Haldane v. State, 76-197-CR

Decision Date03 October 1978
Docket NumberNo. 76-197-CR,76-197-CR
Citation85 Wis.2d 182,270 N.W.2d 75
PartiesChance L. HALDANE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Howard B. Eisenberg, State Public Defender, and Mark Lukoff, Asst. State Public Defender, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Nadim Sahar, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

Chance L. Haldane, plaintiff in error (hereafter "defendant") was convicted following a jury trial of armed robbery, and concealed identity, contrary to secs. 943.32(1)(b), 1 and (2), (1975) and 946.62, Stats. 2 (1975). A judgment of conviction was entered on December 8, 1975 by the circuit court for Washington county. Defendant was sentenced to an indeterminate term of not more than eighteen years in the Wisconsin State Prison on the armed robbery charge, and a concurrent three year term for the concealed identity charge. Motions for a new trial were heard on July 1, 1976, and denied on September 11, 1976. Writs of error were then issued to review the judgment of conviction and the order denying a new trial.

The question is did the trial court abuse its discretion in denying defendant's motion to sever his trial from that of a codefendant. We hold that there was no abuse of discretion and accordingly affirm the judgment of conviction and the order denying a new trial.

The defendant was convicted for his role in the September 15, 1975 robbery of the State Bank of Slinger, Wisconsin. Before the trial, the state filed a motion to join the defendant's case with that of a woman, (hereafter codefendant) charged with participation in the same robbery. The court granted the state's motion noting that if the defendants advanced conflicting defenses at trial, it could determine after the evidence had been presented whether a cautionary instruction to the jury or severance was necessary to cure any prejudice.

At the trial, the state put in its evidence against the defendant and codefendant. The defendant did not put in any evidence. The codefendant testified in her own behalf. The defendant was convicted on the charge of armed robbery and concealed identity. The codefendant was found not guilty of being a party to the crime of armed robbery and concealed identity.

Only the defendant and the woman codefendant were on trial. Two other men were involved; John Winget, the defendant's brother, was granted immunity for testifying in the trial as to his part in the robbery and James Tyo had previously pled guilty and was awaiting sentence on charges involving his part in the crime.

The evidence showed that the State Bank of Slinger was robbed on September 15, 1975 by two disguised men carrying handguns. The men were the defendant Haldane and James Tyo. Tyo ordered the bank personnel into the back room while the defendant held a gun on the tellers in the lobby and ordered a teller to place money in a pillow case. The two men took the keys to the bank cashier's car, left the bank in that car and drove to the outskirts of Slinger where the defendant had previously concealed his van.

James Tyo testified that on September 15, 1975, he went to the apartment of the defendant in West Bend where he met the defendant, the codefendant and the defendant's brother John Winget. Tyo and the defendant went to an upper room where they put on wigs and beards. Defendant and Tyo got into the defendant's Volkswagen van and the defendant did the driving. Winget and the female codefendant were in another vehicle. The defendant parked the van on the outskirts of Slinger and the two men got into Winget's car, drove into Slinger and parked near the bank. Tyo and the defendant walked into the bank, each carrying a .22 caliber automatic handgun. They drew their guns and moved the people to the back room. The defendant went to the vault and returned with a bag of money. The two then drove to a spot where the van was parked and they changed clothes. Later, defendant and codefendant went to Fond du Lac to a city park where the money was divided between Tyo and the defendant. It was Tyo's testimony that he had not expected the codefendant to go along on the robbery, that she refused to accept any money from the robbery and that she was not involved in the planning.

John Winget testified that he saw the codefendant aid the defendant and Tyo with their disguises prior to the robbery, although he had testified to the very opposite at the preliminary hearing. The state rested its case. The defendant, Haldane, produced no evidence and rested his case. The codefendant testified in her own behalf stating that on September 15, 1975 she was living with the defendant and her seven year old son in West Bend. She testified that John Winget moved in with them in July, 1975. About a month before the robbery, she heard the defendant and Tyo discussing it on the telephone. On September 9, 1975, she was with the defendant in Fond du Lac when he picked out a pistol and a rifle for which she paid. On September 10, or 11, 1975, the defendant bought another pistol for which she paid. The defendant and Tyo and the codefendant also went to Milwaukee where the two men bought wigs, beards and mustaches prior to the robbery. She testified that on September 15, 1975, Tyo came to the house and went upstairs with the defendant and the two men put on wigs, beards and mustaches. She testified she did not aid the defendant in any manner nor help him or Tyo with the disguises. She testified that the defendant told her that he had to go along with him or he would tell the Department of Social Services that she was an unfit mother. She said she refused but that he told her he would get other witnesses as to her unfitness, and so she went along. Her testimony was that she had tried several times prior to the robbery to talk the defendant out of going through with the robbery, and had told him that he could not possibly get away with it.

