Robinson v. State, S

CourtUnited States State Supreme Court of Wisconsin
Citation52 Wis.2d 478,190 N.W.2d 193
Docket NumberNo. S,S
PartiesDaniel ROBINSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 91.
Decision Date08 October 1971

The plaintiff in error (hereinafter defendant) was tried to a jury and convicted of attempted murder in the first-degree contrary to secs. 940.01 and 939.32, Stats. The defendant was sentenced to an indeterminate term of not more than twenty years in the state prison. Postconviction motions were made and denied. Defendant appeals from the judgment of conviction and the order denying postconviction motions.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., George L. Frederick, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

In the early morning hours of February 13, 1969, police officer Robert Moe was summoned to a residence in Milwaukee. In response to a cry for help from within the house, he entered three times by way of the back porch, but was confronted each time by the defendant, who, armed with a revolver, threatened to kill him unless he got off the porch. While Officer Moe was waiting for assistance, the defendant appeared at the rear doorway of the house, pointing a gun at the head of Carl Crawford, defendant's brother-in-law. Moe testified that the defendant began waving the gun around and shouted, 'I could kill a cop anytime I wanted to.' This is corroborated by the testimony of Crawford. A short time later, other officers arrived at the scene including Sergeants David Guerin and Frank Miller. After attempts had been made to gain entrance by pleading with someone in the house to open the door, the officers forced the rear door open, while a canister of tear gas was simultaneously thrown through the kitchen window.

There is some contradiction in the testimony as to what transpired after the officers entered the dwelling. Guerin, Miller and the defendant were in the same room and both officers testified they told the defendant to drop the gun. Guerin testified the gun was pointed directly at Miller and that he observed the defendant make a motion with his trigger finger on the gun. Sergeant Miller testified that just before he moved toward the defendant he heard a 'click' which, in his opinion, sounded like a misfire. Immediately thereafter Guerin leaped at the defendant, grabbing him about the neck. Miller grabbed for the defendant's arm and the gun clattered to the stove.

Defendant testified that he was drunk and confused at the time of the incident, and that he had smoked three sticks of marijuana. The gun belonged to his brother, and he initially took it to revenge an alleged rape of a girl friend, which had occurred approximately two weeks prior to February 12, 1969. Defendant recalled telling Officer Moe to get off the porch holding the gun on Crawford at the doorway, and saying something to the effect that he could have shot either of the officers then present. He further testified that when the tear gas canister came through the window, he was standing in the bedroom doorway and turned around and pointed the gun at the doorway in an effort to get the drop on the officers as they came in, but he saw the officers were already in the room. He also testified that he did not attempt to fire the gun at anytime after Sergeant Miller entered the kitchen.

The gun involved in the instant case was a .22-caliber, rim-fire, double-action revolver, and the cylinder could turn without the necessity of pulling the trigger or cocking the gun. The gun was introduced in evidence. Sergeant Miller testified that when he examined the gun after the incident, it contained three live cartridges and three spent cartridges; that one of the live cartridges had a dent on the rim. The record also discloses that the defendant had fired one of the expended cartridges in the house before the officers arrived.

A firearms expert of the state crime laboratory testified as to functioning of the weapon. He described and demonstrated various 'click' sounds made by the operation of the weapon. Various police officers, the defendant, and both counsel, also used the gun for various demonstrations during the trial.

Defendant, on appeal, alleges a number of errors; however, the State argues the defendant is foreclosed from doing so because defendant failed to timely preserve his right to appeal.

The jury returned a verdict of guilty on June 26, 1969. The court adjourned the matter to the following day to consider motions after verdict, if any, by defendant's counsel. The judgment roll reflects that on June 27th, 'On motion of the State, the Court pronounced judgment on the verdict and entered jury conviction of guilt of the offense as charged in the Information.' However, the record does not indicate any decision on motion for judgment by the court on June 27, 1969. The court ordered a presentence investigation and sentencing took place on July 21, 1969. On July 21, 1969, the court adjudged the defendant guilty and imposed sentence. The writ of error to review the judgment of conviction was issued June 23, 1970.

June 17, 1970, defendant moved the trial court for an order dismissing the action and for a judgment of acquittal, notwithstanding the verdict, and, in the alternative, for an order setting aside the verdict and granting a new trial.

June 25, 1970, defendant moved the court for an order granting authority to contact the jurors.

July 21, 1970, both of the foregoing motions were denied by the trial court, and a writ of error to review the trial court's denial of these motions was issued July 23, 1970.

We are mindful of the decisions to which counsel has directed our attention, and we are of the opinion they are readily distinguishable from the instant case. We find no substance to the State's arguments and hold that in this case the appeal was timely.

In our previous decisions, we have recognized an apparent inconsistency among the trial courts of the state in the manner of adjudicating guilt. 1 Sec. 972.13, Stats., effective July 1, 1970, provides a uniform and formal procedure for adjudicating guilt which is intended to alleviate the problem here presented.

