State v. Spears

SUNDBY, J.

(dissenting). Kenneth Spears is guilty of a heinous crime: causing the death of two persons, including a five-year-old girl, by the intoxicated and reckless operation of a motor vehicle. I would not hesitate to impose the maximum penalty the law allows for his offense. But in which offense-slot does his conduct fit? The state charged Spears with second-degree murder, sec. 940.02, Stats. Spears acknowledges he is guilty of reckless homicide, sec. 940.06. Because it is debatable whether Spear’s conduct, heinous as it was, evinced a depraved mind, regardless *449 of human life, a necessary element of second-degree murder, I would allow Spears to withdraw his plea so that a jury may determine whether he is guilty of second-degree murder or reckless homicide.

The legislature defines crimes. See State v. Baldwin, 101 Wis. 2d 441, 447 , 304 N.W.2d 742, 746 (1981). By definition, second-degree murder is an unintentional killing. Turner v. State, 64 Wis. 2d 45, 51 , 218 N.W.2d 502, 505 (1974). The elements of second-degree murder are: "First, that the defendant’s conduct was imminently dangerous to another; Second, that his conduct was of such a character that evinced a depraved mind, regardless of human life; Third, that there was a relation of cause and effect between the death of [the victim] and the defendant’s conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.” Wis J I— Criminal 1110.

The elements of the offense of homicide by reckless conduct are: "First, that the defendant engaged in reckless conduct; Second, that the defendant caused the death of [the victim] by such conduct.” Wis J I — Criminal 1160.

Section 940.06(2), Stats., defines reckless conduct as follows:

Reckless conduct consists of an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury. It is intended that this definition embraces all of the elements of what was heretofore known as gross negligence in the criminal law of Wisconsin.

*450 Both second-degree murder and homicide by reckless conduct assume that the killing was not purposive. The essential difference between the two degrees of homicide is that recklessness is enough to convict a person of reckless homicide while it is not enough to convict a person of second-degree murder. State v. Weso, 60 Wis. 2d 404, 410-11 , 210 N.W.2d 442, 445 (1973). But a high degree of negligence may be an element of second-degree murder. Id. A high degree of negligence is defined, in part, the same as reckless conduct. Section 940.08(2), Stats., defines high degree of negligence to include "an act which the person should realize creates a situation of unreasonable risk and high probability of death or great bodily harm to another.” Thus, the same act may constitute homicide by negligent use of a vehicle, sec. 940.08, Stats., reckless homicide, sec. 940.06, or second-degree murder, sec. 940.02.

In deciding the offense-slot into which Spears’s conduct fits it may be helpful to ask, as the court did in State v. Hoyt, 21 Wis. 2d 310 , 317n, 124 N.W.2d 47, 60 (1963) (opinion withdrawn for other reasons): "Why does the legislature make a grading between homicides? Why not simply hold that one who kills another should be subject to an invariant punishment?”

The Hoyt court answered:

Legislative gradings of homicides recognize that society places different estimates on the moral reprehensibility of the defendant’s conduct in each type of homicide, and that variations in the defendant’s character justify variations in the sentence. Distinctions between degrees of homicide on the basis of the state of mind of the defendant permit the trier of fact to make moral evaluations of the defendant’s character and within general *451 limits determine the proper punishment. ... The only rational basis of placing a defendant in one category or another is to make some moral evaluation of his act of homicide.

Id. at 317n-317-o, 124 N.W.2d at 60-61 .

Society’s judgment as to the "moral reprehensibility” of the defendant’s conduct is reflected in the punishment which society imposes on the convicted defendant. Plainly, society considers second-degree murder to be more reprehensible than reckless homicide because it allows the courts to impose greater punishment for second-degree murder.

