Opinion
No. 75-272-CR.
Argued June 2, 1976. —
Decided June 30, 1976.
ERRORS to review a judgment and an order of the county court of Sheboygan county: JOHN G. BUCHEN, Judge. Affirmed.
For the plaintiff in error there was a brief by William W. Moir III and Miller, Hayes Werner, S.C., all of Sheboygan, and oral argument by Mr. Moir.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
The plaintiff in error (hereinafter defendant) was convicted by a jury in the county court of Sheboygan county on the charge of second-degree murder in violation of sec. 940.02, Stats. Judgment of conviction was entered on December 30, 1974, after the trial court had heard and denied alternative motions for an acquittal or a new trial. An indeterminate sentence of not more than fifteen years and not less than five years was imposed.
Steven Rittenhouse was a twenty-year-old man employed in the Sheboygan, Wisconsin area. Testimony established his height at 5' 8" and his weight at approximately 145 pounds. At the time of the incident involved here, Wangerin was 18 years old, 5' 11" and weighed 175 pounds. He had received a general discharge from the Marine Corps six months earlier and had been working for a time as a bartender at Bukie's, a Sheboygan tavern involved in the events leading up to the death of Rittenhouse.
On October 9, 1974, at about 9:00 p.m. the defendant met several friends at Bukie's. He also met a young lady and arranged to see her again at midnight at the Amber Lantern, a tavern located a few blocks east and across the street from Bukie's. Wangerin visited back and forth between the two bars for the rest of the evening.
While waiting for his female acquaintance at the Amber Lantern, the defendant met another friend, Paul Beimborn. He and Beimborn returned to Bukie's to try to locate the woman. On the way, Wangerin observed Rittenhouse who entered the tavern in response to his approach. Upon leaving Bukie's, the defendant again observed Rittenhouse who started walking away from the street route between the taverns. Wangerin informed Beimborn that the "guy has been hassling my friends and me." In a subsequent statement to the police, the defendant stated that he yelled to Rittenhouse to "watch his step." The latter stopped and loudly inquired if Wangerin could "stop a 38." The defendant said yes and strode toward the deceased. He noticed that Rittenhouse had his hands together in front of him, saw something shiny and heard a click. Rittenhouse turned and fled.
Beimborn and the defendant continued on to the Amber tavern. After mulling over whether Rittenhouse did in fact have a gun, Wangerin decided to seek out the deceased to seize it and rough him up. Beimborn accompanied him.
Proceeding by way of an alley north and parallel to the street of the taverns, the pair observed Rittenhouse standing near Bukie's. He fled eastward upon their approach, losing his moccasin-type shoes in the process. In a parking lot next to the Amber Lantern, Rittenhouse fell.
In his subsequent statement, the defendant recounted:
"As he tried to get up I grabbed him in the back of the head by the hair. I pulled him backwards and I hit him with my right hand in the face. When I hit him he grunted and I got on top of him as he was laying on the ground on his back. I sat on his chest and I hit him a few more times in the face with my right hand. I was hitting him with the heel of my hand in the face. I hit him in the eye, mouth, cheeks and then I searched him for the gun. From the time he grunted the first time he did not say anything else and he did not try to fight back. I didn't find the gun so I got off of him and kicked him in the ribs. While I was hitting him it sounded like he was having an asthma attack."
A passerby watched the two run past her and saw Wangerin seize the fallen Rittenhouse. She testified to hearing the deceased plead to be left alone and to hearing the defendant say that Rittenhouse was "going to get it." Before passing out of sight, she heard at least two blows being struck while the deceased was on his knees.
wangerin testified at first that his only intention was to disarm Rittenhouse, but admitted on cross-examination that he also intended to hit him a few times. The defendant also maintained that no words were spoken and that the kick, which was not delivered hard, was given to get a response from the inert Rittenhouse. He admitted to wearing his Marine training boots at that time.
Thinking that Rittenhouse was injured, Wangerin told Beimborn to stay there while he summoned aid. A bartender testified to being contacted by the defendant and to making an ambulance call for a guy Wangerin had claimed to have hurt in a fight. Upon returning to the scene, Wangerin heard another bartender say that the victim was dead.
