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COURT OF APPEALS DECISION DATED AND RELEASED September 10, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3313-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TOMMIE THAMES,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
STANLEY A. MILLER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Tommie Thames appeals from a judgment of conviction
for first-degree reckless homicide while armed with a dangerous weapon,
attempted first-degree intentional homicide while armed with a dangerous
weapon, and mutilating a corpse. See
§§ 940.02(1), 940.01(1), 939.32, 939.63(1)(a)2 and 940.11(1), Stats.
Thames argues that the complaint was defective because there was no
probable cause to charge him with attempted intentional homicide while armed
with a dangerous weapon. Thames also
argues that the charges of reckless homicide while armed with a dangerous
weapon and attempted intentional homicide while armed with a dangerous weapon
are duplicitous. We affirm.[1]
According to the
complaint, Thames and his friends, David Bost and Sean Rhodes, met at Rhodes's
home to smoke marijuana and drink gin.
Thereafter, Thames and Bost began “playing” with guns and Thames
accidently shot Bost. Instead of taking
Bost to a hospital, out of fear that they would be caught by the police, Thames
and Rhodes put Bost in the trunk of Rhodes's car and drove around, looking for
an open garage to dump the body. After
Thames and Rhodes left Bost in a vacant garage, they left in the car. They returned to the garage when their car
ran out of gas. When Thames and Rhodes
returned, Rhodes instructed Thames to “put him [Bost] to rest.” Thames shot Bost again. Thames then burned the body.
Subsequently, Thames was
charged with reckless homicide while armed with a dangerous weapon for the
first shot; attempted intentional homicide while armed with a dangerous weapon
for the second shot; and mutilation of a corpse for burning the body. Thames filed two motions to dismiss, arguing
that there was no probable cause to charge him with attempted intentional
homicide and that reckless homicide and attempted intentional homicide are
duplicitous. The trial court denied
both motions. Thames then pled guilty
to all three counts.
“The sufficiency of a
criminal complaint is a question of law, which we independently review.” State v. Kordas, 191 Wis.2d
124, 127, 528 N.W.2d 483, 485 (Ct. App. 1995).
“Additionally, we independently review issues involving statutory
interpretation and application to a particular set of facts.” Id. A complaint establishes probable cause if it sets forth facts
sufficient to permit an impartial judicial officer “`to make the judgment that
the charges are not capricious and are sufficiently supported to justify
bringing into play the further steps of the criminal process.'” State ex rel. Cullen v. Ceci,
45 Wis.2d 432, 442, 173 N.W.2d 175, 179 (1970) (citation omitted). The complaint “need not,” however, “contain
all the allegations of fact which if proved would be necessary to
convict.” Id.
The first issue involves
application of the attempt and intentional homicide statutes. See §§ 939.32(3) and 940.01(1), Stats.
Section 940.01(1) states, in relevant part, that “whoever causes the
death of another human being with intent to kill that person ... is guilty of a
Class A felony.” Section 939.32(3)
defines attempt. It provides:
An attempt to commit a crime requires that the
actor have an intent to perform acts and attain a result which, if
accomplished, would constitute such crime and that the actor does acts toward
the commission of the crime which demonstrate unequivocally, under all the
circumstances, that the actor formed that intent and would commit the crime
except for the intervention of another person or some other extraneous factor.
As noted, the facts
alleged in the complaint include the following: Thames accidently shot Bost while the two were intoxicated and
had been “playing” with loaded guns.
After shooting Bost, Thames saw Bost on the floor moving, with blood
seeping out of his head. Afraid that
Bost would inform the police about what had happened, Thames and Rhodes decided
not to take Bost to a hospital.
Instead, Thames and Rhodes put Bost in the trunk of a car and drove
around, looking for an open garage to dump the body. After Thames and Rhodes dumped Bost in a garage, Rhodes told
Thames to “put him to rest,” and Thames then shot Bost again. Thames then set fire to Bost, after dousing
him with gasoline. The complaint
further alleges that an autopsy concluded that Bost died as a result of the
bullet that entered behind his ear and lodged in his brain, the first shot, and
that the second shot, the one which entered the left side of his jaw and lodged
in the right side, was “non-fatal.”
