Manson v. State

Decision Date29 April 1981
Docket NumberNo. 79-131-CR,79-131-CR
Citation304 N.W.2d 729,101 Wis.2d 413
PartiesEugene Michael MANSON, Plaintiff in error-Petitioner, v. STATE of Wisconsin, Defendant in error.
CourtWisconsin Supreme Court

Mark Lukoff, First Asst. State Public Defender, Anne B. Petersen and William J. Tyroler, Asst. State Public Defenders, for plaintiff in error-petitioner.

Bronson C. La Follette, Atty. Gen., and Chris Heikenen, Asst. Atty. Gen., for defendant in error.

ABRAHAMSON, Justice.

On this review the defendant, Eugene Michael Manson, asserts that the trial court violated his constitutional right to a unanimous jury verdict by instructing the jury that it could find him guilty of armed robbery if it found he either used force or threatened use of imminent force against the victims. He further asserts that a defective information violated his constitutional rights to notice and to defend. We affirm the decision of the court of appeals affirming the judgment and order of the circuit court for Milwaukee county, Robert W. Landry, Circuit Judge, reported as Manson v. State, 92 Wis.2d 40, 284 N.W.2d 703 (Ct.App.1979).

I.

The defendant's conviction of armed robbery in violation of sec. 943.32(1), Stats. 1979-80, and his convictions of other charges not before the court on this review, arose from the December 16, 1977 armed robbery of the Rexnord Credit Union located in the Village of West Milwaukee in Milwaukee county. The sufficiency of the evidence to support the conviction is not challenged. The facts brought forth at trial are essential, however, to understanding the issues.

On December 16, 1977, at about 9:40 a. m., a man carrying a black plastic bag and a handgun entered the credit union and approached the first teller's station. Gregory Price, the assistant manager of the credit union, was standing near the station. The robber pointed the gun at Price's midsection and demanded money. Price reached for the cash drawer at the first station; the robber ran around the counter, said, "I mean business," lowered the gun and shot Price in the leg.

Terri Sponholtz Lodwick, one of the tellers, testified she heard the robber state "I mean business" and that she heard the shot. She then got up, walked to her cash drawer and withdrew the "bait money" setting off an alarm in the West Milwaukee Police Station. By this time the robber had moved down the counter to where Lodwick stood. She testified that he said to her "Hurry up, put it in the bag." She then placed the money from her cash drawer into the bag. Lodwick testified that the robber then said he wanted the money from the rest of the drawers. Assisted by another teller, she then withdrew the cash from drawers at other stations and placed it in the black bag. Lodwick testified that she helped empty the other cash drawers because "when he came in and demanded money, and I heard the gun go off, he kept saying he wanted the money and hurry up, and my first thought was nobody is getting him the money. Someone has to get him the money or we're in trouble. I got up and went to my counter." Lodwick also testified that the gun was pointed at her off and on during the incident.

Three witnesses identified the defendant as the man who robbed the credit union. The defendant admitted having been in the vicinity of the credit union on the day of the robbery but denied having been in the credit union on that day.

A four count information charged the defendant with (1) armed robbery of the credit union, (2) endangering safety by conduct regardless of life (arising from the defendant's shooting Price), (3) attempted first-degree murder (arising from the exchange of gunfire between the defendant and the police after he left the credit union), and (4) false imprisonment (arising from incidents occurring after the defendant left the credit union). The jury found the defendant guilty as charged on all counts except the third, on which the jury returned a verdict of guilty of the lesser included offense of endangering safety by conduct regardless of life.

On this review the defendant challenges only the conviction for armed robbery. The defendant's claim of error is grounded in the trial court's jury instructions on armed robbery and in Count 1 of the information relating to armed robbery. The defendant argues that the instruction which permitted conviction if the jury found that the defendant either used force with the intent to overcome resistance or threatened the imminent use of force with intent to compel acquiescence deprived him of his constitutional right to a unanimous jury verdict under Art. I, secs. 5 and 7 of the Wisconsin Constitution 1, and that Count 1 of the information denied him his constitutional right to notice and the right to defend under the Fourteenth Amendment to the United States Constitution and Art. I, sec. 7, of the Wisconsin Constitution. 2 II.

