill that or another imprisonment. shall be sentenced to life “(2) chapter In this ‘intent to kill’ purpose means mental
take life of being.” another human *6 sufficiency
The this court tests standards which Elson, v. 60 State complaint in of the were reviewed 54, 57-58, (1973) 208 : N.W.2d 368 Wis.2d “By complaint a written ‘. . is statute, a criminal . constituting offense the of of the statement essential facts ex charged,’ 968.01, Stats., and in the case State sec. Seraphim 223, 161 (1968), rel. Evanow v. 40 Wis.2d meaning gave 369, this court common sense N.W.2d complaint certain the fundamental must answer statute in questions. page 230, it At is stated: charge? charged? When “‘What is isWho Why alleged place? is to have taken Where is offense charged? particular being person this . . . “Who [and] ’ says so ?” questions “The of the six sum answers to the above complaint contained “probable the test of in the ‘. . meet . must (1970), Ceci cause.”’ ex rel. Cullen v. State 443, 432, 175; 45 v. Becker Wis.2d State 173 N.W.2d (1971), 51 659, 188 449. Wis.2d N.W.2d “ complaint magistrate ‘A if a is sufficient fair-minded reasonably alleged justify could conclude that the facts charges proceedings further criminal and that are merely capricious. supra; not Jaben v. Sup. Ceci, State ex rel. v. Cullen (1965), United States 214, 224, 381 85 U. S. supra, 1365, Becker, 14 Ed.2d v. Ct. L. 345.’ State page at 663. testing “In complaint, both facts the reason- arising may able from inferences be looked to. facts “ complaint ‘A must state facts in them- sufficient admitting selves or sufficient to reasonable inferences are which probable Becker, establish cause.’ State v. supra, page at 662.” Applying standards, alleges these complaint we find the sufficient facts to an show intent to kill. Garcia State, 174, 73 183, Wis.2d 242 (1976), 919 N.W.2d we said: presumption “There that one intends the natural probable consequences Cydzik of his acts. State v. 683, (1973), 697, 60 211 Wis.2d N.W.2d 421. In cases first-degree murder, fact that the defendant shot part presumption victim a vital raises intent. his Smith v. State 304, (1975), 297, 303, Wis.2d N.W.2d 858." complaint,
In the instant Officer he Grenke stated that observed bullet hole in the and the victim victim’s chest hospital rushed to where he died within minutes Garcia, arrival. his As the fact that part body presumption was shot in a vital raises a of intent. presented defendant contends that the evidence at preliminary hearing support insufficient *7 finding
bindover support because the did evidence a probable felony of a cause that had been committed and argues that preliminary she committed She that it. hearing only a shows that was fired from the area in which standing, she and that linked was she never was gunshot. with the by
The standards
which this court reviews the evi-
preliminary
dence at a
examination to determine whether
it
finding
was sufficient
to
support
of the court were
Olson,
stated
State v.
575, 584, 250
Wis.2d
N.W.2d
(1977)
:
“The defendant
that the
at
contends
evidence adduced
hearing
preliminary
the
bindover
ing
support
insufficient
to
a
purpose
preliminary
for trial. The
of a
hear-
probable
is to determine if
cause,
there is
a reason-
probability,
felony
able
to believe a
has been committed
by the defendant.
scope
“The
appellate
sufficiency
of
review of the
of
the evidence
preliminary
adduced
hearing
at the
is set
Hussong
forth in State ex rel.
v. Froelich,
577,
62 Wis.2d
583,
(1974):
James testified shooting, victim, Lofton, the the the defendant and Irene sister, a the were in who was defendant’s involved series arguments during which White shoved against up defendant and sister the wall inside the her Eventually everyone residence at 1802 Arbor Drive. during argument and one the defendant and went outside standing by George White, step Irene were all about a away shouting Gladney each other. from but was heard paying much attention it. The three not kind were struggling talking Gladney and then and heard a and shot a Gladney saw flash in the middle of them. said Gladney flash was between and Irene. defendant shooting testified that after him defendant told “George got shot, just what that’s he needed.” Willie Edward testified that when he Garrette drove car driveway Irene, into he saw defendant, Gladney White, standing together Jossie and the victim arguing. and Garrette testified that Irene and the de- away fendant step facing were about a from and gunshot. him when Garrette heard a Garrette heard say, “Jossie, thought someone I didn’t it.” He mean defendant made that statement but he sure.
