Opinion
No. State 243.
Argued June 4, 1974. —
Decided June 28, 1974.
APPEAL from a judgment and an order of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Laurence E. Norton II, Legal Aid Society of Milwaukee.
For the respondent the cause was argued by Charles R. Larsen, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This is a first-degree murder case. There is considerable conflict in the testimony as to what occurred at the underlying incident basic to this conviction.
In the early morning hours of May 4, 1973, Robert Hart suffered knife wounds to the neck and chest and died shortly thereafter. The appellant, Sherry Avonell Frizzell (hereinafter defendant), was arrested at the scene of the stabbing. At the defendant's trial for first-degree murder, Virgie Turner, a friend of both the deceased and the defendant, testified that she had spent a good portion of the evening of May 3d [3rd] and the early morning of May 4th with the defendant. She testified that both of them spent most of the evening at a tavern with friends. However, Mrs. Turner testified that at about 8:30 p.m. she and Robert Hart left the tavern and went to the home of Elaine Johnson. She testified that while they were at the Johnson home the defendant came in the side door with a pair of scissors raised above her head, and moved toward Elaine Johnson and Robert Hart. Mrs. Turner testified that she grabbed the defendant's coat and kept her from using the scissors to harm anyone and then she, the defendant and Robert Hart returned to the tavern together. Mrs. Turner and the defendant stayed until closing time, when they and four other persons went to the defendant's apartment. Mrs. Turner testified that the defendant stated that she was going to kill Robert Hart "because he done me wrong" and that at approximately 3:30. a.m. the defendant put on her coat and said she was going to 8th Street. Mrs. Turner testified that the defendant had a butcher knife in her hand when she left. About fifteen or twenty minutes later the defendant returned to her apartment, stating that she had just stabbed Robert. Mrs. Turner testified that after she noticed stains on the defendant's clothing she decided to go to Elaine Johnson's home to see if Robert Hart was badly hurt. She testified that she found Robert lying on the floor in a bedroom with wounds in the neck and chest and that the police arrived shortly thereafter.
Alberta Junior, Mrs. Turner's sister, also testified that she was with the defendant that evening. She went to the defendant's apartment after the tavern closed. She testified that all she remembered hearing the defendant say was that she was going to find Robert and that she did not see the defendant take anything with her when she left. Alberta Junior testified that when the defendant returned to her apartment she still had a knife in her hand and stated that she had stabbed Robert. Alberta went with her sister to Elaine Johnson's home. She testified that after the police arrived she saw the defendant in the yard and said "Sherry, I think you killed Robert" to which the defendant replied, "Good, I hope he dies." Elaine Johnson testified that the defendant came to her home about 3:30 a.m., while she was in the bathroom. She testified that when she came out of the bathroom she saw the defendant stab Robert Hart once. She testified that she grabbed a knife to protect herself but that the defendant left. Shortly thereafter she called the police.
After a hearing determined the admissibility of statements of the defendant given to the police at the scene of the stabbing, Officer Anthony Bacich testified that the defendant told him that she had argued with the deceased in a tavern over a woman and went to the house and found them in bed together. She then stated that she stabbed him and they wrestled over the knife and that she stabbed him again.
The defendant testified in her own defense and stated that she and the deceased had been living together as man and wife for two years. She testified that she left the tavern early in the evening of May 3, 1973, to go home when she saw Robert Hart and Virgie Turner standing in the doorway of Elaine Johnson's house. She testified that when she approached Elaine Johnson threw a saucer at her and that as she was going back up on the Johnson porch, Mrs. Turner pulled her back down the steps and they returned to the tavern. She testified that she had pulled a scissors from her pocket at that time but denied that she went after the deceased with it.
The defendant also testified that she thought the deceased would be coming home that night, but that when he had not returned by 3:30 she went to see if he was with Elaine Johnson. She testified that she took a knife when she left because Elaine Johnson had brandished a knife earlier when they quarreled in front of her home. The defendant testified that when she arrived Elaine Johnson was getting out of the bed in which Robert Hart was lying. She testified that she entered the bedroom and shook the deceased and that he grabbed her arm when he saw the knife. They struggled and she testified that she stabbed the defendant but that she did not know exactly how it happened. She denied that she ever intended to kill Robert Hart. The defendant testified that she went home and told Virgie Turner what had happened and then went back to Elaine Johnson's home to see about Robert Hart's condition. She denied stating at the scene that she hoped he was dead.
The Milwaukee county medical examiner testified that an autopsy revealed that the deceased died of a knife wound which had pierced the heart and that such a wound would have required the use of considerable force.
The jury found the defendant guilty of first-degree murder. The defendant appeals from the judgment of conviction entered upon that finding and from an order denying a motion for a new trial.
The lone issue on this appeal is: Did the defendant waive the application of the rule calling for the balancing of the prejudicial effect of evidence of one prior conviction for disorderly conduct as against the value of such evidence for impeaching the testimony of the defendant?
There is no question but what, in the present case, defendant's counsel brought out evidence of one prior conviction of disorderly conduct on his direct examination of the defendant. Because defense counsel did not take advantage of the opportunity then to have the alleged prejudicial evidence excluded under the rulings of this court adopting Rule 303 of the Model Code of Evidence (now part of the new Wisconsin Rules of Evidence), the defendant has waived any objection to the receipt of that evidence. Although we therefore do not need to reach the question of the validity of the Wisconsin rule which calls for such balancing, we note that we have repeatedly affirmed that rule, and have found it to be constitutional and not a denial of due process. Counsel has not advanced any argument to prompt us to reconsider our decision on this point in any respect. There being competing testimony about the incidents of May 3 and 4, 1973, the issue of fact could well have turned on the credibility of the witnesses, including the defendant, and the impeachment of the defendant's testimony was perfectly proper.
Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557, certiorari denied (1968), 390 U.S. 959, 88 Sup. Ct. 1056, 19 L.Ed. 2d 1155; State v. Driscoll (1972), 53 Wis.2d 699, 708, 193 N.W.2d 851.
Sec. 906.09(2), Stats. 1973.
State v. Driscoll, supra, footnote 1. See also: Spencer v. Texas (1967), 385 U.S. 554, 87 Sup. Ct. 648, 17 L.Ed.2d 606.
By the Court. — Judgment and order affirmed.