Defendant Stanton was convicted of first-degree murder, party to the crime, in violation of secs. 940.01 and 939.05, Stats. 1975, and of armed robbery, party to the crime, in violation of secs. 943.32(1) (a) and (2) and 939.05, Stats. 1975. He appeals from an order denying his sec. 974.06, Stats., motion as to the murder conviction. No appeal is taken from the armed robbery conviction. We affirm.
June 9, 1975 Ronald Schilling, Robert Zelenka and Stanton drove with Michael Posthuma to a rural area. Mrs. Posthuma testified that her husband had gone to make a marijuana deal with Schilling. Stanton and Schilling did not testify at their joint trial. They had given statements to the police which indicated a plan to knock out Posthuma and rob him, but no plan to kill him. Defendant unsuccessfully tried to knock out Posthuma with a hammer. After the first couple of blows, defendant was defending himself from Posthuma.
A pathologist witness could not tell whether the hammer blows were defensive or offensive. He saw signs of three hammer blows, one of which was a glancing blow. He said that two of the hits were made before the knife wounds he observed. One of the blows fractured Post-huma’s skull. The pathologist testified that the blows could have caused a person's death, although they were not the cause of Posthuma’s death.
There is no evidence that defendant had a weapon other than the hammer.
Schilling stabbed Posthuma twenty-four times. The cause of death was a knife wound. All twenty-four blows were made about the same time. Posthuma was left in the woods and the three men returned to Madison.
Defendant’s appellate counsel raises the following issues:
1. Should the jury have been instructed that Schilling’s state of mind could not be imputed to defendant to fulfill the intent requirements for holding defendant responsible for the crime committed by Schilling?
2. Did the trial court err in instructing the jury that it could find defendant guilty of directly killing Post-huma?
4. Should the trial court have instructed the jury that they must agree as to which, if any, mode of conduct proscribed by the party-to-the-crime statute describes defendant’s conduct?
5. Was defendant prejudiced by the law barring psychiatric evidence of Schilling’s capacity to intend to kill Posthuma ?
Defendant’s pro se brief raises the following issues:
6. Should the included offense of third-degree murder have been submitted to the jury?
7. Was the evidence sufficient to prove that Schilling intended to kill Posthuma? 1
1. A Party To The Crime Need Not Intend The Crime Committed
It is undisputed that Schilling, and not defendant, killed Posthuma. First-degree murder is the crime of causing the death of another human being with intent to kill that person. Defendant argues that to find him guilty of aiding and abetting the murder, the jury had to find that defendant himself intended Posthuma’s death. He concludes that the jury should have been instructed that Schilling’s state of mind could not be imputed to defendant, and that the two men could be convicted of different degrees of homicide, depending on their respective states of mind.
The defendant in
Asfoor
was convicted of aiding and abetting the crime of injury by negligent use of a weapon. The supreme court rejected his contention that an aider and abettor cannot be guilty unless it is shown that the crime which was committed was the crime which the aider or abettor intended to be committed. The court stated that the argument was refuted by
State v. Cydzik,
In State v. Cydzik, supra, we indicated clearly that one who intentionally aids and abets the commission of a crime is responsible not only for the intended crime, if it is in fact committed, but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts. Liability of this character is not limited to conspiratorsi. . .
Conceding that sec. 939.05, Stats. 1975, could bear a different construction, the
Asfoor
court found “no sufficiently clear intent [in the statute] to overturn long and widely accepted law, and the legislative history of the statute confirms that no such result was intended.”
Defendant suggests that the
Asfoor
court used language which confuses the aiding and abetting and the conspiracy subdivisions of sec. 939.05, Stats. 1975. He
Defendant argues that Asfoor is not controlling. He asserts that the facts in Asfoor did not raise the issue whether the defendant had the intent of the perpetrator because the underlying crime, injury by negligent use of a weapon, did not include a specific intent. The contention is without merit. Asfoor does not support such a distinction between underlying crimes which require intent and those which do not. As the passage quoted above indicates, Asfoor relied on Cydzik, which involved a charge that required intent. The Cydzik court held that a party to an armed robbery could be held liable for the first-degree murder committed by another during the robbery, even though the defendant maintained that he intended only to commit the robbery, not murder.