Whether a defendant’s conduct is reckless homicide or second-degree murder is ultimately decided, as it should be, by the jury. Reckless homicide is a lesser included offense of second-degree murder. State v. Wilson, 145 Wis. 2d 143, 154 , 426 N.W.2d 56, 60 (Ct. App. 1988), pet. for review granted. The jury is the instrument by which society completes the "moral evaluation” of the defendant’s conduct begun by the legislature. 1

Spears, however, will be denied the opportunity to have the jury make a moral evaluation of his conduct. He pled no contest to two counts of second-degree murder. He now seeks to withdraw his plea. "When a motion to withdraw a plea is made after sentencing, the defendant has the burden of showing by clear and convincing evidence that the withdrawal of the plea is necessary to correct a manifest injustice.” State v. Johnson, 105 Wis. 2d 657, 666 , 314 N.W.2d 897, 902 (Ct. App. 1981) (quoting State v. Schill, 93 Wis. 2d 361, *452 383 , 286 N.W.2d 836, 847 (1980)). Manifest injustice arises as a matter of law if a factual basis does not exist to support Spears’s plea. It is the duty of the trial court prior to accepting a plea of guilty or no contest to personally ascertain whether a factual basis exists to support the plea. State v. Bangert, 131 Wis. 2d 246, 261-62 , 389 N.W.2d 12, 21 (1986). This requirement is satisfied if the judge determines that the state will offer strong proof of the defendant’s guilt. Johnson, 105 Wis. 2d at 663 , 314 N.W.2d at 900 . When, however, the defendant moves to withdraw a plea and claims that the proof will only support a lesser included offense, the court should be reluctant to deny the defendant’s motion if the evidence is fairly debatable, so that the appropriate societal instrument, the jury, may make the necessary moral evaluation of the defendant’s conduct. This is especially so because, in deciding whether to submit the lesser included offense of reckless homicide, the trial court is required to view the evidence in the most favorable light it would reasonably admit from Spears’s standpoint. Sarabia, 118 Wis. 2d at 663, 348 N.W.2d at 532.

In my judgment, Spears’s conduct did not evince a depraved mind, regardless of human life. At least the state’s witnesses and the additional evidence the prosecutor stated he would offer at trial do not provide strong proof that the depraved-mind element of the offense of second-degree murder would be satisfied. But this is not my greatest concern, or, even, a concern at all. My concern is that the jury, not the trial judge, should make the moral evaluation of Spears’s conduct.

The state claims that we must review the trial court’s denial of Spears’s motion under the standard of review we apply in determining sufficiency of the *453 evidence to sustain a jury verdict; that we must view the evidence in the light most favorable to the prosecution. I disagree. We review the denial of a motion to withdraw a guilty or no contest plea for "manifest injustice.” Under the manifest injustice standard, we review the evidence, in my opinion, not to determine whether it is sufficient to sustain a jury’s verdict, but whether it is reasonably debatable whether justice has miscarried because the evidence does not provide strong proof of the defendant’s guilt or because the jury might as well have found the defendant guilty of a lesser included offense.

Before considering the evidence however, it will be helpful to review how "conduct evincing a depraved mind, regardless of human life” has been defined.

"Conduct evincing a depraved mind regardless of human life” is an element of three statutory offenses: second-degree murder, sec. 940.02, Stats., injury by conduct regardless of life, sec. 940.23, and endangering safety by conduct regardless of life, sec. 941.30, Stats. The jury instruction as to the meaning of depraved mind, regardless of human life is the same as to each offense. The instruction is:

"Depraved mind[,] regardless of human life” does not mean that the mind of the defendant must have been diseased or that he must have had a mental disorder generally described as insanity or feeblemindedness. The depravity of mind referred to ... exists when the conduct... demonstrates an utter lack of concern for the life and safety of another and for which conduct there is no justification or excuse.

Wis J I — Criminal 1110.

