Holmes v. State
| Decision Date | 01 March 1977 |
| Docket Number | No. 75-662-CR,75-662-CR |
| Parties | Jerry Lee HOLMES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Syllabus by the Court
Jerry Lee Holmes, plaintiff in error (hereinafter defendant), was convicted of armed robbery contrary to secs. 943.32(1)(b) and (2) and 939.05, Stats., following a plea of guilty, and of attempted murder contrary to secs. 940.01 and 939.32, following a jury trial. Holmes was sentenced to an indeterminate term of imprisonment of not more than 20 years on the armed robbery conviction, such sentence to be consecutive to a 10 year term of imprisonment he was then serving for parole violation on an unrelated previous conviction. He was sentenced to a further indeterminate term of not more than 20 years on the attempted murder conviction, such sentence to be served consecutive to the above sentence.
Writs of error issued to review the judgments of conviction and an order denying postconviction motions for a new trial and a modification of sentence.
Howard B. Eisenberg, State Public Defender, and Robert J. Paul, Deputy State Public Defender, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for defendant in error.
In this case the jury was selected and informed of both charges against the defendant. Then, out of the presence of the jury, the defendant informed the trial court he desired to withdraw his plea of not guilty to the armed robbery charge and enter a plea of guilty thereto. The trial court properly accepted the plea of guilty, entered a finding of guilty of armed robbery as charged, and withheld sentencing until after the completion of the jury trial on the attempted murder charge.
Considerable discussion followed, engaging the respective counsel and the trial judge. The discussion related to whether the jury which had already been impaneled and informed of the two charges against the defendant, could now appropriately proceed to consider only the attempted murder charge. It was ultimately agreed by both parties that the trial would proceed and that the trial judge would instruct the jury that the only issue before it for consideration was the attempted murder charge. It was also specifically understood by both counsel and the trial court that during the course of the trial some reference would have to be made to the armed robbery which precipitated the chase between the defendant and police officers during which the shooting occurred that was the basis for the alleged attempted first-degree murder charge.
The jury returned and was informed that of the two charges they had previously learned about, only the second charge, attempted murder, would be the subject of the jury trial; that they were to concern themselves only with that charge; and that they were not to speculate about the disposition of the armed robbery charge.
Additional facts will be set forth in considering the principal issue in this case, which is:
Was it prejudicial error, under the circumstances of this case, for the trial court to admit testimony concerning the armed robbery during the defendant's jury trial for attempted murder?
During the trial, the state called as witnesses, a number of police officers. One of them was Detective Robert Allen. Allen testified that at approximately 10:50 p. m. he and his partner, Detective Morris Merriweather, received a radio dispatch concerning an armed robbery at the Riverside Theater located at 116 West Wisconsin avenue, in the city of Milwaukee. As they proceeded to the site of the robbery, at the intersection of Kilbourn and North 4th street, Allen observed a person matching the radio dispatch description and later identified as the defendant, running on North 4th street to a location behind the Journal Building. Allen testified that Merriweather stopped the car, and Allen exited and began chasing the defendant on foot calling "Hault, (sic) Police."
The defendant continued running onto North 3rd street. As Allen turned the corner, he observed the defendant about 30 feet away with a gun in his hand. Allen testified that the defendant fired the gun at him once; Allen returned one shot; and the defendant turned and continued running north on North 3rd street. Allen testified that as the defendant was running he turned and fired more shots at Allen. Allen finally lost sight of the defendant. However, as a result of police radio dispatches, other police officers arrived in the area and the chase continued with other shots being fired by the officers at the defendant. Ultimately, the chase culminated at the Milwaukee River in downtown Milwaukee, at which point the defendant dropped his gun on the ground and jumped into the river. He couldn't swim and was retrieved by the police and placed under arrest. The defendant's .32-caliber revolver contained six spent cartridges and he had some live rounds of ammunition on his person. No one was struck by any of the shots.
After this evidence was in, the prosecution requested the court to hold a Goodchild-Miranda hearing to determine the admissibility of two statements made by the defendant to the police following his arrest, which the prosecution wished to offer in evidence. At this hearing, Detectives Morris Merriweather and James Kelley, and the defendant, testified. The defendant testified that he did give a statement to the police officers concerning the armed robbery, but denied that he had given any statement concerning the attempted murder or shooting at the police. The defendant also testified that the police officers had beaten him at the time of the arrest and during interrogation. Both officers had previously testified that no beatings had occurred.
The trial court found that the two statements were given voluntarily, knowingly and without threats, promises, force or coercion exerted upon the defendant, and that the statements could be introduced at trial. The prosecution then, and out of the presence of the jury, requested that it be permitted at trial to explore the full statements given by the defendant, which included portions of the armed robbery admission. The prosecution stated it was of the opinion this was necessary for the jury to understand the defendant's motive for running from the police and for shooting at the officer and the defendant's knowledge of why the officer was chasing him. The defense entered a general objection, and the trial court ruled that it was going to permit Officer Merriweather to testify on the issue.
The trial resumed, and the state called as witnesses, Detective Merriweather, Patrolman Dennis Waldoch, Detective Kelley, and Assistant District Attorney Frank Schiro. They testified in regard to facts relative to the attempted murder charge, and in addition Merriweather and Kelley testified in considerable detail concerning the armed robbery as related to them in statements given by the defendant. The defense made no objections to any of the testimony of these witnesses concerning the armed robbery.
The State rested. Defense counsel indicated that he would offer no testimony and made a motion to dismiss on the grounds that the intent element had not been proved. The motion was denied. Defense counsel motioned for a mistrial on the grounds that the officers went into too much detail relative to the armed robbery charge. The prosecution pointed out that there had been no objection by the defense counsel to the quantum of testimony introduced, and that it was necessary to produce evidence on the armed robbery to show a motive for the defendant's subsequent actions. The trial court considered the motion for a mistrial and denied it, and in doing so acknowledged that the prosecution may have gone into more detail than was necessary.
The defense rested without calling any witnesses. Closing arguments were made. The prosecutor subsequently stated for the record that in his closing argument he had told the jury to disregard any evidence concerning the armed robbery and that the only purpose for which such evidence had been admitted was to reflect the defendant's motive for flight.
The defendant asserts that there was a stipulation to exclude the armed robbery evidence. Our examination of the record does not support this assertion, and we find no evidence of such a stipulation.
The record reveals that the jury had been informed that the defendant was to be tried on two charges, armed robbery and attempted murder. When the defendant opted to plead guilty to the armed robbery charge and to proceed to trial only on the attempted murder charge, the problem arose as to how to inform the jury that they were no longer to consider the armed robbery charge without telling them that the defendant had pleaded guilty thereto. The discussion between the trial court, defense counsel, and the two assistant district attorneys, was for that purpose. The result of that discussion was that the trial court would tell the jury that the only issue before them was attempted murder and that they were not to speculate as to the disposition of the armed robbery charge. The trial court subsequently did so inform the jury. The trial court, the assistant district attorney, and defense counsel, all agreed that, "We may have to make here some reference as to why the chase." That would necessarily entail the introduction of at least some evidence concerning the armed robbery. Defense counsel stated: "We would have no objection to that."
Therefore, the question before this court resolves itself to whether or not the evidence of the armed robbery was admissible under the rules of evidence and, if so, was it so prejudicial to the cause of the defendant as to require a reversal. The defendant advances his argument on this issue in the alternative: First, that all evidence concerning the armed robbery was irrelevant and...
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