After fleeing to his parents' house, the defendant unsuccessfully struggled with them for a gun and ended up seizing a carving knife before continuing his flight. He visited a friend's house, ultimately obtaining a shotgun and shells there by holding a knife to the friend's throat, declaring in his statement that he intended to shoot any officer who tried to arrest him. Wangerin then journeyed to his sister's house, forcing entry when he got no response to his knocks.
He called the police station for information on the condition of Rittenhouse. The police by then knew the identity of the assailant, so they refused to release any information and sought to persuade the caller to turn himself in. An investigating officer meanwhile noticed a light on in the previously darkened house of Wangerin's sister and called out for the defendant to give himself up. Wangerin confirmed his presence but refused to leave. A detective with the Sheboygan police department eventually talked him into peacefully surrendering, although in the course of this discussion Wangerin threatened to shoot policemen whom he heard moving outside the residence.
In the state's case-in-chief, the doctor who performed the autopsy testified that the blows and kick administered by Wangerin were, to a reasonable degree of medical certainty, the cause of death. Such blows led to shock and circulatory system collapse. In testimony provided in rebuttal to the defendant's medical witness, emphasis was put on a blow, evidenced by an external bruise on the left chest wall noted during the autopsy, that was consistent with internal chest wall damage and lung hemorrhage, considered a prime cause of death. The mark was described as heel-shaped and apparently attributed to Wangerin's kick, although defendant testified to striking on the right side and further testified that Rittenhouse hit the parked car with his left torso. Implicit in the rebuttal testimony conclusion was a preceding state of restricted breathing due to shock and the final torso impact causing damage to the lungs, a sequence not wholly inconsistent with the original medical testimony. The possibility of a blow to the right kidney (which was damaged) was also there considered. There was some evidence on the record which would support a conclusion that death was caused by something other than the beating administered by Wangerin. There was, however, ample evidence to the contrary which was accepted and believed by the jury. Defendant has conceded that this finding could not be reversed on appellate review.
Three issues are presented on this appeal:
1. Was there sufficient evidence to establish that the defendant conducted himself in a manner that was imminently dangerous to another as proscribed by sec. 940.02, Stats.?
2. Was there sufficient evidence to establish that the defendant conducted himself in a manner evincing a depraved mind, regardless of life, as proscribed by sec. 940.02, Stats.?
3. Was it prejudicial error to receive evidence of defendant's flight from the scene of the incident and to receive evidence of his attempts to resist arrest?
Imminently dangerous conduct.
The defendant contends that the evidence was insufficient to support the verdict and conviction. Under the circumstances, the test to be applied by this court in determining the sufficiency of the evidence has been set forth in Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725:"The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. The credibility of the witnesses and the weight of `the' evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted."
No challenge is made to the implicit finding of fact that Wangerin's conduct caused the death of Steven Rittenhouse. Wis J I — Criminal, Part II, sec. 1110, reiterates that:
"The first element of second degree murder requires that the defendant's conduct was imminently dangerous to another, that is, conduct dangerous in and of itself. It must have been conduct inherently and consciously dangerous to life and not such as might casually produce death by misadventure." (Emphasis supplied.)
Wangerin contends that his conduct does not equate with this element.
Defendant relies on the decision in Seidler v. State (1973), 64 Wis.2d 456, 219 N.W.2d 320, where a twenty-two year-old male babysitter was originally convicted of second-degree murder for causing the death of a two-year-old child. This court reversed the conviction, ordering a new trial on the charge of homicide by reckless conduct, sec. 940.06, Stats. After a review of the evidence, the majority concluded that there was no evidence of a conscious intent on the part of the defendant to have the child strike the metal frame or bedpost when he flung her into the bed. Such a striking was the unfortunate result.
Implicit in the majority holding in Seidler is the recognition that the evidence did not show conduct imminently dangerous to life. The opinion dwelt on the language of the early case of Hogan v. State (1874), 36 Wis. 226:
"The first condition of the statute is, that the act producing death shall be imminently dangerous to others. It has been said that every act producing death must be thus dangerous. Perhaps this is literally true. But the statute does not go on fortuitous or latent danger, but on essential and apparent danger, of the act producing death. The act must be inherently and consciously dangerous to life, not such as casually produces death by misadventure. It must be dangerous in and of itself, as committed and when committed, whether death follow it or not." Pages 246, 247.
The real distinction between the case at bar and Seidler was the total lack of evidence there of acts undertaken with any intention of harming the deceased. The evidence indicated a purpose of throwing the victim on the bed.