She drove into Slinger on the day of the robbery with Winget and when they saw a green car hurrying past them at a high rate of speed, she then suggested that they go home, which they did. Later, she went with the defendant to Fond du Lac because he told her that she had to go. When the money was divided between the defendant and Tyo, she refused to take any. In Fond du Lac she bought three money orders for the defendant and he purchased three in the same bank and she said she did so after he reminded her of the conversation in the morning concerning the Department of Social Services. On cross-examination, she admitted that the defendant never threatened her or her son with any physical harm and that she only went with him because of his threats to talk to the Department of Social Services. The defense also recalled James Tyo to the stand and he testified that the codefendant was not present when he and the defendant discussed the robbery nor was she supposed to go along on the robbery.

The state had put in other testimony including an in court identification of the defendant Haldane as one of the bank robbers made by a cashier at the bank and by the executive vice president of the bank. A detective testified that he located a box containing $22,500 in the attic of the apartment in West Bend where the defendant lived and the landlady testified that the codefendant had rented the apartment on August 1, 1975 and that the defendant and Winget were also present. She also testified that only the tenants had access to the attic in the building.

The defendant's counsel first moved for a severance or a separate trial for his client, prior to the commencement of the trial. But at that time, the court had nothing on which to base an order for severance since the codefendant had merely informed the court that she would testify on her own behalf but did not specify what her testimony would be nor did the codefendant's counsel in his motion for severance make any statements as to what he thought her testimony would be that would require separate trials.

The defendant argues that the trial court's refusal to sever his trial from that of his codefendant prejudiced him in two ways: (1) His codefendant's "coercion" defense was antagonistic to his own defense, and therefore he was entitled to a separate trial, and (2) his codefendant's reference to his prior imprisonment prejudiced his defense.

The joinder and severance of defendants in a criminal case is governed by sec. 971.12(2), (3), and (4), Stats. 3

A trial court has power to try defendants together when they are charged with the same offenses arising out of the same transaction and provable by the same evidence. Jung v. State, 32 Wis.2d 541, 545, 145 N.W.2d 684 (1966), State v. DiMaggio, 49 Wis.2d 565, 576, 182 N.W.2d 466 (1971). Generally, questions of consolidation or severance are within the trial court's discretion, State v. Doyle, 40 Wis.2d 461, 469, 162 N.W.2d 60 (1968), Lampkins v. State, 51 Wis.2d 564, 572, 187 N.W.2d 164 (1971). On review, the decision of the trial court will not be disturbed unless there has been an abuse of discretion. Kluck v. State, 223 Wis. 381, 387-388, 269 N.W. 683 (1937). As this court stated, in Lampkins v. State, supra 51 Wis.2d at 572, 187 N.W.2d at 168 "Consolidation is a procedural mechanism which avoids repetitious litigation and facilitates the speedy administration of justice."

Nevertheless, there may be "circumstances where a joint trial would be unduly prejudicial to the interests of either or both of the defendants; and in that case the interests of administrative efficiency must yield to the mandates of due process. Such circumstances are found where the defendants intend to advance conflicting or antagonistic defenses." Id. at 572, 187 N.W.2d at 168. Severance may also be granted where there is danger that an entire line of evidence relevant to the liability of only one defendant may be treated as evidence...

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    ...within the trial court's discretion, and we review the trial court's determination for misuse of discretion. See Haldane v. State, 85 Wis.2d 182, 189, 270 N.W.2d 75, 78 (1978). Whether there has been a misuse of discretion is determined on each case's facts. See Jung v. State, 32 Wis.2d 541......
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