Defendant argues that had the jury been instructed not to impute Schilling’s intent to him, it might have found that defendant was willing to aid and abet Schilling in robbing Posthuma by the use of force short of murder, or that a conspiracy to rob existed, of which a natural and probable consequence was the use of less force than that which would cause death. The short answer is that under the law of this state, a party to the crime is guilty of that crime, whether or not he intended that crime or had the intent of its perpetrator. As
foor
and
Cydzik, supra.
Defendant argues that he should not have been convicted unless the jury could find that the intentional death of Posthuma was part of the agre
Defendant relies on the following statement in
State v. Nutley,
Under the complicity theory of sec. 939.05(2) (b), a person is liable for the substantive crime committed by another if (1) he undertakes conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime, and further if (2) he consciously desires, or “intends” that his conduct will yield such assistance. He must consciously direct his conduct toward the realization of the criminal objective. He must have a “stake in the outcome.” (Footnotes omitted.)
The
Asfoor
court was aware of the above quotation form
Nutley.
The defendant-appellants’ briefs submitted in
Cydzik
and
Asfoor
relied in part upon
Nutley
for the same proposition advanced here. Defendant’s brief in
Cydzik
stated that under sec. 939.05(2) (b), Stats. 1963, an aider and abettor must consciously intend that his conduct will aid another person in the execution of a particular crime, citing
Nutley,
Because a party to the crime need not intend the commission of the crime committed, there was no need to in
2. Jury Could Not Have Interpreted Instructions To Mean That They Could Convict Defendant Of Directly Killing Posthuma
The jury was instructed on first- and second-degree murder, followed by armed robbery instructions and the standard party-to-a-crime instruction. Defendant contends that the jury should have been instructed that he could not be found guilty of directly killing Posthuma, in view of the evidence, and that he was prejudiced by the absence of such an instruction.
The jury, however, was repeatedly told that Schilling killed Posthuma and that defendant was an aider and abettor and coconspirator.
The prosecutor told the jury in his opening statement that “Schilling directly committed the crimes of armed robbery and first degree murder” and that Stanton “was a party to these crimes of armed robbery and first degree murder; that is, that he aided and abetted the murder and armed robbery of Michael Posthuma and also conspired with Mr. Schilling and another individual to commit these crimes.” Schilling’s counsel said in his opening statement that Schilling “started lashing and slashing at Michael 'Posthuma with a knife, and that led to Michael Posthuma’s death, directly.”
The prosecutor said in his closing argument, “Again, the evidence demonstrates overwhelmingly and beyond any doubt that Ronald Schilling intentionally murdered Michael Posthuma.” The prosecutor continued: “The evidence shows that Stanton did not directly deliver the death blow, the one with the knife to Michael Posthuma himself.” Schilling’s lawyer told the jury in his closing
Defendant does not dispute the state’s assertion in its brief that all of the state’s evidence as to the killing showed that Schilling had been the one who stabbed Posthuma to death.
It is inconceivable that the jurors would have felt free to find that defendant directly killed Posthuma. We therefore need not consider whether the jury should have been instructed as he contends. The error, if it was error, could not have prejudiced defendant.
3. Trial Court Did Not Err In Giving Wis JI — Crimi nal 1100, Wisconsin’s Presumption Of Intent Instruction
Defendant concedes that the point has been decided against him by
Muller v. State,
We note that defendant additionally contends that the presumption of intent language had “a double-barrelled effect” as to him. He argues that it could be used against him directly and also indirectly through whatever intent the jury might find in Schilling’s mind when Schilling killed Posthuma. He reaches this conclusion because under the second subdivision of sec. 939.05(2) (c), Stats. 1975, the question is whether the intentional killing by Schilling was a natural and probable consequence of the plan to rob Posthuma.
