State v. Erickson, 1984 Wisc. App. LEXIS 4082 (WI Ct. App. IV 1984)

State v. Erickson, 1984 Wisc. App. LEXIS 4082 (WI Ct. App. IV 1984)

Court of Appeals of Wisconsin, District Iv

August 9, 1984

No. 83-1438-CR

1984 Wisc. App. LEXIS 4082 | 120 Wis. 2d 677 | 356 N.W.2d 495

STATE OF WISCONSIN, Plaintiff-Respondent, v. TERRY LEE ERICKSON, Defendant-Appellant.

Judges: Before Gartzke, P.J., Bablitch, J., and Dykman, J.

Opinion by: GARTZKE


GARTZKE, P.J. Terry Lee Erickson appeals from a judgment of conviction for first degree murder, attempted armed robbery, and possession of a short-barreled shotgun, secs. 940.01, 939.32(1) and 941.28(2), and 943.32(2), Stats., and from an order denying his motion for postconviction relief.

The first issue is whether the trial court should have suppressed a shotgun the police took from Erickson’s car in a garage. That issue turns on whether the police improperly entered the garage without a warrant, and whether the court should have held a hearing on the validity of the warrant to search the car. We deem the remaining issues to be whether the trial court abused its discretion in excluding expert testimony; whether Erickson’s hearsay statement regarding his intent should have been admitted; whether the court erred by admitting a statement Erickson made when he bought shotgun shells; whether second degree murder should have been submitted as a lesser-included offense, and whether a new trial should be granted in the interests of justice. We resolve the issues against Erickson and affirm.

About 8:00 p.m. March 3, 1982 Gary Schmidt closed the store he managed in Beloit and drove a van to the night deposit box at a nearby bank with the day’s business receipts. Witnesses saw Erickson on a bench outside the store shortly before it closed. He was also seen at the rear of Schmidt’s vehicle in the bank drive-up area. Finally, he was seen hurriedly leaving the area after two firecracker-like sounds were heard. Schmidt was found dead on the street next to the van near the drive-up window. He had shotgun wounds to his chest and stomach. Three 20-gauge shotgun shells were found at the scene. Two of the shells had been fired.

March 11, 1982 police executed separate search warrants for Erickson’s rented apartment and his car. They saw Erickson’s car through the open door on Erickson’s side of the detached garage he shared with his landlord. They had no warrant to search the garage. They entered the garage and saw evidence indicating that a shotgun had been discharged into the wall and a cardboard box. A search of the car uncovered the shotgun. The police impounded the car and removed the shotgun. The police returned with a warrant to search the garage and seized the evidence that a shotgun had been fired.

A ballistics expert testified at the jury trial that the shotgun was the weapon used to kill Schmidt. Erickson’s fingerprints were on the shotgun. The major issue was whether Erickson intended to kill Schmidt.

1. The Garage Search

We reject Erickson’s contention that the police could not lawfully execute the warrant to search his car because they could not lawfully enter the garage, having no warrant to search it.

The primary objective of the fourth amendment is protection of privacy. Cardwell v. Lewis, 417 U.S. 583, 589 (1974). Erickson cannot claim that protection unless he had a legitimate expectation of privacy in the garage. State v. Cleveland, 118 Wis.2d 615, 633, 348 N.W.2d 512, 522 (1984).

The trial court found that Erickson rented one-half of the garage from his landlord, who used the other half. No divider sheilded Erickson’s space from view. These findings are unchallenged.

The facts having been established, whether Erickson has a legitimate expectation of privacy in the open area of his side of the garage is a question of law which we decide de novo. Cleveland, 118 Wis.2d at 633, 348 N.W.2d at 522. Erickson’s half of the garage was exposed to the view of his landlord and anyone the landlord cared to invite in. Nothing interrupted the view separating Erickson’s side from his landlord’s. Consequently, Erickson had no legitimate expectation of privacy in the exposed area in his half of the garage. Erickson therefore lacks standing to assert his fourth amendment claim based on the lack of a warrant to search the garage. [1]

2. The Search Warrant for Erickson’s Car

Erickson argues that the trial court should have held a hearing on the truthfulness of statements in the affidavit supporting the warrant to search his car. We disagree.

A search warrant may be challenged on grounds that the factual statements in the supporting affidavit establishing probable cause are false. The rule is laid down in Franks v. Delaware, 438 U.S. 154, 155-56 (1978):

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Defense counsel moved to suppress the shotgun, alleging in part that the affidavit by Detective Victor Hanson supporting the automobile search warrant contained deliberate falsehoods. The relevant part of the affidavit states:

[S]aid citizen informant told your affiant . . . he has recently observed Terry Erickson in possession of a very short shotgun, so short that it can be put into a pocket, and whose barrel has been sawed off and said shotgun having pistol grips and that from conversations with Mr. Erickson and from his own personal observation, he knows that Terry Erickson normally keeps said shotgun in the trunk of his automobile which he believes to be a 1965 Ford Fairlane, being dull blue in color with primer spots all over it.

