Opinion
No. State 201.
Submitted under sec. (Rule) 251.54 June 5, 1975. —
Decided June 30, 1975.
ERROR to review a judgment and an order of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error the cause was submitted on the brief of Laurence E. Norton II of the Legal Aid Society of Milwaukee.
For the defendant in error the cause was submitted on the brief of Bronson C. La Follette, attorney general, and James H. Bailey, assistant attorney general.
John D. Sykes, Jr., plaintiff in error (hereinafter defendant) was convicted of first, degree murder, contrary to sec. 940.01, Stats. Defendant was sentenced to life imprisonment. The defendant's motion to set aside the judgment of conviction and for a new trial was denied.
On August 6, 1972, Freddie Lee Jones died as the result of gunshot wounds to the thigh, elbow, hand and posterior thorax. He was shot at the Flamingo Club located at 2501 West Hopkins Street in Milwaukee, Wisconsin.
The evidence established that the defendant shot Jones with a 16-gauge, bolt-action shotgun. The first witness called by the state was Carey Patterson. He was playing pool in the Flamingo Club at the time of the shooting. His sister-in-law, Laura Patterson, who was operating the club at the time, noticed an argument between the defendant and Jones and pointed it out to Carey. He asked the defendant not to start any trouble and the defendant said he would not. The witness said the defendant left the tavern and returned eight or nine minutes later and talked to Jones. The defendant left again and returned. The witness then saw the defendant shoot Jones in the leg. Jones tried to run and a second shot was fired. Jones started to fall and Patterson heard two more shots. After the shooting, the witness asked the defendant "Why?" and the defendant responded that he had to.
Louis Pride Jones, Freddie Lee Jones' brother, testified that his brother was talking with the defendant and that the defendant left and returned with a 16-gauge shotgun. The defendant was standing about two or three feet from the door with the gun aimed at the floor. The witness attempted to take the gun away from the defendant and was shoved into a booth. Then the defendant started shooting at Freddie Jones. Louis stated that at least four shots were fired and that after the third shot, Jones whirled and was shot in the back. Louis found a pistol lying next to his brother's body. He turned it over to the police.
Other witnesses gave general testimony for the state. Walter Puhlmann, a detective with the Milwaukee police department, testified that he received a .22-caliber revolver from Louis Jones. It was fully loaded and there was no indication it had been fired. He found four shotgun shell casings lying on the floor.
Billy Welborn Allen testified for the defense that earlier in the evening he saw Jones waving a pistol in the air and making threats. He testified that the defendant had a reputation of being quiet and easy going.
Millard Turner testified that he was with the defendant at the club. Freddie Jones and the defendant had an argument and Jones told Turner: "You better get him out of here because I got a pistol and I will kill him." Jones slapped the defendant in the face and when told not to do it by the defendant, Jones slapped the defendant again. Jones showed the pistol by partially removing it from his pocket. The defendant left and came back with the shotgun. The defendant then said: "I told you to keep your hands out of my face." Then the defendant shot. Before the defendant shot at Jones, Jones had put his hand in his pocket and almost pulled the gun out of it. The defendant had his shotgun at his hip when he shot.
The defendant testified on his own behalf. His version of the incident was that he got into a conversation with Freddie Jones about the defendant having gone to Jones' house two days before to see someone living there. Jones told the defendant the next time he caught the defendant peeking in his house he would blow his brains out. Jones put his hand in his pocket and the defendant saw a small revolver. The defendant said if he had done anything wrong, he was sorry. After this, Jones slapped him in the face twice.
The defendant further testified that he left the tavern and got his shotgun out of the trunk of his car and went back into the tavern "to show Jones I had a gun too." As he stepped into the tavern, someone grabbed him from the side. He pushed the person away and saw Freddie Jones start toward him with a motion of going into his pocket. The defendant shot once and Jones was still going into his pocket and he shot again. This spun Jones around. The defendant fired four times. When asked why he did not shoot anymore, the defendant replied: "After the fourth shot, after he was out of sight, then there was no need to."
On cross-examination, the defendant said he was scared when he left to get his gun, but not enough to leave and go home. He loaded the gun after taking it out of the trunk. He testified he did not remember anything after the second shot. He fired the first shot because Jones started to pull the pistol out of his pocket. He did not leave because the door was closed. He also figured that if he turned, Jones would have shot him.
The trial court made its findings and stated its reasons for finding the defendant guilty of first-degree murder. It said that it believed that there was no contest that Freddie Jones' death was caused by shotgun blasts fired at fairly close range from the shotgun held by the defendant and fired by him inside the Flamingo Club.
