State v. Cunningham, 1994 Wisc. App. LEXIS 1183 (WI Ct. App. 1 1994)

State v. Cunningham, 1994 Wisc. App. LEXIS 1183 (WI Ct. App. 1 1994)

Court of Appeals of Wisconsin, District One

September 27, 1994, Released

No. 93-2247-CR

1994 Wisc. App. LEXIS 1183 | 188 Wis. 2d 80 | 524 N.W.2d 647

STATE OF WISCONSIN, Plaintiff-Respondent, v. CHARLES A. CUNNINGHAM, Defendant-Appellant.

Judges: Before Sullivan, Fine and Schudson, JJ.

Opinion by: PER CURIAM


PER CURIAM. Charles A. Cunningham appeals from a judgment of conviction, following a jury trial, for two counts of first-degree intentional homicide while armed, contrary to §§ 940.01(1) and 939.69 STATS., and one count of attempted first-degree intentional homicide while armed, contrary to §§ 940.01(1), 939.32, and 939.63, STATS.

Cunningham presents two issues for our review: (1) whether the trial court erred when it denied his request for jury instructions on lesser-included offenses; and (2) whether the trial court erred when it allowed a police office to read another prosecution witness’s entire statement to police into evidence, thereby admitting prior consistent statements that Cunningham alleges impermissibly bolstered the credibility of the prior witness. We reject both arguments and affirm.


Cunningham’s convictions arose from a fight gone tragically awry outside a tavern on Milwaukee’s north side during the early morning hours of June 21, 1992. In the wake of the fight, two people were dead and one was wounded. Cunningham, Larry Flagg, Larry Lewis, and Johnnie and Michael Elerson were all originally inside the tavern. Johnnie Elerson and Michael Elerson and Lewis were all cousins; Flagg was Johnnie Elerson’s acquaintance. Cunningham was unfamiliar with any of them. After the “last call” for drinks was made, patrons began to exit the tavern. What occurred next is disputed.

Johnnie Elerson testified that he, Michael Elerson, Flagg, and Lewis attempted to leave the tavern, but that Cunningham was standing in the doorway and would not let them pass. Johnnie Elerson testified he “shoved” Cunningham against the door so he could pass. He testified that he then left the tavern with his cousins and Flagg.

Michael Elerson and Janice McAfee, another patron who was leaving the tavern, testified that Johnnie Elerson and his companions went down the front steps to their car and that Cunningham went down the stairs after them. Johnnie Elerson began to unlock the driver-side door, while Michael Elerson and Larry Lewis went to the other side of the car. Flagg remained on the sidewalk. McAfee and Elerson testified that Cunningham ran into the street and flagged down a passing car driven by Chris Hill, Cunningham’s companion. Hill exited his car. Both Michael Elerson and McAfee also testified that Cunningham then reached into his jacket, pulled out a gun, extended his arm toward Johnnie Elerson, and moved to the front of Johnnie Elerson’s car. Marsha McHenry, another tavern patron, testified that she was just leaving the tavern when she saw Cunningham and Johnnie Elerson talking; she heard Johnnie Elerson say, “What am I suppose to do? Run because you got a gun?” Johnnie Elerson testified that Cunningham then fired two shots toward him and then backed up.

After the first two shots were fired, Michael Elerson, Lewis, and Flagg converged on Cunningham. Johnnie Elerson testified that Michael Elerson, Flagg and Lewis grabbed Cunningham from behind and that all four men fell to the ground. Michael Elerson testified that he grabbed Cunningham by the hand and the barrel of the gun. Another shot was fired. Johnnie and Michael Elerson testified that another man (presumably Hill) grabbed Michael Elerson and began to grapple with him on the hood of Johnnie Elerson’s car. Michael Elerson testified that he heard two more gunshots. Johnnie Elerson testified that he then ran to the front of the car and grabbed the man wrestling with Michael Elerson, at which time Cunningham got off the ground and pointed the gun at Michael Elerson. According to Michael Elerson, Cunningham said, “I ought to blow your motherf—ing brains out.” Cunningham then demanded that Johnnie Elerson let Hill go and then he and Hill ran off down the street.

The jury heard two versions of what Cunningham said occurred. He gave a statement to police twelve hours after the shooting that was entered into evidence through the investigating detective. The detective testified that Cunningham stated he was bumped in the door of the tavern and then attacked without provocation by a group of men. Cunningham said that while he was on the ground he pulled a gun from his right pants pocket, grabbed one of the attacking men, and shot the man. Cunningham then said he grabbed another attacking man, flipped him over his right shoulder, and shot him. Cunningham then said Hill pulled up in his car and pulled another man off him; his gun fired again. The gun was empty and, as he saw another man holding Hill, he pointed the gun at the man and said, “Get up off my folks.” He and Hill then ran off.

