In Davis v. State (1970), 49 Wis.2d 180, 184, 181 N.W.2d 346, this court held that if a defendant fails to make a motion in the trial court either to set aside the verdict for insufficiency of the evidence or to have a new trial, this court will not consider the issue of the sufficiency of the evidence absent compelling circumstances.Summary of this case from Organ v. State
No. State 20.
Argued November 6, 1970. —
Decided December 1, 1970.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Jack J. Gimbel of Milwaukee.
For the defendant in error the cause was argued by Lee Edward Wells, 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, Joe Nathan Davis, was found guilty by a jury of first-degree murder and was convicted and sentenced to life imprisonment on February 27, 1969.
Sometime prior to the shooting in question one Henry Coleman and one Edward Jewell had a physical fight in which Coleman was badly beaten up by Edward Jewell. On the evening of June 5, 1968, the defendant Joe Nathan Davis, in the company of Henry Coleman, entered the Madison Times Tavern at 2060 North 24th Street, Milwaukee, Wisconsin. Edward Jewell who lived above the tavern was seated at the bar. Coleman approached Jewell and an argument ensued, culminating in Coleman's request to Jewell that he (Jewell) step outside to finish up their business.
Meanwhile, Willie Madison, the proprietor of the tavern, had been summoned from a back room and warned that a fight was about to break out. Madison walked up to Coleman and asked him to leave the premises. Coleman turned and walked toward the door, where the defendant, Davis, was leaning against the wall.
Up to this point, the facts are not in dispute. Beyond this point, however, there is a sharp divergence between the defense and prosecution versions of what happened next.
The defendant testified that Coleman stood next to him and touched his leg. The defendant looked down and saw that Coleman had a gun in his hand. Coleman said to the defendant, "Shoot Jewell," and "That m._____ f._____." Coleman then raised the gun and tried to hand it to the defendant. The defendant reached out and tried to push the gun away. The gun discharged at this point. Jewell was struck and fell to the tavern floor. In the next instant, the defendant claims Coleman shoved him out the door and they ran to the house of Ida Green, Coleman's girl friend. Here the defendant sat on the front steps and Coleman walked to a ground level window where he talked with Ida Green and exchanged the shirt he was wearing, which had his name on it, for another which she supplied for him. The defendant claims that he did not speak with Ida Green on the night in question.
The state produced three eyewitnesses to the shooting. Willie Madison, the tavern owner, testified that he was about two feet away from Jewell as Coleman walked toward the door where the defendant was standing. He said he saw Coleman reach into his pocket and pass something to Davis. He then saw Davis, the defendant, move five or six steps forward and shoot Edward Jewell. The defense impeached the testimony by pointing out that at the prior trial of Henry Coleman, Madison was asked: "Q. When the gun went off, who were you looking at?"
Madison's answer at that prior trial was:
"A. When the gun went off, as soon as the gun was fired I turned to see what had happened."
The obvious implication here is that Madison was looking the other way when the shot was fired, and he, therefore, could not have actually seen Davis shoot Jewell as he testified at this trial that he did. The defense chose not to capitalize on this apparent discrepancy in Madison's testimony. They simply put in the question and answer from the Coleman trial and said nothing more about it.
The next witness was Frederick Boddie, a bartender on duty during the evening in question. Boddie did not see Coleman pass anything to Davis, but he did testify that he saw Davis step forward and shoot Jewell.
Wardy Evans, Jr., a patron in the tavern, also testified that he saw Davis take a step forward and shoot Jewell.
Richard Bivens, also a patron in the tavern, stated that he saw Coleman pass the gun to Davis, whereupon he and a companion decided it would be wise to leave the tavern. They heard the gunshot as they were crossing the street outside the tavern.
The state also produced Ida Green who lived a block away from the tavern. She testified that Coleman and Davis came to her house on the night of the shooting and that Davis displayed a gun and said, "I just shot the Nigger" and words to the effect that he (Davis) ought to go out to the hospital and finish the job.
The defense established possible bias on the part of Ida Green by showing her close relationship with Henry Coleman who was acquitted of murder at a previous trial.
None of the eyewitnesses said anything about Davis and Coleman holding the gun simultaneously when it discharged. On the contrary, all of them indicated that Davis held the gun and that he stepped forward and away from Coleman before firing the shot into Jewell.
In addition, the state produced Detective Thomas Langford to whom the defendant made two statements while in custody. The defendant initially told Langford that he observed Coleman pull a gun and shoot Jewell. Three hours later he indicated to Langford that he wanted to tell him the full story. He then related that Coleman passed the gun to him and that he was holding it when it went off, but that Coleman's hand was still holding his (Davis') hand which enclosed the weapon when it discharged.
A writ of error to review the judgment of conviction was timely issued by this court.
Two issues are presented on this appeal:
(1) Is review of the sufficiency of the evidence proper where there is no post-trial motion to set aside the verdict on the grounds of insufficiency of the evidence or for a new trial; and
(2) Was the evidence sufficient to support a finding of guilty beyond a reasonable doubt?
Defendant contends that the state's evidence was insufficient to prove his guilt beyond a reasonable doubt; and he seeks review of his conviction on that basis.
The state objects to the review in this court for the reason that defendant failed to bring a motion in the trial court either to set aside the verdict because of the insufficiency of the evidence or to have a new trial.
We have held that failure to make such a motion at the trial court level bars the defendant from raising the question of sufficient credible evidence produced at the trial in support of the verdict unless compelling circumstances exist which permit the question to be raised. There are no compelling circumstances in this case that warrant an exception to the above rule. No error of constitutional dimension is asserted and none appears in the record. There is no indication that justice has miscarried in any other respect.
State v. Escobedo (1969), 44 Wis.2d 85, 89, 170 N.W.2d 709; Okimosh v. State (1967), 34 Wis.2d 120, 148 N.W.2d 652; State v. Thompson (1966), 31 Wis.2d 365, 142 N.W.2d 779; State v. Van Beek (1966), 31 Wis.2d 51, 141 N.W.2d 873.
We are satisfied that if the challenges to the sufficiency of the evidence were to be considered, there is sufficient credible evidence which supports the jury verdict finding the defendant guilty beyond a reasonable doubt.
By the Court. — Judgment affirmed.