Philip Berg testified that the summer he of 1974 purchased gun gave Titan a automatic .25 caliber it to the 30, 1974, He on defendant. testified that December approximately a.m., at 11:30 the defendant and Ruth Lofton, sister, gave another came to his house and him a candy containing gun Valentine wrapped box newspaper clip containing and a several shells. He said gave explained Ruth him the box that there had been party argument during and an which had been Gloria by George Berg knocked unconscious told White. Ruth gun Berg there had and that it been went off. nothing testified defendant had said to him happened. about what had together,
Taken this evidence shows that White was by a caliber and that the possessed shot .25 defendant gun. Furthermore, such evidence shows that proximity in close to the victim at the time shooting got. of the that he said deserved he what might have did not said mean to She she shoot him. addition, arguing she with the had victim. This provides probable felony evidence cause believe that a and that had been committed Gloria Lofton probably had it. committed *9 charging argues information
The defendant the degree because have dismissed murder should first hearing produced preliminary did in the the evidence argues that charge. the defendant support Again, the hearing preliminary was produced the at evidence George had to that she shot White insufficient show kill. him the intent to that she with shot attorney permitted to an information A file district is charges at containing the facts adduced such must The information preliminary examination warrant. brought preliminary upon on out be based facts at find that evidence adduced examination.2 We support to preliminary examination is sufficient degree As charge the information. murder of first above, at sufficient evidence indicated there was finding support probable preliminary examination felony. the defendant had committed cause preliminary addition, sufficient evidence at there was hearing support information for first the issuance of degree murder there evidence that because gunshot fact of a to the chest. The wound died body part that he a vital of his sufficient was shot presumption to raise a that the defendant shot him with State, supra. the intent Garcia v. to kill. alleges
The defendant the trial court erred in not dis- missing the information at the conclusion of the testi- mony sup- there no because evidence in the record port the element of intent kill. Filing (1) attorney “971.01 The district information. any all facts shall examine and circumstances connected with
preliminary
touching
any
examination
the commission of
crime if
and,
has
subject
been bound over
trial
for
970.-
to s.
03(10),
according
an
shall
information
file
to the evidence on such
subscribing
examination
his name thereto.” See also: Mark v.
State,
377, 383-84,
(1938).
228 Wis.
There evidence that was the bullet that killed fired from the pistol White was .25 caliber automatic by gun defendant; eigh- owned to six body fired; teen inches from White’s when it was eight pounds pull required trigger were for discharge gun. to arguments
There was evidence of a series of between George sisters-in-law, White and two the defendant pushing and Irene Lofton. had White both of them ground. and knocked Irene Story testified when Scott he saw muzzle flash appeared from what be a and when he heard a facing George Story shot the defendant was White. that the muzzle flash from the testified came direction defendant. shooting he Gladney that after testified James wrong.” say, “George thought heard he Gloria him Gladney and Irene that the defendant asked said driving the defendant and while he was take them home got George he needed. what if that’s said shot arguments with a series The defendant testified during and knocked White struck which White that outside the testified her and She both Irene. down against her and threw her the chest house White hit leg, attempted in the to kick him an car. When she old around, hit caught collar, shoved her her *11 top of a car. her on When in the head and threw her approached Irene, and the left her White keys. her she purse for When her and found looked gun purse that she found the had reached in her Berg gave took out it to her. She said she there since that going to it to see if pistol to White and show was get her car that could make him move so she would his pistol approached with the leave. White car out and She around, it and and, he turned he saw at her when side gun They reaching it. scuffled over the for started trying to take the and forth shook her back White they scuffling quit hit her After out of her hand. White on the she struck head head, on her and when was she hit fell backward After she was she heard little noise. driveway. neighbor’s out for few She blacked into regained White and when she consciousness seconds if to directly standing with his foot raised as over her ran. Then turned and stomp in the White her stomach. that that had been at time not realize She did shot. light
Considering in the most favorable this evidence rationally considered, state, if it believed to the were guilty prove the defendant of first it was sufficient The degree beyond doubt. defend- murder a reasonable having' gun. Story ant admitted Scott saw the muzzle Again, flash come from the direction of the defendant. part the fact that the victim body in the was shot vital presumption creates rebuttable de- fendant shot with intent to kill. prosecutor
The defendant next contends argument impermissible his rebuttal made an comment upon her failure to come with evidence in viola- forward right against tion of her Fifth Amendment self-incrimi- nation.
