State v. Grady

• Decision Date: 02 November 1979
• Docket Number: No. 79-798-CR,79-798-CR
• Citation: 286 N.W.2d 607,93 Wis.2d 1
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gilbert GRADY, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 607

286 N.W.2d 607

93 Wis.2d 1

STATE of Wisconsin, Plaintiff-Respondent, v. Gilbert GRADY, Defendant-Appellant. ^*

No. 79-798-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 24, 1979.

Opinion Released Nov. 2, 1979.

Opinion Filed Nov. 2, 1979.

James A. Bottoni, Jr., Milwaukee, submitted briefs for defendant-appellant.

Bronson C. La Follette, Atty. Gen., Sally L. Wellman, Asst. Atty. Gen., Madison, submitted brief for plaintiff-respondent.

Before DECKER, C. J., MOSER, P. J., and CANNON, J.

CANNON, Judge.

On March 31, 1978, defendant was convicted of armed robbery, party-to-a-crime, in violation of sec. 943.32(1)(b) and (2) and sec. 939.05, Stats., after trial to a jury. On May 17, 1979, the trial court denied defendant's postconviction motions. Defendant appeals from both the judgment of conviction, and the order affirming the conviction.

The testimony adduced at trial showed that on October 18, 1977, defendant and an unidentified friend went to John Marshall High School in Milwaukee to purchase "some weed." While they were in the vicinity of the school, they approached a small group of students gathered outside. Defendant's companion asked to examine a radio held by one of the students. After some general conversation, defendant and his companion, who was still in possession of the radio, began to walk away. Several students followed the two men in an attempt to recover the radio. The fracas attracted additional students who gathered around defendant's car and tried to prevent him from driving away. The students began to rock the car, and tried to recover the radio by pulling the passenger, who was clutching the radio, out of the car. At this point, defendant produced a handgun and pointed it at the students. The students backed off and defendant and his companion were able to drive off with the radio.

Defendant raises two issues on appeal:

1. Does the evidence support the conviction of armed robbery, party-to-a-crime?

2. Did the method of jury selection, and the jury as constituted provide defendant with an impartial jury as guaranteed by the constitutions of the United States and the state of Wisconsin?

I.

Defendant contends that the evidence does not support a conviction of armed robbery, party-to-a-crime, because the criminal act had been completed prior to the time he produced the gun. Defendant cites Berry v. State, 87 Wis.2d 85, 273 N.W.2d 376 (Ct.App.1978), for the rule that the slightest movement is sufficient to meet the element of "carrying away" or asportation. ¹ He argues from this that the robbery was complete when his companion started walking away from the owner of the radio. Defendant maintains that the production of the gun was a separate act, unrelated to the taking of the radio, and prompted by his fear for his own safety when the students surrounded his car. Defendant denies any involvement in the taking of the radio, claims he had no intent to steal it, and denies knowing it was stolen. Defendant argues, therefore, that the state has failed to prove the elements of sec. 943.32(1) (b), Stats.; that defendant took property from the person of the owner; that defendant had an intent to steal; that he threatened imminent use of force to compel acquiescence in the taking of carrying away of the property, and that he was armed with a dangerous weapon while committing the robbery.

Section 943.32(1)(b) clearly states that the threat of force, if used to "compel the owner to acquiesce in the taking Or carrying away of the property" constitutes robbery. (Emphasis supplied.) Robbery "necessarily includes the element of asportation . . . ." Moore v. State, 55 Wis.2d 1, 6, 197 N.W.2d 820, 823 (1972). Asportation is defined as: "The removal of things from one place to another. The carrying away of goods; . . . ." Black's Law Dictionary 147 (4th ed. 1968). Asportation, then, is a transaction which continues beyond the point in time when the property of another is taken. Our supreme court discussed this in Hawpetoss v. State, 52 Wis.2d 71, 187 N.W.2d 823, 826 (1971) in relation to the crime of theft:

To constitute the offense of larceny from the person, not only must property be taken from the person of another but it must also be carried away or handled in one of the other manners prescribed by the statute with the requisite intent. In this case, Darlene LeRoy executed the first element by removing the watch from the person of Selvent. At this point it seems questionable whether it could be said that the offense had been committed since the element of asportation was absent. That element was ultimately accomplished by the defendant. Therefore it appears that neither one may actually be said to have executed the entire substantive crime of theft from the person for which the other may be held vicariously liable. Hawpetoss, supra at 77, 187 N.W.2d at 826.

