State v. Mosley

• Decision Date: 30 June 1981
• Docket Number: No. 79-1219-CR,79-1219-CR
• Citation: 102 Wis.2d 636,307 N.W.2d 200
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Melvin MOSLEY, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 200

307 N.W.2d 200

102 Wis.2d 636

STATE of Wisconsin, Plaintiff-Respondent, v. Melvin MOSLEY, Defendant-Appellant-Petitioner.

No. 79-1219-CR.

Supreme Court of Wisconsin.

Argued June 3, 1981.

Decided June 30, 1981.

Eric Schulenburg, Madison, for defendant-appellant-petitioner.

Chris Heikenen, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

HEFFERNAN, Justice.

This is a review of an unpublished 96 Wis.2d 736, decision of the court of appeals, 293 N.W.2d 183, ¹ affirming the December 12, 1978, conviction of the defendant, Melvin Mosley, in the circuit court for Racine county on two counts of armed robbery in violation of sec. 943.32(1)(b), (2), Stats.1977. After being sentenced to two concurrent twelve-year sentences, the defendant appealed from the judgment and from an order denying his motion for a new trial.

On the issues before it, the court of appeals ruled that the defendant's claim of unconstitutional out-of-court identification procedures, although not challenged before trial, was not waived under the circumstances and that on the merits the procedures employed were constitutional; and that the claim of impermissible multiplicious charging, which it held waived, was in any case without merit.

We accepted this case in order to review these rulings, and in order to decide a question of first impression in this state which of necessity was not before the court of appeals: Whether sec. (Rule) 809.32(4), Stats., unconstitutionally deprives an indigent defendant of legal representation in the course of his request for a discretionary review by this court.

We conclude that sec. (Rule) 809.32(4), Stats., is constitutional because a criminal defendant is not constitutionally entitled to court-appointed counsel to assist him in the course of preparing a petition for review by this court. We also conclude that the allegedly unconstitutional identification procedures and multiplicious charging are, under the circumstances, reviewable claims of error, but we reject both claims on their merits. Accordingly, we affirm the decision of the court of appeals upholding the defendant's conviction on both counts.

On the evening of September 11, 1978, the Kentucky Fried Chicken restaurant on State Street in Racine was robbed. At about 8:45 p. m., Eva Fink, the cashier, was mopping the customer lobby. Two black men entered the store; each of them was armed with a handgun. One pushed Eva back through the door into the work area and both followed her there. Eva and her two co-employees, Phil Downes and Chris Peterson, were ordered to lie down on the floor. One of the intruders, dressed in red shirt, tan pants, and tan shoes, took money from the cash register and put it in a bag. A customer entered the lobby; Eva was told she could go wait on the customer, and Chris and Phil were allowed to stand up in the work area.

When told that the rest of the money was in a desk in the office adjacent to the work area, the other man, dressed in black vest, pants, shoes and wearing a stocking mask, went into the office. When he returned, the men asked where the back door was and left. The entire incident took between five and fifteen minutes. Money was found missing from the office desk; and Eva's watch, two rings, and money from her purse, all of which she had earlier placed on a shelf in the office, were gone.

Chris wrote down his and the others' descriptions of the men, including a tattoo on the arm of the man in black stating "Al-Baby" or "Al-Bob," the men's color, height, clothing, and two handguns.

It appears that shortly after the robbery the police apprehended Terry Wilson, whom the employees identified that evening as the man in the red shirt.

Racine Police Detective Rannow arrested the defendant about one week later while investigating a civil call for assistance. Upon arriving, Detective Rannow observed that the black male in the argument fit the description of the missing armed robbery suspect, with respect to height, weight, skin tone, facial hair, and an arm tattoo which read "Ali Baba." The defendant was photographed at the jail on September 18, 1978.

The next day, Detective Thomas Cooper selected four other photos of black males and showed five photographs to each witness independently, handing them over in a bunch with the defendant's somewhere in the middle. Each photo contained three poses a full body front pose, a profile and one of the head facing the camera. Only the defendant had visible tattoos. No verbal suggestions were made.

