Summary
In Weston this court held that execution of sentence "was properly postponed" and that "deferring execution... to consolidate other matters before the court affecting the same defendant is not prohibited by the statutes... nor does it appear to be an abuse of discretion in this case."
Summary of this case from State v. BraunOpinion
June 4, 1965 —
June 25, 1965.
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 Donald C. Haberman of Milwaukee.
For the defendant in error there was a brief by Bronson C. La Follette, attorney general, Hugh R. O'Connell, district attorney of Milwaukee county, and Donald W. Steinmetz, first assistant district attorney, and oral argument by Aladin A. DeBrozzo, deputy district attorney.
At approximately 12:45 a.m. on July 4, 1963, the plaintiff in error, Michael George Weston (hereinafter "defendant"), shot and killed Theodore Adams.
The defendant was charged with first-degree murder. At the trial the court refused to submit verdicts and instructions on manslaughter and lesser degrees of homicide, but did submit verdicts of first-degree and second-degree murder (and not guilty), together with an instruction on self-defense. The jury found the defendant guilty of second-degree murder and the court imposed the maximum sentence of twenty-five years.
At the time of trial defendant was twenty-two years of age. He had gone through eighth grade. On three prior occasions he had been convicted of criminal offenses. At all times material he was a prison escapee.
In an agreed statement of facts it appears that in December, 1962, the parole authorities had promised defendant a parole. In June of 1963 the parole was denied and defendant escaped from a prison institution. These facts were not heard by the jury but appear in the record (there is no appendix) in proceedings before the court after the return of the verdict and discharge of the jury.
On the morning of July 3, 1963, the defendant arose and had breakfast at the boardinghouse in which he was staying in the city of Milwaukee. At about 9 a.m., he and a friend went to a nearby tavern and started to drink brandy and beer. The drinking continued intermittently during the afternoon and the early and latter part of the evening. In the late afternoon defendant purchased a loaded .38-caliber revolver at a sport shop for the purpose of using it in armed burglary. He was carrying the gun and over $500 in cash on his person.
During the evening defendant met a friend, Ronnie Ryan. Ryan observed that defendant was carrying a substantial sum of money. Ryan arranged for the defendant to meet Mrs. Milligan that evening. Defendant did not know her.
Mrs. Milligan's husband was overseas as a member of the armed forces. Mrs. Milligan was seventeen years of age. She lived with her two children, her mother, and grandfather.
It was arranged between Ryan and Mrs. Milligan that the latter would lead the defendant to Lincoln Park under the impression that they would there have sexual relations for a predetermined fee. However, the plan was for Mrs. Milligan to excuse herself on some pretext and then leave the park.
Defendant gave Ryan $10 to give to Mrs. Milligan while they were at her home. Defendant and Mrs. Milligan then went to the park, sat down and talked. He took the loaded pistol he had been carrying out of his pocket and placed it on the ground. They continued talking. Mrs. Milligan told the defendant she had to go to the bathroom. She went into the bushes, never to return. She left the park and walked to a nearby church where she expected to meet Ryan. He was not there. She convinced a passing motorist to drive her home. When she returned home two young men were waiting for her — Santo Curro and Theodore Adams. They were sitting in a parked car somewhat to the south of the Milligan home. To the west of the car was a thick hedge which was eight feet high in some places.
Mrs. Milligan told the two that a man with a gun was after her. She then saw defendant approaching. She got into the back seat of the car and attempted to hide.
Defendant saw Mrs. Milligan in Adams' car. He knocked on the window demanding that she come out of the car. At first she refused, but when defendant became angry she got out, whereupon he slapped her and threw a lighted cigarette in her face. He demanded the return of the $10 and made threatening remarks about Mrs. Milligan and Ryan.
Adams interceded. He was swearing. (Curro described Adams as a "hot head.") He told defendant to leave. Mrs. Milligan said that defendant had a gun. Adams replied that he, too, had a weapon.
Adams got out of the car and in so doing defendant claims he saw a flash of metal in Adams' hand. Defendant thought it was a gun. The evening was dark and defendant was not wearing his eyeglasses. The police later identified the metal object as an automobile hood ornament. Defendant took out his pistol and held it in his hand at his side. Curro testified that Adams threw the hood ornament back in the car and demanded that defendant drop his gun and settle it like men.
The defendant asked Mrs. Milligan to return his $10. He was angry at being tricked. Adams started to swear again. He was argumentative. Defendant decided to leave and so told Adams. Defendant backed away from Adams and the car. He told Adams to stay away so that no one would be harmed. Adams continued to follow him. Curro told Adams to stay away. Adams was six feet one inch tall; the defendant was five feet eight inches in height. Defendant finally backed into the hedge and claims he could move no further. Adams continued toward him. Adams was in a crouched position. Defendant testified he thought Adams was armed and was attempting to draw a gun and that "I shot him to protect myself." Adams was about six to eight feet away when defendant shot. The bullet pierced Adams' heart and he died at the scene. Defendant ran away. However, at about 75-100 feet from the scene he stopped, turned and fired at least one more shot in the direction of Curro and Mrs. Milligan.