With regard to the crime of larceny in particular, it is generally held that one may be guilty of larceny as a principal where the crime was incomplete until he contributed his aid in the asportation or taking possession of and removal of the stolen property. Hawpetoss, supra at 78, 187 N.W.2d at 826.

In the instant case, defendant's production of a gun aided the asportation of the stolen radio. The crime would not have been successful without his intervention.

The essence of defendant's argument is that he cannot be guilty under sec. 939.05, Stats., party-to-a-crime, unless the state can prove that the crime committed was the specific crime which defendant intended to commit. This is clearly contrary to the holding of State v. Cydzik, 60 Wis.2d 683, 697, 211 N.W.2d 421, 429 (1973), which held that legal intent can be inferred from conduct. It is no defense to claim that defendant did not actually take the radio. The record clearly indicates he was present during the entire incident and facilitated the commission of the crime. The jury could reasonably believe that defendant knew of the robbery, and intentionally assisted his companion in completing the crime. The question of intent is generally one to be determined by the trier of fact. Household Utilities, Inc. v. Andrews Co., 71 Wis.2d 17, 29, 236 N.W.2d 663, 669 (1976). The jury, as the trier of fact, was free to discount the defense testimony. Gedicks v. State, 62 Wis.2d 74, 79-81, 214 N.W.2d 569, 572 (1974). Where there is any credible evidence which under any rational view fairly admits of an inference which will support the jury's findings, such findings must not be changed, and this is particularly true where the findings have the approval of the trial court. Nelson v. Travelers Ins. Co., 80 Wis.2d 272, 259 N.W.2d 48 (1977); Roach v. Keane,73 Wis.2d 524, 243 N.W.2d 508 (1976); Toulon v. Nagle, 62 Wis.2d 233, 226 N.W.2d 480 (1975); Knox v. American Standard Ins. Co., 64 Wis.2d 229, 219 N.W.2d 333 (1974); Lipinski v. Pakulski, 62 Wis.2d 628, 215 N.W.2d 468 (1974). There is sufficient credible evidence to support the jury's finding, and we will not disturb it on appeal.

II.

Defendant also contends he was denied his constitutional right to a fair trial by an impartial jury as a result of the state's use of its peremptory challenges to remove three blacks from the jury.

While the issue of systematic discrimination in the selection of a jury array has been before the Wisconsin Supreme Court on several occasions, ² the question of discrimination by means of the peremptory challenge is one of first impression in this state.

Section 972.03, Stats. provides that in a criminal jury trial, both the prosecution and the defense are entitled to four peremptory strikes. ³ These strikes have historically been available to attorneys without cause and without justification. Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). For an extensive review of the background of the peremptory system see Swain, supra at 212-22, 85 S.Ct. 824.

Swain, supra, is the leading case concerning the constitutionality of using the peremptory challenge to exclude persons belonging to a particular race or class from juries. Accepted by the overwhelming majority of jurisdictions, ⁴ Swain supports the peremptory strike as an essential aspect of trial by jury.

The defendant in Swain, who was black, and had been convicted by an all-white jury, argued that his fourteenth amendment rights were violated when the state peremptorily struck all six blacks on the venire. The Court disagreed, and recognized the race or class of prospective jurors as a legitimate trial-related consideration in most cases.

(W)e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterward. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned. Swain, supra at 221-2, 85 S.Ct. at 837.

The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Swain, supra at 222, 85 S.Ct. at 837.

Swain also made it clear, however, that the systematic use of peremptory challenges to exclude a particular race or class...