Chapman v. State
| Decision Date | 30 June 1975 |
| Docket Number | No. S,S |
| Parties | Paul CHAPMAN, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 210. |
| Court | Wisconsin Supreme Court |
Following a jury trial, Paul Chapman, plaintiff in error (hereinafter referred to as defendant), was convicted of armed robbery and attempted murder, contrary to secs. 943.32(1)(b) and (2); 939.05; 940.01; and 939.32, Stats. The events leading up to the arrest, charge and conviction were presented at the trial as follows: On December 19, 1972, at about 1:00 a.m., two men entered Ronnie's Tap in Milwaukee. One of the two men, wielding a gun and demanding money, jumped over the bar. After emptying the cash register, the gunman struck several of the customers and relieved them of their wallets. When the robbers announced they were going to take a female patron with them, one of the customers, Gary Klack, in an attempt to prevent their so doing, began struggling with the robbers. Klack was shot twice and the robbers fled the scene. The police were summoned and arrived shortly thereafter. Two suspects, fitting the description of the gunmen, were spotted and apprehended a short time later in the area by police officers. The defendant was one of the suspects taken into custody. The jury found the defendant guilty of participating in the armed robbery and attempted murder. Defendant's motion for a new trial was denied, judgment of conviction was entered and defendant was sentenced on January 25, 1974. Defendant challenges by writ of error the judgment of conviction and the order denying a new trial.
Howard B. Eisenberg, State Public Defender, and Ruth S. Downs, Asst. State Public Defender, Madison, for plaintiff-in-error.
Bronson C. LaFollette, Atty. Gen., and David J. Becker, Asst. atty. Gen., Madison, for defendant-in-error.
The case of the state against this defendant included: (1) Identification of the defendant by the victim of the shooting; (2) identification of the defendant by the owner of the tavern; and (3) testimony of a resident of the halfway house where defendant lived as to overhearing a conversation in which defendant admitted participating in the holdup and complained that the man with the gun got all of the money. Defendant's challenge goes to: (1) Credibility of evidence; (2) sufficiency of evidence; and (3) adequacy of instructions.
CREDIBILITY OF EVIDENCE. Defendant contends that the testimony of the fellow resident of the halfway house as to an overheard conversation is 'inherently incredible.' This court will not upset a jury's determination of credibility '. . . unless the fact relied upon is inherently or patently incredible.' 1 To be incredible as a matter of law, evidence must be ". . . in conflict with the uniform course of nature or with fully established or conceded facts." 2 That is not the case here. Surrounding circumstances and inconsistencies in the statements made by the fellow resident who testified as to the statements made by the fellow resident who testified as to the conversation he overheard, create a question of credibility but do not resolve it. There is nothing inherently incredible about a participant in a crime telling others what he did. This is particularly so where his expressed complaint is that he received none of the proceeds of the joint criminal venture. 3 The determination of this witness' credibility and the weight to be given his testimony was '. . . properly a function of the trier of facts.' 4
SUFFICIENCY OF EVIDENCE. Defendant claims that the evidence submitted to the jury is not sufficient to sustain conviction. The evidence supporting the conviction included the positive and unequivocal in-court identification of the defendant by the victim of the shooting. That identification was based on the victim's observation of the holdup men for ten minutes at the time of the robbery. Previously the victim identified the defendant from a group of photographs shown to him on the day after the crimes. Where a rape victim positively identified her assailant, this court held: 'This uncorroborated testimony alone would have been sufficient.' 5 In the case before us, additional evidence supporting the jury verdict included: (1) The testimony of the fellow resident of the halfway house as to the overheard conversation with the defendant admitting participation in the holdup; (2) the testimony of police that when the officers approached the defendant and another man soon after the holdup, both ran with one escaping and with the defendant, upon stumbling and falling, being apprehended; and (3) the in-court identification of the defendant by the tavern owner, weakened but not rendered incredible by the tavernkeeper's earlier failure to identify the defendant at a police lineup. 6 The credibility of these witnesses, and the weight to be given their testimony, including identification testimony, was '. . . a matter for the jury under proper instructions.' 7 There was here credible evidence upon which the jury could be convinced beyond a reasonable doubt of defendant's guilt, and that is the test on review. 8
ADEQUACY OF INSTRUCTION. Defendant's counsel on appeal contends that the trial court's instructions to the jury as to credibility were inadequate as to the weight to be given eyewitness identification testimony. Defense counsel at trial requested additional instructions--essentially informing the jury that identification testimony is opinion evidence, '. . . to be scrutinized with extreme care' and '. . . to be treated with the utmost caution.' Instead, the trial court gave the jury instruction on identification 9 as well as the standard instructions on credibility of witnesses 10 and presumption of innocence, 11 listing factors to be considered in determining the weight and credit given the testimony of each witness, and directing the jury to '. . . scrutinize the evidence with the utmost care and caution.' Where the exact language used here by the trial court was included in jury instructions given as to identification testimony, this court held: 'These instructions allowed the jury to properly evaluate the credibility of the identification testimony . . ..' 12 Where instructions characterizing all identification testimony as opinion evidence 13 and suspect testimony were requested by a defendant and rejected by the court, our court on review held: 'Without going into detail, the instructions requested were unduly favorable to the defendant and the court was correct in not giving them as tendered.' 14 In the case before us, we hold the requested instructions to be redundant, 15 finding the standard instructions, as given, to sufficiently and adequately have informed the jury of the...
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