Instructions were given on first- and second-degree murder. The trial court refused to give an instruction on manslaughter or other lesser degrees of homicide. A thorough, comprehensive instruction on self-defense was given.
The jury verdict of guilty of murder in the second-degree was returned by the jury on Saturday, February 8th.
At the arraignment prior to trial defendant was confronted with not only the murder charge but with two counts of armed burglary. The trial of the burglary charges was continued until after the murder trial. Before the imposition of sentence the trial court was informed that defendant had been previously convicted of felonies and that the sentences imposed had not been completed and that the defendant was an escapee. The court was further informed by defendant and his counsel that he would probably change his plea from not guilty to guilty upon the burglary charges. It was agreed by the court, the defendant, and counsel that these charges be set for trial on Monday, February 10th. The court then imposed the sentence of twenty-five years on the second-degree murder conviction to start as of noon February 8th but stayed the execution of the sentence until February 10th. The court did not indicate on February 8th whether this sentence was to be consecutive or concurrent with any other sentence.
On February 10th the defendant reappeared in court and filed an affidavit of prejudice against the trial judge in the pending burglary cases. The affidavit was acknowledged. The court then directed that the twenty-five year sentence imposed but not executed be modified so as to run consecutively to any unserved portion of prior sentences.
Defendant presents two issues on this appeal: (1) Did the trial court commit prejudicial error by not submitting verdicts and instructions on manslaughter and lesser degrees of homicide? And (2) did the trial court exceed its jurisdiction when it imposed the consecutive sentence?
Defendant's position is that the evidence warranted submission of a form of verdict and instruction on manslaughter.
Neither in the briefs nor at argument does he pursue the alleged error in failing to submit lesser degrees of homicide based upon recklessness and negligence. Clearly, defendant's acts were not negligent nor reckless and the trial court's refusal to submit this alternative to the jury was not error.
Sub. (1) of the manslaughter statute (sec. 940.05) provides that when one person causes the death of another, "Without intent to kill and while in the heat of passion," he may be imprisoned not more than ten years.
Sec. 939.66 provides in part:
"Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
"(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged; or
"(2) A crime which is a less serious type of criminal homicide than the one charged."
The rule is that there must be a reasonable ground for a conviction on the lesser charge and an acquittal of the greater charge before the trial court will be justified in submitting lesser degrees of homicide than that charged in the information. Brook v. State (1963), 21 Wis.2d 32, 40, 123 N.W.2d 535; State v. Hoyt (1964), 21 Wis.2d 284, 290, 128 N.W.2d 645; State v. Stortecky (1956), 273 Wis. 362, 369, 77 N.W.2d 721. If the evidence does warrant submission of lesser degrees of the offense, failure to do so "results in undeniable prejudice to defendant." Brook v. State, supra, page 41.
The main thrust of defendant's argument is that the standard to be applied is one which gives effect to the particular defendant's state of mind. Defendant submits a standard somewhere between an "objective" and "subjective." His authority, in general, may be found in the opinion of Mr. Justice WILKIE, concurring in State v. Hoyt, supra, page 298 et seq.
The argument is that we must consider defendant's limited education, his considerable drinking, and his outrage in having been tricked or duped by Ryan and Mrs. Milligan. The totality of the day, says defendant, shows that he was laboring under such a mental derangement as to have justified an instruction on manslaughter.
In State v. Hoyt, supra, the court firmly committed itself to the long-standing rule which employs the objective standard. The majority opinion states, at page 291:
"`Thus, with respect to provocation, the test applied is not the subjective one of whether it was sufficient to produce in defendant such passion as to cause him to kill without intent to do so. Rather it is the objective one of whether the provocation would have caused such state of mind in persons ordinarily constituted.'" Citing Brook v. State, supra. See State v. Stortecky, supra.
The manslaughter instruction requested by the defendant at the trial does not set forth a subjective test — on the contrary it asks for the objective one in this language: "The provocation, in order to be sufficient in law, must be such as to produce naturally and instantly in the mind of a person ordinarily constituted, and which did produce in the mind of the defendant, the highest degree of exasperation, rage, anger, sudden resentment, or terror." (Emphasis added.)
Manslaughter has been defined as:
"That which will constitute `the heat of passion' which will reduce what would otherwise be murder to manslaughter `is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.' State v. Stortecky (1956), 273 Wis. 362, 372, 77 N.W.2d 721. It has been said that `"the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror."'" State v. Hoyt, supra, page 290.
