Hamiel v. State

• Decision Date: 04 December 1979
• Docket Number: No. 77-207-CR,77-207-CR
• Parties: John Lee HAMIEL, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 639

285 N.W.2d 639

92 Wis.2d 656

John Lee HAMIEL, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 77-207-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 7, 1979.

Decided Dec. 4, 1979.

Howard B. Eisenberg, State Public Defender, on brief, for plaintiff in error; Molly Kealy, and Jan M. Hefti, Asst. State Public Defenders, Milwaukee, of counsel.

Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for defendant in error.

COFFEY, Justice.

This matter is before the court on two writs of error, requesting a review of a judgment of conviction and an order denying a motion for judgment notwithstanding the verdict and, in the alternative, a request for a new trial.

A criminal complaint was issued against John Lee Hamiel, Jr. (hereinafter the defendant) charging him with party to the crime of attempted robbery, contrary to secs. 943.32(1)(b), 939.32 and 939.05 of the Wisconsin Statutes. The defendant moved to dismiss the action on the grounds of the insufficiency of the evidence presented at the preliminary hearing.

The trial commenced April 13, 1976 before Judge Victor Manian. Prior to selecting the jury the defendant made a motion to adjourn the case so that he could hire an attorney other than the attorney appointed for him by the court. The court denied the motion. The defendant then requested the opportunity to represent himself. The court denied the motion for the following reason:

"I think that the timing of that request is not proper on the morning of trial with the jury sitting in, the jury panel sitting in the courtroom to ask to defend yourself. I think it puts an unreasonable burden on the court and on the prosecutor, particularly when Mr. Mulligan (the court appointed attorney) has been with this case from its inception and has prepared and is prepared to proceed this morning."

Following the selection of the jury the defendant made a motion to suppress the photographic, lineup and courtroom identifications claiming the procedures used in each instance to be suggestive and thus in violation of his constitutional rights. The court found " . . . the identification made by each of the respective witnesses was based upon that witness' independent recollection and observation and not upon any improper influence or suggestion of any kind" and denied the defendant's motion to suppress.

The state called Amelia Mazurcek, who lived in the vicinity of Andrew's Pharmacy, as its first witness. She testified that on October 2, 1975, while looking out her kitchen window, she noticed a dark blue car going the wrong way on a one-way street and subsequently saw the driver park the car on 20th Street. She stated she saw 3 black men get out of the car and walk to Hampton Avenue and turn east on Hampton. Later she saw the same 3 men "running real fast," jump into their car and speed off.

The state's second witness was Dorothy Long, a customer at Andrew's Pharmacy during the attempted robbery. She testified that she saw 3 men, one of whom was the defendant, enter the pharmacy. While in the pharmacy she stated she saw the defendant standing near the counter and heard him say to the cashier that "He had a gun." She also stated that the defendant had his hand in his jacket pocket when he stated he had a gun. She testified that she next saw the owner of the pharmacy walking from the back of the store toward the cashier's counter and the 3 men then ran out of the store. After the 3 men fled, she saw the owner go outside and stop a passing police car.

Next the state called Cheryl McQueen, the clerk on duty at the cash register at the time of the attempted robbery. She stated that a man, who she later identified as the defendant, came up to her at the sales counter and asked to exchange a $5.00 bill and five $1.00 bills for a $10.00 bill. After she made the exchange, the defendant turned and walked to the back of the store. Moments later, the defendant returned to the counter and demanded that she "bag the money." She stated that when the defendant told her to bag the money he said "I got a gun" and had his hands in his pockets. She said she began to remove the money from the cash register, but before she could put the money in a bag the defendant suddenly turned around and walked out fast. She testified that after the defendant left the store she saw the owner of the pharmacy go outside and flag down a passing police car.

