[Criminal Law Zoom] State v. Strege

State v. StregeWis. (1984)  This is a review of the court of appeals affirming conviction of Strege of first-degree murder. At approximately 8:30 p.m. on the evening of November 1, 1980, the lifeless body of Lewandowski was discovered on the floor of the Milwaukee service station where he was employed as an attendant. He had been shot.  On February 23, 1981, the defendant Strege was arrested on a state arrest warrant. He confessed ... The evidence adduced at trial, viewed in the light most favorable to the defendant… The defendant entered the gas station with the loaded gun concealed under his shirt tucked in the waistband of his pants, while Fraser, who was afraid he would be recognized by the attendant종업원, waited across the street behind a fence. Fraser had told the defendant before he entered the station that the attendant was “crazy” and would turn him in if given the opportunity. The defendant produced the five-dollar bill and asked for change. Lewandowski took the five and returned five ones. The defendant then handed back one of the ones and asked for four quarters. As Lewandowski was complying with the request, the defendant removed the gun and shot him in the arm. After firing the first shot, the defendant believed Lewandowski was coming toward him to take the gun and use it against him. He panicked and fired three more shots, one of which penetrated Lewandowski’s heart killing him. The defendant denied that he was aiming at Lewandowski or that he intended to kill him. (Self-defanse issue must be considered, may be the defendant miss the issue...) The defendant testified that prior to the shooting he had drunk ten to fifteen beers and taken an unspecified quantity of valium. He also testified that he was “pretty high” or “well up there.”  At the conclusion of the evidence, the defendant requested an instruction on the defense of voluntary intoxication. The trial court denied the request. This case presents the question of what evidence is necessary to entitle the defendant to a jury instruction on the defense of voluntary intoxication. In State v. Guiden, Wis 1970, this Court described the degree of intoxication necessary to constitute the defense of voluntary intoxication. “The intoxicated or drugged condition to which the statute refers is not the condition of alcohol-induced incandescence or being well-lit that lowers the threshold of inhibitions or stirs the impulse to criminal adventures. It is that degree of complete drunkenness which makes a person incapable of forming intent to perform an act or commit a crime. To be relieved from responsibility for criminal acts, it is not enough for a defendant to establish that he was under the influence of intoxicating beverages. He must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite to the commission of the crime charged.” As the passage quoted from Guiden makes clear,it is not enough for the defendant to establish that he was intoxicated to be relieved of criminal responsibility. It follows, therefore, that evidence that the defendant was intoxicated is not enough to support a jury finding of lack of intent due to intoxication and therefore not enough to warrant a jury instruction on the issue. To do this he must come forward with some evidence of the degree of intoxication which constitutes the defense. An abundance of evidence which does not meet the legal standard for the defense will not suffice. There must be some evidence that the defendant’s mental faculties were so overcome by intoxicants that he was incapable of forming the intent requisite to the commission of the crime. A bald statement that the defendant had been drinking or was drunk is insufficient ... In order to merit an intoxication instruction in this case, the defendant must point to some evidence of mental impairment due to the consumption of intoxicants sufficient to negate the existence of the intent to kill. Applying these standards to the present case, we conclude that the evidence produced by the defendant did not warrant an instruction on the defense of voluntary intoxication. The defendant testified that prior to that robbery and shooting he had consumed ten to fifteen beers and an unspecified amount of valium. There is nothing in the record indicating when or over what period of time the beer was consumed. There was no expert testimony on the likely effect of either or both or those drugs on a person of the defendant’s size or with the defendant’s drug use history. This evidence of the defendant’s drug and alcohol consumption falls short of the evidence of impairment necessary to warrant an instruction on voluntary intoxication. The defendant also testified as to the effect of the drugs. He testified that he was used to drinking as much as he had that day and that he was not drunk until after taking the valium. After ingesting the valium, he was, in his words, “well up there...or pretty high.” Neither of these statements amounts to evidence of a state of mental impairment rendering the defendant incapable of forming the intent to kill… This must be more than a mere statement that the defendant was intoxicated. The defendant’s testimony that he was “High or up there” is no more evidence of impairment negating the existence of a specific intent(simple and bold faced excuse) than a statement that he is intoxicated. ----------------------------------------------------------------------------------------------------------------------------- The record evidence of the defendant’s mental state prior to and during the commission of the crime all points to a conclusion that the defendant’s faculties were not seriously impaired by drugs. He was able to describe the crime and events surrounding the crime clearly and in detail.He remembered the names and one of the addresses of the individuals from whom the gun and bullets were obtained.He remembered who carried and loaded the gun and was able to describe its appearance and operation.He was able to formulate or at least understand the device of entering the gas station under the pretense of asking for change.He was lucid enough to conceal the gun in the waistband of his trousers under his shirt.Once inside the station he was able to carry the preconceived plan into execution.He was able to describe Lewandowski’s movements in getting the change and when he was shot.He remembered seeing blood on the victim’s arm after firing the first shot and then firing three more shots.He remembered the three places in the office where he found money, that the money in the desk was in bands of twenty-five ones, and recalled from which of the victim’s pockets he took money. Clearly the defendant’s account of his actions provides no evidence of impairment sufficient to negate the existence of an intent to kill. Giving full credence to the defendant's testimony, we find no evidence of mental impairment due to drug induced intoxication which would negative the existence of an intent to kill. Therefore, the court's refusal to give the requested instruction was proper.