Opinion
No. State 86.
Argued March 5, 1970. —
Decided March 31, 1970.
APPEAL from a judgment of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Jerome F. Pogodzinski of Milwaukee.
For the respondent the cause was argued by Michael Ash, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
The defendant-appellant, Dallas E. Watson, was found guilty May 3, 1966, after a jury trial, of two counts of attempted murder in violation of secs. 940.01 and 939.32, Stats. He was sentenced to two consecutive indeterminate terms of imprisonment in the Wisconsin state prison for not more than fifteen years on each count. These sentences were to run concurrently with a thirty-year sentence imposed at the same time following conviction on a plea of guilty to an armed robbery charge. This appeal is from the attempted murder convictions.
The convictions for attempted first-degree murder involved gunshot wounds suffered by Mrs. Charlene Ingram and her mother, Mrs. Stella Barnett, at about 5 p.m., December 23, 1965, at their residence on North 22nd Street in Milwaukee. Mrs. Ingram testified she had been acquainted with the defendant for four years prior to December 23, 1965, and that he was a friend of hers. She said she saw him on a regular basis up to November 18, 1965, at which time they had an argument and the only contacts between them after that were by telephone.
She stated the defendant came to her home on December 23, 1965, at 5 p.m., and asked her to come outside to talk with him. She went out in the hallway of her second-floor flat and started down the stairs. At that time Mrs. Barnett came out of her apartment on the first floor and started up the stairs. Mrs. Ingram testified she saw the defendant remove his hand from his pocket and heard three shots fired. She said he shot at her mother first and then at her, striking her in the left shoulder. Shortly thereafter he shot once more at Mrs. Ingram's head, injuring her right ear. The defendant denied having any intent to harm anyone. He said he was not angry at Charlene and went to her house solely to recover the $27 he had loaned to her.
Mrs. Barnett testified that as she came out of her apartment and began to ascend the stairs she was faced with the defendant and the barrel of a gun at the top of the stairs. She said she ducked, but was struck in the head with a bullet. She stated she heard two more shots fired and then heard Watson leave.
Watson testified in his own behalf and stated that his purpose in visiting Charlene Ingram's apartment December 23, 1965, was to recover the $27.65 he had loaned her for some paint. He said she had previously promised to pay it back December 3d, then December 18th, and again on December 23, 1965. He said he went into the apartment but declined to sit down, telling Charlene he wanted to talk to her out in the hallway about his money.
The defendant stated he was exchanging greetings with Mrs. Barnett who was at the bottom of the stairs when Mrs. Ingram grabbed for the gun he carried in the pocket of his car coat. He stated that Mrs. Ingram exclaimed, "Yea, yea, he's got a gun," and he grabbed her hand, at which point the gun went off. Watson indicated he and Charlene then struggled for the gun and it went off again with the bullet striking her. She allegedly told him she would tell the police he shot her, whereupon he grabbed the gun and fled the house.
On cross-examination Charlene Ingram admitted she owed the defendant money for paint, but stated that on the day of the shooting he did not ask her about it.
Charlene Ingram's thirteen-year-old daughter, Stella, confirmed the testimony of her mother. She testified her mother did not put her hand into Watson's pocket nor struggle with him for the gun. She further indicated that four shots were fired. Stella Ingram watched the incident through the open door of the apartment. She observed Watson clutching his pocket and then she heard one shot fired with three more following after the defendant turned toward Charlene Ingram.
The final witness in the state's case-in-chief was Police Officer Henry Kohnert. After receiving a radio description fitting Watson, Kohnert and his partner, Marvin Lund, sighted the defendant about four blocks from the scene of the shooting at approximately 5:25 p.m., December 23, 1965. They chased him about 60 feet into a dead end between two buildings and placed a flashlight beam on him. He testified the defendant had a silver revolver in his hand. After taking the revolver Officer Kohnert stated he found four spent rounds and two live cartridges in the cylinder.
The defendant testified he had five rounds in the gun when he went to Charlene's house and insisted he "heard" only two shots while engaged in the struggle with her.
Following a hearing to the court, out of the presence of the jury, pursuant to State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753, it was determined Officer Kohnert could testify as to certain alleged admissions by the defendant upon apprehension.
After the jury was recalled the policeman testified that when he took the gun from the defendant, the defendant said he and his partner were lucky he didn't shoot them. He further testified the defendant said: "I hope I killed the two of them." In addition, Kohnert stated the defendant said: "Don't give me that baloney about my constitutional rights, I know what they are." All these statements were denied by the defendant when he took the stand.
The only evidence offered in defense was the testimony of Dallas Watson in his own behalf.
In rebuttal to the defendant's testimony the state presented six witnesses. The first witness was Officer Marvin Lund, the partner of Officer Kohnert, who assisted in the arrest of the defendant. He testified to the admission made by Watson in the presence of Lund and Officer Kohnert, to the sobriety of the defendant, and to the presence of four spent cartridges and two live ones in the weapon taken from Watson.
The second rebuttal witness was Detective Jerry Weismueller who testified regarding the sobriety of the defendant on December 23, 1965. He further identified two .32-caliber slugs that were removed from the hallway and door of the house in which the shooting took place. These were subsequently admitted into evidence as Exhibits 2 and 3.
Mrs. Charlene Ingram was recalled to testify respecting one of the slugs, Exhibit 3, which was found in the floor outside the door to the upper flat in which she lived. Her testimony was to the effect that there was no slug in the flooring prior to December 23, 1965. While on the stand in rebuttal she also testified to the number of wounds she suffered (two) and the number of shots heard (four).
Stella Barnett was then recalled to identify the slug taken from the front door of the house, Exhibit 2. While on the stand she also denied having met the defendant on a street corner as a result of a threat to run him through with a butcher knife as testified to by the defendant. Following her identification of Exhibit 2 the trial court admitted both slugs into evidence.
