|
COURT OF APPEALS DECISION DATED AND RELEASED December
13, 1995 |
NOTICE |
|
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. 95-0164-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KWEKU
FITZPATRICK,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: ROBERT V. BAKER, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
PER
CURIAM. Kweku Fitzpatrick appeals from
a judgment convicting him of five felonies and one misdemeanor arising out of a
gang-related shooting and from an order denying his motion for a new
trial. Because we conclude that the
trial court correctly refused to instruct the jury regarding lesser-included
offenses and that the prosecutor's reference in closing argument to
Fitzpatrick's status as a "convict" did not warrant a mistrial, we
affirm.
Fitzpatrick
was found guilty by a jury of first-degree reckless homicide,[1]
first-degree reckless injury (two counts),[2]
first-degree reckless endangerment (two counts),[3]
all while armed and as a repeater,[4]
and misdemeanor endangering safety by use of a dangerous weapon as a repeater.[5] The shooting took place during the late
evening hours of October 16-17, 1993, after a party at Maria "Gracie"
Segura's second-floor apartment in Kenosha, Wisconsin. A fight broke out between male gang members
concerning an uninvited touching of a young woman earlier in the evening. Fitzpatrick was involved in the fight and
lost his shirt or sweater in the process.
Anthony Gallegos saw Fitzpatrick go to the trunk of a car after the
fight, obtain a gun and fire one shot as he returned to the apartment
building. A neighbor, Ronald Olson,
testified that he observed a shirtless male firing up the stairs of a
neighbor's home. Kristie Martinez
testified that several people ran down the only exit from the apartment—a dark
staircase with only a small amount of light at the top and bottom. She was on the stairs when she heard people
shout, "Run upstairs, he has a gun."
She observed an unidentified male at the bottom of the stairs
brandishing a gun. She was then shot.
Omar
Ruiz testified that he saw Fitzpatrick near a car after the fight and that
Fitzpatrick was carrying a gun.
Fitzpatrick pointed the gun at Ruiz and then ran around the apartment
building. Ruiz then heard several
shots. The party's host, Segura,
testified that as she was cleaning up beer bottles, she heard someone scream
about a gun. She saw Fitzpatrick,
shirtless, trying to use his weapon.
She saw him fire up the stairs, and he pointed the gun at her as
well. Fitzpatrick admitted participating
in the fight, but denied involvement in the shooting.
The
trial court declined to instruct the jury on the lesser-included offenses of
second-degree reckless homicide,[6]
second-degree reckless injury[7]
and second-degree reckless endangerment.[8] Fitzpatrick was found guilty of the
first-degree offenses.
We
independently review the trial court's refusal to submit a lesser-included
offense instruction because a question of law is presented. State v. Foster, 191 Wis.2d
14, 23, 528 N.W.2d 22, 26 (Ct. App. 1995).
Such an instruction "is proper only when there exists
reasonable grounds in the evidence both for acquittal on the greater charge and
conviction on the lesser offense."
Id. (quoted source omitted). A lesser-included offense should be submitted only if there is
reasonable doubt regarding some element of the greater charge. Id. There must be sufficient evidence in the record to support a
conviction on the lesser-included charge before such an instruction may be
given. State v. Wilson,
149 Wis.2d 878, 902, 440 N.W.2d 534, 543 (1989). In ruling on a defendant's request for a lesser-included offense
instruction, the court must view the evidence in the light most favorable to
the defendant and the requested instruction.
Foster, 191 Wis.2d at 23, 528 N.W.2d at 26.
It
is undisputed that the second-degree lesser-included offenses requested by
Fitzpatrick are included offenses of the first-degree charged offenses. See § 939.66, Stats.
Therefore, we apply the Foster analysis to determine
whether the trial court erred in declining to instruct the jury on the
second-degree offenses.
Common
to the first-degree crimes is the element of “utter disregard for human
life.” See §§ 940.02(1),
940.23(1) and 941.30(1), Stats. An instruction regarding second-degree
crimes was appropriate only if there was reasonable doubt as to whether
Fitzpatrick acted with utter disregard for human life. See Foster, 191 Wis.2d at 23,
528 N.W.2d at 26.
Viewing
the evidence in the light most favorable to Fitzpatrick and the requested
instruction, we conclude that the evidence and the reasonable inferences
therefrom are insufficient to (1) support a conviction on the proposed
second-degree offenses or (2) sustain a reasonable doubt that Fitzpatrick acted
with utter disregard for human life.