During argument jury prose- his rebuttal following statement, cutor made the recon- later presence jury: structed out of the Story “At least Mr. came forward with what he be- point lieved was the truth. And here’s where the comes in, several, more that’s than the defendant who wanted Story who needed several more months than Mr. again.” then lied attorney When statement made the defense im- mediately objected and the court the de- stated obligated any- fendant was not to come forward with thing. jury attorney was excused and the defense improper moved for a mistrial on the based comment attorney jury of the district asked infer *12 something improper from her assertion of her constitu- right. prosecutor argued tional The that his comments only regard testimony. were to her The court trial the motion a denied for mistrial but jury upon instructed the its return that the defendant necessarily presumed in a criminal case is innocent and proving guilt the state had the burden the of a de- any alleged beyond fendant of offense a reasonable required doubt. The court the defendant added anything anything. admit or come with forward The prosecutor argument. then continued with his rebuttal
486 argues appeal prosecu the that the defendant
On this
right be
violated her Fifth Amendment
comment
tor’s
solely
did not
to the
point
it
directed
she
cause was
sup
To
trial.
come forward with her statement before
right
argument
Amendment
port her
that her Fifth
against
relies on
was violated
self-incrimination
she
;
v.
Doyle
Ohio,
(1976) United States
v.
610
U.S.
1974);
(D.
United
Anderson,
C.
The four federal the defendant cases cited regard questions or were concerned with comments silence or failure to individual defendant’s answer questions at the instant time of his In the case arrest. gave day police Gloria Lofton on the statement shooting. of the denied that who she knew shot She George she White. denied she shot holding At the trial she was she admitted heard a when she noise. testimony Story important of Scott to the
state he because stated that he a muzzle flash come saw give Story the direction from defendant. did not eight the police statement until months after shooting.
Contrary argument by defendant, prose- to the during argument comment cutor’s the rebuttal was not
487 prosecutor aimed at the defendant’s silence. The was arguing Story testimony the Scott was more testimony credible than the because he defendant did not wait until trial to truth. tell Unlike situa- Doyle cases, prosecutor tion in other federal commenting upon not at the time defendant’s silence right The of her arrest. defendant’s Fifth Amendment against self-incrimination not and she is not violated entitled to a new trial on the of the at- district basis torney’s statement. argues
The defendant is entitled to a new trial she jury because trial court had failed instruct on by negligent weapon. homicide use of a jury court instructed the on the first and second degree by murder and homicide conduct. The reckless requested give court an instruction on by negligent weapon homicide use of the court but testimony refused. The court not think that did negligent had been adduced constituted of a use weapon.
The standard which to determine to in whether jury on struct included lesser offense has been Day in State, stated v. 756, 759, 55 201 Wis.2d N.W.2d citing (1972), Anderson, 42 557, 560, State v. 51 Wis.2d (1971) Bergenthal, N.W.2d 335 and State 668, 675, 168 (1970) Wis.2d N.W.2d 16 : determining charged “The test or standard for when lesser de- grees of homicide than that are to be submitted jury clearly has stated be: “ justify submitting degrees ‘To lesser of homicide charged than that in the information, must there be a ground reasonable acquittal the evidence for on the greater charge charge and for conviction on the lesser does “ ‘ “The suggest key word some near automatic the rule is ‘reasonable.’ The rule inclusion all *14 options to a additional included offenses but as lesser different, Only jury. a but reasonable if ‘under view/ guilt the lower to of establish evidence is sufficient to degree some a reasonable and also leave doubt degree higher but not particular in the element included lower, crime also be submitted should lesser ’ ” jury. . .”. by crime defined of homicide reckless conduct is 940.06, provides: Stats., in sec. which “(1) human death of another Whoever causes the being by may than be not more reckless conduct fined years or $2,500 both. imprisoned or not more than “ (2) of creates Reckless conduct an act which consists high probability and of a of risk situation unreasonable great bodily demon- or harm to another and which death safety disregard a for of another strates conscious willingness perpetrating and a to take known chances of injury. an It intended this definition embraces is all of the what heretofore known as of elements gross negligence in criminal law of Wisconsin.” by negligent
The crime of homicide of vehicle use or 940.08, weapon Stats., provides: defined is in sec. which “(1) Whoever death of another human causes being by high negligence degree operation of a in the or handling firearm, vehicle, of a knife or airgun, bow may $1,000 imprisoned be than arrow fined not more or county year jail than one not more or both. “(2) high degree negligence A is conduct which negligence ordinary high degree, demonstrates sisting a death or con- person act of an which should realize creates high probability risk and situation unreasonable great bodily harm another.” support instant case for either or both of these instructions would have be in the de- found testimony. argu- fendant’s testified to She a series of involving George Irene ments herself, Lofton and White. being pushed She also that she and Irene testified were by hit Into White. this situation the intro- weapon in an duced she held the murder when attempt to convince White to move car. testimony
On oí her the defendant basis own high proba- created risk situation unreasonable great bodily bility of death harm to another. This or by an much element of conduct both homicide reckless by negligent weapon. However, and homicide use of a wielding gun in the defendant demon- this situation *15 negligence degree— ordinary high strated more than a disregard safety she demonstrated a for the of conscious willingness per- and another a of to take known chances petrating injury. people not a of This was situation calmly discussing casually examining problem a and a weapon. It because is of violent in which situation brought gun the defendant out the her actions consti- degree negli- high tute reckless conduct than a rather of gence.
