State v. Smith

Decision Date12 July 2012
Docket NumberNo. 2010AP1192–CR.,2010AP1192–CR.
Citation817 N.W.2d 410,342 Wis.2d 710,2012 WI 91
PartiesSTATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Roshawn SMITH, Defendant–Appellant–Petitioner.
CourtWisconsin Supreme Court


For the defendant-appellant-petitioner, there were briefs and oral argument by William E. Schmaal, assistant state public defender.

For the plaintiff-respondent-petitioner, the cause was argued by Sally Wellman, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.


[342 Wis.2d 716]¶ 1 We review an unpublished decision of the court of appeals 1 reversing the Brown County Circuit Court's judgment of conviction against Roshawn Smith (Smith).2 The State charged Smith with being a party to the crime of possession with intent to deliver more than 10,000 grams of tetrahydrocannabinol (“THC” 3) in violation of Wisconsin Statutes section 961.41(1m)(h)5. (2005–06) 4[342 Wis.2d 717]and 939.05.5 Smith stipulated to the fact that the packages seized by the police contained more than 10,000 grams of THC. At the conclusion of the evidentiary portion of the jury trial but prior to the jury's deliberations, the circuit court answered a verdict question for the jury concerning the weight of the drugs. The jury found Smith guilty of the offense of being a party to the crime of possession with intent to deliver more than 10,000 grams of THC. He was sentenced to a period of incarceration of six years initial confinement and five years extended supervision.

¶ 2 Two issues are presented for our consideration: 1) whether the evidence was sufficient to support Smith's conviction; and 2) whether Smith waived his right to a jury determination on the quantity of the drugs. Because a reasonable inference of Smith's guilt could have been drawn by the jury from the evidence presented at trial, viewed in its entirety, we hold that the evidence was sufficient to sustain the conviction and agree with the court of appeals' decision in that regard. Second, while we determine that Smith had a constitutional right to a jury determination of the drug quantity, and although the circuit court determined that question without eliciting from Smith a proper waiver of that right, we conclude the error was harmless because it is clear beyond a reasonable doubt that a properly instructed, rational jury would have found Smith guilty of the charged offense absent the error. The court of appeals therefore erred in remanding the cause to the circuit court. Accordingly, we reverse the court of appeals and reinstate the guilty verdict and judgment of conviction.


¶ 3 In 2006, law enforcement officers in Brown County, Wisconsin were alerted by a police officer in California that suspicious packages were being sent via Federal Express (“FedEx”) from that state to Brown County. As a result of that information, two packages were seized by local law enforcement officers from FedEx in Brown County and 22,477 grams of marijuana, testing positive for THC, were discovered therein. On September 20, 2006, Brown County law enforcement agents, dressed as FedEx employees, delivered the packages to the home in Brown County to which they were addressed. Upon delivery, Shannon Kortbein (“Kortbein”) came to the door, received the packages, and signed for them. Shortly thereafter, officers observed a man later identified as Terri 6 Thomas (“Thomas”) approaching the residence and arrested him.

¶ 4 Further investigation led law enforcement to suspect Smith's involvement in the drug offense. Pursuant to that investigation, the State filed a criminal information against Smith, alleging that on September 20, 2006 he possessed with intent to deliver, as a party to the offense, more than 10,000 grams of THC, a Class E Felony punishable by up to 15 years in prison. Wis. Stat. § 939.50(3)(e).

¶ 5 The matter was set for trial. At a pretrial hearing held on March 6, 2008, defense counsel informed the circuit court that he believed his client “would be prepared to stipulate” to a chemist's report that more than 10,000 grams of THC were seized from the packages delivered to Kortbein's home. The circuit court then held the following colloquy with Smith:

THE COURT: Mr. Smith, ... [defense counsel] says that you're prepared to agree that the stuff that was found in the boxes was marijuana, THC. The State has a crime lab analyst subpoenaed to testify that the substance was tested and that it is in fact [THC], marijuana.... And that [defense counsel] is telling me you are not going to make that person drive here from the crime lab to say that. That you will agree to that analyst's report. That is not your defense. Your defense is not that it is not marijuana. Your defense is that you had nothing to do with it being there. Is that true?