Cunningham also testified at trial. He testified that he had stopped at the front door of the tavern to talk to a woman, when a man (Johnnie Elerson), said “Excuse me,” as the man attempted to get through the doorway. Cunningham testified that he was not in the man’s way, so he said, “Hold up for a second,” and that Elerson then pushed him out the door and up against a railing outside. He testified that Elerson slapped him in the face and said that he was going to go to his car to get a “missile,” which Cunningham understood to mean a gun. He testified that he was afraid Elerson was going to get a gun, so when Johnnie Elerson was unlocking his car door, he fired a warning shot off to Johnnie Elerson’s right and over his head. He cocked the gun to fire a second shot and he was hit from behind. Cunningham testified that he fired another shot, and then the gun came out of his hands. He said that during the struggle many hands were on the gun. He said that other people placed their hands on the gun and his wrist and that he never placed the gun against anyone’s body and fired. He testified that in the end he picked the gun off the street, freed Chris Hill, and ran off.

Flagg sustained a contact gunshot wound to the upper chest and died. Lewis was shot in the abdomen and died two weeks later. Johnnie Elerson was shot in the forearm.

The State’s forensic and firearms expert testified that Cunningham’s gun, a .22-magnum Winchester five-shot revolver, was smaller than average, and, therefore, was designed with a heavier-than-average trigger pull. [1] It was designed this way so that it would not discharge from pressure applied to any part of the gun except the trigger. The State’s expert also testified that he performed tests on the gun that proved that the hammer had to be pulled back and cocked every time a round was fired, and that the gun could not be fired when it was in the half-cocked position. Additionally, he testified that the gun proved exceptionally safe from accidental discharge because the gun would only fire after someone applied ten pounds of trigger pull.

At the conclusion of the evidentiary portion of the trial, Cunningham requested lesser-included offense jury instructions on first-degree recklessly endangering safety for the attempted first-degree intentional homicide charge, and first-degree reckless homicide for the two first-degree intentional homicide charges. The trial court denied the request. Instead, the court gave the instruction for self-defense, and the lesser-included instruction for second-degree intentional homicide–imperfect self-defense. With regard to either of Cunningham’s requested instructions, the trial court stated:

Now we can’t allow a defendant to take the stand and go through the whole panoply of all the types of homicides there are and put a little fact in that may trigger that particular type of offense and trigger another one and then give them all. I think that would be confusing to the jury and also not appropriate. I think the facts are clear here and particularly because of the physical facts of the pistol itself, the pistol having to be cocked each time. That is not reckless. That is intentionally doing something.


And I will not under any circumstances instruct on reckless. What happened here was not reckless. It was intentional something, and the only defense issue in this case, and very thinly in this case is self-defense. And I will give the jury that instruction and the only lesser-included under this fact situation is second-degree, which would be imperfect self-defense.

The jury convicted Cunningham of all three counts. He appeals.


Cunningham asserts the trial court erred when it denied his request for the lesser-included jury instructions of first-degree reckless homicide and first-degree recklessly endangering safety.

A trial court engages in a two-step analysis in deciding whether to submit a lesser-included offense jury instruction. See State v. Muentner, 138 Wis.2d 374, 387, 406 N.W.2d 415, 421 (1987). First, the court must determine whether the crime is a lesser-included offense of the charged crime. Id. Next, the court must weigh whether there is a reasonable basis in the evidence for a jury to acquit on the greater offense and to convict on the lesser offense. Id. If both steps are satisfied, the trial court should give the lesser-included instruction if the defendant requests it. See id. A trial court commits error if it refuses to submit a charge on an issue supported by the evidence. State v. Weeks, 165 Wis.2d 200, 208, 477 N.W.2d 642, 645 (Ct. App. 1991). Whether the evidence adduced at trial requires a jury charge on the lesser-included offense instruction is a question of law that we review de novo, id., and we view the evidence in a light most favorable to the defendant. State v. Davis, 144 Wis.2d 852, 855, 425 N.W.2d 411, 412 (1988).

