State v. Nicholson
| Decision Date | 05 February 1991 |
| Docket Number | No. 90-1698-CR,90-1698-CR |
| Citation | 160 Wis.2d 803,467 N.W.2d 139 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. David Lee NICHOLSON, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Mark Lukoff, First Asst. State Public Defender by William J. Tyroler, Asst. State Public Defender, Milwaukee, for defendant-appellant.
Donald J. Hanaway, Atty. Gen. by Jerome S. Schmidt, Asst. Atty. Gen., Madison, for plaintiff-respondent.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
David Lee Nicholson (Nicholson) appeals from a judgment convicting him of armed robbery, in violation of sec. 943.32(1)(b), Stats., and felon in possession of a firearm, in violation of sec. 941.29(2), Stats. Both convictions were enhanced under the habitual criminality provision set forth in sec. 939.62, Stats. We affirm.
The information charged that on December 6, 1988, Nicholson robbed the Stadium Sports Stuff store located in the city of Milwaukee, at gunpoint. Nicholson admitted being in the store that day, but denied having a gun or robbing it. Instead, he says he was there to sell counterfeit illicit drugs. Michael Pavolich, the victim of the robbery, said that Nicholson pointed a "small snub-nosed gun" at him, and said "[g]ive me the money." The information also alleged that on December 6, 1988, Nicholson was a felon with a weapon.
The day following the robbery, December 7, 1988, Nicholson was arrested at the Esquire Motel. Several items, including a handgun, were found inside a heating vent in his motel room. On cross-examination at his trial, Nicholson admitted to possessing the gun on December 7, 1988, but not on December 6, 1988.
Following this admission by Nicholson, the prosecution moved the trial court to amend the information on the felon in possession of a firearm charge to extend to the date of December 7, 1988, and the location to the Esquire Motel. The defense objected claiming lack of notice and due process violations. The trial court overruled the objection and amended the information pursuant to sec. 971.29(2), Stats., which reads as follows:
At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.
Nicholson was convicted of both the armed robbery charge and the felon in possession of a firearm charge, but his appeal concerns only the amended charge of felon in possession of a firearm. His first argument is that he was denied his rights to notice and due process when the trial court permitted the information to be amended. Nicholson's second contention is that the revelation to the jury of his status as a felon was reversible error because he was willing to stipulate to that fact.
The trial court's decision to amend the information to conform with the proof will be upheld on appeal if it was not an abuse of discretion. See State v. Flakes, 140 Wis.2d 411, 416, 410 N.W.2d 614, 616 (Ct.App.1987). The trial court would have abused its discretion if, in amending the information, it had prejudiced Nicholson. See id. However, we conclude that Nicholson was not prejudiced. The effect of the amendment was to add an additional day and location to the felon in possession of a firearm charge. The trial court did not add an additional charge against Nicholson, it simply revised the information to conform with the proof that came out during the trial which is its prerogative. See La Fond v. State, 37 Wis.2d 137, 143, 154 N.W.2d 304, 307 (1967).
Nicholson argues that his rights of notice and due process were violated because of the amendment which was made during the jury instruction conference at the end of the trial. In one sense, given the late date, Nicholson is technically correct. However, this technical error is harmless beyond a reasonable doubt because Nicholson would have been convicted, under the same charge, for the December 6, 1988, date even without the amendment because the jury convicted him of the armed robbery on...
To continue reading
Request your trial
-
State v. Jones
...only arise when the nature of that felony were revealed to the jury despite the offer to stipulate." State v. Nicholson, 160 Wis.2d 803, 807-08, 467 N.W.2d 139, 141 (Ct.App.1991). Jones does not give a record citation indicating that he offered to stipulate that he was a convicted felon or ......
-
State v. Hafeman
...that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); see also State v. Nicholson, 160 Wis.2d 803, 806, 467 N.W.2d 139, 140 (Ct.App.1991) (court determined that due process violation was harmless beyond a reasonable doubt). Our harmless error analysi......
-
State v. Robinson
...complaint ... to conform to the proof where such amendment is not prejudicial to the defendant.”); see also State v. Nicholson, 160 Wis.2d 803, 805, 467 N.W.2d 139 (Ct.App.1991). Second, W.H. and D.S. were robbed, at gunpoint, in the apartment they lived in together. Robinson took property ......
-
State v. Anthony, 2015AP431.
...complaint ... to conform to the proof where such amendment is not prejudicial to the defendant.”); see also State v. Nicholson, 160 Wis.2d 803, 805, 467 N.W.2d 139 (Ct.App.1991). The trial court's discussion of party-to-a-crime liability underscores the fact that Anthony's motion did not ad......