WAS IT ERROR TO ALLOW THE GUN HEREIN INVOLVED (STATE'S
EXHIBIT #1) TO GO TO THE JURY ROOM?

The record reveals that the gun, without the cartridges, was sent to the jury room during deliberation, over the objection of defense counsel. Under the facts of this case, we consider the decision to permit the weapon to go to the jury room to be a decision addressed to the judicial discretion of the trial judge.

We do not consider that our determination in this case in any way modifies or deviates from the well-established rule which prohibits a jury from going outside the evidence and conducting experiments on its own.

Assuming, as contended by defendant, that experimentation was conducted by the jury, could any conceivable experimentation be conducted which would constitute prejudicial error? We think not.

McCormick, Evidence (Hornbook Series) pp. 393, 394, sec. 184, states that:

'* * * (M)ost jurisdictions allow the judge in his discretion to determine whether a given document or exhibit shall be sent with the jury. * * *

'* * *

'As to the use to which the jury may put the writings and exhibits, it seems that they may test the validity of the inferences for which such items of evidence are offered, by examining them, and by such reasonable manipulation or experimentation as is appropriate for the purpose. (Citations omitted.)'

It is the rule in Wisconsin that permitting exhibits to be taken to the jury room is within the sound discretion of the trial court. Payne v. State (1929), 199 Wis. 615, 227 N.W. 258; Milwaukee Tank Works v. Metals Coating Co. (1928), 196 Wis. 191, 218 N.W. 835; Wunderlich v. Palatine Fire Ins. Co. (1899), 104 Wis. 382, 80 N.W. 467.

We do not here review the facts surrounding the trial court's decision to permit the weapon to go to the jury room. The reason being that the well-reasoned opinion of the trial court in stating its reasons for allowing the gun to go to the jury room is more than adequate.

'(THE COURT:) * * * We had a use of that gun during the trial by just about everybody but the judge who participated in that trial. We had it held by the defendant and demonstrated, we had it held by the expert and demonstrated, we had it held by the attorneys and use of it made in argument and in asking questions. We had it held by Officer Guerin and Officer Miller. * * * We had various clicks demonstrated, we had a click of the hammer being pulled back, we had a click of the completed firing of the revolver which is what Officer Miller designated as a misfire or a dry fire, striking metal on mental (sic). We had the expert demonstrate the use of the cylinder on examination by (Defense counsel) to show that in his opinion the cylinder could revolve or turn when it is placed in the pocket, if it is done properly. We had the opinion by the expert that when it was knocked out of the defendant's hand by Officer Miller and Officer Guerin as I recall and went to the stove or however it was dislodged from his hand or taken from his hand that cylinder could have turned in that action. This became critical because of the State's theory that the one shell that appeared as a misfire was a rim fire and there was a slight indentation or an indentation in the rim, that that is what occurred at the time that the trigger was pulled when it was pointed at Officer Miller. * * *

'* * * What I am getting at is this: If a jury needs testimony read back, the Court can have testimony read back, it is recorded. As we discussed earlier this morning we don't have tape recorders in the courts in Wisconsin, I cannot play back the intensity, the volume or the nature of a click. * * * (T)here were clicks heard by them on each of the separate days even down to the final arguments...

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9 cases
  • Johnson v. State, 75--350--CR
    • United States
    • United States State Supreme Court of Wisconsin
    • January 18, 1977
    ...that determination of what exhibits, if any, are to go with the jury is a matter for the discretion of the court. Robinson v. State, 52 Wis.2d 478, 484, 190 N.W.2d 193 (1971). However, he claims that such discretion was here abused. He argues that the fact, location and manner of the deceas......
  • State v. Kassebeer, 27660.
    • United States
    • Supreme Court of Hawai'i
    • September 30, 2008
    ...and other jurisdictions have determined that the trial court has discretion to allow such an examination. See Robinson v. State, 52 Wis.2d 478, 190 N.W.2d 193, 196 (1971); State v. Thompson, 326 N.W.2d 335, 337 (Iowa 1982). Accordingly, we hold that the circuit court did not abuse its discr......
  • Werner v. State, S
    • United States
    • United States State Supreme Court of Wisconsin
    • March 4, 1975
    ...58 Wis.2d 144, 205 N.W.2d 559.2 Id. at page 151, 205 N.W.2d at page 563.3 Id. at page 152, 205 N.W.2d at page 563.4 (1971), 52 Wis.2d 478, 488, 190 N.W.2d 193, 198.5 Cf. Note, Evidence--Self Defense--Prior Acts of Victim, 1974 Wis.L.Rev. 266.6 (1904), 123 Wis. 107, 112, 101 N.W. 381, 383.Th......
  • State v. Dix, 76-659-CR
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    • January 9, 1979
    ...have resulted where the defendant attempted to shoot someone but failed and the victim went unscathed. See, e. g., Robinson v. State, 52 Wis.2d 478, 190 N.W.2d 193 (1971); Holmes v. State, 63 Wis.2d 389, 217 N.W.2d 657 (1974). As the court explained in Huebner v. State, 33 Wis.2d 505, 520, ......
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