Defendant was apparently disappointed over the evening events. The court must, however, decide whether defendant's failure to illegally satisfy his passions in Lincoln Park and his discovery of having been "duped" could reasonably amount to sufficient provocation. It does not. Under the facts of this case, and in light of the illicit purposes of the evening, this court must rule that, "Such conduct [on the part of Ryan and Mrs. Milligan] does not constitute sufficient provocation to cause such heat of passion in persons ordinarily constituted as to cause them to kill without intent to do so. For this reason, the trial court did not commit prejudicial error in refusing to submit the lesser offense manslaughter." Brook v. State, supra, page 43.
From the moment defendant awoke on July 3d he accomplished nothing. His evening foray was manifestly asocial. Mrs. Milligan's tricking him is not of such great moment as to cause raging anger in an ordinarily constituted man. The facts subsequent to the Lincoln Park fiasco do not permit an instruction on manslaughter. Defendant walked many blocks back to the Milligan home. He did not have to go there. During such walk an ordinarily constituted man should have regained his composure. He could have been somewhat piqued, but not senseless with anger. Defendant was the aggressor. How does one justify taking a loaded pistol to an amorous foray? How does one justify using a pistol to recover $107 There is simply too much deliberateness — meanness — leading up to the fatal shooting.
Defendant's argument would protect asocial behavior. His reasoning would make successive crimes a defense to all such crimes.
The trial court's instruction on self-defense amply covered the evidence presented by defendant. Sec. 939.48, Stats.
In our efforts to insure that those accused of crimes have the maximum protection of their rights, we must not lose sight of the fact that society is entitled to protection against rules which condone criminal violence.
Defendant claims that since the trial court, on February 8th, did not indicate whether the sentence imposed was concurrent or consecutive, it must be deemed concurrent with the sentence he was presently under.
Sec. 959.01 (2), Stats., provides: "Upon conviction the court has a duty to pronounce judgment and may adjourn the case from time to time for that purpose. In cases where s. 959.15 is applicable that section is controlling, but in all other cases the court must either impose or withhold sentence and, if the defendant is not fined or imprisoned, he must be placed on probation as provided in ch. 57. Execution of sentence may not be stayed except as provided in ch. 57 and ss. 958.14 and 959.055 (1)." Sec. 959.07, provides in part:"The court may impose as many sentences as there are convictions and may provide that any such sentence shall commence at the expiration of any other sentence; and if the defendant is then serving a sentence, the present sentence may provide that it shall commence at the expiration of the previous sentence."
The trial court expressly deferred execution of the sentence until February 10th with consent of counsel in defendant's presence. He argues that the trial court may not impose sentence and then stay execution thereof.
The trial court was advised that defendant intended to change his not-guilty pleas on the two robbery charges to guilty. The court intended to consolidate all sentencing matters on February 10th. Execution was properly postponed. Further, what was said in State ex rel. Reynolds v. County Court (1960), 11 Wis.2d 512, 105 N.W.2d 812, is apposite. In that case it was held that after sentence is imposed and the defendant received at the place of confinement, the trial court ceases to have jurisdiction to modify the sentence. Thus, it is said:
". . . Wisconsin adheres to the common-law principle that a trial court has no power to revise its judgment and sentence in a criminal case after the expiration of the term or after the execution of the sentence has commenced." (p. 515.)
"`The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains in force.'" (p. 516.)
In State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 199, 190 N.W. 121, 191 N.W. 565, we stated:
"It is a rule of general application that a court has power to reconsider the judgment and sentence in a criminal case and to revise and correct it by modifying and even by increasing its severity if done during the term at which the judgment and sentence is pronounced and before the sentence has been executed or put into operation."
Until execution (providing the term of court has not expired), the trial court had jurisdictional authority to determine whether the sentence should be concurrent or consecutive. Deferring execution or even imposition of the sentence in order to consolidate other matters before the court affecting the same defendant is not prohibited by the statutes, supra, footnote 3; nor does it appear to be an abuse of discretion in this case.
By the Court. — Judgment affirmed.
Although I adhere to my views expressed in the concurring opinion in State v. Hoyt favoring the adoption of the Model Penal Code formulation as the test of provocation under sec. 940.05 (1), Stats., under the facts in this case, even if this different test were to be adopted, a manslaughter verdict should not have been submitted to the jury. Without needlessly repeating the pertinent facts leading up to the homicide as detailed in the majority opinion I would merely observe that, even under the alternative test, there was no reasonable ground for the trier of fact to conclude that the killing was "committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse," where the reasonableness of such explanation or excuse is "determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be." For these reasons I concur in the result reached by the majority.
(1964), 21 Wis.2d 284, 298-304, 128 N.W.2d 645.
Model Penal Code, p. 126, sec. 210.3 (1) (b) (Official Draft, 1962).
Ibid.