ROSHAWN SMITH: Yes, ma'am.

THE COURT: You don't want to have that crime lab person come up here?


THE COURT: Okay. Any promises or threats made to you to get you to make that decision?


THE COURT: Okay. You are not disputing that it's marijuana.... [Y]our position is you didn't have anything to do with it, is that right?


[342 Wis.2d 720]¶ 6 A similar but less extensive exchange took place at a subsequent pretrial hearing held on September 19, 2008:

[DEFENSE COUNSEL]: It's my client's understanding, and I talked it over with him again just prior to our hearing today, that the lab tech would be stipulated to. We're not contesting what was ultimately found in the boxes.

THE COURT: He just contests his involvement?

[DEFENSE COUNSEL]: We're not contesting anything about the deliveries or anything about what was in the boxes or how the testing came out or the evidence [of] that nature.

THE COURT: Is that true, Mr. Smith? You're not going to make the State prove what was in the boxes?


¶ 7 At yet another pretrial hearing, held on September 30, 2008, both attorneys and Smith signed a stipulation indicating that the seized material “was identified to have the presence of [THC], a substance from marijuana and weighed 22,477 grams.”

¶ 8 During pretrial proceedings held on the day of trial, the circuit court informed Smith that it “need[ed] to ask you personally, you agree that the crime lab person doesn't need to come to testify about the fact that what's in the bag contains THC, which is the active ingredient in marijuana? That is your agreement?” Smith responded, “I believe so.” Shortly thereafter, the circuit court made the following comments to Smith:

[I]t is my understanding that your defense is you didn't have anything to do with this, you knew nothing about it, you weren't involved.... And ... because your defense is you didn't have anything to do with it, and to drag the crime lab person in here to testify that it was marijuana isn't part of your defense. And I just wanted to be sure that you understand that you agreed with that. You signed it. I would fully expect that [defense counsel] explained it to you. But I just wanted to be sure that you understood that. Because it's not part of your defense, there is no reason to drag this crime lab person in here to say it was marijuana.

Smith answered, “I agree.” Also on the day of trial, the prosecutor informed the court that the State would be requesting that at the conclusion of the State's case, ... the Court would read the stipulation to the jury and have it entered into the record.” Defense counsel agreed that that would be appropriate.

¶ 9 During the court's opening instructions to the jury, it related that the State intended to argue that Smith could be found guilty of being a party to the crime under any of the three alternative types of liability set forth by Wis. Stat. § 939.05: direct commission, aiding and abetting, or conspiracy.

¶ 10 After trial had begun, a law enforcement officer began testifying about testing the packages for THC and defense counsel objected on the grounds that it was unnecessary as a result of the stipulation. The court then informed the jury that

the State and the Defense have stipulated that various substances that you are going to hear testified to in this case, and this is one of them, have tested positive for the presence of [THC], a substance from marijuana. And they have stipulated that in addition to the field testing that was done ..., that it was tested later by a lab analyst.... So, they've stipulated to that and I will direct you to find that as a fact.

¶ 11 Following the testimony of several law enforcement officers, the State called Kortbein. She stated that she had known Smith 7 for approximately three and a half years. Asked how she came to be involved in the package delivery, Kortbein answered that Smith introduced her to Thomas, and, she believed, Smith then gave Thomas her cell phone number. Thomas called her in the summer of 2006 and asked if she would be willing to have packages sent to her home in return for $500 per package. She agreed and, over the next few weeks, received three shipments similar to those that were later seized by law enforcement. After each delivery, Thomas retrieved the package from Kortbein within a few days and Smith paid her $400 8 within a few days after Thomas picked up the package.

¶ 12 Later in the trial, David Mehlhorn (“Mehlhorn”) took the stand. He testified that he had agreed to receive packages at his home at Smith's behest. Mehlhorn further testified that he subsequently received approximately three packages from California during the summer and fall of 2006. After each arrived, he would call Smith and Smith and Thomas would pick them up. During his direct examination, the following exchange occurred between Mehlhorn and the attorney representing the State:

Q. Now, did [Smith] ever talk to you about being involved with a marijuana thing with a girl?

A. After it became public, yes.

Q. But did he tell you it was going to be fine?

A. Yes...

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