Defense counsel claimed that the citizen informant was one William Tracy, and that the affidavit falsely stated Tracy said he had observed the shotgun in the trunk of Erickson’s Ford Fairlane.

When defense counsel attempted to call Tracy as a witness, the state objected. The prosecutor contended that defendant had not established that Tracy was the informant and had not utilized the procedure by which the informant’s name could have been ascertained. The trial court sustained the state’s objection.

We could affirm the court’s ruling on the grounds asserted by the state. We prefer, however, to examine the record to determine whether defendant failed to make an appropriate showing under Franks that he was entitled to an evidentiary hearing on the question whether the affidavit supporting the warrant was based on falsehoods in view of the presumption of validity which attaches to the affidavit. Franks, 438 U.S. at 171.

The Franks, court said:

To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that it claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

438 U.S. at 171.

To support his request for a Franks hearing, defendant submitted an affidavit by William Tracy. Tracy avers:

  1. On March 4, 1982 I went to the Erickson residence on Bluff Street and while there observed a short barreled shot gun in the possession of Terry Erickson. During my conversation with Terry Erickson he told me that he was going to put the short barreled shot gun out in the trunk of his car but I did not actually see him do that.
  2. I was later interviewed by Detective Vic Hanson of the Beloit Police Department and was asked questions concerning whether or not Terry Erickson owned a short barreled shot gun.
  3. I never specifically told Detective Hanson that I observed the short barreled shot gun in the trunk of his car and I specifically state that I never made any observation other than the observations of the gun in the Erickson home.

Although Tracy states he was asked questions concerning whether Terry Erickson owned a short-barreled shotgun, Tracy does not state what his responses were. He does not deny that he told Detective Hanson that he saw Erickson with a shotgun, that the shotgun was short enough to be put into a pocket and that it had pistol grips. He denies he told Detective Hanson he saw the shotgun in the car trunk, but it is impossible to determine the extent to which Tracy’s statements to Hanson differ from Hanson’s statements in his affidavit. For example, if Tracy said that Erickson told him he was going to put the short-barreled shotgun out in the trunk of his car, a finding that the officer did not deliberately lie would not be clearly erroneous. We deem the affidavit insufficient to require a Franks hearing.

We conclude that the trial court therefore did not abuse its discretion in refusing to hold the hearing.

3. Expert Testimony

Erickson argues that the trial court should have allowed his expert to testify that the evidence was not inconsistent with the defense theory that the victim struggled with his attacker.

In an offer of proof outside the presence of the jury, defense counsel asked Dr. Wagner, a forensic pathologist, a series of questions regarding the victim’s position when he was shot and whether a struggle had occurred. Wagner answered “no” to questions whether the evicence was “inconsistent” with a struggle having taken place between Erickson and Schmidt. After cross-examining the witness, the prosecutor argued that Wagner was speculating. The trial court agreed and ruled that the testimony was inadmissible.

Whether opinion testimony should be admitted is left to the trial court’s discretion. Maci v. State Farm Fire & Casualty Co., 105 Wis.2d 710, 720, 314 N.W.2d 914, 920 (Ct.App. 1981). We will uphold the trial court’s exercise of discretion unless the ruling abused the court’s discretion. Hampton v. State, 92 Wis.2d 450, 458, 258 N.W.2d 868, 872 (1979). When reviewing a discretionary decision, we look for evidence that the trial court exercised its discretion and next for a statement as to the basis for that exercise. State v. Ascencio, 92 Wis.2d 822, 829, 285 N.W.2d 910, 914 (Ct.App. 1979).

The trial court exercised its discretion. It ruled that the expert could testify to the trajectory of the shots, but because of the number of unknown variables, not to how the victim was seated. The implicit basis of those rulings is that the witness could not speculate. We find no abuse in the ruling.

When the jury returned, defense counsel questioned the expert regarding the position of the victim’s left arm when he was shot, the paths of the shots, and the wounds, all without objection. Counsel then asked a hypothetical question, based upon a series of assumed facts, ending with the inquiry whether “there is anything that’s inconsistent . . .” and was interrupted by an objection. The basis for the objection was that a hypothetical question cannot inquire into possibilities. The court sustained the objection on grounds that the question was improperly phrased.

As we understand the objection and the ruling, the court determined that the witness was asked to give an answer which was necessarily based on speculation. The trial court did not abuse its discretion. See McGarrity v. Welch Plumbing Co., 104 Wis.2d 414, 430, 312 N.W.2d 37, 45 (1981) (expert medical opinion expressed in terms of possibility is insufficient); Bode v. Buchman, 68 Wis.2d 276, 291-92, 228 N.W.2d 718, 727 (1975) (equating speculating and the “merely possible”).

The objection could have been met by changing the form of the question. After the objection was sustained, defense counsel proceeded to do exactly that. No issue is raised on appeal regarding the validity of the court’s rulings on objections to the subsequent questions.

In short, we find no abuse of discretion in the trial court’s rulings regarding the questions put to the expert.