Thames argues that the
complaint does not show that he intended to kill Bost when he shot him the
second time because Bost died as a result of the first shot. We disagree. Although the complaint alleges that the first shot was the fatal
shot and that the second shot was non-fatal, the complaint does not allege that
Bost was already dead when Thames shot him the second time. The complaint merely alleges that Bost died
from the wound he received as a result of the first shot. Further, the allegations in the complaint
give every indication that Thames believed that Bost was still alive immediately
before he shot Bost the second time and that he fired the second shot with
every intention of making sure Bost was dead.
As noted, Rhodes instructed Thames to “put him to rest.” Thames then shot Bost at close range. Notwithstanding Thames's argument, we find
that the circumstances of the crime allow the clear inference of an intent to
kill. Further, the attempt element is
satisfied because the complaint establishes probable cause that Thames would
have killed Bost except for the extraneous factor that the second shot was
non-fatal. The allegations of Count 2
of the complaint establish probable cause to believe that Thames committed the
crime of attempted first-degree intentional homicide.
Thames next argues that
the trial court erred in denying his motion to dismiss the complaint based on multiplicity
of counts. Multiplicity occurs when the
state charges more than one count for a single criminal offense. State v. Hirsch, 140 Wis.2d
468, 471, 410 N.W.2d 638, 639 (Ct. App. 1987).
We apply a two-part test to determine whether a charge is multiplicitous. Id. The first prong requires an inquiry into whether the charged
offenses are identical in law and in fact.
Id. The second
prong requires consideration of the legislative intent regarding whether the
legislature intended the offenses to be brought as a single count. Id., 140 Wis.2d at 471, 410
N.W.2d at 639-640.
To determine whether the
offenses are different in law, we examine whether each charged offense requires
proof of an element which the other does not.
State v. Kanarowski, 170 Wis.2d 504, 510, 489 N.W.2d 660,
662 (Ct. App. 1992). First-degree
reckless homicide requires proof that Thames caused the death of Bost, under
circumstances showing utter disregard for human life. Section 940.23(1), Stats. Attempted first-degree intentional homicide
does not require proof of utter disregard for human life, it requires proof of
intent to kill. Wis J I—Criminal 1070 (1990). Further, the attempt element does not require that death be
caused. See § 939.32(3), Stats.
The offenses are not the same in law.
We also consider whether
the offenses are the same in fact.
Offenses are different in fact if they are either significantly
different in nature or separated in time.
State v. Eisch, 96 Wis.2d 25, 31, 291 N.W.2d 800, 803
(1980). We conclude that the offenses
are different in fact because they are separated in time. Offenses are considered separate in time if
the defendant had time to reconsider his or her course of action between each
offense. Harrell v. State,
88 Wis.2d 546, 555, 277 N.W.2d 462, 464-465 (Ct. App. 1979). The complaint alleges that Thames initially
shot Bost at Rhodes's home, then he and Rhodes put Bost into the trunk of
Rhodes's car and drove around looking for a place to dump Bost. The complaint further alleges that they
dumped Bost at a garage, left in the car, but walked back to the garage after
their car ran out of gas. It was at
that point that Thames shot Bost again to “put him to rest.” Although Thames argues that his actions
occurred in a continuous stream of events, the complaint alleges facts that
show that Thames had time to reconsider his course of action. The charges are not the same in fact, they
are separate acts.
Thames does not address
the legislative intent or offer any factors demonstrating a legislative intent
contrary to multiple charging for the two separate gun shots. Given the presumption that the legislature
intended cumulative punishments, see Kanarowski, 170
Wis.2d at 512-513, 489 N.W.2d at 663, the charges were not multiplicitous.
In an undeveloped
argument, Thames argues that first-degree reckless homicide is a
lesser-included offense of attempted first-degree intentional homicide, making
the convictions multiplicitous. We
disagree. First, the prohibition
against obtaining multiple convictions involving a lesser-included offense
contemplates offenses arising out of one criminal act. See § 939.66, Stats.
As noted, Thames's conduct constitutes two criminal acts and he can be
prosecuted for both of them. See
§ 939.65, Stats. Second, the two crimes are not
lesser-included offenses—first-degree reckless homicide requires that the
victim have died; attempted first-degree intentional homicide does not. See State v. Dowe, 197
Wis.2d 848, 851, 541 N.W.2d 218, 220 (Ct. App. 1995) (“An offense is a
`lesser-included' offense if all of its statutory elements can be demonstrated
without proof of any fact or element in addition to those which must be proved
for the `greater' offense.”).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.