There is insufficient evidence that Fitzpatrick merely acted recklessly
when he fired into the stairwell.
The
State was required to prove that Fitzpatrick had "utter disregard for
human life," which is analogous to the former "depraved mind"
standard. See State v.
Holtz, 173 Wis.2d 515, 519 n.2, 496 N.W.2d 668, 670 (Ct. App.
1992). The State did not have to prove
that Fitzpatrick had a particular state of mind; rather, the State had to prove
that he engaged in conduct imminently dangerous to another evincing a
depraved mind. See State
v. Blanco, 125 Wis.2d 276, 280-81, 371 N.W.2d 406, 409 (Ct. App. 1985).
Fitzpatrick
argues that he showed regard for human life in the following ways. He obtained a .22 caliber semi-automatic
weapon and returned to the building where he had been involved in a fight. He pointed the weapon at one individual but
did not shoot him. Several people were
running up and down the dark stairwell when Fitzpatrick pointed the weapon. During that time, Segura was able to run on
the stairs, push past Fitzpatrick and yell at him not to shoot. Fitzpatrick pointed the gun at her but did
not shoot her. He then fired four or
five shots into the dark stairwell.
He
further suggests that because the staircase was dark, it is possible that the
shots were fired to scare people on the stairs or in the apartment. He also had some difficulty loading bullets
and this may have resulted in some unintended shots. Fitzpatrick contends that "[h]e was not firing at the people
near him when the opportunity presented itself and his firing was complicated
by a dark and tumultuous scene with possibly a malfunctioning
weapon."
Fitzpatrick's
argument that he showed some regard for human life relies upon two cases, Balistreri
v. State, 83 Wis.2d 440, 265 N.W.2d 290 (1978), and Wagner v.
State, 76 Wis.2d 30, 250 N.W.2d 331 (1977), for support. In Balistreri, the defendant,
while avoiding police, drove through downtown Milwaukee in rush-hour traffic at
high speed, traveled the wrong way on a one-way street, forced pedestrians to run
for safety and ran several lights before striking another car. Balistreri, 83 Wis.2d at
452-54, 265 N.W.2d at 295-96.
Balistreri was charged with endangering the safety of another, an
element of which was conduct evincing a depraved mind regardless of human
life. See id. at 454, 265
N.W.2d at 296. Balistreri argued that
he demonstrated some regard for human life because he turned on his headlights,
swerved to avoid a car, honked his horn and braked to avoid a collision. Id. at 457, 265 N.W.2d at 298. The supreme court relied on this evidence in
reversing Balistreri's conviction because these actions showed some regard for
the lives of others. Id.
at 458, 265 N.W.2d at 298.
In
Wagner, the defendant was drag racing when he struck and killed a
pedestrian. Wagner, 76
Wis.2d at 32-33, 250 N.W.2d at 333‑34.
Because Wagner swerved in an attempt to avoid striking the pedestrian,
the supreme court concluded that he had demonstrated some concern for the lives
of others. Id. at 47, 250
N.W.2d at 340.
Based
on these cases, Fitzpatrick argues that he demonstrated regard for human
life. We disagree. Rather, we agree with the State that this
case is controlled by Holtz.
In Holtz, the defendant repeatedly swung an axe at his
wife, nearly missing her and their son several times before he finally
relinquished the axe to his son. Holtz,
173 Wis.2d at 516-17, 496 N.W.2d at 669.
The defendant was charged with first-degree recklessly endangering
safety and cited Wagner and Balistreri as support
for his contention that he demonstrated some regard for human life.[9] Holtz, 173 Wis.2d at 518‑19,
496 N.W.2d at 669‑70. The Holtz
court disagreed. It concluded that in Wagner
and Balistreri, "the actions the supreme court found to
evince concern for the life of the victim were taken during the
commission of the act." Holtz,
173 Wis.2d at 520, 496 N.W.2d at 670.
In Holtz, however, the defendant demonstrated no regard
for human life while he chased his wife and son with the axe. Id. Although he voluntarily desisted from the attack, the defendant
did so only after having shown no regard for life and safety. Id.