1. First-Degree Reckless Homicide Instruction

First-degree reckless homicide, § 940.02(1), STATS., is a lesser-included offense of first-degree intentional homicide, § 940.01(1), STATS. See § 939.66(2), STATS. [2] Thus, the first prong of our analysis is satisfied and we must next determine whether the evidence presented at trial was such that a jury could acquit on the greater charge of first-degree intentional homicide and convict on the proposed lesser-included instruction for first-degree reckless homicide.

In the present case, however, the trial court also submitted the jury instruction for second-degree intentional homicide–imperfect self-defense, § 940.01(2)(b), STATS. Second-degree intentional homicide is a lesser-included offense of first-degree intentional homicide. See § 939.66(2), STATS. The State in its appellate brief posits that, based our holding in State v. Truax, 151 Wis.2d 354, 444 N.W.2d 432 (Ct. App. 1989), any failure by the trial court to submit the lesser-included jury instruction was harmless error. The State is incorrect.

In Truax, a jury was instructed on first-degree and second-degree murder. [3] Id. at 361, 444 N.W.2d at 436. The defendant requested the lesser-included jury instruction for homicide by reckless conduct; the trial court refused. Id. We determined that the situation presented to us in Truax was the “classic” lesser-included offense situation in which “the greater offense contains all of the elements of the lesser-included and has at least one additional element [thereby allowing] the jury to disregard the lesser-included offense if agreement is reached on a finding of guilt on the greater offense.” Id. at 362 n.2, 444 N.W.2d at 436 n.2. In that “unique situation” we found that no prejudice occurred to the defendant because if the jury “had doubt … as to the propriety of a guilty finding on first-degree murder, [they] would have been able to consider second-degree murder as an alternative to outright acquittal.” Id. at 363-64, 444 N.W.2d at 436-37.

Stated another way:

“If a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed) and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless.”

Id. at 364, 444 N.W.2d at 437 (quoting State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978)).

In the present case, however, we are not facing a “classic” lesser-included offense situation with respect to the first-degree reckless homicide instruction Cunningham requested. We are faced with a situation where “it is the lesser-included offense which has all of the elements of the greater plus a mitigating circumstance …. [Thus] even if the jury finds all elements of the greater offense, it must consider if the presence of a mitigating circumstance necessitates a guilty finding on the lesser of the two offenses.” Id. at 362 n.2, 444 N.W.2d at 436 n.2.

We also note that the situation before us is not analogous to Truax for another reason. In Truax, we were faced with one greater offense and two lesser-included offenses where one of the lessers was also a lesser-included offense of the other lesser; i.e., “A” is the greater offense; “B” is a lesser-included offense of “A”; and “C” is a lesser-included offense of both “A” and “B”. In the present case, first-degree intentional homicide (“A”) is the greater offense. Both second-degree intentional homicide and first-degree reckless homicide are lesser-included of “A,” but neither is a lesser-included offense to the other; i.e., “A” is the greater offense; one of the lesser-included offenses is “B1,” and the other lesser-included offense is “B2.”

Neither second-degree intentional homicide, nor first-degree reckless homicide is a lesser-included offense to the other because: (1) they are both class B felonies and thus, neither is less serious than the other, see § 939.66(2), STATS.; State v. Davis, 144 Wis.2d 852, 857, 425 N.W.2d 411, 413 (1988) (“seriousness” of offense is based on the maximum penalty that may be imposed); and (2) both require proof of facts in addition to those that must be proved for the other. See § 939.66(1), STATS.

Therefore, we reject the State’s contention that the Truax analysis applies to Cunningham’s requested instruction for first-degree reckless homicide. We now must determine whether there is a reasonable basis in the evidence for a jury to acquit on the greater offense but convict of the lesser offense.

Several members of the Judicial Council involved in the adoption of the 1987 revision of the homicide statutes stated:

Where first-degree intentional homicide … is charged, all other homicide offenses are included crimes under section 939.66(2). The included crimes could be submitted on two different tracks–one involving intent to kill and one involving recklessness and negligence. If there is evidence of a mitigating circumstance, second-degree intentional homicide should be submitted. If there is a basis for reasonable doubt about intent to kill, first-degree reckless homicide should be submitted. … The evidence could support submitting included crimes on both tracks.

Walter Dickey et al., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 WIS. L. REV. 1323, 1387.

Cunningham suggests that because his intent was at issue, the trial court was required to submit jury instructions on both of the above tracks. We disagree. Jury instructions on both tracks are necessary only if the evidence could support acquittal of the greater charge and conviction on the lesser-included offenses. This was not the case here.

