State v. Ivy
| Decision Date | 27 June 1984 |
| Docket Number | No. 83-371-CR,83-371-CR |
| Citation | 350 N.W.2d 622,119 Wis.2d 591 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Gerald Collie IVY, Jr., Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Thomas J. Balistreri, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., for plaintiff-respondent-petitioner.
Margaret A. Maroney, Asst. State Public Defender, for defendant-appellant.
The State of Wisconsin seeks review of a decision reversing a judgment convicting Gerald Collie Ivy, Jr. of aiding and abetting armed robbery, and of aiding and abetting injury by conduct regardless of life.
The court of appeals held that because an armed robbery cannot under any circumstances be a natural and probable consequence of a robbery, a person convicted as an aider and abettor to an armed robbery must have had actual knowledge that the principals would be armed. We hold that, depending on the facts and circumstances of a given case, an armed robbery can be a natural and probable consequence of a robbery, and, if so, the aider and abettor need not have had actual knowledge that the principals would be armed. We also hold that the jury instructions given in this case were not erroneous. We further hold that the court of appeals erred in not deciding the sufficiency of evidence issue that the defendant raised in that court. We therefore reverse and remand to the court of appeals with directions.
On the evening of August 19, 1981, two men entered a gas station in Milwaukee. One of the men shot and wounded an employee who worked at the gas station, and both men took some money from the station. The men were never apprehended by the police.
Roosevelt Hutchinson testified that on the evening of the armed robbery, he talked to a man standing across the street from the gas station where the armed robbery occurred. Hutchinson said that the man appeared nervous and kept looking behind him and turning his head from side to side. Hutchinson stated that the man said to himself, "Hurry up." Hutchinson also testified that he subsequently heard two shots and then observed two men fleeing the gas station with a money sack. Hutchinson said something to the man with whom he had previously spoken to the effect that he assumed the man knew what was going on, after which the man replied, "Shut up." As the two men ran down the street, the man with whom Hutchinson had spoken ran in the same direction. Hutchinson later identified the man with whom he had spoken as Gerald Collie Ivy, Jr.
The state filed a criminal complaint against Ivy on August 20, 1981. The complaint charged Ivy with armed robbery, party to a crime, contrary to secs. 943.32(1)(a) and (2) and 939.05, Stats., and for injury by conduct regardless of life, party The trial court's instructions to the jury included the pattern instruction on armed robbery, Wis.J.I.--Criminal, Vol. II, 1480, and the pattern instruction on party to a crime, aiding and abetting, Wis.J.I.--Criminal, Vol. I, 400A. The jury returned a verdict of guilty on both counts. Ivy subsequently filed a postconviction motion for a new trial, which the trial court denied.
to a crime, contrary to secs. 940.23 and 939.05. Sections 943.32(1)(a) and (2), and 939.05 are cited below. 1 At trial, Ivy's defense was that [119 Wis.2d 595] he was not the lookout who Hutchinson saw and spoke with on the evening of the armed robbery. Ivy presented an alibi that he was at his sister's and brother-in-law's house watching television during the time the armed robbery occurred
Ivy appealed to the court of appeals. In a published decision, cited below, 2 the court of appeals held that armed robbery is not a natural and probable consequence of robbery; that in order for a defendant to be convicted of armed robbery as an aider and abettor, it must be shown that the defendant was aware that the principals who committed the armed robbery would be armed. Therefore, the court held that the trial court erred in not instructing the jury that Ivy's awareness that the principals who committed the armed robbery would be armed was a fact necessary to constitute the crime of intentionally aiding and abetting armed robbery. Because the court of appeals concluded that this error was not harmless, it reversed and remanded for a new trial.
The state subsequently filed a petition for review with this court which was granted.
The issues for review are:
(1) In order for a person to be convicted of aiding and abetting an armed robbery, must the aider and abettor have had actual knowledge that the principals would be armed with a dangerous weapon? We hold that, depending on the facts and circumstances of a given case, an armed robbery can be a natural and probable consequence of a robbery. Therefore, if an armed robbery is found to be a natural and probable consequence of a robbery, the aider and abettor need not have had actual knowledge that the principals would be armed with a dangerous weapon.