*454 Because "conduct evincing a depraved mind, regardless of human life” is an element of the three offenses described, we may refer to cases decided under each statute. In each case in which this element was established, the defendant’s conduct demonstrated a constructive or implied intent to kill. See Wagner v. State, 76 Wis. 2d 30, 41-42 , 250 N.W.2d 331, 338 (1977); Seidler v. State, 64 Wis. 2d 456, 464 , 219 N.W.2d 320, 325 (1974), reprinted in 67 A.L.R.3d 890 (1974).

In all of the cases I have reviewed I have found that the defendant had some advertence of the possibility of death or great bodily harm directed toward a specific individual or groups of individuals. E.g., State v. Wilson, (battering a child); State v. Pankow, 144 Wis. 2d 23 , 422 N.W.2d 913 (Ct. App. 1988) (asphyxiation of child caused by towel tied around her mouth); State v. Davis, 144 Wis. 2d 852 , 425 N.W.2d 411 (1988) (shooting victim in course of robbery); State v. Michels, 141 Wis. 2d 81 , 414 N.W.2d 311 (Ct. App. 1987) (striking victim’s head with large piece of wood); State v. Flakes, 140 Wis. 2d 411 , 410 N.W.2d 614 (Ct. App. 1987), appeal dismissed, 98 L. Ed. 2d. 855 (1988) (strangling victim with a soft ligature during a sexual act); State v. Johnson, 135 Wis. 2d 453 , 400 N.W.2d 502 (Ct. App. 1986) (striking child with a blow equivalent to a fifty to sixty miles per hour head-on collision); Sarabia (firing gun into a bar where defendant knew people were present); State v. Bernal, 111 Wis. 2d 280 , 330 N.W.2d 219 (Ct. App. 1983) (shooting at victim’s legs); State v. Kelley, 107 Wis. 540 , 319 N.W.2d 869 (1982) (firing three shots at waist level into closed door of a room in which defendant knew there were people); State v. Zellmer, 100 Wis. 2d 136 , 301 N.W.2d 209 (1981) (strangulation of child); State v. Klimas, 94 *455 Wis. 2d 288 , 288 N.W.2d 157 (Ct. App. 1979), cert. denied, 449 U.S. 1016 (1980) (shooting wife while distraught); Hagenkord v. State, 100 Wis. 2d 452 , 302 N.W.2d 421 (1981) (beating and raping); State v. Stawicki, 93 Wis. 2d 63 , 286 N.W.2d 612 (Ct. App. 1979) (hitting victim over head with wine bottle); Terrell v. State, 92 Wis. 2d 470 , 285 N.W.2d 601 (1979) (shooting another); Kirby v. State, 86 Wis. 2d 292 , 272 N.W.2d 113 (Ct. App. 1978) (beating with curtain rods, an electric cord and belt over a period of five hours); Virgil v. State, 84 Wis. 2d 166 , 267 N.W.2d 852 (1978) (beating and gagging eighty-two-year-old female robbery victim); State v. Verhasselt, 83 Wis. 2d 647 , 266 N.W.2d 342 (1978) (firing rifle at moving vehicle); State v. Manson, 76 Wis. 2d 482 , 251 N.W.2d 788 (1977) (stomping victim to death); Turner v. State, 76 Wis. 2d 1 , 250 N.W.2d 706 (1977) (sodomy of nine-year-old girl); State v. Kuta, 68 Wis. 2d 641 , 229 N.W.2d 580 (1975) (pointing cocked and loaded gun at close range at stomach of police officer); Werner v. State, 66 Wis. 2d 736 , 226 N.W.2d 402 (1975) (knifing); State v. Van Ark, 62 Wis. 2d 155 , 215 N.W.2d 41 (1974) (placing home made bomb in another’s car); State v. Dolan, 44 Wis. 2d 68 , 170 N.W.2d 822 (1969) (poking knife in another’s stomach and threatening to kill him); State v. Johnson, 233 Wis. 668 , 290 N.W. 159 (1940) (firing shots into porch, toward street where children played); Zingler v. State, 146 Wis. 531 , 131 N.W. 837 (1911) (tearing of victim’s vagina by violent introduction of hard object); Hogan v. State, 36 Wis. 226 (1874) (striking victim’s face with sharp edge of ax).

