State v. Yancey

• Citation: 32 Wis.2d 104,145 N.W.2d 145
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Vernon James YANCEY, Defendant-Appellant.
• Decision Date: 04 October 1966
• Court: United States State Supreme Court of Wisconsin

Page 145

145 N.W.2d 145

32 Wis.2d 104

STATE of Wisconsin, Plaintiff-Respondent, v. Vernon James YANCEY, Defendant-Appellant.

Supreme Court of Wisconsin.

Oct. 4, 1966.

Shellow, Shellow & Coffey, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee, for respondent.

HALLOWS, Justice.

At least six issues are raised, which will be considered seriatim. The first question is whether there is sufficient evidence to sustain the conviction of the defendant. At the trial the state called as witnesses two men who had been victims of armed robberies, a detective who had worked on the case, and two alleged co-conspirators of the defendant. One of these co-conspirators, James Preston, invoked his privilege against self-incrimination; the other, Charles Underwood, testified and made out all the elements of the crime of conspiracy to commit armed robbery by the defendant. In general, his testimony involved the defendant, who operated a tavern on the north side of Milwaukee, in planning robberies, furnishing the fire arms and sometimes a car, giving advice, and receiving a share of the proceeds. This testimony disclosed several robberies were committed including Konopski's Tavern on March 1, 1963, and Pulaski Savings and Loan Association on April 5, 1963, by members of what might be called a gang composed of Charles Underwood, James Preston, Robert Freeman, Sonny Carter, Johnnie Johnson and Earl Tolliver. Some of the details of the co-conspirator's story excepting those relating to the defendant's activities were corroborated by the other witnesses.

The appellant takes the view there was not sufficient corroboration and the co-conspirator's testimony implicating the defendant stands alone and in a conspiracy case the uncorroborated testimony of an alleged co-conspirator should be insufficient to sustain a conviction. Recently this court in Sparkman v. State (1965), 27 Wis.2d 92, 95, 133 N.W.2d 776, 778, stated the uncorroborated testimony of an accomplice was sufficient to support a conviction for a felony. We pointed out that under that common-law rule existing in this state uncorroborated testimony of an accomplice could be accepted by a jury unless that testimony was 'bald perjury, preposterous, or self contradictory.' This has been the rule in Wisconsin since Mercer v. Wright (1854), 3 Wis. 645. In this state it is customary to caution the jury to scrutinize such uncorroborated testimony and to accept it with caution. In the instant case, such instruction was given to the jury.

The appellant attempts to distinguish prior Wisconsin cases which have upheld or stated the rule, pointing out that in many of those cases the conviction was reversed or the testimony was not in fact that of an accomplice or the testimony was corroborated. ¹ Only Black v. State (1884), 59 Wis. 417, 18 N.W. 457, and Millin v. State (1926), 191 Wis. 188, 210 N.W. 411, squarely affirm a conviction on uncorroborated testimony of an accomplice and these cases did not involve a conspiracy to commit a crime. We think this argument is not persuasive. When this court deliberately considers a proposition of law and pronounces it and if the statement is clear and unambiguous, we consider it a binding statement of law. ²

Appellant argues the uncorroborated-testimony doctrine should not be extended to a conspiracy because such crime is akin to treason, which, by Art. III, Sec. 3, cl. 1, of the United States constitution and Art. I, Sec. 10, of the state constitution, requires proof thereof by two witnesses. See 87 C.J.S. Treason § 13c, p. 919. Outside of treason, the common-law rule is one of general application and has been applied to all classes of crime including conspiracy. 23 C.J.S. Criminal Law § 810(1), p. 86. We see no valid reason why the testimony of a co-conspirator is any the less trustworthy in a case involving conspiracy to commit a robbery than that of an accomplice in a case of robbery. Consequently, we cannot hold as a matter of law the uncorroborated testimony of a co-conspirator is so lacking in probative value as to render it insufficient to sustain a verdict of guilty. The trier of facts should be allowed to accept or reject such testimony, and if in a given case under proper instructions uncorroborated testimony of a co-conspirator or accomplice is accepted as credible and convinces the trier of the facts beyond a reasonable doubt of the guilt of the accused, the testimony is sufficient.

