State v. Harris
| Decision Date | 24 October 1979 |
| Docket Number | No. 79-848-CR,79-848-CR |
| Citation | 92 Wis.2d 836,285 N.W.2d 917 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey Lee HARRIS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Bronson C. La Follette, Atty. Gen., with whom on the brief was Michael R. Klos, Asst. Atty. Gen., for plaintiff-respondent.
Before DECKER, C. J., MOSER, P. J., and CANNON, J.
Jeffrey Lee Harris (Harris) appeals from a judgment of conviction entered on November Harris also appeals an order entered June 4, 1979, denying his postconviction motions.
30, 1978, following a jury trial. He was convicted of one count of armed robbery, party to a crime (PTAC), contrary to secs. 943.32(1)(b) and 939.05, Stats.; one count of first-degree sexual assault, PTAC, contrary to secs. 940.225(1)(b) and 939.05; one count of second-degree sexual assault, PTAC, contrary to secs. 940.225(2)(b), and 939.05; and two counts of kidnapping, PTAC, contrary to secs. 940.31(1)(b) and 939.05. He was sentenced to thirty years, fifteen years and ten years on the [92 Wis.2d 838] first three counts respectively, and fifteen years on each count of kidnapping. Concurrent sentences were imposed on the various counts named, but the concurrent sentences were to run consecutive to a previous life sentence for murder in the first degree.
The complaint was filed on September 27, 1977. Lawrence Bivens (Bivens), Harris' accomplice, pleaded guilty to charges arising from the same events on February 14, 1978. Harris' trial on these charges commenced October 9, 1978.
The testimony presented by the state established that on August 19, 1977, at approximately 11:30 p. m., the victims of the crimes, Julia Pittman (Pittman) and Sandra Miller (Miller), left the Skyway Lounge in Milwaukee and walked toward Pittman's car, which was parked in an adjacent lot. Harris approached Pittman and asked her if she was driving south. Pittman responded that she was not. As Pittman was unlocking the driver's door, Harris advanced with a gun, poked it in her side, and ordered her to get inside. Miller, who was standing on the opposite side of the car, noticed that Harris had a companion, Bivens, who was now standing immediately behind her. Harris ordered Miller to get into the car.
Pittman got into the driver's seat, Miller in the front passenger seat, and Harris and Bivens in the back seat of the car. Harris told Pittman and Miller to hand their purses back, which the two women did. Money was taken from the two purses as well as jewelry from Miller. Harris ordered Pittman to start the car and eventually, at his direction, the car was driven to a vacant lot. Miller testified that she glanced back during the ride and saw that Harris was still brandishing a gun. Harris told the two women that he had killed a policeman earlier that evening and that "he had nothing to lose."
At the vacant lot, Harris ordered Pittman from the car, told her to remove her clothing, and had sexual intercourse with her. Pittman testified that Harris held a gun to her head and told her that he would kill her if she resisted. Harris' companion, Bivens, forced Miller out of the car at gunpoint and had sexual intercourse with her. After the initial acts of intercourse were completed, Bivens went over to where Pittman was lying on the ground and had sexual relations with her. Harris approached Miller and ordered her to perform oral sex. When Miller refused, he threatened to blow her head off. Neither the request nor the threat were performed.
Bivens, who had confiscated the keys to Pittman's car, took control of the wheel when the four people returned to the car. Bivens drove the car to Harris' residence and then to his own residence to pick up some clothing. After a stop at a gas station, the car driven by Bivens headed for Chicago, Illinois. On the trip to Chicago, Miller pleaded with the two men to release them. Harris responded by hitting Miller on the back of the head with a gun.
Harris and Bivens told the two women that they were going to stop in Chicago to pick up some money. Bivens drove the car to an apartment in a housing project leased by his sister, Lois Guyton (Guyton). Harris instructed the two women not to talk to Guyton because he didn't want to shoot with children around. At the apartment, the women learned the names of their abductors.
After a short stay in the apartment, the two women testified that they returned to the car with Harris and Bivens for a trip to an unknown destination described as "east on Interstate 55." Miller asked for her asthma medicine which was in her purse. The purse had been placed in the trunk of Guyton told the two women to get out of the car and walk with her to the apartment where the two children were standing. Guyton told Harris that she was taking the two women back to the apartment to get some coffee and aspirin. The trio of women had almost made it to the apartment entrance when Harris shouted for them to stop or he would blow their heads off. Guyton told Harris not to shoot with the children present. Pittman and Miller ran into the apartment entrance, through the lobby and into another building. They were admitted into another apartment and called the police. Miller was subsequently treated at a Chicago hospital for bruises to the back of her head.
the car before the trip to Chicago. Bivens got the medicine from the purse and, in the process, locked the car keys inside the trunk. The two women were sitting inside the car while Harris and Bivens were [92 Wis.2d 840] occupied with attempts to open the locked trunk of the car. Pittman got Guyton's attention and motioned her to come over to the car. Pittman told Guyton that they had been kidnapped and raped and that the two men had guns.
