Byrd v. Israel

Decision Date27 May 1981
Docket NumberCiv. A. No. 80-C-650.
Citation513 F. Supp. 1077
PartiesAlan Curtiss BYRD, Petitioner, v. Thomas R. ISRAEL, Warden, and the Attorney General of the State of Wisconsin, Respondents.
CourtU.S. District Court — Eastern District of Wisconsin

Mark Lukoff, First Asst. State Public Defender, Milwaukee, Wis., for petitioner.

Jerome Schmidt, Asst. Atty. Gen., Madison, Wis., for respondents.

DECISION and ORDER

TERRENCE T. EVANS, District Judge.

In a criminal complaint filed on April 8, 1977, three gentlemen from Chicago, Alan Byrd, Gerald Allen and Tommie Gordon, were charged with the April 3, 1977 armed robbery of a Milwaukee grocery store located at 3119 South Clement Avenue. Byrd has petitioned for a writ of habeas corpus alleging that his constitutional rights were violated during his trial on the charge. The trial resulted in Byrd's conviction. He was sentenced to serve a term of ten years.

In identical language, the charging portion of the complaint and the subsequently filed Information charged the crime in question as follows

"... on 04/03/77 at 3119 S. Clement Ave., City of Milwaukee, as parties to a crime, with intent to steal, did feloniously take property, money, from the presence of Susan Dulak, the owner, by threatening the imminent use of force against the person of the owner, Susan Dulak, and while armed with a dangerous weapon, to wit: a handgun, with intent thereby to compel the said owner to acquiesce in the taking or carrying away of said property, defendant Gerald Allen committing said crime while his usual appearance was disguised by the wearing of a ladies' nylon stocking over his face with intent to make it less likely that he would be identified with said crime, contrary to Wisconsin Statutes sections 943.32(1)(b) & (2), 946.62 and 939.05."

The probable cause section of the complaint, stated through a Milwaukee Police officer, set forth the underlying basis for the charge as follows:

"(1) He is advised by Susan Dulak, a citizen whom he believes to be reliable in this matter that on April 3, 1977 she was employed as a clerk at a checkout counter in a certain retail grocery store located at 3119 South Clement Ave., City and County of Milwaukee; that while she was acting in said capacity a white male came to her, grabbed her by the arm, and pointed a dark colored revolver at her; that the said actor was wearing what appeared to be a nylon stocking over his face; that the said actor ordered Dulak to open a cash drawer which contained proceeds belonging to the said store; that also present at said time was another employee of said store, a citizen by the name of Mary Hermann; that Dulak further states that she observed the said male reach into the abovementioned cash drawer and remove from it certain monies, flee out the front door of said grocery store and east through residential yards; that Dulak further states that she consented to the taking of the money by the said male because he possessed the abovementioned handgun.
"(2) Your complainant is advised by the above named Mary Hermann, who he believes to be reliable in this matter, that she was working as an employee of the said store at 3119 South Clement Ave., City and County of Milwaukee, on April 3, 1977; that she observed an unknown male wearing a nylon stocking point a handgun at herself and the abovementioned Susan Dulak; that the actor then ordered both of them into an office area and demanded that a cash drawer be opened; that Hermann states that she then opened the cash drawer and observed the actor reach in and remove monies belonging to said store from the cash drawer and then flee through the front door; that she states that she consented to the taking of said money by the actor because he was armed with a handgun."
"(3) That your complainant is advised by Richard Majdecki, that he is the owner of the abovementioned store at 3119 South Clement Ave., City and County of Milwaukee; that subsequent to the taking of the money described above he checked the records of said store and determined that approximately $3,000 in currency had been taken by the abovementioned actor.
"(4) Your complainant is advised by the statement of defendant Allen, that he did on April 3, 1977 drive to a grocery store on the south side of Milwaukee; that within his auto at said time were defendants Byrd and Gordon; that he parked his auto in an alley just east of the food store and that he and defendant Byrd went into the store; that defendant Byrd asked the clerk for change while he, Allen, went to the rear of the store; that while he, Allen, was in the rear of said store he placed a nylon stocking over his face and walked toward the checkout counter; that Byrd walked through the checkout counter and stood at the front door; that he, Allen, removed a .38 caliber snubnose revolver from his pocket, grabbed the clerk by the arm and pointed the gun at her and another female clerk; that he demanded that the cash drawer be opened and the second clerk did open the cash drawer; that he reached in and removed approximately $900 in currency and fled from the store following defendant Byrd; that he and Byrd returned to the car parked in the alley east of the store in which car defendant Gordon had remained; that while in said auto after taking the money he, Allen, divided the money with defendants Gordon and Byrd.
"(5) Your complainant is advised by the statement of defendant Gordon that he did on April 2, 1977 drive to Milwaukee with defendant Allen and defendant Byrd; that the three of them drove around Saturday night casing stores and supermarkets on the south side of Milwaukee; that on Sunday, April 3, 1977 they drove directly to a supermarket on South Clement in the City of Milwaukee; that he, Gordon, was supposed to by agreement, be the driver of the getaway car; that he stayed in the automobile while defendants Byrd and Allen went into the above described supermarket; that several minutes later defendants Allen and Byrd returned to the vehicle and they sped off; that defendant Allen gave him, Gordon, approximately $300 of the proceeds from said robbery, defendant Allen stating that they got only $900."*