(2) Because the state tried this case on the theory that armed robbery was the intended crime (as distinguished from the armed robbery being a natural and probable consequence of robbery), did the jury instructions sufficiently advise the jury that it could not convict the defendant of aiding and abetting an armed robbery unless it found that the defendant knew or believed that the principals would be armed with a dangerous weapon? We conclude that the jury instructions were not erroneous.
The court of appeals correctly stated that in Wisconsin an aider and abettor may be guilty not only of the particular crime that to his knowledge his confederates intend to commit, but also for different crimes committed that are a natural and probable consequence of the particular act that the defendant knowingly aided or encouraged. State v. Ivy, 115 Wis.2d 645, 653-54, 341 N.W.2d 408 (Ct.App.1983). The court also correctly noted that proof of intent is not required for conviction of the different offense if the offense was the natural and probable consequence of the intended crime to which the defendant was a party. However, the court stated: "We do not think that armed robbery is a natural and probable consequence of robbery." 115 Wis.2d at 655, 341 N.W.2d 408. The court therefore held that to intentionally aid and abet the commission of armed robbery, the aider and abettor "... must have some awareness that the principals are armed...." Id.
The state argues that the court of appeals erroneously held that a defendant can never be liable for aiding and abetting an armed robbery unless the defendant was aware that the principals would be armed. The court of appeals' holding was based on its conclusion that, as a matter of law, an armed robbery is not a natural and probable consequence of a robbery, no matter what the circumstances or facts are in a given case. Although the state concedes that the facts of this particular case might not be sufficient to support a finding that the armed robbery here was a natural and probable consequence of robbery, it argues that the facts of some cases could support a finding that a particular armed robbery was the natural and probable consequence of robbery. The state argues that if in a given case, the natural and probable means of committing the intended robbery would be the use of a dangerous weapon, the defendant would then have had constructive knowledge that a dangerous weapon would be used. In such cases, the state asserts that a defendant need not have had actual knowledge that the principal was armed in order to be convicted of aiding and abetting an armed robbery. We agree.
Under secs. 939.05(1) and 939.05(2)(b), Stats., a person who intentionally aids and abets the commission of a crime may be charged with and convicted of committing that crime. The elements of aiding and abetting are that a person: (1) undertakes conduct, either verbal or overt action, that as a matter of objective fact aids another person in the execution of a crime; and (2) he or she desires or intends that his or her conduct will yield such assistance. State v. Asfoor, 75 Wis.2d 411, 427, 249 N.W.2d 529 (1977).
This court has consistently held that "... one who intentionally aids and abets the commission of a crime is responsible not only for the intended crime, if it is in fact committed, but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts." Asfoor, 75 Wis.2d at 430, 249 N.W.2d 529. See State v. Cydzik, 60 Wis.2d 683, 696-97, 211 N.W.2d 421 (1973).
In Cydzik, the defendant and a companion were involved in an armed robbery of a supper club. During the robbery, the companion shot and killed a patron in the club. The defendant was charged with, and convicted of, armed robbery and of first-degree murder, party to a crime. The defendant argued that the evidence did not support his conviction of first-degree murder, party to a crime, because he did not intend to aid or assist in the murder that occurred during the armed robbery. This court disagreed, stating:
"... legal intent may be inferred from conduct. One is presumed to intend natural and probable consequences of his act. Given two armed robbers, holding up a supper club ..., it is entirely reasonable to infer on the part of each an intention to assist the other in the event that there is a shooting or killing as well as an intention to assist the other in the In Asfoor, the defendant drove two companions to a motel to see a man who one companion had said that he " 'wanted to see ... get shot.' " 75 Wis.2d at 420, 249 N.W.2d 529. When they arrived, the man came out of the motel, whereupon one of the defendant's companions shot the man. One of the...
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