State v. Hubanks
| Decision Date | 09 September 1992 |
| Docket Number | No. 91-1550-CR,91-1550-CR |
| Citation | 173 Wis.2d 1,496 N.W.2d 96 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Alphonso HUBANKS, Defendant-Appellant. d . Oral Argument |
| Court | Wisconsin Court of Appeals |
For the defendant-appellant the cause was submitted on the briefs of Keith A. Findley and Jack E. Schairer, Asst. State Public Defenders, Madison, with oral argument by Keith A. Findley.
For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Atty. Gen., with Thomas J. Balistreri, Asst. Atty. Gen., Madison, with oral argument by Thomas J. Balistreri.
Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.
Alphonso Hubanks appeals from a judgment of conviction of four counts of first-degree sexual assault, sec. 940.225(1)(b), Stats.; of armed robbery, party to a crime, secs. 943.32(1)(b) and (2) and 939.05, Stats.; and abduction, party to a crime, secs. 948.30(2)(b) and 939.05, Stats. On appeal, Hubanks raises the following issues: (1) insufficiency of the evidence to sustain his convictions of sexual assault and armed robbery; (2) violation of his privilege against self-incrimination when the trial court directed him to give a voice sample in the presence of the jury; (3) violation of his right to effective assistance of counsel; and (4) that he is entitled to a new trial under sec. 752.35, Stats. because the issues have not been fully tried. We affirm. 1
The victim, a fifteen-year-old girl, was driving home with her mother and stepfather from a graduation ceremony at the University of Wisconsin-Milwaukee, where the victim had successfully completed a pre-college program. Her parents stopped the car at a store to pick up cigarettes and left the motor running. Two men entered the car and drove off with the victim in the back seat. One of the men put a baseball cap over her face. The victim testified that the men took items of personal jewelry from her and, upon threat of death, forced her to remove her clothing. Because her face was covered she could not clearly see the men. However, through a hole in the back of the cap she saw one of them holding what she believed, at the time, to be a gun. 2 The object later proved to be a glass smoking pipe.
After compelling the victim to remove her clothing, both men forced her to engage in nonconsensual acts of sexual contact. Hubanks and his accomplice released the victim and drove off with her jewelry and her parents' car. A few hours later, police located the stolen car and kept it under surveillance. Hubanks and a companion were arrested after police observed the men get into the car and attempt to start it. At the time of his arrest, Hubanks attempted to discard several objects by throwing them under a nearby car. The items were the victim's jewelry, coins and the keys to the car.
The morning after the assaults, Hubanks participated in a lineup. Although the victim could only describe her attackers as two black men, she identified Hubanks in a six-man police lineup from his unique, deep "frog-like" voice. At the lineup, each man spoke the words of the attacker: "Do you want to feel good or die?" and "Don't let me have to kill you."
Hubanks was tried before a jury and convicted.
The offenses of first-degree sexual assault, sec. 940.225(1)(b), Stats., and armed robbery, sec. 943.32(2), Stats., specifically require the defendant to have committed the crime "by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon." 3
Hubanks argues that because the victim had been blindfolded, neither he nor his confederate had reason to believe that the victim could see the pipe or would consider it to be a gun. He notes that the evidence fails to show that either of them had a gun or that they verbally threatened to use one. He urges that the record is devoid of proof that either of them intended to intimidate the victim with a weapon, real or simulated. Hubanks concludes that because the "dangerous weapon" element of both crimes was not supported by the evidence, the four sexual assault charges and the robbery charge must be dismissed.
The statute provides that use of an article in a manner which leads a victim to reasonably believe that it is a dangerous weapon is sufficient to prove a violation. Thus, the issue here is whether there is sufficient evidence for the jury to have determined that Hubanks and his accomplice used the pipe in a manner that could lead the victim reasonably to believe it was a gun. This court will not substitute its own judgment for that of the jury unless "the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990).
We reject Hubanks' argument because his and his accomplices' alleged lack of purpose or intent to make the victim believe that they were armed is irrelevant. The crucial issue is the victim's subjective belief or perception of the danger. In State v. Witkowski, 143 Wis.2d 216, 219, 420 N.W.2d 420, 421 (Ct.App.1988), an attempted armed robbery case, we said: "If the victim's belief that the defendant was armed was reasonable, that is enough." While in most cases the actor's purpose is illustrated by threat or simulated weapon used to intimidate or frighten the victim, that purpose is not an element of the crime. The focus is on the victim's subjective assessment of the facts and her reasonable conclusion that she is in danger. See State v. Hopson, 122 Wis.2d 395, 401-02, 362 N.W.2d 166, 169 (Ct.App.1984).
In this case, although the attacker never stated that he had a weapon, he did threaten the victim by stating, "Don't make me have to kill you." This threat, along with the victim's testimony that the attacker's accomplice appeared to have a weapon pointed in her direction, could lead the jury to find that the victim reasonably believed that the attacker was effecting the assaults and robbery by the use of a dangerous weapon. The finding was not against the great weight and clear preponderance of the evidence and is sufficient to support the convictions.
Hubanks argues that the court erred in ordering a voice exemplar and in denying his request for an in-court voice lineup. He also contends that the jury instructions were misleading and prejudicial and that the instructions and the State's repeated reference to his refusal to give a voice sample prejudiced his Fifth Amendment privilege against self-incrimination.
At trial, the State moved for an in-court voice identification of Hubanks. The State wanted Hubanks to repeat the same words he had spoken at the police lineup. Hubanks objected to the State's motion because, he asserted, to speak at trial would be a violation of his privilege against self-incrimination. Additionally, he argued, the fact that he would be directed to speak the words spoken in the lineup would be prejudicial. He advised the court that he did not intend to testify and that he would remain silent during the entire trial.
In the event that the court required him to speak, Hubanks argued that the jury should be instructed that his "declination to make a statement here in court may be used by the jury for whatever weight they think it deserves" and not that the declination could be used as evidence of guilt. As an alternative to requiring him alone to speak the words of the attacker, Hubanks proposed that the court allow a six-person voice lineup.
After arguments by counsel, the trial court ordered Hubanks to give an in-court voice exemplar, using the words of the attacker, and denied the defendant's request for an in-court lineup. The court instructed the jury both during the State's case in chief and during final jury instructions, that Hubanks had declined to give a voice sample and that the jury could "give that declination the weight [they] think it deserves." Hubanks now challenges the propriety of the court's order, the manner in which the jury was informed of his refusal to give a voice sample, and the denial of his request for an in-court voice lineup.
Hubanks argues that the court erred in ordering an in-court voice sample, using the words spoken by the attacker. He contends that such an order is violative of his Fifth Amendment privilege against self-incrimination because the words to be spoken were testimonial in nature and prejudicial.
The Fifth Amendment 4 does not enumerate the ways in which a person may not be compelled to be a witness against himself. However, the United States Supreme Court has held that the privilege does not protect a suspect from compulsion to produce "real or physical evidence." Pennsylvania v. Muniz, 496 U.S. 582, 588-89, 110 S.Ct. 2638, 2643, 110 L.Ed.2d 528 (1990). The privilege against self-incrimination protects a defendant from " 'being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.' " Id. at 589, 110 S.Ct. at 2643 (quoting Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966)).
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court held that compelling a bank robbery suspect to give a voice sample in a lineup was not violative of the Fifth Amendment even though the suspect was required to repeat the words that the bank robber had used. The Court stated that the accused was not compelled to "utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt." Id. at 222-23, 87 S.Ct. at...
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