Opinion
No. State 145.
Argued October 3, 1974. —
Decided October 29, 1974.
ERROR to review a judgment of the circuit court for Milwaukee county: ROBERT H. GOLLMAR, Reserve Circuit Judge. Affirmed.
For the plaintiff in error there were briefs by Jacobson, Sodos Melnick of Milwaukee, and oral argument by Jerome D. Krings of Milwaukee.
For the defendant in error the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
The plaintiff in error, Thurman Bedford, Jr., hereinafter defendant, was convicted of violating secs. 940.01 and 939.05, Stats., first-degree murder, party to a crime. On October 16, 1973, the trial court found the defendant guilty on the verdict of the jury and sentenced the defendant to life imprisonment.
A postconviction motion for a new trial was denied. The defendant obtained a writ of error to review the judgment of conviction.
During the early hours of April 7, 1973, Thurman Bedford, Jr., the defendant, and two others, Byron King and Thomas Pfeifer, were playing cards in the home of King's mother, Charlotte Ann Davis, in the city of Milwaukee. While the three were playing cards, Herman Lynk and Charles York came to the door of the house. The screen door was hooked and the door was locked. Lynk and York rang the bell. Lynk then pulled open the hooked screen door. Either Lynk or King then opened the front door and Lynk and York entered Mrs. Davis' home where Lynk had been living with Mrs. Davis.
After York and Lynk had entered the house, the three who had been playing cards told Lynk that Mrs. Davis didn't want him around anymore because she was tired of him beating her. Lynk and York left the house. King, Pfeifer and the defendant followed Lynk and York outside.
The defendant testified that when the doorbell rang, he took a knife from the kitchen because Lynk "scared" him and he knew "something would start" when the three told Lynk that Mrs. Davis didn't want him in the house. He had set the knife down but picked it up again and headed back to the kitchen. Before he got to the kitchen, the others began to leave the house. The defendant turned around, stuck the knife in his belt and went to the door. He stated that at this time he stuck the knife in his belt for no particular reason other than that it was in his hand.
Outside the house King pushed Lynk. The defendant stated there was only one push but Pfeifer testified King pushed Lynk three times. As a result of being pushed, Lynk dropped the package of beer he was carrying. King pursued Lynk down the street. Lynk turned around, grabbed King and held King up off the ground either by King's biceps, shoulders or neck. Pfeifer and York testified that at this point the defendant went close to Lynk with his arms moving toward Lynk. Pfeifer stated that it looked to him as though the defendant was trying to get Lynk's hands off of King. When Pfeifer and York got closer to the scene they observed that Lynk's face was cut.
The defendant testified that he went to King's aid and after unsuccessfully trying to break Lynk's hold on King, he took out the knife and cut Lynk's face. Lynk then let go of King and went after the defendant. The defendant stepped back and after being hit by Lynk, the defendant stabbed Lynk in the stomach. Lynk kept after the defendant and the defendant stabbed Lynk in the chest. On cross-examination, the defendant testified that he first cut Lynk on the face after Lynk let go of King. Lynk suffered a total of six wounds; one on the face, one in the chest, one in the stomach, one on the hand and two on the arm.
Lynk walked away from the scene and collapsed. York, Pfeifer and the defendant struggled briefly for the knife. The police were called by Pfeifer and when the police arrived the defendant met them and was arrested.
Two issues are presented for review:
1. Did the trial court err in refusing to permit the defendant to testify as to prior specific acts of violence of the deceased for the purpose of showing that the defendant had reasonable grounds to believe that he was in imminent danger to his life or of great bodily injury?
2. Did the trial court err in refusing to give the jury an instruction on manslaughter, causing the death of another unnecessarily in the exercise of self-defense?
Evidence of prior specific acts of violence.
The defendant contends that it was error for the trial court to refuse to permit him to testify as to prior specific acts of violence by the deceased. The trial court ruled that such evidence was inadmissible because there was not a sufficient factual basis to raise the issue of self-defense. Defendant's contention rests upon this court's decision in McMorris v. State (1973), 58 Wis.2d 144, 205 N.W.2d 559. In McMorris this court adopted the rule that ". . . where there is a sufficient factual basis to raise the issue of self-defense, and the turbulent and violent character of the victim is an essential element of the defense, proof should be admitted as to both the reputation of the victim and the defendant's personal knowledge of prior relevant conduct of the victim." (P. 150) This court in McMorris further indicated that "[i]n those instances in which the defendant failed to establish a factual basis to raise the issue of self-defense, prior specific acts of violence by the victim would have no probative value." (P. 152)The only basis for the defendant's claim of self-defense is the defendant's own testimony. Such testimony not only stands uncorroborated in the record, but is directly in conflict with the other evidence adduced in the case.