The appellant contends it was error for the court not to give cautionary instructions sua sponte when a prosecution witness asserted his privilege against self-incrimination. During the trial the state called James Preston, an alleged co-conspirator, who testified he had a prior criminal record, had been released from prison in December, 1962, had come to Milwaukee, and was now in prison for armed robbery and attempted murder. Upon being asked whether he knew the defendant he refused to answer 'due to the fact it may tend to incriminate me on the grounds that I have legal action in process concerning my sentence and my conviction.' Preston was then asked, 'You have already been convicted, haven't you, Mr. Preston?' He again refused to answer on the ground it might tend to incriminate him. In the absence of the jury the prosecutor expressed surprise at the witness' conduct and stated that before the trial Preston had been cooperative and that he had expected the witness to testify. Both the prosecutor and counsel for the defense conferred with the witness and he indicated he would not testify. The witness was then excused.

The appellant's trial counsel did not ask for cautionary instructions then or at the time the jury was charged. But it is now contended the trial court should on its own motion have instructed that no inferences as to the defendant's guilt should be drawn from the invocation of the privilege by this witness. The appellant relies particularly on San Fratello v. United States (5th Cir. 1965), 340 F.2d 560; United States v. Maloney (2d Cir., 1959), 262 F.2d 535; Fletcher v. United States (1964), 118 U.S.App.D.C. 137, 332 F.2d 724. Each of these cases, however, involve a prosecutor calling a witness whom he knew would invoke his privilege. In San Fratello, the witness had claimed her privilege in a previous trial and had advised the prosecutor she would again assert it. In Maloney, the prosecution conceded it knew or anticipated two of its key witnesses would invoke the privilege against self-incrimination. In Fletcher the court permitted detailed questions to be asked concerning the witness' relationship to the defendant after the witness claimed the privilege. The conduct of the prosecutor in these cases amounted to deliberate misconduct which denied the accused a fair trial.

Neither is Namet v. United States (1963), 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278, cited by appellant, controlling. In that case it was claimed the prosecution called witnesses whom they knew would invoke their 5th-Amendment privilege. The court pointed out that in previous cases on this question reversals were based either on the misconduct of the prosecutor or on a finding that the failure of the witness to testify added 'critical weight' to the prosecution's case. Finding neither of these elements present, the court did not consider the question of whether the defendant would have been entitled to instructions or other curative devices if he had asked for them. The court, in answer to the argument that it should have sua sponte taken some affirmative action, said it saw 'no reason to require such extravagant protection against errors which were not obviously prejudicial and which the petitioner himself appeared to disregard.'

In the instant case we do not find any prosecutorial misconduct. His statement that he was surprised and expected the witness to answer stands uncontradicted. His second question concerning the previous conviction of the witness seems to be a result of surprise on his part and a puzzlement of why the witness had asserted his privilege. The prosecutor's action did not amount to 'planned or deliberate attempts by the government to make capital out of' the witness' refusal to testify or to 'build its case out of inferences arising from use of the testimonial privilege.' Namet, 373 U.S., at pp. 186, 189, 83 S.Ct. at pp. 1154, 1156.

Nor do we think the claiming of privilege on these two questions by the witness added critical weight to the prosecution's case. The evil here is the drawing of an impermissible inference from the invocation of the privilege. The first question merely asked whether the witness knew the defendant. An inference from a 'yes' answer to this would hardly be critical since it had already been testified that the witness knew the defendant, and such knowledge does not tend to prove a conspiracy. The refusal of the witness to answer the second question cannot be considered an invitation to the jury to infer that Preston had already been convicted of the conspiracy offense for which the defendant was being tried. If the refusal to answer added any weight to the state's case, it was not critical.

The most recent case discussing the problem is United States v. Compton, (6th Cir., 365 F.2d 1, August 4, 1966). The court there stated government counsel need not refrain from calling a witness whose attorney appears in court and advises the court and counsel that the witness will claim his privilege and will not testify if government counsel has an honest belief that the witness has information which is pertinent to the issue in the case and which is admissible if the privilege is not invoked.

When the objectionable inferences which might be drawn from the invocation of the privilege against self-incrimination are prejudicial, we think if the defendant's counsel wants cautionary instructions he should ask for...