Byrd moved to dismiss the charge at the close of the state's case stating that the Information alleged that Susan Dulak was the owner of the property stolen, while the testimony showed that Mary Hermann had possession. The trial judge, Robert Landry, denied the motion and the defense produced no witnesses. The jury found Byrd guilty of armed robbery, party to a crime, on June 20, 1979. On June 22, 1979, Judge Landry permitted the state, over Byrd's objections, to amend the information to allege that Susan Dulak and Mary Hermann were the owners of the money taken in the robbery.

On appeal, the Wisconsin Court of Appeals ruled that the "information ... alleged the essential elements and was adequate," because the "allegation of ownership in the information was sufficient to inform Byrd that he was charged with the armed robbery of another who had a superior right of possession to the property taken." The Court of Appeals also held that there was no material variance between the information and the proof, and that Byrd was not prejudiced by the amendment of the information.

The Wisconsin Supreme Court denied discretionary review, and Byrd filed this petition for a writ of habeas corpus.

I

Wis.Stats. § 943.32 defines robbery in the following manner:

"(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:
(a) By using force against the person of the owner with intent thereby to overcome his physical power of resistance to the taking or carrying away of the property; or
(2) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.
(2) Whoever violates sub. (1) while armed with a dangerous weapon is guilty of a Class B felony.
"(3) In this section `owner' means a person in possession of property whether his possession is lawful or unlawful."

As in the state court proceedings, Byrd argues that he could not have been guilty of armed robbery because Susan Dulak was not the "owner" of the property stolen within the meaning of § 943.32. The argument is totally without merit.

"The purpose of the information is to inform the defendant of the charges against him. Notice is the key factor." Whitaker v. State, 83 Wis.2d 368, 373, 265 N.W.2d 575 (1978). The information here was a concise statement referring to one specific criminal transaction: the armed robbery of the grocery store at 3119 South Clement Avenue, Milwaukee, on April 3, 1977, by three men, one of whom was wearing a nylon stocking over his face. Byrd was one of the defendants named. The information gave him adequate notice of the crime of which he was convicted.

Both Susan Dulak and Mary Hermann were employees of the store that was robbed. Both were present during the commission of the robbery; both were involved in transferring the money to the robber. Naming Dulak, or Hermann, or both of them, as "owner(s)" provided Byrd with notice of the specific criminal transaction in which he was alleged to have taken part. That Hermann rather than Dulak had access to the office and the keys to the money drawer does not alter the fact that either of them, as store employees, had rights to the property superior to Byrd's. In an important sense, it was the store rather than its employees that were robbed, and the identity of the store representatives was irrelevant so long as the information gave Byrd sufficient notice.**

Two other Wisconsin statutes demonstrate the legislature's intent to define "owner" in the broadest terms:

"971.32 Ownership, how alleged. In an indictment, information or complaint for a crime committed in relation to property, it shall be sufficient to state
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  • State v. Wickstrom
    • United States
    • Wisconsin Court of Appeals
    • March 6, 1984
    ...his defense. State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 566, 261 N.W.2d 147, 151 (1978); see also Byrd v. Israel, 513 F.Supp. 1077, 1082 (E.D.Wis.1981). The charging document may be amended if there is no prejudice to the defendant. Wagner v. State, 60 Wis.2d 722, 726, 211......

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