Reprehensible conduct does not necessarily evince a depraved mind. In Seidler , the defendant threw a child into a bedroom in the direction of the bed. The child died from injuries sustained when she struck the *456 metal frame of the bed or the bedpost. The court held that the defendant’s conduct did not evince the "constructive intent” to cause death, necessary to second-degree murder. Seidler, 64 Wis. 2d at 463 , 219 N.W.2d at 324 . Depraved mind, regardless of human life is something more than negligence but something less than specific intent. Hagenkord, 100 Wis. 2d at 484 , 302 N.W.2d at 437 . "[T]he 'depraved mind’ element imports a state of mind which, although less than specific intent, is more criminally culpable than negligence because of its offensive and shocking nature. It is a heinous type of mens rea —” Id. at 484-85 , 302 N.W.2d at 437-38 .

I have found five cases in which the state has alleged that the defendant’s operation of a motor vehicle evinced a depraved mind. In Montgomery v. State, 178 Wis. 461 , 190 N.W. 105 (1922), the defendant, while intoxicated, drove into people plainly visible to him, who were waiting to board a streetcar. The court affirmed his conviction of second-degree murder. In Bednarski v. State, 53 Wis. 2d 791 , 193 N.W.2d 668 (1972), the defendant was driving at night on a Milwaukee Street at a speed of forty to fifty miles per hour. Pursued by police, he repeatedly turned his car toward a police motorcycle, finally striking and injuring the police officer. The court affirmed his conviction of endangering safety by conduct regardless of life.

In Wagner , the defendant was drag racing at a high rate of speed on a street in the middle of a city. He struck and killed a pedestrian. The court held that the evidence was insufficient to establish conduct evincing a depraved mind, regardless of human life. The court said: "The conduct may well be reckless or negligent and it may carry with it a high probability *457 of death or injury, but it is not conduct imminently dangerous to another or such conduct that carries with it the implied intent to kill as those criteria are interpreted in the second-degree murder statute.” Id. at 44 , 250 N.W.2d at 339.

In Balistreri v. State, 83 Wis. 2d 440 , 265 N.W.2d 290 (1978), the court reversed the defendant’s conviction of endangering safety by conduct regardless of life. He attempted to elude police by driving his car at speeds greater than sixty miles per hour in heavy traffic. The court held that such conduct was imminently dangerous to life, but did not evince a depraved mind regardless of human life because his conduct in turning on his lights, swerving to avoid a squad car, honking his horn and braking to avoid a collision showed some regard for the life of others. The court said:

Conduct involving the operation of a motor vehicle that evinces depravity must be more than the negligent or reckless operation of a motor vehicle, though... recklessness can be an element_[T]he conduct ... must be so inherently fraught with danger to the victim’s life that to engage in it implies a constructive intent to maim or kill.

Id. at 458 , 265 N.W.2d at 298 (citation omitted).

In State v. Toliver, 104 Wis. 2d 289 , 311 N.W.2d 591 (1981), evidence that the defendant turned his vehicle and headed directly toward a police officer was held sufficient to sustain the defendant’s conviction of endangering safety by conduct regardless of life.

For the operation of a motor vehicle to evince a depraved mind, regardless of human life it is not enough to show that the operator operated the vehicle in a way that created an unreasonable risk and high *458 probability of death or great bodily harm and demonstrated a conscious disregard for the safety of another. If such were enough, there would be no "grading” between reckless homicide and second-degree murder.

There are two factors which distinguish second-degree murder committed by operation of a motor vehicle and homicide by the reckless operation of a motor vehicle. First, the operation of the vehicle must imply a constructive intent to maim or kill. Second, the operation must be directed toward a specific victim or group of victims, the existence of whom the defendant was or should have been aware. See Wagner, 76 Wis. 2d at 42 , 250 N.W.2d at 338 . ("[T]here is a common fact present in many of the cases cited in Seidler and Dolan ; that is that the conduct of the defendant was directed toward a specific victim or group of victims, the existence of whom the defendant was or should have been aware.”).