We agree that the crux of the evidentiary dispute is Cunningham’s intent. Therefore, we must determine whether a reasonable basis exists in the evidence for a jury to conclude that Cunningham did not intend to cause the deaths of Flagg and Lewis, but instead that by his conduct he created an unreasonable and substantial risk of death or great bodily harm to Flagg and Lewis; that Cunningham was aware his conduct created such a risk; and finally, that Cunningham’s conduct showed utter disregard for human life.

Upon a review of all the evidence in a light most favorable to Cunningham, we are satisfied that a jury would not have acquitted Cunningham on the greater offense of first-degree intentional homicide and convicted him of first-degree reckless homicide.

As the State’s appellate brief informs us: “The state did not attempt to show that Cunningham had a mental purpose to kill, Lewis, Flagg, and Johnnie Elerson, but, rather, that he was aware that his actions were practically certain to cause that result.” See § 939.23, STATS. [4] We find this persuasive. The State’s expert witness testified that the only way the revolver would fire was if a person cocked the gun and then pulled the trigger with more than ten pounds of force. Flagg was killed by a contact gunshot wound to the chest. Additionally, Cunningham admitted at trial that he had to get the men off of him so he could get away and that the only way he could get them off of him was to shoot them. On the stand, Cunningham repudiated his earlier statement to the police that he shot Flagg and Lewis after an unprovoked attack, and testified instead that he lost the gun in the struggle and that many hands were on the gun when it fired.

While we are mindful that we must view the evidence in a light favorable to Cunningham, the inconsistencies and internal contradictions of Cunningham’s various versions of what occurred make it impossible for us to conclude a jury would not find that Cunningham intended to cause the death of another person when he fired the gun. We agree with the State’s assertion in its appellate brief:

If the jury could select isolated pieces of the defendant’s testimony and could reasonably ignore the internal contradictions, and could ignore the defendant’s admission that firing his gun at a person a close range would be “practically certain” to kill the person, it might be able to entertain a reasonable doubt that the defendant acted with awareness that he was “practically certain” to cause the deaths of Lewis and Flagg and Johnnie Elerson. However, “jurors are assumed to be reasonable in their deliberations.” If reasonableness is a key element of the lesser-included offense analysis, it is difficult to conclude that a jury might virtually ignore all evidence of Cunningham’s actions and conclude that he had no idea who was shooting or what was happening during the struggle for the gun.

(Emphasis in original; citations omitted.)

We therefore conclude that the trial court properly denied Cunningham’s request for the lesser-included instructions for first-degree reckless homicide.

2. First-Degree Recklessly Endangering Safety Instruction

First-degree recklessly endangering safety, § 941.30.(1), STATS., is a lesser-included offense of both attempted first-degree intentional homicide, §§ 940.01(1), and 939.32, STATS., and attempted second-degree intentional homicide, §§ 940.01(2), 940.05(1), and 939.32, STATS. See Weeks, 165 Wis.2d at 206, 477 N.W.2d at 644; Dickey et al., supra at 1388 (“With respect to attempted second-degree intentional homicide, recklessly endangering safety under [§ ] 941.30 is the lesser included offense …. Recklessly endangering safety qualifies as a lesser included offense under both the general comparison-of-the-elements test under [§ ] 939.66(1) and the recklessness/intent test of [§ ] 939.66(3).”). Because attempted second-degree intentional homicide is a lesser-included offense of attempted first-degree intentional homicide, § 939.66(2) , STATS., this is the “classic” situation contemplated in Truax.

Applying the language and formula from Truax to the present case:

“If [Cunningham was] charged with offense “A” [attempted first-degree intentional homicide] of which “B” [attempted second-degree intentional homicide] is the next immediate lesser-included offense (one step removed) and “C” [first-degree recklessly endangering safety] is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty of only “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless.”

Truax, 151 Wis.2d at 364, 444 N.W.2d at 437 (quoting Abreau, 363 So.2d at 1064).

Therefore, because Truax applies, we conclude that it is not necessary to consider whether it was error for the trial court to deny Cunningham’s request for the jury instruction for first-degree recklessly endangering safety.


Cunningham contends that the trial court erred when it allowed a police officer to read a witness’s entire statement to police into evidence, and thereby impermissibly bolstered the credibility of that previously-testifying prosecution witness. Because we conclude that the mode of presenting evidence used by the trial court was within its discretion under § 906.11(1), STATS., we deem Cunningham’s contention is without merit.