Also called in rebuttal by the state was a medical records librarian for Milwaukee County General Hospital, Ann Gottfried. She produced records from the hospital indicating two entrance wounds in the body of Charlene Ingram and the presence of certain metal fragments remaining in her body.
The sixth rebuttal witness was a cousin of Charlene Ingram, Ruth Love. She testified the defendant had stopped her on the street one day in October, 1965, to inquire about Charlene and Charlene's son who had been involved in a homicide. She stated that Watson told her he was going to shoot Mrs. Ingram and Mrs. Barnett because they had been "doing him wrong and she was listening to her mother too much."
Following the state's rebuttal evidence the defendant took the stand in surrebuttal to deny having made any threats against either Mrs. Ingram or Mrs. Barnett.
The jury returned a verdict of guilty on both counts and the defendant was sentenced to two consecutive fifteen-year terms of imprisonment.
The defendant raises the following issues:
1. Was the defendant entitled to a second Goodchild hearing before allowing a second police officer to testify to admissions already approved for his partner's testimony?
2. Did the trial court err in admitting the state's rebuttal evidence?
The defendant concedes in his brief that there was no error in the trial up to the point at which the defense rested. All allegations of error are predicated upon the state's rebuttal testimony. The first ground set out is that it was error for the trial court to deny the defendant's request that another Goodchild hearing be held in the absence of the jury before allowing Officer Lund to testify in rebuttal.
During the state's case-in-chief such a hearing was held before allowing Officer Kohnert to testify regarding the admissions. That hearing complied with the standards of State ex rel. Goodchild v. Burke, supra, in all respects. The procedure for such a hearing was delineated in Goodchild, pp. 264, 265, as follows:
"In the interest of better administration of criminal justice we suggest that wherever practicable the prosecutor should within a reasonable time before trial notify the defense as to whether any alleged confession or admission will be offered in evidence at the trial. We also suggest, in cases where such notice is given by the prosecution, that the defense, if it intends to attack the confession or admission as involuntary, notify the prosecutor of a desire by the defense for a special determination on such issue.
"At the hearing on the issue, the trial judge sitting alone shall make a determination upon a proper record upon the issue of voluntariness. The state shall have the burden of proving voluntariness beyond a reasonable doubt. At this hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant does not waive his right to decline to take the stand in his own defense on the trial in chief. Neither does he waive any of the other rights stemming from his choice not to testify.
"Following the hearing the trial judge shall make his determination as to the voluntariness of the confession which determination is upon a question of constitutional fact and shall be supported by findings of fact and conclusions of law. If the confession is held voluntary and admitted, the jury's consideration of that confession and surrounding circumstances shall proceed in accordance with the `orthodox' procedure."
An examination of the decision in Goodchild makes it obvious the critical determination sought by the hearing there prescribed is the voluntariness of the admission. It makes little difference who heard the defendant's statement, or who reported it. The record shows Officer Lund was the partner of Officer Kohnert at the time of the arrest and the statements, and no matters were inquired into which were not approved at the first hearing.
No contention is made by the defendant that the ruling at the first Goodchild hearing was erroneous. Once the voluntariness of Watson's admission to the arresting officers was determined there was no need to go through the procedure again before the second officer could testify.
This court reiterated the standard to be applied in governing rebuttal testimony in Rausch v. Buisse (1966), 33 Wis.2d 154, 167, 146 N.W.2d 801:
"The general rule is that the plaintiff, in his rebuttal, may only meet the new facts put in by the defendant in his case in reply. This rule is not inflexible and the court may in its discretion allow or refuse to receive such evidence. An exception is generally made when the evidence is necessary to achieve justice."
As pointed out in Rausch, the trial court has considerable discretion in controlling the evidence to be admitted in rebuttal. The latitude of such discretion is discussed in 2 Underhill's, Criminal Evidence (5th ed., 1969 Supp.), pp. 407, 408, sec. 547:
". . . By rebutting evidence is meant evidence which squarely meets and controverts some affirmative fact or facts which the adversary has attempted to prove. Evidence which is admissible in chief is not rebuttal evidence. However, the court has wide latitude in the admission of rebuttal evidence. . . Whether evidence which could have been admitted as part of the prosecution's case in chief may be received in rebuttal lies within the discretion of the court. Sometimes the defendant will open the door to rebuttal evidence . . . . New matter brought out on rebuttal may be met by the accused on surrebuttal."
The treatises on this subject are basically in agreement on the wide scope of matters that the trial court's discretion may encompass. In 3 Wharton's, Criminal Evidence (12th ed.), "rebuttal evidence" is discussed at pp. 330-332, sec. 913:
"A witness may be contradicted by the party against whom he has been called, by evidence of a contrary state of facts. The witness may be contradicted on a material point by the testimony of other witnesses showing such a contrary state of facts, in order to show that his statements were false and thus impeach his credibility.
"It is proper to admit evidence of any acts or circumstances which are inconsistent with the relevant testimony of the witness. Any evidence, otherwise proper, which in any respect tends to contradict the witness, is admissible for this purpose.
". . .
"The determination of what is admissible on rebuttal is primarily for the discretion of the trial court. The court may even admit in rebuttal evidence which should have been introduced upon the examination in chief, provided the adverse party is allowed to reply thereto. The appellate court will not reverse the action of the trial court in admitting rebuttal evidence, in the absence of a clear abuse of discretion."
Our examination of the record shows the testimony of all six witnesses rebutted the defendant's testimony or inferences therefrom. We hold the trial court did not abuse its discretion in permitting this evidence to be heard by the jury. We find no prejudicial error; the evidence amply justifies the conviction of the defendant.
By the Court. — Judgment affirmed.