Guyton testified at Harris' trial and substantially confirmed the testimony of Pittman and Miller. Guyton identified Harris and stated that she had known him since he was a teenager. Guyton testified that the other male who accompanied the defendant and two women was her brother, Lawrence Bivens.
According to Guyton, the four people arrived at her apartment at approximately 4 a. m. on August 20, 1979. The two women were introduced as Julia and Sandra.
Guyton confirmed the testimony of Pittman and Miller that the car keys were locked in the trunk of the car while the four people were making preparations to leave. While Harris and Bivens were attempting to get the keys out of the car trunk, one of the women motioned her to the side of the car and told her that they had been kidnapped and raped. They also told her that Harris had a gun. Guyton told the two women to get out of the car and walk with her to the apartment. She told Harris that she was taking them back to the apartment for coffee and aspirin. The defendant shouted, "get back in the car before I shoot you." Guyton warned Harris that two children were standing there, and at that point, Pittman and Miller ran into the apartment building and escaped. Guyton stated that she observed a gun in Harris' possession when the two men came back to her apartment after Pittman and Miller had escaped.
After the close of the state's case Harris called Bivens as his witness. As stated above, Bivens had previously pleaded guilty and been sentenced for his participation in the acts for which Harris was being tried. Harris' trial counsel advised the trial court that Bivens would take advantage of his fifth amendment privilege not to testify, and that he should first testify outside of the presence of the jury. Harris' trial counsel also advised the trial court that Bivens' trial attorney, Mr. Lebell, wanted to be in court when Bivens testified. The court recessed to accommodate Mr. Lebell. After the recess, with attorney Lebell present, the record reflects that the following events took place outside the presence of the jury:
EXAMINATION BY THE COURT
Q Mr. Bivens, you stated your name on the record?
A Yes.
Q And is it your intention to testify here today?
A Yeah. The only thing I have to say is Mr. Harris wasn't with me. He didn't have anything to do with this. He didn't have nothing to do with it. He wasn't with me. That's all I have to say. If I say anything else, it's damaging to my case if I'm on appeal. I'm pleading the Fifth.
MR. LEBELL: At this point, I recommend you remain silent.
The court admonished Bivens that he had conferred with Mr. Lebell and that witnesses have to answer all questions put to them under the contempt powers of the court unless they take advantage of their fifth amendment rights or are given immunity. Lebell asked for a recess to confer with Bivens. After the brief recess, Lebell stated on the record:
MR. LEBELL: I have advised Mr. Bivens as his lawyer that he has the right to remain silent and exercise his Fifth Amendment right not to testify. He advised me earlier, his case was under appeal prior to today's date. He has contacted another person for an appellate procedure and anticipates further appeal. It's my advice to him now to exercise his Fifth Amendment privilege and not testify regarding the matter.
The court then stated to Bivens:
THE COURT: This is a personal privilege and a personal privilege only. It's up to you and no other person to determine whether or not you are going to give testimony in this case or whether you are going to elect not to testify on the grounds that your answers may tend to incriminate you under the provisions of the Constitution, of the United States Constitution and the Constitution of the State of Wisconsin. I have heard your attorney. He has talked to you. You have had time to give it full consideration.
I'm ready at this time to call the jury out and have them hear whatever you wish to say,...
To continue reading
Request your trial
-
Ellison v. State
...Rawls, 252 Or. 556, 557, 451 P.2d 127, 128 (1969); Davis v. State, 501 S.W.2d 629, 630-631 (Tex.Crim.App.1973); State v. Harris, 92 Wis.2d 836, 285 N.W.2d 917, 922-924 (1979). See also Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771, 780 (1977) ("the weight of authority permits a witness......
-
State v. Marks
...Self-Incrimination As To Crime In Question, 9 A.L.R.3d 990. Our court of appeals recognized a similar right in State v. Harris, 92 Wis.2d 836, 846-47, 285 N.W.2d 917 (Ct.App.1979). In Harris, the court determined that a witness has the right to plead the Fifth after sentencing if he or she ......
-
State v. McConnohie
...defendant a proper person for probation...." Hanneman, 50 Wis.2d at 693, 184 N.W.2d 896. In the later case of State v. Harris, 92 Wis.2d 836, 841, 285 N.W.2d 917 (Ct.App.1979), the witness whose privilege was being challenged had pled guilty and had been sentenced. The court of appeals agre......
-
Office of Lawyer Regulation v. Curtis (In re Curtis)
...real and appreciable, and not speculative or merely an imaginary possibility of incriminatory danger." State v. Harris, 92 Wis. 2d 836, 844–45, 285 N.W.2d 917 (Ct. App. 1979) (footnotes omitted).¶ 36 The referee was to have made such "a full record" here. See SCR 22.16(1) ("The referee has ......