Claybrooks v. State
| Decision Date | 02 February 1971 |
| Docket Number | No. S,S |
| Parties | Eddie Lee CLAYBROOKS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 26. |
| Court | Wisconsin Supreme Court |
This is a prosecution of Eddie Lee Claybrooks, plaintiff in error (hereinafter defendant), for armed robbery occurring on February 23, 1968. On that date the Columbia Savings & Loan Association of Milwaukee was robbed by three masked men, at least one of whom carried a gun. At the trial one of the employees of Columbia identified the defendant as being outside the establishment on the day of the robbery. Two other employees identified defendant as one of the three men who perpetrated the robbery and these employees described defendant's part in the robbery. Both employees testified that the defendant personally seized some of the money, and, although he was not carrying a gun, threatened to have the man with the gun kill them if they did not cooperate.
The jury found the defendant guilty of armed robbery and the court sentenced him to an indeterminate term of not more than ten years, the sentence to run concurrently with another ten-year sentence imposed for a second conviction of armed robbery.
Just short of one year after the court's sentencing action in this case, and over a year after the conviction, defendant's present counsel was appointed to represent him in whatever post conviction remedies he might have. No post conviction motions were made in the trial court pursuant to sec. 958.06, Stats. Defendant seeks a review of the circuit court's judgment finding defendant guilty.
Nathaniel D. Rothstein, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Lee Edward Wells, Asst. Dist. Atty. of Milwaukee County, Milwaukee, for defendant in error.
The basic error urged by defendant on this review is that the trial court committed reversible error when it failed to instruct the jury with respect to certain crucial elements of the armed robbery offense charged. Before we consider this alleged error on its merits, it is necessary to resolve two preliminary issues:
1. Should this court exercise its power of discretionary review of this alleged error even though a motion for new trial was not made to the trial court raising this error?
2. Where the defendant failed to object to the trial court's instructions or to request additional instructions, is he barred from raising error in the instructions on this review?
No motion for a new trial was made in the trial court. The error urged to be prejudicial on this review, improper instruction is the type of error which should be raised in such a motion. Because such a motion was not made, defendant cannot now seek a review here of that alleged error as a matter of right. 1 The question is whether there are compelling circumstances in the instant case that cause us to exercise our discretionary review of the alleged error. 2 Defendant's present counsel could not have brought motions in the trial court since he was not appointed until later than one year after defendant's conviction. Under these circumstances we have previously exercised our discretionary review power. 3
At the trial defendant was positively identified as a participant in the robbery. The uncontroverted evidence establishes that the three participants were masked, that one carried a gun, and that the defendant himself made profane threats to use the weapon that one of the other participants carried.
Defense counsel requested the court to submit a verdict on robbery, 4 in addition to a verdict on armed robbery. 5 The trial court correctly refused on the ground that 'there is undisputed testimony concerning the fact that a gun was presented at the time of the robbery.'
However, the court then proceeded to instruct the jury on robbery, without including an instruction on sec. 943.32(2), Stats. 6, i.e., on the added element of being armed, nor did the court instruct the jury on sec. 939.22(10), which defines 'dangerous weapon.' Nor did the court instruct the jury that it was required to specifically find that defendant was armed and that defendant had attempted to conceal his identity 7 while committing the crime, in order to find the defendant guilty as charged in the verdict.
The state urges us not to consider the merits of the alleged errors in the instructions, asserting that any objection to those instructions was waived by the defense.
In Mitchell v. State 8 we very recently said:
'This court has said in several recent cases that it would consider the failure to timely object to jury instructions a waiver of any alleged defects in those instructions. * * *
'* * *
'Additionally, it can be said that neither defendant personally, nor through his counsel, should be permitted to listen to jury instructions being presented to the jury which he or his counsel believe to be inaccurate or incorrect and await the return of the verdict and, if unfavorable, then complain as a matter of right.' 9
There is little question that in this case the alleged errors were waived. Defendant and his counsel were both present when the jury was instructed; no objection was made at the time the instructions were given. In addition, immediately after the instructions were given, the court asked:
'Before swearing in the officer, are there any inadvertent errors that the court might have made in the course of these instructions that you could call to the court's attention? (No answer.)
'Swear the bailiff, please.'
Hence the court specifically called counsel's attention to the instructions, giving them an opportunity to correct any errors that might have been made in that regard. The waiver of objection thereto could hardly have been more clearly effectuated.
Defendant contends, however, that this failure to object is of no consequence when the error is so fundamental as to deny a defendant a fair trial. In this regard he cites Screws v. United States, 10 wherein the United States Supreme Court stated:
11
It is well established that even where there is no timely objection in the trial court, errors in instruction may be reviewed on appeal, even on the court's own motion, where the error is so plain or fundamental as to affect substantial rights of the defendant. 12 Of course, a defendant is faced with a heavy burden when he has acquiesced in the instructions given by the trial court. 13 We conclude to exercise our discretionary power of review in the instant case and to do so notwithstanding the plain waiver of the alleged error by the defendant. In doing so, the defendant must show that his substantial rights have been affected. 14 A review of the entire record indicates that the evidence clearly establishes that the defendant committed the crime, that he attempted to conceal his identity while doing so, and that one of the men involved was armed and defendant made profane threats to have the weapon used if the employees did not cooperate. The record also clearly shows that the trial court did not specifically instruct the jury that it must find the defendant was armed with a dangerous weapon while perpetrating the robbery and also that he did this with his identity concealed. Nor did the court instruct the jury as to the definition of a dangerous weapon. On this record we are satisfied that the failure to define a dangerous weapon was not a substantial error, since it is uncontradicted that the gun was involved. True, the state did not show that the gun was loaded, nor that it was in fact a lethal weapon; such is not required. 15 We conclude, therefore, that the failure to give the jury a definition of a dangerous weapon did not, in this case, result in a miscarriage of justice. 16
The failure of the court to tell the jury that it must also specifically find that defendant was armed and that he attempted to conceal his identity presents a somewhat different matter. Clearly these are essential...
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State v. Schumacher
...own motion, where the error is so plain or fundamental as to affect the substantial rights of the defendant." Claybrooks v. State, 50 Wis.2d 79, 84-85, 183 N.W.2d 139 (1971). This doctrine, like the Lambert form-substance rule discussed above, was superseded in respect to the claimed instru......
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State v. Hatch, 87-0018-CR
...to the waiver rule regarding jury instructions. These exceptions include the "plain error" test enunciated in Claybrooks [v. State, 50 Wis.2d 79, 183 N.W.2d 139 (1971) ] in 1971, and the "form-substance" test enunciated in Lambert [v. State, 73 Wis.2d 590, 243 N.W.2d 524 (1976) ] in 1976. I......
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State v. Sarinske
...be said that had error not been committed, the verdict might probably have been different. Sec. 817.37, Stats.; 15 Claybrooks v. State, 50 Wis.2d 79, 86, 183 N.W.2d 139 (1971); Wold v. State, 57 Wis.2d 344, 356, 204 N.W.2d 482 (1973); State v. Courtney, 74 Wis.2d 705, 716, 247 N.W.2d 714 (1......
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Virgil v. State
...has "affected the substantial rights" of the defendant is the same standard set forth in sec. 817.37, Stats. 3 In Claybrooks v. State, 50 Wis.2d 79, 183 N.W.2d 139 (1971), cited by the majority, this court applied this "substantial rights" standard to the review of two alleged errors in a t......