The state's fourth witness was Annette Singleton, also an employee at Andrew's Pharmacy on October 2, 1975. She testified that she approached a black man at the sales counter, whom she later identified as the defendant, and asked if she could help him and he failed to respond. She then noticed Cheryl McQueen, another employee, taking money out of the cash register. She stated she then realized that the defendant " . . . was trying to rob the place." Furthermore, when she began to move away from the counter the defendant told her: "Don't, stay right here, if you go back there I will shoot her." A short time later she saw a police paddy wagon pull around the corner and at approximately the same time she saw the police, the defendant and the two other men ran out of the store without the money. She said she thought they left because they also saw the police. After the defendant left she stated that she ran to the owner and he, in turn, went outside to get the police.

Next the state called Raymond Madritsch, the owner of Andrew's Pharmacy, to testify. He stated he was working in the rear of the pharmacy on the day of the attempted robbery and noticed 3 men enter the store, two of the men went to the back of the store and he, in turn, went to see what they wanted. He said that one of the men asked for cocoa butter, but when he showed him the cocoa butter the man refused the same. The owner then noticed one of the men at the front of the store but didn't see anything unusual happening so he started walking back to the rear. While walking to the back of the store, he saw the 3 men running down Hampton Avenue. After the 3 men fled he testified that he went out to flag down a police paddy wagon which was just driving past and told them " . . . I thought we had a holdup going on at the store."

The state's last witness was Allan Quosig, Sr., a Milwaukee police officer who investigated the attempted armed robbery. He testified that he showed several photographs to the owner and his employees and that the clerks identified the defendant's picture. He further testified that he was present at a police lineup on October 7th, at which time Cheryl McQueen, Annette Singleton and Dorothy Long all identified the defendant as the man who attempted to rob the pharmacy.

The defense moved for dismissal of the action contending that the state failed to prove one of the elements of an attempt, I. e., "the intervention of another person or some other extraneous factor." The state contended that a police car was in the vicinity of the pharmacy at approximately the time of the attempted robbery provided the extraneous factor. The trial court, in denying the defendant's motion for dismissal, found two possible extraneous factors that may have intervened and prevented the defendant from completing the robbery:

1. The fact that the store owner had started walking toward the cashier's register at the front of the store; or

2. The existence of a police squad car patrolling in the area at the time of the robbery.

The only witness the defense called was John Lee Hamiel, Jr., the defendant, who testified that he was not familiar with Andrew's Pharmacy and that he was not present in any drug store on October 2, 1975. The defendant stated that he had been in his apartment, that he shared with his sister, from 2:00 p. m. until 7:00 p. m. and was not in the vicinity of Andrew's Pharmacy. Further, he testified that he could not have been at the pharmacy at the approximate time of the crime, 5:45 p. m., as he was at home watching the news on television between 5:30 and 6:30 p. m. On cross examination the defendant said his sister had left the apartment around 1:00 or 2:00 p. m. and thus he was home alone. At the conclusion of the trial the jury found the defendant guilty of being a party to the crime of attempted robbery. The court sentenced the defendant to an indeterminate term of not more than 4 years.

Following his conviction and sentencing the defendant moved for judgment notwithstanding the verdict stating that the prosecution failed to show the intravention of another person or factor, or in the alternative, he requested a new trial on the grounds that he was denied his request to conduct his own defense. The court summarily denied the defendant's motion and thereafter on February 2, 1977, filed a written order confirming the denial.

Issues

1. Is proof of the existence of the intervention of another person or some other intervening extrinsic force a specific element of a criminal attempt under sec. 939.32(2), Stats.?

2. Was there sufficient evidence adduced at trial to establish the existence of an intervening extraneous factor in this case?

3. Did the trial court improperly deny the defendant's request to proceed without counsel when he attempted to discharge the court appointed attorney on the day of trial and thus violate his right to self-representation as provided in the Sixth Amendment to the United States Constitution and art. I, sec. 7 of the Wisconsin Constitution?

The defendant on appeal claims that sec. 939.32(2), Stats., ¹ (the general attempt statute) requires the state to establish the existence of a specific intervening extrinsic force as a necessary element. The question of whether intervention of an extraneous factor is an element of an attempted crime initially arose in the case of Berry v. State, 90 Wis.2d 316, 280 N.W.2d 204 (1979). In that case the issue was whether an accused could properly be convicted of an attempt where there was...