The defendant's testimony conflicted with the testimony of Thomas Pfeifer, the defendant's friend, and Charles York, the victim's friend. The defendant testified that upon leaving the house, Byron King only pushed the victim once. Pfeifer testified that King pushed the victim three times and then kicked him. The defendant testified that at that point the victim grabbed King by his neck and lifted him off the ground. Both Pfeifer and York testified that at that point the victim turned and ran toward the corner. At the corner the victim turned and picked up King by the arms. The defendant testified that he first pulled out his knife and slashed the victim across the face when the victim was grabbing at him after throwing down King. Pfeifer testified that the victim was still holding onto King when the victim was cut across the face. Both Pfeifer and York testified that the victim took no aggressive action during the altercation.
The defendant's testimony was in direct conflict with that of the doctor who performed the autopsy on the victim. The defendant testified that he slashed the victim across the face and stabbed him in his stomach and in his chest. However, the doctor testified that the victim had six wounds. There were wounds in the face and chest and the abdomen. In addition, there were two wounds in the left arm and one in the left hand.
From the defendant's own testimony it is established that defendant could have withdrawn from the scene prior to the fatal stabbing but chose not to do so. Both he and King were free from any hold the deceased had on them. Defendant testified that the victim yelled to his companion York, "Charles, they're cutting me." This testimony indicates that the victim was the only one in the position of a self-defender.
Under the circumstances, we are of the opinion that the testimony failed to provide the "sufficient factual basis" required by McMorris as a prerequisite to the admission of testimony regarding the defendant's personal knowledge of prior specific instances of violence on the part of the victim. Therefore, the trial court was correct in excluding such testimony. Jury instructions.
The defendant contends that the trial court committed prejudicial error in refusing to grant the requested instruction of manslaughter, causing the death of another unnecessarily in the exercise of self-defense. See: Sec. 940.05 (2), Stats., and Wis J I — Criminal, Part II, 1140. This is a lesser-included charge of first-degree murder. In addition to the instructions on first- and second-degree murder, the court did give an instruction as to self-defense.On motions after verdict the trial judge stated that he gave the instruction on self-defense "not because [he] really believed that there was any particular issue on self-defense, but simply because there was some testimony by the defendant, and frankly, the court thought it was leaning over when it ruled in favor of the defendant by including it."
Sec. 940.05, Stats. "Manslaughter. Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than 10 years:
". . .
"(2) Unnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony; . . ."
The test for determining when lesser degrees of homicide than that charged are to be submitted to the jury has been clearly stated to be:
"To justify submitting lesser degrees of homicide than that charged in the information, there must be a reasonable ground in the evidence for acquittal on the greater charge and for conviction on the lesser charge." State v. Anderson (1971), 51 Wis.2d 557, 560, 187 N.W.2d 335.
"`The key word in the rule is "reasonable." The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if "under a different, but reasonable view," the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury.'" State v. Anderson, supra, at page 561.
With respect to the application of the above test to the question of submission of an instruction on manslaughter under sec. 940.05 (2), Stats., this court has indicated the following:
"Applying that test to this case, the requested instruction and submission of manslaughter would be proper only if, under some reasonable view, the evidence was sufficient to establish guilt of causing the death of another in the exercise of self-defense. The record must make reasonable a conclusion that the defendant here killed `. . . believing that his act was necessary in self-defense but his belief was unreasonable under the circumstances . . .'" Day v. State (1972), 55 Wis.2d 756, 760, 201 N.W.2d 42.
Thus, the question presented in this case is whether the record makes reasonable a conclusion that the defendant here killed believing his act was necessary in self-defense. We think that it does not.
As previously pointed out the victim and his companion had departed from the home after being told they were not welcome. Defendant's companion, King, initiated the physical contact upon the victim. The victim attempted to escape by turning and running down the street. King pursued Lynk down the street. Lynk turned around, grabbed King and held King up off the ground either by King's biceps, shoulders or neck. There is no testimony of any aggressive action by the deceased. In fact, King did not testify at the trial. Two witnesses testified that while King was being held by the deceased, the defendant went close to Lynk with his arms moving toward Lynk. When these two witnesses got closer to the scene they observed that Lynk's face was cut.
Defendant's own testimony shows that both the defendant and King had the opportunity to take evasive or less excessive means of protecting themselves. According to defendant's testimony, at one point prior to the fatal stabbing, both he and King were free of any grasp of deceased.
Under the circumstances of this case we find there was no error in the trial court's refusal to instruct the jury on unnecessarily causing death in the exercise of the privilege of self-defense. The conviction is affirmed.
By the Court. — Judgment affirmed.