Because of the situation that the de- existed when brought view, fendant a into there rea- was ground charge sonable acquittal in the evidence for on a by of homicide conduct and for on conviction reckless charge negligent a by of weapon. homicide of a If use jury believed the defendant it her of could convict by homicide in reckless conduct. There no room negligent by evidence for a of conviction homicide weapon. a use of Therefore the trial court acted cor- rectly give refusing the instruction on homicide negligent weapon. use of a
Finally, requests the defendant a of her con- reversal justice. viction in the of interest This court stated: grant justice “In order to a trial new in the interest of under 251.09, Stats., convinced, sec. this court must be
viewing whole, the record as a there has a miscarriage justice trial would probable that a new of or 683, State, Rohl v. a Wis.2d lead to different result.” (1974). 703, 223 N.W.2d charged with In the instant case degree by reck- homicide and convicted of first murder any fails to conduct. A of the record show review less miscarriage justice or finding probable for basis that a new to a different result. trial would lead
By Judgment order affirmed. Cowrt.— (concurring). ABRAHAMSON, In J. its discussion allege complaint facts of Lofton’s claim that the failed to an intent to kill evidence sufficient show hearing regarding produced preliminary intent in the charge, support and at trial was insufficient majority presumption “there rules invokes consequences probable that one the natural and intends murder, first-degree acts” that “in cases part the fact that the defendant his victim in a vital shot presumption raises intent.” “presumption” many ways term in the is used using pre- case at bar the court is the word law. *16 reasoning may sumption process to of describe present. fact to lead the trier of conclude intent was using presumption in a For other man- cases similar ner, 612, McCarter, 608, see State 36 153 Wis.2d (1967); 305, State, 297, 527 Smith v. 69 N.W.2d Wis.2d (1975). 230 858 N.W.2d saying logically and
The court trier of fact a is correctly may requisite intent from the defend- find conduct, requires ant’s words law or because using ordinary finding, jurors rea- such but because soning may determine the defendant’s or con- words probative inferentially requisite are duct intent. Thus, case, in the instant conclude that we the evidence
491 concerning words and behavior was sufficient Lofton’s beyond prove intent to kill a reasonable doubt. to interpreted majority opinion ap- The not be should language” proving “presumption appears in a which Jury number of the Uniform Criminal de- Instructions fining language intent.1 I. the element of J.Wis. Degree typical: Murder, —Criminal First 1100, 1 Report Jury According In Criminal Uniform Judges, structions Court dated Committee to Criminal Wisconsin Sept. language following 30, 1977, appears in the criminal such jury instructions: Degree Murder; 1100 1st not in Issue Cause Degree Murder; 1102 1st Cause Issue Attempted Degree 1105 1st Murder 1125 Abortion Manslaughter; 1135 Heat of Passion Manslaughter;
1145
In Exercise of Self-Defense
Assisting
1195
Suicide
n 1220
Battery
Battery
.1225
to a Police Officer
Aggravated Battery
1240
n 1265 Abandonment
Highway
1302
Obstruction
Giving
1316
Alarm
False
System
1317
Interference with Fire Alarm
1318
Fire-Fighting
Interference with
Fire-Fighting
1319
Equipment
Interference with
1326
Sale
Pistol Minor
Explosives
Purpose
1350
Possession of
for Unlawful
Administering Dangerous
Stupefying Drug
1352
or
1380 Defamation
Damage
Property
1400 Criminal
1404 Arson
1405 Arson to Defraud an Insurer
Arson,
Building
than a
Other
Theft
Theft
Fraud
(Threat
Crime)
1473A Extortion
to Acuse of
1473B
(Threat
Injure)
Extortion
Shoplifting
(cid:127)1498
*17
a fact be-
intent
to kill must be
as
“While this
found
you
guilty
fore
can
the defendant
of murder in
find
degree,
all,
his
found,
first
it must
if found at
from
be
bearing upon
statements,
any,
if
acts
his words
intent. You cannot look into a
mind to find
man’s
pre-
out his intent.
