State v. King

• Decision Date: 30 September 1996
• Docket Number: No. 95-3442-CR,95-3442-CR
• Citation: 205 Wis.2d 81,555 N.W.2d 189
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ernest J. KING, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 189

555 N.W.2d 189

205 Wis.2d 81

STATE of Wisconsin, Plaintiff-Respondent, v. Ernest J. KING, Defendant-Appellant.

No. 95-3442-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 12, 1996.

Opinion Released Sept. 30, 1996.

Opinion Filed Sept. 30, 1996.

[205 Wis.2d 83] For the defendant-appellant the cause was submitted on the briefs of Steven D. Phillips, Assistant State Public Defender.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Paul Lundsten, Assistant Attorney General.

Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.

DYKMAN, Presiding Judge.

Ernest J. King appeals from a judgment convicting him of armed robbery while concealing his identity in violation of §§ 943.32 and 939.641, STATS., and an order denying his motion for a new trial. Desiree Henry, who was Ronald Vales' girlfriend, told the police that Vales told her "me and Jerome robbed a bank" and that Jerome took part of the proceeds. Henry later identified King as "Jerome." At Vales' and King's joint trial, the jury heard several references to these statements. King never objected to the admission of these statements.

King argues that: (1) it was plain error for the State to have elicited Vales' extrajudicial statements at trial; (2) he was denied effective assistance of counsel when his attorney did not move for severance or object to the introduction of Vales' statements; and (3) the State's failure to advise the court prior to trial of its intention to introduce Vales' statements deprived him of his statutory right to compulsory severance. We conclude that any error made at trial was harmless, and therefore affirm.

BACKGROUND

On October 7, 1993, two men robbed the Municipal Credit Union in Beloit. On October 30, 1993, Desiree Henry informed the police that Vales and King had told her they had robbed the credit union. On November 9, 1993, Henry gave a written statement to Detective Craig Johnson, and on November At some point during these three interviews, Henry stated that on the morning of the robbery, Vales left her residence at about 7:30 or 8:00 a.m. in her car. Vales took his blue and white jacket with him and returned at 9:30 or 10:00 a.m. with King. When Vales and King arrived, they went into Henry's bedroom and closed the door, at which time King changed into different clothes provided by Vales. Henry called for a cab to pick up King and take him to "Liberty and Bluff," and the cab came immediately. Henry stated that King, whose pockets were bulging with "bundles," talked about getting a new stereo for his car.

11, 1993, Henry again talked to Johnson and Detective Victor Hanson.

Henry entered her bedroom after King left and saw a pillowcase with a light-colored pastel design laying on her bed. When Henry gave Vales two portions of a nylon pantyhose that she found laying on the back floor of her car, he put them into the pillowcase along with a black BB gun pistol. Vales left with the pillowcase and returned without it.

Vales and Henry later took Henry's car to Midas Muffler for brake repairs. Vales gave Henry either $339 or $359 in cash to pay for the repair, and Henry picked up the car at about 2:00 or 3:00 p.m. When Henry returned with the car, Vales told her: "I am going to tell you straight up, me and Jerome robbed a bank." Vales also told Henry that King took some of the money.

The State charged King and Vales with robbing the credit union. On December 1, 1993, Henry testified at King's preliminary hearing and reiterated many of the statements that she had given to the police. At Vales' preliminary hearing in February 1994, however, Henry recanted her accusations against Vales and King.

Both King and Vales were bound over for trial. On March 29, 1994, the State moved to join the two cases for trial, stating that it would not introduce evidence against either defendant at trial that would be inadmissible or prejudicial to the other defendant. The court granted the State's joinder motion, and the trial began on May 25, 1994.

At trial, the State called five credit union employees and one customer to testify. One teller testified that the credit union was robbed around 10:00 a.m., and the robbery was called into the police at 10:21 a.m. Several eyewitnesses testified that the robbers were black males around six feet tall and wore black nylon stockings over their heads. Some witnesses also testified that one of the robbers wore a white and blue windbreaker and carried a handgun. One teller also observed one of the robbers put something into a white pillowcase with pastel flowers on it.