The court's instruction to the jury on armed robbery included the following statement:

"Third, that the defendant used force against the person in possession with intent thereby to overcome his physical resistance or physical power of resistance to the taking or threatened the imminent use of force against such person to compel such person to acquiesce in the taking of the property."

The trial court concluded its instruction on armed robbery, saying:

"If you are satisfied beyond a reasonable doubt from the evidence in this case that Terri Sponholtz Ladwig [sic] and Gregory Price had possession of property, money of the credit union, and that the defendant intentionally took and carried away money from the credit union from the presence of Terri Sponholtz Ladwig [sic] and Gregory Price, that at the time of such taking of the money, that the defendant had the intent to steal the money from these persons and that the defendant either used force against the persons in possession of the property with intent thereby to overcome his physical resistance or his physical power of resistance to such taking of the property, or that the defendant threatened the imminent use of force against the person in possession or any other person who was present, with intent to compel the person in possession to acquiesce in the taking of the property, and that the defendant did this while armed with a dangerous weapon, then you should find the defendant guilty of armed robbery as charged." (Emphasis added.)

We begin our consideration of the defendant's contention that the instruction deprived him of a unanimous jury verdict by looking at sec. 943.32, Stats. 1977, to determine whether the statute defines two offenses, (1) robbery by use of force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of property (hereafter described in abbreviated form as use of force), and (2) robbery by threat of imminent use of force with intent to compel acquiescence against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property (hereafter described in abbreviated form as threat of imminent use of force), or one offense, robbery, with alternative means of committing the offense. We recognize that the resolution of the question whether sec. 943.32(1) defines one or two crimes does not necessarily complete the inquiry into the question of whether the defendant's right to a unanimous verdict has been honored. United States v. Gipson, 553 F.2d 453 (5th Cir. 1977); Jackson v. State, 92 Wis.2d 1, 284 N.W.2d 685 (Ct.App.1979). However if we determine that sec. 943.32(1) defines two crimes then it is clear that jury unanimity as to each crime is required to convict the defendant of each crime. If we determine that the statute creates a single crime, we must then determine whether the jury may be instructed in the disjunctive without being instructed that jury unanimity is required as to each alternative.

Sec. 943.32, Stats. 1977, provides:

"(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:

"(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property; or "(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

"(2) Whoever violates sub. (1) while armed with a dangerous weapon is guilty of a Class B felony.

"(3) In this section 'owner' means a person in possession of property whether his possession is lawful or unlawful."

Defendant asserts that sec. 943.32(1)(a) and sec. 943.32(1)(b) define two separate, distinct crimes. Defendant bases his contention on prior cases of this court, and in particular State v. Williamson, 84 Wis.2d 370, 396, 267 N.W.2d 337 (1978), in which this court made the following statement:

"Armed robbery can be committed either by stealing with force or by stealing with the threat of force. Sec. 943.32(1)(a), (b), and (2), Stats. Sec. 943.32(1)(a) and sec. 943.32(1)(b) are two distinct crimes. Schleiss v. State, 71 Wis.2d 733, 239 N.W.2d 68 (1976). The model jury instructions for armed robbery discuss the crime committed in both ways. Thus as the State concedes, the model instruction for armed robbery is, technically, duplicitous. However, it is impossible for such duplicitousness to be error where, as here, the crime charged is sec. 943.32(1)(b), Stats., armed robbery by threat of force. Any juror who conceivably convicted the defendant of armed robbery by force would have also convicted the defendant of armed robbery by threat to use force. Only in a case where an accused is charged and tried under subsection (a), armed...

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