Stockwell v. State, S

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHANLEY
Citation59 Wis.2d 21,207 N.W.2d 883
PartiesWilliam STOCKWELL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 152.
Docket NumberNo. S,S
Decision Date05 June 1973

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Steven B. Wickland, Asst. Atty. Gen., Madison, for defendant in error.

HANLEY, Justice.

Two issues are presented on this appeal:

1. Is there sufficient credible evidence in the record to sustain a conviction for being a party to a masked armed robbery; and

2. Was the seventeen year sentence imposed by the trial court an abuse of its discretion?

Sufficiency of Evidence

Defendant's first contention is that there was insufficient evidence presented at his trial for a jury to find him guilty of aiding and abetting in the commission of the armed robbery. On appeal, the test for determining the sufficiency of the evidence which was set forth in Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725, and has been restated most recently in Bowden v. State (1973), 57 Wis.2d 494, 495, 204 N.W.2d 464, 465, which is as follows:

"Several rules applied in appellate review of the sufficiency of the evidence in criminal cases have been stated so frequently in our late cases that they need no citation of authority to support them. The burden of proof is upon the state to prove every essential element of the crime charged beyond a reasonable doubt. The test is not whether this court or any of the members thereof are convinced beyond a reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. A criminal conviction can stand based in whole or in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. Our review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules."

Quoting from State v. Nutley (1964), 24 Wis.2d 527, 554, 555, 129 N.W.2d 155, this court in Taylor v. State (1972), 55 Wis.2d 168, at page 177, 197 N.W.2d 805, at page 809, reviewed the requirements for conviction of being a party to a crime under sec. 939.05, Stats. 1

". . . Under the complicity theory of sec. 939.05(2)(b), a person is liable for the substantive crime committed by another if (1) he undertakes conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime, and further if (2) he consciously desires, or 'intends' that his conduct will yield such assistance. He must consciously direct his conduct toward the realization of the criminal objective. He must have a 'stake-in-the-outcome.'

"However, it is not necessary that the aider and abettor enter into an agreement with the perpetrator to assist him in consummation of the crime. Nor is it necessary that the perpetrator be aware of the accomplice's efforts, in order to hold the accompanies liable for the substantive crime . . ."

At about 1:15 a.m. on the morning of September 9, 1971, three men, all wearing silk stockings over their heads, appeared in the side entrance of Cham's Tap in the town of Mr. Pleasant in Racine County. They ordered that the 15 or so patrons place their billfolds on the bar and then proceeded to empty both the cash register and safe; and enforcing their demands with the handguns which two of them carried. Effecting their escape, the robbers first crowded everyone into the kitchen and then fired several shots into the walls as they exited.

David Miller, the state's principal witness and an accomplice in the robbery, testified that on the night of the robbery, he was in a car with Gary Kasprovich, Dale Vorlob, Danny Hagerman, Scott Allen and the defendant, parked near Cham's Tap.

Miller stated that after Kasprovich and Hagerman told the rest of the group that they wanted to rob the tavern an argument broke out among everyone and the defendant said 'he wanted no part of it.' With the argument over, they then drove to Hagerman's where they picked up the stockings that were later used and then drove back and stopped down a block from the tavern.

Miller further testified that another argument broke out and that he and the defendant without being told by anyone went into the tavern to have a beer and talked there for about five to ten minutes. Miller stated that when he got back into the car someone aksed him what he saw and he responded that there was a money bag lying on a counter and that there were about fifteen patrons. Miller stated that at this point, the defendant said: 'Yah, looks like a winner down on the other end of the bar.' Hasprovich, Vorlob and Allen then got out of the car and pulled the stockings over their heads and that one of them took a gun from the glove compartment. Prior to this, the defendant had moved from the back seat so that he was now sitting on the console between the two front bucket seats. When someone asked him for the gun that was in the console, 'he just stood up a little bit, opened the console and handed him the gun.'

After the time, they went to Milwaukee where they checked into a motel, whereupon they proceeded to divide up the money. Miller testified that although he didn't see money being given to the defendant, he had earlier testified in direct examination that 'everyone got money.'

In Taylor, supra, 55 Wis.2d at page 178, 197 N.W.2d at page 810, this court reviewed other cases where it was also alleged that the defendant's involvement was insufficient to sustain a conviction for aiding and abetting:

'In Carter v. State (1965), 27 Wis.2d 451, 134 N.W.2d 444, 136 N.W.2d 561, a conviction of armed robbery was sustained where the defendant was the driver of the get away car and shared in the proceeds.

'. . .

'The court then referred to other cases which upheld convictions where the defendant acted as a lookout. Fifer v. State (1926), 189 Wis. 50, 206 N.W. 861; State v. Kuick (1948), 252 Wis. 595, 32 N.W.2d 344. In these cases, credible testimony placed the defendants at the scene of the crime under circumstances from which it could be inferred that they had knowledge of the plan and the function they were to serve.' (emphasis added)

On the basis of this record, a reasonable inference could have been drawn by the jury that the defendant was in fact 'casing' the tavern. This supporting role played by the defendant made him guilty under the law as a principal participant.

Abuse of Discretion in Sentencing

Upon his conviction of being a party to the crime of armed robbery while masked in violation of Sections 939.05(1), 943.32(1)(b)(2) 2 and 946.62, 3 Stats.; the defendant was sentenced to an indeterminate term of not more than seventeen years in the Wisconsin state prison. Although seventeen years represents less than one-half of defendant's maximum potential exposure, he, nevertheless, contends that it represents an abuse of the trial court's discretion and that this court should appropriately modify it.

The attorney general contends that defendant's motion for modification of sentence is not made under compelling circumstances and is, therefore, not reviewable.

Analogizing to Sec. 974.02, Stats. of the new criminal code which allows ninety days for the bringing of a motion for a new trial, this court in Hayes v. State (1970), 46 Wis.2d 93, 175 N.W.2d 625, adopted a like a period to commence on the date of sentencing for a motion to modify a sentence. In Farley v. State (1971), 50 Wis.2d 113, 115, 183 N.W.2d 33, 34, this court stated that:

'. . . failure to present a motion at the trial court level to review a sentence bars the (defendant) from raising a question of impropriety as to sentence except under compelling circumstances . . .'

The sentencing in this case was on May 11, 1972 with the time for making a Hayes motion expiring on August 9, 1972. The State Public Defender was appointed to represent the defendant on July 7, 1972 and the trial transcript was not even filed in the trial court until August 2, 1972. The defendant further submits that the record and transcript were not received by the public defender until August 7th and even at that time, the pre-sentence report was not a part of the record and had to be subsequently requested. The pre-sentence report did not arrive until September 7, 1972, several weeks after the 90-day period had expired.

In Whitmore v. State (1973), 56 Wis.2d 706, 203 N.W.2d 56, this court, although reiterating the rule laid down in Farley decided to review the propriety of the sentence there imposed. The stated justification was the time lag which exists between when the duties of trial counsel cease and those of appellate counsel begin, with this court specifically mandating that trial counsel's duties continue until such time as the defendant decides whether to appeal immediately or undertake any post-conviction motions that might be desirable. This case represents the type of situation which Whitmore attempts to rectify and consequently this court will review defendant's sentence.

In support of his contention that the trial court abused its discretion in sentencing, the defendant argues that neither his prior background nor the degree of his involvement with the crime support a seventeen year sentence, and that this sentence is much harsher than the typical sentence imposed in such circumstances.

The first of the defendant's contentions, namely, that this record of prior involvement with the law does not support the length of his imprisonment, rests on the...

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