Nicholas v. State

• Decision Date: 02 February 1971
• Docket Number: No. S,S
• Citation: 49 Wis.2d 683,183 N.W.2d 11
• Parties: Alnut Alvin NICHOLAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 99.
• Court: Wisconsin Supreme Court

Page 11

183 N.W.2d 11

49 Wis.2d 683

Alnut Alvin NICHOLAS, Plaintiff in Error, v.STATE of Wisconsin, Defendant in Error.

No. State 99.

Supreme Court of Wisconsin.

Feb. 2, 1971.

Rehearing Denied March 30, 1971.

Alnut Alvin Nicholas, the plaintiff in error (hereinafter 'defendant'), was found guilty by a jury of armed robbery in violation of sec. 943.32(1)(b), (2), Stats.He was sentenced on February 11, 1969, to an indeterminate term of not more than fifteen years, the sentence to run consecutively to previously imposed sentences for other convictions.

Richard Parks and his father are partners and owners of a restaurant and tavern located at 1137 West Canal street in Milwaukee.On March 20, 1968, Richard Parks went to the bank and picked up $2,800 in cash for the cashing of payroll checks at his place of business.When he returned to the tavern, this money in bank bags was lying beside him on the front seat of the car.On the rear floor of the car was a briefcase holding another $850 in cash.Parks returned to the tavern and pulled into the driveway.Just as he did, a van truck, the type with side loading doors, shot in front of Parks' car and blocked his path.Three men with guns jumped out of the loading door and surrounded Parks' car.One of these men, William Ashford, pulled open the driver's door, put a gun to Parks' head and reached in the back and pulled out the briefcase.

Parks was able to see Ashford and the man standing in front of the car.He also could see a fourth man sitting behind the wheel of the van, because the side door of the van was open and the driver was leaning back with his head turned toward Parks, so he(the driver) could watch the robbery.Parks could not see the man standing on the passenger side because his head was above the top of the car.

As Ashford turned to flee with the briefcase, one of the men shouted, 'kill him, kill him,' and the man standing in front of the car pulled the trigger of his gun several times, but it did not fire.Meanwhile, Parks jammed the car into reverse and stepped on the gas.

Thomas Malmberg was working outside next door to the tavern.He saw the robbery in progress and ran over to aid Parks.Malmberg did not get a look at the three defendants outside the van because they had turned and were running toward the van as he approached.The driver, however, was still facing Parks and Malmberg at this time; and Malmberg, like Parks, had a clear view of him.At trial both Malmberg and Parks identified the defendant, Alnut Nicholas, as the driver of the van.William Ashford, who had already been convicted of this same robbery, testified that Nicholas was actually the one who mastermined the crime.Nicholas, Ashford testified, solicited the other participants, plotted the crime, supplied the weapons and drove the truck.

The defendant took the stand in his own behalf and testified that he had nothing to do with the robbery.He stated that he did not even know William Ashford and had no idea why Ashford was implicating him in the robbery.He offered no alibi as to his whereabouts at the time of the crime.

The defendant was also asked on direct examination by his own counsel whether he had ever been convicted of a criminal offense.The defendant answered, 'Yes.'His counsel then asked the defendant how many times he had been convicted.He stated that it was so long ago he could not remember.After persistent questioning, the defendant finally acknowledged that he could remember four convictions.On cross-examination the district attorney questioned the defendant about his prior convictions, and this was objected to by the defendant's attorney.

A writ of error to review the judgment of conviction and order denying a new trial was timely issued.

Boren, Schmidt & Fleming, Morton J. Schmidt, Cudahy, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison E. Michael McCann, Dist. Atty., Milwaukee County, Victor Manion, First Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HANLEY, Justice.

The issues presented on this review are:

(1) Was it reversible error to allow the district attorney to question the defendant as to his prior offenses;

(2) Was it error for the state to fail to cite sec. 939.05, Stats.(party to a crime), in the information charging the defendant with violation of sec. 943.32(1)(b), (2), Stats.(armed robbery);

(3) Should the defendant be granted a new trial because William Ashford, an accomplice, who testified against him at trial, has now executed an affidavit recanting his testimony; and

(4) Was the evidence sufficient to sustain a conviction beyond a reasonable doubt?

