May v. State
| Decision Date | 27 June 1980 |
| Docket Number | No. 77-853-CR,77-853-CR |
| Citation | 293 N.W.2d 478,97 Wis.2d 175 |
| Parties | Charles MAY, Plaintiff in error-Petitioner, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
Charles May was convicted as a party to a crime of delivering a controlled substance, amphetamine, contrary to secs. 161.41(1)(b) and 939.05, Stats., following a jury trial. He was sentenced to an indeterminate term not to exceed three years. This court granted his petition to review a decision of the court of appeals which affirmed his judgment of conviction and the order denying his motion for a new trial. May v. State, 91 Wis.2d 540, 283 N.W.2d 460 (Ct.App.1979).
Jack E. Schairer, Asst. State Public Defender, for plaintiff in error-petitioner.
Betty R. Brown, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
The issues presented on this review concern the procedure used by the trial court in responding to an inquiry from the jury during the course of its deliberations and the instructions given to the jury.
At the time of the incident which is the basis of the instant prosecution, Charles May, the petitioner (hereinafter defendant), and Cheryl Olson were living together in an apartment in Madison, Wisconsin. Both had prior criminal records, each was receiving some public assistance, and May was on parole.
Leon Dandurand, a Madison police officer who worked as an undercover narcotics agent, testified that on May 4, 1977, he went to the apartment occupied by the defendant and Olson to purchase "speed," an amphetamine. He was accompanied by an informant who was an acquaintance of the defendant and who introduced him to the defendant. Dandurand told the defendant he wanted to look at whatever he had. The defendant went to the kitchen cupboard, took out a plastic container and showed Dandurand a quantity of capsules which he said were "speed." The defendant said they were $2 apiece and asked Dandurand how many he wanted. Dandurand said five and gave the defendant $10 for them. He asked whether the capsules were of good quality, and the defendant said that they were "okay," but that in a couple of days he would have a quantity of "black cadillacs," which are a stronger form of "speed." Dandurand asked if he could stop by in a couple of days. The defendant indicated that he could and that if he had the "black cadillacs," they could make a deal. Olson was in the living room watching TV while this transaction occurred.
Two days later, on May 6th, Dandurand went to the apartment at about 7 p. m. He was admitted to the apartment by Olson and he asked her if the "black cadillacs" which he had discussed with the defendant had arrived. She indicated that she knew nothing about them and that he should contact the defendant who would probably be back within an hour.
Dandurand left and returned to his office. At approximately 8:10 p. m. he telephoned the apartment. Olson answered the phone and Dandurand asked if the defendant was there. When the defendant came to the phone, Dandurand asked him if he had the "black cadillacs," and the defendant said he did, but that he only had ten of them. The defendant said that the price was $3.50 apiece and that Dandurand could come over and get them.
Dandurand arrived at the apartment at 8:24 p. m. Olson let him in and he said he was the person interested in the "black cadillacs." She went to the kitchen cupboard and got a plastic container in which there were capsules of various colors. The defendant at this time was in the living room talking to a man. Olson showed the capsules to Dandurand and he said he was only interested in the "black cadillacs" and wanted ten of them. She took the black capsules from the container, wrapped them in plastic wrap and gave them to Dandurand, who gave her $35. They discussed the possibility of future drug deals and Dandurand left.
The black capsules were subsequently examined by a chemist and were found to contain amphetamine.
As a result of the transaction on May 6, 1977, both the defendant and Olson were charged with being parties to the crime of delivering a controlled substance. Olson pleaded guilty to the charge. She testified that she and the defendant had a close relationship and lived together intermittently for about one and a half years. She sold "speed" and other controlled substances and the defendant assisted her in so doing by directing people to her. On May 4, 1977, just prior to the first transaction with Dandurand, Olson told the defendant that he should attempt to sell what she believed to be cold capsules as "something else" because she needed the money. She was present in the apartment during the transaction with Dandurand and the proceeds of the sale were given to her by the defendant. The defendant told her that Dandurand was interested in different types of "speed" and wanted "cadillacs." She told the defendant that she would try to obtain some in the next couple of days and did so on May 5th. After the defendant completed his telephone conversation with Dandurand on May 6, 1977, for the second transaction, the defendant told her that he suspected a police "set-up" and wanted nothing to do with Dandurand when he came over and advised her to do the same. Her financial needs were such, however, that she was not concerned about the possibility of her criminal involvement.
The defendant testified that he would from time to time facilitate transactions between Olson and persons who were interested in buying "speed." He was a seller of marijuana and his customers would ask him if he knew where they could get "speed"; he would tell Olson he had a customer for her and would sell her "speed" to his customers on her behalf. Immediately after the May 6th telephone conversation with Dandurand, the defendant changed his mind about delivering the amphetamine to Dandurand. He told Olson that she should abandon the sale because he believed the caller was a police officer. The defendant said he was not going to have anything to do with the delivery. He was present when Dandurand arrived, but did not attempt to involve himself in the delivery and received nothing from the transaction. Olson also so testified.
Additional facts will be set forth when considering the issues presented on this review, which are:
1. Did the trial court err in answering the question posed by the jury in the absence of counsel?
2. Did the trial court err in answering the question in the absence of the defendant?
3. Can a person withdraw from aiding and abetting in the commission of a crime?
4. Was the defendant denied his right to a unanimous verdict?
After the jury retired to deliberate, the trial court told counsel to notify the clerk of their whereabouts so that they could be reached in the event they were needed. Both counsel so notified the clerk and left the courtroom. The jury sent a note to the court after it began its deliberations which read:
"By withdrawing from a conspiracy has a person removed themselves (sic) from aiding and abetting the commission of a crime?"
The trial judge directed the clerk to answer the question, "No." Neither the defendant nor his attorney was present. At the time they had no knowledge that the inquiry had been made or that the court had responded. It is the foregoing incident which produces the principal issues on this review.
The jury subsequently sent two more written questions to the trial court:
The court sent a note to the jury asking whether it would be of assistance if the court reread the instructions. The jury responded in the affirmative. At this point counsel for the state and for the defendant were both present in the courtroom. The court proposed to ask the jury whether they wanted the entire instructions read or just the instructions regarding party to a crime, and stated that, in any event, he would read the instructions on party to a crime. Both counsel stated that they had no objection. Also at this time the trial court informed counsel of the first question by the jury and the response of the court. Defense counsel objected to the court's having responded to the jury without prior notification of counsel and to the substance of the court's response. He stated that the court either should not have answered the question or should have framed a particular instruction explaining the possible consequences of withdrawal. The judge responded that he believed his answer was a correct statement of the law. The jury was recalled and a colloquy followed between the court and the jury in the presence of counsel, as a result of which the court reread to the jury the instructions on party to a crime.
ERROR TO RESPOND TO JURY INQUIRY IN ABSENCE OF COUNSEL.
The defendant contends that the trial court committed reversible error in answering, in the absence of counsel, the first question posed by the deliberating jury. The court of appeals held that it was error for the trial court to respond to the jury's question in the absence of defense counsel, but that the error was harmless since the trial court correctly answered the question.
In State v. Stewart, 56 Wis.2d 278, 201 N.W.2d 754 (1972), the jury, while deliberating, wrote out a question and sent it to the trial judge. Neither the defendant nor his counsel was present in court at the time. Without notifying counsel or the defendant, the...
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