Janice McAfee testified as a prosecution witness. Because she gave certain testimony that was inconsistent with her earlier statements to the police, the State called a Milwaukee police detective to impeach her trial testimony. The State proceeded with a question-and-answer interrogation of the detective in order to introduce only the portions of McAfee’s earlier statement to the police that were inconsistent with her trial testimony. Cunningham objected because he was uncertain whether the detective was “refreshing his recollection every time a question [was] asked or whether [they were] having a problem with [the detective’s] recollection.”

The trial court then stated:

THE COURT: Well I think better way [sic] to do this is it’s for impeachment purposes and why don’t you just read her statement.

A. I could do that.

THE COURT: Get it in, continuity [sic] what happened when.

Q. Would you read the statement from the commencement of the statement until it’s [sic] conclusion. Would you read us the statement she gave you that night?

A. Sure.

[COUNSEL]: Judge, I think I am going to object to that. I don’t necessarily know that that’s the case that the statement at this point has to be read into the record. I think what has to happen here is that he has to review the record and get his memory refreshed, or there is an alternative method that can be done.

THE COURT: Overruled. Proceed.

Cunningham contends that by allowing the detective to read McAfee’s entire statement into evidence, “pages of prior consistent testimony was admitted, which bolstered and repeated the testimony of the prosecution witness.” Cunningham claims the admission of this evidence was “unduly prejudicial.” We are unpersuaded.

Whether to admit evidence lies within the sound discretion of the trial court. State v. Whitaker, 167 Wis.2d 247, 252, 481 N.W.2d 649, 651 (Ct. App. 1992). In addition, § 906.11, STATS., gives the trial court discretion over the mode and order of interrogating witnesses and presenting evidence. [5] We will not reverse such a determination unless the trial court erroneously exercises it discretion. See e.g., State v. Oberlander, 149 Wis.2d 132, 140-41, 438 N.W.2d 580, 583 (1989).

It is apparent that the trial court in allowing the detective to read McAfee’s entire statement into evidence was attempting both to “make the interrogation and presentation effective for the ascertainment of the truth” and to “avoid needless consumption of time.” Section 906.11(1), STATS. While in hindsight this court might determine that there was a better method of presenting evidence to ensure that only those prior statements inconsistent with McAffee’s trial testimony were placed into evidence, we do not conclude that the trial court’s exercise of discretion was erroneous. See Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981) ( in absence of erroneous exercise of discretion appellate court need not necessarily agree with trial court’s decision in order to sustain it).

The trial transcript makes it clear that the State’s standard question-and-answer interrogation was both nebulous and time consuming. After Cunningham objected to this method, the trial court was well within its discretion when it attempted to expedite the process. We additionally conclude that none of allegedly prior consistent statements impermissibly bolstered McAfee’s earlier testimony to the point that Cunningham was prejudiced.

By the Court.–Judgment affirmed.

This opinion will not be published. See RULE 809.23(1)(b)5, STATS.


  1. The expert testified that the gun, also known as a “Derringer,” had a trigger pull of ten pounds, whereas the average handgun or police revolver had a four- to five-pound trigger pull.
  2. Section 939.66, STATS., provides in part:

939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.

(2) A crime which is a less serious type of criminal homicide than the one charged.


(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.

(Emphasis added.)

  1. Truax applied the homicide statutes in existence prior to the major revision of Wisconsin’s homicide code in 1987. See 1987 Wis. Act 399. The State is incorrect in its appellate brief when it states that “First- and second-degree intentional homicide are the equivalents of the former crimes of first- and second degree murder.” First-degree murder under the old statutes is analogous to first-degree intentional homicide under the current statutes. Judicial Council Committee Note, 1988, § 940.01, STATS. Second-degree murder is analogous to first-degree reckless homicide. Judicial Council Committee Note, 1988, § 940.02, STATS. Finally, homicide by reckless conduct is analogous to second-degree reckless homicide. Judicial Council Committee Note, 1988, § 940.06, STATS.
  2. Section 939.23, STATS., provides in part:

939.23 Criminal intent. (1) When criminal intent is an element of a crime in chs. 939 to 951, such intent is indicated by the term “intentionally”, the phrase “with intent to”, the phrase “with intent that”, or some form of the verbs “know” or “believe”.


(4) “With intent to” or “with intent that” means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.

Section 906.11, STATS., provides in part:

  1. 906.11 Mode and order of interrogation and presentation. (1) CONTROL BY JUDGE. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (a) make the interrogation and presentation effective for the ascertainment of the truth, (b) avoid needless consumption of time, and (c) protect witnesses from harassment or undue embarrassment.