Cross-Examination As To Prior Convictions.

The defendant's counsel contends that it was error to let the district attorney demonstrate on cross-examination that the defendant had a record which listed eleven criminal convictions.

Sec. 885.19, Stats., provides:

'Convict.A person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer.'

The defendant concedes that cross-examination as to prior convictions is authorized by sec. 885.19, Stats., but he argues that when the defendant(or any witness) states first on direct examination that he has been convicted and then also states how many times he has been convicted, this admission on direct examination precludes any further reference to the matter of prior convictions on cross-examination.

The fact of prior convictions and the number thereof is relevant evidence because the law in Wisconsin presumes that one who has been convicted of a crime is less likely to be a truthful witness than one who has not been convicted.In addition, the number of prior convictions is also held to be relevant evidence on the issue of credibility because the more often one has been convicted, the less truthful he is presumed to be.Liphford v. State(1969), 43 Wis.2d 367, 168 N.W.2d 549.This presumption obtains in both civil and criminal litigation.Underwood v. Strasser(1970), 48 Wis.2d 568, 180 N.W.2d 631.

While allowing such evidence, this court has nevertheless recognized that such evidence has a great potential for abuse.The court is aware that the jury might well take such evidence to mean a good deal more than the mere fact that the defendant is a person of doubtful veracity.The jury may concloude that if he has committed all those other crimes, then he probably committed the one he is on trial for also, or if he didn't, he ought to be convicted anyway because his past acts show him to be a bad and dangerous character who ought to be incarcerated.The likelihood of this reaction by the jury is increased when the state is allowed to expatiate on the nature and details of the past crimes.In view of this and in order to mitigate the potentially prejudicial impact of prior conviction evidence, this court has held that the 'nature' of prior crimes may not be brought out on cross-examination.The party conducting the cross-examination may ask the witness only two questions, to wit: Has he ever been convicted of a crime; and, if so, how many times?If the witness' answers are truthful and accurate, then no further inquiry may be made.However, if the witness lies or claims he cannot remember, the the cross-examiner is entitled to supply for the jury the information which the witness has denied or failed to recall.Frequently a party's own attorney will elicit this information on direct examination in the hope that the impact of this information on the jury will be less if it is brought out on direct instead of on cross-examination.This tactic is permissible; and the matter may not be pursued on cross-examination--provided the answers on direct are truthful and accurate.However, if on direct, the answers are inaccurate or incomplete, then the correct and complete facts may be brought out on cross-examination.Generally, this is done by asking the defendant if he was convicted of a particular crime on a particular date; and if he still denies it, then his criminal record may be put in evidence in order to show that he, in fact, has been convicted.

When asking the witness about prior crimes, it is permissible to mention the crime by name in order to insure that the witness understands which particular conviction is being referred to.

In the instant case, the defendant claimed on direct examination that he could only remember four convictions.On cross-examination, with the district attorney's help, the defendant's memory improved considerably, to wit:

'MR. KLINKOWITZ:

'Q Were you arrested and convicted of a crime of burglary on November 19, 1948?

'A That's about 10 months after I got out of the service.

'THE COURT: The question calls for an answer of yes or no.

'A Before I--yes, about 10 months after I got out.

MR. KLINKOWITZ:

'Q Were you arrested of the crime of burglary on May 28, 1952?

'A Yes, I was.That's one of the two of them.

'Q Were you arrested and convicted of the crime of forgery on September 16, 1953?

'A Yes, I believe I was.

'Q Were you arrested and convicted of the crime of carrying a concealed weapon on December 19, 1965?

'A No, I wasn't.That was reduced to disorderly conduct because it wasn't a concealed weapon.

'Q Were you arrested and convicted of the crime of abandonment on April 12, 1960?

'A No, I wasn't.

'Q Were you arrested and convicted of the crime of carrying a concealed weapon on March 31, 1963?

'A Yes, I believe I had.Yes, I do.

'Q Were you arrested and convicted of the crime of forgery, 2 counts of forgery, one count of uttering a forged check, the arrest date, November 15, 1967?

'A That's the one I quoted already for the record, November 26th I believe, a party to a crime.

'MR....