We think the situation is more comparable to that in Kasieta v. State (1974), 62 Wis.2d 564, 215 N.W.2d 412. In that case, the defendant, who was physically larger than his victim and who knew that his victim suffered from Hodgkin's disease, struck her in the nose and other parts of the face with his fists. The same claim here presented was made to and rejected by this court:
"Defendant claims that his conduct, i.e., striking someone in the nose with his fist, is not imminently dangerous. However, the record establishes that defendant knew of the medical treatments that Jacqueline had been receiving and he knew that she had Hodgkin's disease. Defendant was in his late twenties at the time of the crime. He had played football and baseball in high school, had taken judo lessons and was actively racing stockcars and snowmobiles. Defendant was 5' 10" and weighed about 180 pounds. The deceased had multiple bruises on her face, a superficial wound over her left eye, a wound of over one inch long on her scalp, and a fractured nose. From this a jury could reasonably infer that a beating of this nature inflicted by a man of the defendant's characteristics was conduct imminently dangerous to another." Pages 570, 571.
In the instant case there is ample basis on the record for the jury to determine that the defendant's conduct was imminently dangerous to another. The internal head injuries confirmed the harmful effect of the blows used on the victim. These were blows administered to a prone, nonresisting victim appreciably smaller than the defendant.
Evincing a depraved mind
. Another element of the crime of second-degree murder is that the conduct "evince a depraved mind, regardless of life." Wis J I — Criminal, Part II, sec. 1110 states:"The depravity of mind referred to in second degree murder exists when the conduct causing death demonstrates an utter lack of concern for the life and safety of another and for which conduct there is no justification or excuse."
Here the jury could and did find that the defendant's conduct evinced a depraved mind regardless of human life. The record amply supports the conclusion that the defendant utterly disregarded the safety and life of his victim in the pursuit and attack. His testimony could be wholly rejected insofar as it attempted to minimize the force used and the jury could reasonably infer that more extensive violence was used by Wangerin to inflict the degree of injury detailed in the autopsy. After his victim was apparently unconscious, defendant proceeded to beat him about the head while Rittenhouse was making a "gurgling noise" and having great difficulty in breathing. The defendant then got up and in a malicious rage kicked Rittenhouse in the ribs with his heavily Marine-booted foot. This conduct could be viewed by the jury as demonstrating no concern for the life of Rittenhouse.
Evidence of flight and resistance
. Over defense objection, the trial court admitted evidence showing that the defendant, upon hearing a comment that Rittenhouse was dead, immediately fled from the scene of the crime; that, by use of violence and threats of violence, he armed himself with a butcher knife and a loaded shotgun for the purpose of resisting arrest by shooting any police officers who might attempt to apprehend him; that he did resist and did threaten to shoot the head of a police officer and that, subsequently, he surrendered to the police without any violence. Defendant argues prejudicial error by the admission of such evidence.It is well established in this state that evidence of flight and resistance to arrest has probative value to guilt. Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101; United States v. Crisp (7th Cir. 1970), 435 F.2d 354. This is the general rule followed in the criminal law. 29 Am. Jur. 2d, Evidence, secs. 278-280 (1967).
The defendant argues an exception to this rule where there is no question concerning the identity of the actor. Examples of this situation could be where death is admitted as caused but self-defense is asserted as a privilege, or where mental disease or defect is pleaded. 29 Am. Jur. 2d, supra, sec. 280. However, this case does not involve any issue of justification, self-defense, insanity, intoxication, defense of others or any other defense to liability for an admittedly committed crime. Here the defendant did and does deny guilt of second-degree murder and evidence of his flight from the crime scene and his resistance to arrest was admissible as tending to show consciousness of guilt in a case where the existence of a "depraved mind" is broadly in issue.
Those homicide cases which exclude evidence where identification is not in issue perhaps mistake the credibility questions that are presented when a justification or self-defense rationale is raised, and flight or arrest resistance evidence has a probative effect as it could reflect on the actor's perception of his own conduct at the time, irrespective of his position at trial. The attempts here to minimize the violence and perhaps even explain it involve similar credibility questions. In refusing to instruct the jury on flight and resistance, the trial court properly noted its evidentiary relevance but further properly noted that its effect is not such that instructions according its added weight should be given. We conclude no error occurred on the admission of this evidence.
By the Court. — Judgment affirmed.