State v. Cheers
| Decision Date | 15 June 1981 |
| Docket Number | No. 79-1454-CR,79-1454-CR |
| Citation | 306 N.W.2d 676,102 Wis.2d 367 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Douglas CHEERS, Claven Ladell Crockett, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Ann B. Petersen, Asst. State Public Defender, argued, for appellants; Louis B. Butler, Jr., and William J. Tyroler, Asst. State Public Defenders, on the brief.
Chris Heikenen, Asst. Atty. Gen., argued, for respondent; Bronson C. La Follette, Atty. Gen., on the brief.
This is an appeal from judgments of conviction entered in the circuit court for Milwaukee county, the Hon. FREDERICK P. KESSLER presiding. This case is before this court on a bypass of the court of appeals, pursuant to sec. 808.05 and sec. (Rule) 809.60, Stats.
Following a jury trial, the circuit court convicted the defendants, Douglas Cheers and Claven Ladell Crockett of three counts of armed robbery, party to the crime, with the use of force against the person of the owner, contrary to secs. 943.32(1)(a) & (2) 1 and 939.05, Stats.1977. The trial court entered judgment on the verdicts, and thereafter, pursuant to a plea bargain, the defendants entered pleas of no contest to a fourth count of armed robbery, party to the crime with the threat of the imminent use of force in violation of secs. 943.32(1)(b) and (2) and 939.05, Stats.1977. After receiving the testimony on the no contest plea, the court entered judgments convicting the defendants on the fourth count of armed robbery (threat to use force). Complying with the plea negotiation, the district attorney moved the court to dismiss but read into the court record the three remaining crimes charged in the seven-count information armed burglary, party to the crime, two counts, attempted armed robbery party to the crime, to be considered by the court at the time of sentencing. On the first three armed robbery counts, defendant Crockett was sentenced to three consecutive ten-year terms and the fourth armed robbery sentence was ordered to be served concurrent with the sentence in count number one. Defendant Cheers was sentenced to two consecutive ten-year terms on the first two counts, and a five-year consecutive term on the third count and the sentence on count number four was ordered to be served as a concurrent ten-year sentence with the sentence imposed in count number one. The court further ordered that each of the defendants be given 101 days' credit for the time spent in pre-trial confinement. The defendants' notices of appeal state that they appeal from the judgments of conviction on all four counts of armed robbery, party to the crime.
On appeal, both defendants, Cheers and Crockett, contend that the trial court erred when instructing the jury that it could find them guilty of the three counts of armed robbery, party to the crime, with the use of force, contrary to secs. 943.32(1)(a) and (2) and 939.05, Stats.1977, if it found that they either threatened the use of force or used force against their victims in the commission of the armed robberies. The defendants claim that this type of instruction violates their constitutional rights in that it deprived them of: (1) the right to a unanimous jury verdict; (2) the right to have every element of the crime charged proved beyond a reasonable doubt; and (3) the right to timely notice of the crime charged (armed robbery with either force or threat of use of force) and the opportunity to defend the same. Additionally, defendant Cheers argues that the trial court :failed to acquire personal jurisdiction over him as he contended his arrest was without probable cause. Cheers further asserts that the trial court erred in admitting out-of-court and in-court identifications of him in evidence claiming that these identifications flow directly from his alleged unlawful arrest and therefore should have been suppressed under the fruit of the poisonous tree doctrine. 2
The defendants' convictions arose out of their alleged participation in the armed robberies of two residences in the city of Milwaukee: one at 3300 West Lisbon Avenue on December 13, 1978, and the other at 3250 North 9th Street on December 15, 1978. Three persons, Marilyn Sue Netterville, Lornell Reid and David Reid, were victimized during the course of the armed robbery at the West Lisbon Avenue address, and those robbed at the 9th Street location were Edna Earl Ward and Richard Nicksion. Shortly after the two armed robberies, Netterville, Ward and Nicksion identified Crockett as one of the assailants from a police photographic display. This photographic identification led to the issuance of a warrant for Crockett's arrest and a complaint charging him with three counts of armed robbery with the use of force as party to the crime (one count each relating to each of the victims of the robberies at 3300 West Lisbon Avenue) and one count of party to the crime of armed robbery with the threat of imminent use of force relative to the robbery of Edna Ward at the North 9th Street address.
Crockett was arrested pursuant to this warrant at a residence known as 2479 West Fond du Lac Avenue, Milwaukee, on December 19, 1978, and defendant Cheers was arrested outside the same house as he attempted to gain entry to the residence, five to ten minutes before the arrest of Crockett. The officers' failure to possess a warrant for the arrest of Cheers and the circumstances leading up to and surrounding his arrest form the basis for Cheers' claim that his arrest was unlawful as being without probable cause.
On the morning following their arrest, Cheers, Crockett and the four other black males taken into custody the evening before participated in a police identification lineup. At the lineup, four of the victims, Lornell Reid and his brother, David Reid, (robbery at 3300 West Lisbon) as well as Edna Ward and Richard Nicksion (robbery at 3250 North 9th Street) identified Cheers as one of the robbers. After the lineup, a complaint was filed charging Cheers with being a party to the armed robbery crimes at 3300 West Lisbon Avenue and 3250 North 9th Street.
Prior to the preliminary examination, Cheers challenged the court's jurisdiction with a motion to suppress claiming his arrest and lineup were the fruit of an illegal arrest without probable cause. The court denied this motion ruling that it must be brought before the trial court. After the preliminary hearing, the court found probable cause to believe the defendants committed the crimes charged and bound Cheers and Crockett over for trial.
The district attorney issued an information charging the defendants with the crimes recited in the complaint 3 and Cheers renewed his motion to dismiss for want of jurisdiction as well as his motion to suppress his out-of-court identification (and any subsequent identification), grounding both motions on his claim that his warrantless arrest was unlawful as being without probable cause. After the hearing on these motions where testimony was presented from one of the arresting officers (Dieter Kraemer) and the defendant Cheers, the trial court denied the motions finding that the arrest was valid (sec. 968.07(1)(d), Stats. 4), as the arresting officers had reasonable grounds to believe that Cheers fit the description of one of the persons that had participated in the armed robberies with Crockett, and further was apprehended while attempting to enter the house where Crockett was known to be residing.
At the time of trial, the first three counts in the information charging the defendants with being party to the crime of armed robberies (use of force) relating to the robberies at the West Lisbon Avenue address 5 were severed on the defendants' motion from the 3250 North 9th Street count and the case proceeded to trial on the first three counts.
Following the presentation of the state's case, the defense rested without offering any evidence and the court proceeded to instruct the jury on the crime of armed robbery as follows:
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