The contention is obscure. It seems to relate to the argument which we have previously rejected: that defendant cannot be found guilty as a party to the crime unless he is shown to have intended that the crime of first-degree murder be committed.
4. No Error Occurred In Failing To Instruct Jury That They Had To Reach Unanimous Agreement As To Defendant’s Particular Conduct Under Subdivisions Of Sec. 939.05(2)
Defendant concedes that the point has been decided adversely to him by
Holland v. State,
5. Expert Opinion Evidence Properly Excluded As To Capacity To Intend To Kill
Conceding that
Steele v. State,
6. “Third-Degree Murder’’ Instruction Not Required
Defendant’s motion for postconviction relief assigned as a separate error the court’s refusal to instruct the jury on third-degree murder. The trial court, without stating a specific reason, held that this claim had no merit.
To justify submission of a lesser offense to the jury, some reasonable ground must exist for acquittal of the greater and conviction of the lesser offense.
Jordan v. State,
Section 940.03, Stats. 1975, entitled “Third-Degree Murder,” provided:
Whoever in the course of committing or attempting to commit a felony causes the death of another human being as a natural and probable consequence of the commission of or attempt to commit the felony, may be imprisoned not more than 15 years in excess of the maximum provided by law for the felony.
Schilling savaged Posthuma with twenty-four knife wounds, at least eight of which were inflicted while Posthuma was alive. Schilling’s viciousness disclosed his intent to kill. No reasonable grounds existed to find that the killing was not intentional, and therefore no reasonable grounds existed to acquit defendant, who was a party to the robbery scheme, of first-degree murder. See part one, supra. The trial court did not err in refusing to instruct the jury on third-degree murder. Compare Jordan, supra (third-degree murder instruction unnecessary because no reasonable grounds existed for acquittal on first-degree murder, party to the crime, as to defendant-participant in attempted robbery during which a police officer was shot ten times and killed, it never being established which participant killed the officer) .
7. Sufficiency Of Evidence As To Schilling’s Intent
Defendant first contends that the evidence in the guilt phase of the trial was insufficient to support a finding that Schilling intended to kill Posthuma. Defendant’s postconviction motion did not raise this point. Regardless whether we are required to deal with an issue raised for
Defendant’s second contention pertains to the relationship between the guilt and second phases of Schilling’s trial. Schilling had pleaded not guilty and not guilty by reason of mental disease or defect. After finding Schilling guilty, the jury rejected Schilling’s claim to a mental disease or defect in phase two. Stanton contends that, regardless of the outcome of phase two of Schilling’s trial, the psychiatric evidence in that part casts enough doubt on Schilling’s capacity to form an intent to kill Posthuma as to require a new trial for Stanton. He contends that had the jury in the guilt phase heard the evidence it had in phase two, the jury might not have found Schilling guilty beyond a reasonable doubt, even though it subsequently failed to find to a reasonable certainty that Schilling, at the time of the commission of the crime of party to first-degree murder, had “a mental disease or defect which would cause him to lack substantial capacity either to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law.”
The charges against defendant and Schilling were tried jointly. Had defendant attempted to introduce psychiatric evidence during the guilt phase of Schilling’s trial, that evidence would have been inadmissible under Steele, swpra. Steele was not decided when Stanton’s trial was held but nevertheless prevents us from holding that psychiatric evidence should have been admitted in the first phase of that trial. No attempt has been made to predicate error on the fact that Stanton was tried jointly with Schilling. We conclude that defendant’s second contention has no merit.
By the Court. — Order affirmed.
Notes
Defendant’s pro se brief also raised the question of effective assistance of counsel. Defendant subsequently wrote to the court and asked to withdraw this issue from his appeal.