are no
When there
circumstances
presumption,
presumes
vent or
reasonable
the law
that a
rebut
person
natural, probable,
intends all
consequences
per-
usual
his deliberate acts.
one
If
(assaults
violently
dangerous weapon)
son
another
awith
(administers poison) likely
kill,
person
to
therefrom,
thus
and the
(assaulted)
(poisoned)
then,
dies
when there
are
prevent
no
presump-
circumstances
or
rebut
tion,
legal
presumption
and natural
is that death was
(Emphasis
intended.”2
added.)
This
approved
Court has
instructions which include
“presumption language”
the above
cases,
in a
number
open
question.3
but
continued
its
use is
First,
language may
satisfy
requirements
of sec. 903.03
concerning
This instruction
probable
“the natural and
con
sequences”
knowingly
knowingly
of acts
or
done
committed has
become
taking
as a
instruction,
known
“Mcmn”
its name from the
giving
case
error,
where
of the instruction was held to be
requiring
though
objection
reversal
a conviction even
no
raised at
States,
trial. Mann v.
(5th
United
493 Second, (3), Evidence.4 as Wis. Rules of words such jury’s “presume,” rea- “infer” and which describe the jury soning telling not the process, may be useful plati- quoted it . . tterance of the what do. “. must [U] the purpose, tude insofar state- no since as does useful any- logical validity jury it ment the would know has how.”5 language” increasingly “presumption
Courts view the may jury unnecessary prejudicial. The confusing, as believing question it whether the is misled into before be had similarly have person situated would reasonable requisite the the rather than whether intent, may language be actually requisite intent. The the had prov- relieving prosecution of the burden read as beyond a reasonable ing each element of offense If the shifting to the defendant.6 the burden doubt and creating impression that as instruction is construed 4 provides: 903.03(3), Wis. Rules of Evidence Sec. “(3) the existence Whenever THE INSTRUCTING JURY. jury, the against to the presumed accused is submitted fact jury that the judge declares give an instruction that law shall presumed may regard evidence of as sufficient the basic facts presumed require addition, if it to do so. fact but does not negatives guilt or of the offense fact or is an element established must, judge jury defense, that its shall instruct existence beyond proved evidence, a reasonable doubt.” on all be 5 (2d 1966). 395, Barash, 402 Cir. v. 365 F.2d United States 6 Robinson, 1976); (2d 301 Cir. United v. 545 States F.2d United (2d Barash, 1966); 395, United States 365 F.2d 402 v. Cir. States 149, (2d 1975); Bertolotti, v. 159 Cir. United States 529 F.2d (5th 1973); 439, v. Littl Bristol, 443 Cir. United States 473 F.2d States, McCarty (8th 1976); ebear, 896, v. United Cir. 531 F.2d 898 States, (10th 1969); 793, 378 Cohen v. United 799 Cir. 409 F.2d denied, 751, (9th 1967), also cert. 389 897. 755 U.S. See F.2d Cir. Jury Instructions, cmd Federal 1 Practice Devitt Blackmar’s 1977). (3d sec. 14.13 ed. (1971) Wells, 477, 489, 328 State v. Wis.2d N.W.2d Cf. opinion). (dissenting persuasion disprove defendant has the burden may element error be crime,
an of a constitutional claimed.7 majority opinion not issue does address language” “presumption on the
whether in an instruction inter- valid, element of intent and it be should preted language. approving such
I Hef- have authorized to that Mr. state Justice concurring join fernan and Mr. Justice Callow in this opinion. error, Plaintiff in Defendant
Simpson, error. State, v. Argued February 8, 1978. No. 76-038-CR. 6, 1978. DecidedJune (Also reported 270.) in 266 W. 2d N. 7 Mullaney Wilbur, (1976); U.S. Patterson v. New
York,
(1977).