This
is the situation here. Fitzpatrick did
not demonstrate any regard for human life when shooting into the
stairwell. It is precisely the fact
that Fitzpatrick fired into a dark stairwell where he knew or should have
known individuals were gathered which enhances, rather than detracts from, the
conclusion that he acted with utter disregard for human life. That Fitzpatrick elected not to shoot
individuals at close range does not mitigate his conduct when he fired the
weapon. We conclude that Fitzpatrick's
conduct at any time before he began shooting is not at issue.
Viewing
the evidence in the light most favorable to Fitzpatrick and the requested
instruction, we conclude that there was no reasonable doubt that Fitzpatrick
acted with utter disregard for human life.
Therefore, there was no basis to submit instructions to the jury on the
lesser-included reckless conduct offenses.
The
fact that Fitzpatrick denied involvement in the shooting does not mandate a
different outcome. If a defendant
denies involvement in the crime but requests a lesser-included offense
instruction, the court must "reject the defendant's wholly exculpatory
testimony" and "examine his [or her] remaining testimony and the
other evidence to determine whether it supports an acquittal on the greater
charge and conviction on the lesser charge." State v. Simpson, 125 Wis.2d 375, 380, 373 N.W.2d
673, 676 (Ct. App. 1985). Here, there
was testimony regarding the manner in which the gunman fired into the
stairwell. This testimony was
sufficient to support the trial court's decision not to instruct on
second-degree crimes.
Fitzpatrick's
last appellate argument focuses on the prosecutor's description of him as a
“convict” during her initial closing argument and rebuttal. Fitzpatrick objected on both occasions;
however, the trial court declined to grant a mistrial. Fitzpatrick argues that the prosecutor's
comments prejudiced him, infected his trial with unfairness and denied him due
process.
Where
a prosecutor goes beyond reasoning from the evidence and suggests that the jury
should reach a verdict by considering factors other than the evidence, the line
between permissible and impermissible argument has been crossed. See State v. Neuser,
191 Wis.2d 131, 136, 528 N.W.2d 49, 51 (Ct. App. 1995). The test is whether the prosecutor's remarks
"so infected the trial with unfairness as to make the resulting conviction
a denial of due process." Id.
(quoted source omitted). This
determination is made by viewing the statements in context. Id.
Evidence
of Fitzpatrick's prior convictions was admitted pursuant to § 906.09, Stats.
This rule states that evidence that the witness has been convicted of a
crime is admissible to attack his or her credibility. See § 906.09(1).
The jury was instructed that evidence of Fitzpatrick's prior convictions
bore upon his credibility as a witness and could not be used for any other
purpose.
Credibility
was an issue in the case. Fitzpatrick
testified that he did not discharge a firearm into the stairwell. Other witnesses testified that he did. It was for the jury to resolve the
conflict. Wilson, 149
Wis.2d at 894, 440 N.W.2d at 540.
It
is evident from the record that the prosecutor's comments were made to
challenge Fitzpatrick's credibility. As
we have already stated, prior convictions are admissible and can be used to
attack the credibility of a witness.
Additionally, Fitzpatrick's closing argument to the jury focused largely
on character and credibility issues involving the State's witnesses. Several of the witnesses had prior criminal
records, and several were gang members.
Defense counsel acknowledged that Fitzpatrick had a prior record, but
stressed that his record could only be considered on the question of credibility. Considering Fitzpatrick's argument, the
applicability of § 906.09, Stats.,
and the trial court's instructions, we see no error in the prosecutor's
reference to Fitzpatrick as "a convict."
Fitzpatrick's
reliance upon State v. Grinder, 190 Wis.2d 541, 527 N.W.2d 326
(1995), is misplaced. In Grinder,
the supreme court determined that the circuit court improperly referred to
Grinder as "the prisoner" in front of the jury. The statement was made because Grinder was
late in coming to court from jail. Id.
at 554, 527 N.W.2d at 331. However, the
supreme court went on to hold that the reference did not jeopardize Grinder's
right to a fair trial and was harmless based on the totality of the record. Id. Here, in contrast, the prosecutor's statements were made while
she was arguing the evidence and the credibility of the witnesses. This is not a Grinder case.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.