State v. Johnson, 92-0833-CR-NM
| Decision Date | 25 August 1992 |
| Docket Number | No. 92-0833-CR-NM,92-0833-CR-NM |
| Citation | 492 N.W.2d 192,170 Wis.2d 735 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Jabe J. JOHNSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Milwaukee county: Dominic S. Amato, Judge. Affirmed.
Before SULLIVAN, FINE and SCHUDSON, JJ.
After a jury trial, Jabe J. Johnson was convicted of conspiracy to commit armed robbery, party to a crime, in violation of secs. 943.32(1)(b) and (2), 939.31, and 939.05, Stats. He was sentenced to fifteen years in prison, to be served consecutively to any other sentence to which he was subject.
The state public defender appointed Attorney Joseph Radtke to represent Johnson on appeal. Radtke has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738 (1967). Johnson received a copy of the no merit report and was advised of his right to file a response. He filed a motion for a copy of the record and for appointment of new appellate counsel. 1 In the motion, he criticized Radtke's handling of the appeal. This criticism could be interpreted as implying Radtke did not properly review the record.
According to the testimony, Johnson and Ernest Taylor were observed driving slowly by a Burger King Restaurant. Johnson was driving. He stopped the vehicle for a very short time facing the restaurant, then the car left the parking lot. Neither man left the car. Greenfield police officer Gilbert Alaimo observed this activity. He was conducting a stakeout of the restaurant because of numerous armed robberies of fast-food restaurants in the area. Alaimo testified that his attention was drawn to the vehicle by the tupe of car and by the way it was driven. Then Alaimo ascertained that the car had a stolen license plate, the car was stopped. Johnson and Taylor were taken into custody, and a loaded rifle was found in the back seat.
After questioning by the Greenfield police, Johnson was turned over to the Milwaukee police department. He subsequently made a statement to Milwaukee detective Fred Krenzke. According to Krenzke's testimony, Johnson said that Taylor had borrowed Johnson's car and was late in returning it. Taylor told Johnson that he and an accomplice had committed a series of armed robberies but the accomplice had left town. Johnson indicated that Taylor convinced him to help with a robbery. Johnson insisted, however, that he had only agreed to drive the car; he would not go in on the robbery. Taylor directed Johnson to the Burger King and showed him the rifle as they were driving. Neither man left the car when they stopped at the restaurant because they observed what they thought might be an undercover car. Johnson thought Taylor would have given him twenty or twenty-five dollars for driving the car.
The first issue raised in the no merit report is whether the trial court abused its discretion by not suppressing Johnson's statement. The appropriate standard of review for determining whether or not a motion to suppress a confession should have been granted, however, is set forth in State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987). To the extent that the trial court's decision involves findings of evidentiary or historical facts, those findings will not be overturned unless they are clearly erroneous. Section 805.17(2), Stats. Application of constitutional principles to the facts found by the trial court, however, presents a matter for independent review by an appellate court. Clappes, 136 Wis.2d at 235, 401 N.W.2d at 765.
A confession is involuntary if it is procured by coercive means or if it is the product of improper police pressure. Id. at 235-36, 401 N.W.2d at 765. The focus of the inquiry at the Miranda-Goodchild hearing is the presence or absence of actual coercion or improper police practices. Id. at 236, 401 N.W.2d at 765. The ultimate determination of whether a confession is voluntary depends upon the totality of the circumstances, balancing the personal characteristics of the defendant against the police tactics and pressures used to induce the statement. Id. at 236, 401 N.W.2d at 765-66.
In the present case, the Miranda-Goodchild hearing revolved around credibility. Krenzke testified that Johnson was informed of his Miranda rights, that he was coherent, responsive, and cooperative. Furthermore, Johnson calmly answered questions. Krenzke testified that he wrote out the statement and read it back to Johnson, asking Johnson if it was true and if he would sign it. When Krenzke read the statement to Johnson, Johnson corrected the location of the gun and initialed the change. Krenzke denied that any promises had been made to Johnson.
In addition to disavowing the statement, Johnson presented evidence that he was unable to read or write. He also denied that the statement was read to him before he signed it. He testified that he was tired, having been up most of the night, and that he signed the statement to end the session. He admitted understanding the majority of his constitutional rights, but claimed that the officers promised that he would not be charged and that they would speak on his behalf at the bail hearing.
Citing Johnson's vocabulary and his ability to communicate on the witness stand, the trial court rejected Johnson's suggestion that because he was illiterate, he was not intelligent. The court found that Johnson was intelligent and well-educated in the affairs of life. The court stated that Krenzke and a second officer's testimony was credible and persuasive and that Johnson's was not. The court also found that the Miranda warnings were given. After reviewing the record, we conclude that these findings of evidentiary fact are supported by the evidence and are not clearly erroneous.
The court concluded that the statement was freely, knowingly, intelligently, and voluntarily given. We concur in the trial court's assessment. There was no evidence of actual coercion or of improper police pressure.
The second issue raised in the no merit report was the sufficiency of the evidence. In a criminal case, the standard of review for a challenge to the sufficiency of the evidence is whether the evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt. See State v. Teynor, 141 Wis.2d 187, 204, 414 N.W.2d 76, 82 (Ct.App.1987). An appellate court will affirm a conviction if it can conclude that a jury, acting reasonably, could be convinced, beyond a reasonable doubt, by the evidence the jurors had a right to believe and accept as true. Id.
Radtke concludes that there was sufficient evidence to support the jury's verdict. We agree. As Radtke notes, Johnson's statement to Krenzke is sufficient. A criminal conspiracy is formed when a defendant, intending that the crime be committed, agrees or combines with another to commit a crime, provided an act is done in furtherance of the conspiracy. Section 939.31, Stats. Johnson's confession provided evidence of an agreement, viz: knowing Taylor planned an armed robbery, Johnson agreed to help by driving Taylor to the location, and he expected to receive part of the proceeds. Driving Taylor to the Burger King was an overt act in furtherance of the conspiracy.
It is the jury's function to determine the weight and credibility to be given to the evidence. State v. Toy, 125 Wis.2d 216, 222, 371 N.W.2d 386, 389 (Ct.App.1985). The jury was entitled to disbelieve Johnson's attempt to disavow the confession and to accept the confession as true.
Finally, the no merit report concludes that any possible errors were clearly harmless. Other than to note...
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