The State also called Henry as a witness. Much of Henry's testimony was contrary to her prior statements contained in the reports of Detectives Hanson and Johnson and contained in the transcript of King's preliminary hearing. Henry testified that she was asleep when Vales left her house, apparently borrowing her car. Vales and King returned to her house at about 9:30 a.m. and went into the bedroom for about a half hour. King asked Henry to call a cab, which arrived in about forty-five minutes. Henry found cut-up nylon pantyhose in her car, but did not believe that the pantyhose was big enough to fit over a person's face. Henry did testify that later that day, Vales gave her $349 cash to pay Midas to have her front brakes repaired.

Henry claimed that either she did not recall making or did not make the prior statements inconsistent with her testimony. She denied that Vales told her either that he and King robbed the credit union or that King took some of the money. She also denied seeing Vales with a gun or pillowcase on the day of the robbery.

The prosecutor impeached much of Henry's trial testimony with contradictory statements she made to Detectives Hanson and Johnson and with contradictory testimony she had given at King's preliminary hearing. The State also called several witnesses who corroborated the statements Henry gave to police. John Fahrey of the Beloit Police Department testified that a blue and white windbreaker and a black nylon mask were recovered from a field about 150 yards from the credit union, which is three to four miles from Henry's house. The cab driver who The jury heard reference to Vales' statements incriminating King during the prosecution's opening remarks, during the prosecution's questioning of Henry, Hanson, Johnson and Fearn, during the defense's questioning of Henry and Fearn, and during the prosecution's closing and rebuttal arguments. King did not object to either the prosecution's questions eliciting this testimony or the prosecution's repetition of Vales' statements in speaking to the jury.

                responded to Henry's residence on October 7, 1993, testified that the call came in at 10:42 a.m. and that he responded within ten minutes.  He was told the passenger wanted to go to "Bluff and Liberty."   An employee of a car stereo shop testified that he was paid $375 cash for installing a cassette player and amplifier in a car for "Thomas King" on October 7, 1993.  He identified Ernest King as the man [205 Wis.2d 87] who claimed to be "Thomas King."   Finally, an employee of Midas Muffler testified that he did an estimate for Henry's car on October 7, 1993, at 11:17 a.m. and was paid $339.99 cash for the repairs
                

The jury found King guilty of armed robbery while concealing his identity. King filed a motion for a new trial, raising the same issues that are raised in this appeal, which the trial court denied. King appeals.

PLAIN ERROR

King argues that the admission of Vales' incriminating statements is plain error. By failing to object to this testimony, King did not preserve the asserted error for appeal, and we need not consider unpreserved arguments. State v. Wolff, 171 Wis.2d 161, 165, 491 N.W.2d 498, 500 (Ct.App.1992). However, § 901.03(4), STATS., provides: "Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge."

King bases his argument that we should reverse his conviction on Virgil v. State, 84 Wis.2d 166, 267 N.W.2d 852 (1978). In Virgil, the prosecution introduced a nontestifying codefendant's confession, which implicated Virgil, and Virgil did not object to the admission of the confession. Id. at 184, 267 N.W.2d at 861. The supreme court reversed Virgil's conviction under the plain error doctrine, even though the state "produced convincing evidence of Virgil's guilt." Id. at 184, 267 N.W.2d at 861-62. The court could not say "beyond a reasonable doubt that the [codefendant's confession] ... did not play a part in impelling the jury's verdict." Id. at 192, 267 N.W.2d at 865. The court continued:

Moreover, the defendant's conviction was obtained through a violation of his confrontation rights under the United States and Wisconsin Constitutions. This violation of the defendant's constitutional rights is so serious, viewed in the context of the other evidence properly admitted in this case, that we conclude that the admission of the evidence constitutes plain error, requiring a reversal of the conviction.

Id.

We decline King's invitation to reverse his conviction based on Virgil. First, the opinion in Virgil was a plurality opinion, not a majority opinion. Chief Justice Beilfuss concurred, and Justices Hansen, Hanley and Callow dissented. The concurrence did not follow the plurality's analysis, however. While the plurality ordered a new trial in part because the admission of the confession violated Virgil's confrontation rights, the concurrence thought that a new trial should be ordered because "the defendant did not receive a fair trial." Id. at 194, 267 N.W.2d at 866 (Beilfuss, C.J., concurring). "It is a general principle of appellate practice that a majority must have agreed on a particular point for it to be considered the opinion of the court." State v. Dowe, 120 Wis.2d 192, 194, 352 N.W.2d 660, 662 (1984). ¹...