Summary
In Bizzle, the court found sufficient corroboration where shotgun shells were found in the location the accomplice, who had been granted immunity to testify, stated the defendant fired the shotgun.
Summary of this case from Linse v. StateOpinion
No. State 106.
Submitted under sec. (Rule) 251.54 November 1, 1974. —
Decided November 26, 1974.
ERROR to review a judgment of the county court of Racine county: JAMES WILBERSHIDE, Judge. Affirmed.
The cause was submitted for the plaintiff in error on the brief of Anthony S. DeMark and Wratten, Dana DeMark, all of Racine, and for the defendant in error on the brief of Robert W. Warren, attorney general, and David J. Becker, assistant attorney general.
Facts.
Plaintiff in error, Richard Bizzle, hereinafter referred to as the defendant, was convicted of first-degree murder, contrary to sec. 940.01 (1), Stats., following a jury trial. Judgment of conviction was entered on August 31, 1972, and defendant was sentenced to life imprisonment.
On June 20, 1972, Troy Pulliam was shot and killed. Relevant events of the day began with defendant going to the house of Joe Bennie King and asking King to drive him around to find two individuals who owed defendant money. They picked up Anthony Wooten at a tavern, and defendant asked Wooten where he could get a gun. The three drove to the home of Richard (Rick Tick) Clark, and defendant went inside. He emerged with Clark, defendant carrying a shotgun. The four drove to a Racine park where Wooten and King remained in the car while Clark fired the gun twice to show defendant how loud it fired.
At about 9 p. m., they encountered the victim, Troy Pulliam. Either defendant or Clark got Pulliam to get into the car on the pretext they were going to "pull a job." The five of them, with King still driving, then drove to a country road north of Racine where King stopped the car at defendant's request. Defendant, holding the shotgun, and the victim got out of the car and had a conversation about money owed by the victim to defendant for a telephone bill. They started getting back into the car, but defendant said he wanted to talk some more, and the victim and defendant again got out of the car. King, the driver, became nervous and shaky, and Wooten walked around the car to replace him at the driver's seat. As he did so, Wooten saw gunfire. Two shots were heard. Defendant got back in the car and said that he had shot Pulliam.
An autopsy determined that Pulliam's death was caused by gunshot wounds in the chest and abdomen. Shotgun shells were found in the park and next to the victim's body.
At the time of the trial, King had been convicted of aiding a felon (contrary to sec. 946.47, Stats.); Wooten was awaiting sentence, having pleaded guilty to aiding a felon; and Clark, who did not testify at the trial here, had been convicted of murder, party to the crime. (Conviction affirmed in Clark v. State (1974), 62 Wis.2d 194, 214 N.W.2d 450.)
By writ of error defendant appeals the judgment of conviction, raising a single issue: The refusal of the trial court to include in the jury instructions a modified version of Wis J I — Criminal, Part I, 245, dealing with testimony of accomplices.
The sole claim of error is as to the trial court's refusal to give a requested instruction directing the jury to examine testimony given by an accomplice ". . . with the utmost care and caution . . . ." The trial court held that witnesses for the state, Joe Bennie King and Anthony Wooten, were not accomplices of the defendant on a charge of first-degree murder.
Wis J I — Criminal, Part I, 245.
The issue presented is resolved and the claim of trial court error is negatived by the holding of this court in Cheney v. State. There the trial court gave a portion of the accomplice instruction, but not all of it. There, as here, the testimony of two state witnesses was involved. The case involved the fire bombing of a building in Milwaukee. One state witness, Robert Schmidt, who had been granted immunity, testified that defendant placed gasoline and a piece of pipe with fuses attached inside the building that was bombed. The other state witness, Phil Kasik, told of a conversation he had had with defendant after the bombing incident and testified that defendant gave him a pipe bomb. This court held that Schmidt was an accomplice, but that Kasik was not. However, as to the testimony of both witnesses, this court, in Cheney, found their testimony to be corroborated. An earlier case, where there was no corroboration, was distinguished. The corroboration consisted of pipe fragments found in the bombed building. In the case before us, similar corroboration is present in the shotgun shell found near the body of the victim and the shotgun shell, fired from the same shotgun, found in the park where the two state witnesses testified that the shotgun was test-fired. With corroboration found to be present in this record, there was no requirement that the trial court give the standard instruction as to testimony of accomplices. As this court held in Cheney, this particular instruction ". . . is aimed at the situation where the state's case against the accused consists of nothing more than the accomplice's testimony. . . ." That was not the situation in Cheney. It is not the situation here. Corroboration being present, regardless of whether either of the two state witnesses, King or Wooten, could here be claimed to be an "accomplice," i.e., "a participant in the particular crime charged," it was not error in this case for the trial court to refuse to instruct the jury as to the weight to be given accomplice testimony.
(1969), 44 Wis.2d 454, 171 N.W.2d 339, 174 N.W.2d 1.
Id. at page 467.
Id. at page 467.
Id. at page 468.
Id. at pages 467, 468, this court distinguishing Abaly v. State (1916), 163 Wis. 609, 158 N.W. 308, where this court, finding prejudicial error in a refusal to give a requested instruction on accomplice testimony, held: "`. . . There was no evidence corroborating that of the complaining witness upon the actual commission of the crime charged. While one accused of crime may be convicted upon the testimony of an accomplice alone, there is often great danger of injustice being done the accused in convicting upon such evidence . . . .'"
Id. at page 468, this court holding: "Defendant's reliance on Abaly is misplaced for, in the instant case, there was corroboration. The arson inspector testified that he recovered pipe fragments from the rear of the Allied store — the place where Schmidt testified that defendant placed the pipe bombs." Additionally, on motion for rehearing in Cheney, this court further stated: ". . . The testimony of the arson investigator that he recovered pipe fragments from the rear of the Allied store was in corroboration of Schmidt's testimony because there was testimony that these fragments were similar to the pipes which Kasik testified were turned over to him by Cheney." Id. at page 471.
The shell found near the victim and the shell found in the park were identified by a state crime laboratory employee as having been fired from the same shotgun. A few days after the killing, the shotgun involved was thrown into Lake Michigan and never recovered.
A child who lived near the Racine park where King and Wooten stated that the shotgun was test-fired, testified that she found a shotgun shell in the park the day after she heard shots in the park on the day of the shooting.
Cheney v. State, supra, footnote 2, at page 467.
Id. at page 467, this court holding: "It is clear that Kasik was not an accomplice in the true sense of the word since he was not a participant in the particular crime charged. . . ." Citing 23 C. J. S., Criminal Law, pp. 4-7, sec. 786 (2).
By the Court. — Judgment affirmed.