Eva could make no positive identification, but Chris and Phil both identified the photograph of the defendant as the second robber. Chris and Phil also identified the defendant in court. Chris testified that the man's nylon stocking that night was held somewhat away from his face by a beard and Afro, although it obstructed some vision. While lying down, Chris viewed the man for a period which he estimated as three or four minutes, from a distance of seven feet; and, while standing up, he observed the back left side of the man's face, the tattoo, and his body for "a couple of minutes" from three feet. He testified he studied the man's face, body, and structure, concentrating on clothes, build, and facial scars or marks, for about four minutes in total.

Phil testified that, although the stocking cap was tight against the robber's face, when the customer entered he observed the robber with mask raised, for "a split second" from a distance of two to five feet, first in profile and then face on. Phil again saw his face uncovered when the robber came out of the office. This time the mask was raised for about three seconds, and Phil saw a frontal view for about one second from a distance of two feet.

After the state rested, the defendant took the stand, and denied absolutely any knowledge of the robbery, familiarity with the store, ownership of a gun, recall of his whereabouts on the date of the robbery, or knowledge of Terry Wilson (other than from their mutual incarceration in jail). He denied wearing an Afro at the time of the robbery, described his left-arm tattoo as two fork-like animals and the lettering "Alex Dexbar" (or "Alix Daxbar"), showed it to the jury, and stated that the tattoo had been the same on and before September 11 as it was on the date of trial. On cross-examination he admitted to having once been convicted of a crime.

The defendant contends on this review that the information charging two counts of armed robbery was multiplicitous. The court of appeals agreed with the state that such a claim was waived because no objection to the information was made before trial under sec. 971.31(2), Stats. ² The court of appeals proceeded nonetheless in dicta to determine that the information was not multiplicious. We address the issue in the interests of justice, observing that the matter arose at the preliminary hearing, ³ that there was a subsequent change in defendant's trial counsel, that the issue was raised twice after trial (at sentencing and upon motion for new trial), and that because the issue is one of double jeopardy, the claimed error is of serious potential constitutional magnitude. Manson v. State, 101 Wis.2d 413, 417 n. 2, 304 N.W.2d 729 (1981); sec. 751.06, Stats.

The information charged two counts of armed robbery in violation of sec. 943.32(1)(b), (2) Stats.1977. ⁴ The first alleged the taking of "property from the person or presence of Chris Peterson and Phillip Downes"; the second, the taking of "property from the person or presence of Eva Fink." If there were any doubt in the sense of notice as to the meaning of "property" in Count 2 of the information, the complaint makes clear that this reference was to Eva's personal effects, not the restaurant's revenues for the evening which were kept in the cash register and office desk. The court instructed the jury that Count 1 referred to the restaurant's money and Count 2 to Eva's effects. The issue is whether, on the facts of the case, these two counts impermissibly fractionate a single offense into two charges. Stated otherwise, the question is whether the taking of "property from the ... presence of Chris and Phil" (the restaurant's money) and the taking of Eva's belongings constituted two distinct chargeable armed robbery offenses.

As we stated recently in State v. Rabe, 96 Wis.2d 48, 63, 291 N.W.2d 809 (1980), the question has two aspects. See also Blenski v. State, 73 Wis.2d 685, 245 N.W.2d 906 (1976). The first concerns double jeopardy, as charging two counts for one offense would impermissibly subject a defendant to multiple punishments for the same offense. The second inquiry concerns legislative intent as to the allowable unit of prosecution under the statute. We consider these inquiries in that order.

The double jeopardy prong is tested by "whether the severed offenses are 'identical in law and in fact.' " Rabe, supra, 96 Wis.2d at 63, 291 N.W.2d 809. The two counts herein are identical in law, as both allege violation of sec. 943.32(1)(b), (2), Stats.1977. Thus the inquiry becomes only " 'whether each count requires proof of an additional fact which the other count ... do(es) not.' " Id. This test is met in the present case. Count 1 required proof that the defendant took money from Phil and Chris as owners (of the restaurant money), ⁵ whereas Count 2 did not; Count 2 required proof that the defendant took the effects of Eva Fink, a fact not required by Count 1. Whether these factual distinctions be viewed as signifying different "acts" (as in Rabe, supra) or different "victims" (as in State v. Eisch, 96 Wis.2d 25, 291 N.W.2d 800 (1980)), or both, it is clear that each count requires proof of a fact not required by the other; the " 'evidence sufficient for conviction under the first charge would not have convicted under the second indictment.' " Rabe, supra, 96 Wis.2d at 67, 291 N.W.2d 809. ⁶

The second inquiry is whether, even though the...