The court then stated it felt there was no basis for the claim of self-defense as it interpreted the law and the evidence it considered credible. Upon reviewing the evidence the court concluded that the defendant "was not in any reasonable apprehension of imminent death to himself or great bodily harm to himself at the hands of this victim." The court stated there was no credible evidence to indicate the defendant was "scared" and nothing to indicate that he was in any imminent danger.
The trial court characterized the shooting as "a private execution, accomplished publicly to avenge his earlier public embarrassment [being slapped] by the deceased." It further said:
"It is the kind of a case where, from the facts and under the law, I would not submit to a jury the question of self-defense. I think the issue of self-defense is not involved here, I don't think that there is any competent evidence or a sufficient basis to justify it."
Defendant obtained a writ of error to review the judgment of conviction and the order denying a new trial.
Two issues are presented on appeal:
1. Was there sufficient evidence presented to sustain the trial court's findings?
2. Should a new trial be granted in the interest of justice?
Sufficiency of the evidence.
The defendant argues that the record does not contain sufficient credible evidence to prove the defendant's guilt of first-degree murder beyond a reasonable doubt. The defendant's argument is directed primarily at his claim of self-defense. We think the defendant had no privilege of self-defense under sec. 939.48(2), Stats. Therefore, there is no merit to the argument that the defense of self-defense could only be rejected if: (1) The court found the defendant provoked the attack with the intent to use the attack as an excuse to kill or cause great bodily harm to the decedent; (2) the court found the decedent did not make a move toward his pocket so that the defendant would not be privileged to fire his shotgun; and (3) the court found that the defendant could not reasonably believe he had exhausted every other reasonable means to escape from the decedent's attack.However, it is obvious from the court's statement that it considered and rejected the defendant's claim of self-defense on the merits of that defense under sec. 939.48 (1), Stats.
The credibility of witnesses and the weight to be given their testimony is, of course, for the trier of fact. Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725. Also, the state of mind or intent may reasonably be ascertained from the acts and conduct of the defendant and the inferences fairly deducible from the circumstances. Jacobs v. State (1971), 50 Wis.2d 361, 366, 184 N.W.2d 113.
The trial court in this case said:
"I think the inference is inescapable, that he [the defendant] used this weapon only to — I think his pride was hurt, not his physical self. The slaps by the deceased humiliated him publicly. No harrowing preceding experience at the hands of the deceased deterred the defendant from promptly re-entering the self-claimed place of fright and danger, with the manifest intention of publicly executing the tormentor. . . ."
As noted, the defendant himself testified that after being slapped he went out to his car, got his shotgun, loaded it and returned to the tavern. As he was entering the tavern, he was grabbed from the side by someone and he pushed that person away. He saw Freddie Jones start toward him and he started shooting. He stopped after four shots and after Jones was out of sight. We cannot say that the trial court's view of the evidence is not a permissible one or that the evidence is so insufficient in probative value that it can be said as a matter of law that no trier of fact acting reasonably could be convinced to the degree of certitude required.
Therefore, the defendant's argument that there is insufficient evidence to support the trial court's finding of guilt is without merit. The finding of the trial court indicates that it felt the issue of self-defense was raised as a pretext to justify the shooting.
We find no merit to the references in the defendant's brief to manslaughter in the exercise of self-defense under sec. 940.05(2), Stats. New trial in the interest of justice.
The defendant requests that this court grant him a new trial in the interest of justice, pursuant to sec. 251.09, Stats. This request is based upon the assertions that the trial court was unduly influenced by the fact that the defendant was the aggressor and it did not consider the possibilities provided for in sec. 939.48(2), and that there is "grave doubt" as to the defendant being guilty of first-degree murder.We find no merit to this contention. When the defendant left the tavern, got his shotgun out of the trunk, loaded it and returned to the tavern, he became the provoker. In Muench v. State (1973), 60 Wis.2d 386, 395, 210 N.W.2d 716, this court said of a similar incident:
". . . The fight had ended; Faber and the defendant could and did retreat to Faber's car. Faber clearly became the aggressor and the provoker when he got out of his car and confronted the deceased with a gun. . . .
The defendant admits this is so, but contends that there still existed an issue as to the right of self-defense under sec. 939.48(2), Stats. We disagree. That section does not apply to a situation as in the instant case. A review of the evidence in this case dispels any contention that a miscarriage of justice has occurred in this case. The defendant was properly convicted of first-degree murder.
By the Court. — Judgment and order affirmed.