We complete this part of our analysis by noting defendant’s argument that had the jury been told that the second and fatal shot had been from a shell loaded with pellets and not a slug, a crucial suggestion of intent would have been removed. Defendant asserts that “obviously” a person who intends to kill will use a slug if he has a choice between pellets and a slug. In view of the range at which the shots were fired, the obviousness escapes us. In any event, Dr. Wagner testified that the first shot was the slug and the second was the lethal one.

4. Erickson’s Admission

Erickson argues that the trial court should have admitted an exculpatory statement he made as against his penal interest, sec. 908.045(4), Stats. He relies on State v. Pepin, 110 Wis.2d 431, 328 N.W.2d 898 (Ct.App. 1982) (partially exculpatory statement to police is admissible if it qualifies under “against penal interest” exception to hearsay rule).

After his arrest, Williams, a friend of the victim, confronted Erickson in a jail cell. Erickson admitted to Williams that he killed Schmidt but said he only meant to rob him. Defense counsel argued to the trial court that the statement should be admitted under the excited utterance hearsay exception, sec. 908.03(2), Stats., and did not offer the statement as one against his interest. The court sustained an objection to the statement. The propriety of the ruling on the excited utterance exception is not challenged on appeal.

Evidentiary rulings are discretionary. The proponent of evidence who waits until appeal to specify a ground for its admissibility cannot complain if the trial court’s discretion was not exercised on that ground. Erickson has waived the right to have the court of appeals consider the admissibility of his statement as being against his penal interest. Frankovis v. State, 94 Wis.2d 141, 152, 287 N.W.2d 791, 796 (1980), McClellan v. State 53 Wis.2d 724, 730, 193 N.W.2d 711, 715 (1972).

5. “Five Slugs, Five People” Statement

Erickson argues that the trial court improperly admitted evidence that he is the type of person who would shoot five people, contrary to sec. 904.04(2), Stats. We disagree.

Erickson bought five 20-gauge shotgun shells loaded with slugs at a hardware store two or three weeks before Schmidt’s murder. As Erickson was leaving the store, a witness heard him say, “Five slugs, five people.” Defense counsel objected to admission of the statement on grounds that its prejudicial effect outweighed its probative value.

The statement was admissible under sec. 904.04(2), Stats. It is relevant to defendant’s intent. The trial court did not explicitly perform the weighing exercise required by sec. 904.03. We therefore independently review the record to determine whether it provides a basis for the court’s implicit exercise of its discretion. State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983).

Section 904.03, Stats., permits a trial court to exclude relevant evidence if its probative value “is substantially outweighed by the danger of unfair prejudice” and other risks. “Unfair prejudice” is a tendency to influence the outcome by improper means, not merely to damage a party’s cause. Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 61-62, 252 N.W.2d 81, 87 (1977). We find nothing improper about allowing the jury to determine if defendant meant more than a tasteless, macabre joke.

6. Refusal to Submit Second-Degree Murder

Erickson argues that the trial court erred in refusing to submit second-degree murder under either or both secs. 940.02(1) and 940.02(2), Stats. Again we disagree.

The test for the submission of lesser-included offenses is whether a reasonable ground exists for acquittal on the greater offense and conviction of the lesser offense. State v. Sarabia, 118 Wis.2d 655, 661, 348 N.W.2d 527, 531 (1984). The evidence must be viewed “in the most favorable light it will ‘reasonably admit of from the standpoint of the accused.'” State v. Mendoza, 80 Wis.2d 122, 153, 258 N.W.2d 260, 273 (1977).

The essential difference between first and second degree murder is that intent to kill is an element of the former and not the latter. State v. Lee, 108 Wis.2d 1, 13, 321 N.W.2d 108, 114 (1982).

No reasonable ground existed for a finding that the killing was unintentional. The evidence shows that Erickson shot Schmidt twice with a shotgun from a distance of ten feet or less. The shots struck Schmidt in two vital regions: his chest and abdomen. The shotgun had a pump action. Its slide had to be moved back after the first shot to eject the spent shell and then moved forward to load the second shell into the firing chamber. To shoot a person with a pump action shotgun twice in vital areas at a distance of less than ten feet leaves no reasonable doubt as to the actor’s intent. Erickson did not testify. The record is devoid of evidence negating an inference that defendant intended to kill Schmidt. Accordingly, submission of second degree murder was not justified.

7. Interests of Justice

Erickson urges us to order a new trial in the interests of justice.As grounds for a new trial, he repeats the arguments we have already found to be meritless.

Erickson received a fair trial. The issues were fully tried. No apparent miscarriage of justice has occurred. We are confident that a new trial would produce the same result. Under these circumstances, we should not order a new trial in the interests of justice. State v. Boyce, 75 Wis.2d 452, 462, 249 N.W.2d 758, 763 (1977).

By the Court.–Judgment and order affirmed.

Inclusion in the official reports is not recommended.


  1. In light of our determination that Erickson did not have a legitimate expectation of privacy in the garage, we do not consider that other arguments the state advances in support of the search.