In Montgomery , for example, the defendant saw people standing in his path and made no attempt to avoid hitting them. In Bednarski , the defendant deliberately struck a police officer’s motorcycle. In Toliver , the defendant attempted to run down a police officer. In Wagner , however, there was no evidence that the defendant saw the pedestrian he killed. In Balistreri , the court said: "The state offered no evidence that, when the three pedestrians were forced to jump back on the sidewalk, the defendant saw them or was willing to hit them.” 83 Wis. 2d at 458, 265 N.W.2d at 298 .

With this background, I turn to consider the evidence presented at the plea hearing and the hearing on Spears’s motion to withdraw his plea.

Spears, who was driving while intoxicated, and three passengers proceeded at speeds up to eighty *459 miles per hour in Spears’s car on Clinton Street toward its intersection with Rose Street in the city of La Crosse. Cars were stopped at a red light at the intersection. Spears braked but was unable to stop. He pulled around the waiting cars and back into his lane of travel where he struck two cars. The operator of one of the vehicles stated that Spears struck his car and the car in front and "was all over the place and had really lost it.”

After striking the two vehicles, Spears crossed Clinton Street at a diagonal, jumped the curb, passed between the Exchange State Bank building and a telephone pole, crossed an alley into a parking lot where he struck and killed two people.

Two impartial eyewitnesses testified. Chris Strand was standing at the telephone pole which Spears barely avoided as he crossed into the alley and parking lot. He testified that Spears was airborne across the alley, at a very high rate of speed — between seventy and eighty miles an hour — and landed in the parking lot five to six feet from the two victims. He testified that it did not appear that Spears had control of his vehicle. He expressed his opinion that Spears "probably” did not have any chance to avoid the victims.

The other eyewitness, Craig Loomis, was a motorist passing through the intersection of Clinton and Caledonia Streets, one block east of the intersection of Clinton and Rose. He saw Spears’s car from the time it deviated from its lane of travel until it left the parking lot. He, too, testified that Spears’s vehicle hit the curb, became airborne and landed in the parking lot. He thought that Spears’s car was out of control when it swerved across Clinton Street.

*460 The prosecutor represented to the court that other eyewitnesses would confirm that Spears’s car "completely cleared the alley with the front end[, t]he front wheels coming down in the parking lot.”

The undisputed evidence is that, because of his high rate of speed and lack of control of his car, Spears had no opportunity to avoid striking the victims. This evidence does not relieve his conduct of its character of moral reprehensibility but it does place that conduct within the legislature’s "grading” of reckless homicide. His conduct consisted of "an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury.” Sec. 940.06(2), Stats.

Spears’s conduct does not, however, demonstrate a constructive or implied intent to kill. At the least, Spears had the right, on the evidence, to have a jury decide whether his conduct constituted reckless homicide or second-degree murder. "The submission of lesser included offenses, where appropriate, it is right of both the accused and the State.” Walker v. State, 92 Wis. 2d 690, 695 , 286 N.W.2d 2, 5 (Ct. App. 1979), aff’d, 99 Wis. 2d 687 , 299 N.W.2d 861 (1981) (footnote omitted). 2 I therefore respectfully dissent.

The judge may, of course, determine that the evidence does not permit submission to the jury of a lesser include offense. State v. Sarabia, 118 Wis. 2d 655, 661 , 348 N.W.2d 527, 531 (1984).

The state argues judicial estoppel. This doctrine has no application to an Alford (North Carolina v. Alford, 400 U.S. 25 (1970)) plea. The function of an Alford plea is to allow a defendant to plead to a charge while maintaining his innocence. Spears has not taken inconsistent positions.