Wilson v. State, S
| Decision Date | 18 June 1973 |
| Docket Number | No. S,S |
| Citation | 59 Wis.2d 269,208 N.W.2d 134 |
| Parties | Donald Charles WILSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. (Three writs of error.) tate 117. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
Several issues are raised by this review, as follows:
1. Did the trial court lack jurisdiction over the attempted armed robbery charge on the ground that the information failed to allege such a crime?
2. Did the trial court err in denying Wilson's motion challenging the 1971 Kenosha county circuit court jury list?
3. Did the trial court err in failing to submit to the jury a verdict of third-degree murder?
4. Was Wilson denied his right to be present at trial as a result of numerous bench conferences?
5. Did the trial court commit prejudicial error in admitting alleged irrelevant tape-recorded statements of Wilson?
6. Did the trial court commit prejudicial error in its inadvertent use of the term 'mental conduct' rather than 'criminal conduct' in its instructions on a person's mental responsibility for criminal conduct?
7. Was Wilson's right to confrontation violated at the preliminary examination as a result of restrictions placed upon his cross-examination of a state witness?
8. Was the closing argument of the special prosecutor so prejudicial as to deny Wilson a fair trial?
The second count in the information alleged that Wilson did:
'. . . feloniously, with intent to steal and while armed with a dangerous weapon, to wit, a pistol, attempt to take property from the person of John T. Kennedy by use of force; contrary to the provisions of Section 939.32 and 943.32(1)(a) and (2), Wis.Stats.'
Wilson contends this information fails to allege that he had the intent to perform acts of armed robbery, that he did perform such acts, that he attempted to take property from the person in possession, and that he attempted to use force against the person in possession to overcome the latter's physical resistance. Citing Champlain v. State, 1 he claims the court thus lacked jurisdiction and the attempted armed robbery conviction must be reversed. Without filing a petition for confession of error, the state 'concedes that the information is probably insufficient to charge the offense of attempted armed robbery, under Champlain . . ..'
The state was not justified in making this concession. In Champlain the defendant was convicted of armed robbery, theft, and burglary. The information on the armed robbery count alleged that the defendant did:
'With intent to steal, take property from the person, presence of the owner . . . while armed with a dangerous weapon, contrary to Section 943.32(2) of the Wisconsin Statutes . . ..' 2
This court held that this information failed to allege armed robbery because there was no allegation of the use or threat of force. The state took the position that although no armed robbery was alleged because of no allegation of force, attempted theft from the person was alleged. The court rejected this argument because there was no allegation of attempt. All that was alleged was a completed act of taking; the information failed to 'charge all the elements of theft or attempt by way of the intention to perform the acts and attain a result which would constitute theft, and which would have been completed except for some intervening force or factor.' 3
What Wilson is in effect arguing is that the above-quoted language means the allegation that he did 'attempt to take property from the person of John T. Kennedy' is an insufficient allegation of attempt; that instead, it should have been alleged that he performed acts which, but for some intervening force, would have constituted the crime and that he intended to perform such acts. In Champlain the information did not contain any reference to the word 'attempt' or to any acts which would constitute an attempt without specifically labeling them as such. In drafting an information the state should not have to spell out every act which would comprise an element of the crime; 4 instead, an allegation of the element should suffice. The same is true with respect to Wilson's claims of deficiency in allegations of intent and use of force.
Under sec. 943.32(1)(a) and (2), Stats., 5 the elements of an armed robbery are (1) an intent to steal, (2) a taking of property from the person or presence of the owner, (3) by use of force, and (4) while armed with a dangerous weapon. An information alleging an attempted armed robbery should contain these elements plus an allegation of attempt.
The information in this case alleged that Wilson did (1) with intent to steal, (2) while armed with a dangerous weapon, (3) attempt (4) to take property from the person of another (5) by use of force. Thus, all the elements of armed robbery plus the additional allegation of 'attempt' are present. The information was sufficient.
Several weeks prior to trial, Wilson moved for a hearing on why the then current jury list for Kenosha county should not be deemed void and a new list prepared. Late in September, 1971, a hearing was held on the challenge before Judge Bode.
At the hearing, Wilson claimed the jury commissioners systematically excluded from the jury list blacks and people in the 21 to 24 and 25 to 34 year old age groups. In support of this claim, he presented testimony of Dr. Roland J. Derenne, an associate professor of sociology at the University of Wisconsin-Parkside. Dr. Derenne had compared the percentage of persons on the jury list in three different age groups with the percentage of persons in the age groups in Kenosha county as disclosed in the 1970 census. He accomplished this by taking a 10 percent random sampling of persons on the jury list for 1969 through 1971, calling them up and determining their age and race. His findings can be summarized as follows: The census showed that in 1970 there were 68,515 persons in Kenosha county over twenty-one years of age, of which
9.7 percent were in the 21--24 year old group
21.1 percent were in the 25--34 year old group
69.2 percent were in the 35 and over group
The 1969 jury list contained 434 persons. Derenne called 43 of these people and found that among the 43 he called
None were in the 21--24 year old group
4.7 percent (or two people) were in the 25--34 year old group
95.3 percent (or 41 people) were in the 35 and over group
In the 1970 jury list, on which there were approximately 1,000 names to be placed in the tumbler, approximately 100 persons were called, of which
13.9 percent were in the 25--34 year old group
85.1 percent were in the 35 and over group
The 1971 jury list contained approximately 1,058 persons. Derenne called approximately 105 of these and found that among those called
16.8 percent were in the 25--34 year old group
80.4 percent were in the 35 and over group
On the basis of these figures alone, Wilson claims people in the 21--24 and 25--34 year old age groups were underrepresented over a period of time.
On cross-examination, Derenne admitted he did not break down the population figures in terms of percentage of people in each age group who were qualified to serve as jurors, and did not determine how many people were qualified electors in the various age groups. He conceded that the underrepresentation might be due to the fact that persons in the lower age groups were not electors or otherwise qualified to serve as jurors.
On the issue of underrepresentation of blacks, Dr. Derenne testified that there were 117,917 people (including children) in Kenosha county. Of this total:
115,623 or 98.05 percent were white
1,930 or 1.64 percent were black
364 or .31 percent were other races
His 10 percent sampling of the jury lists for 1969 through 1971 showed that of those called:
In the 1969 list, there were no blacks and no other races
In the 1970 list, there were no blacks and one Mexican
In the 1971 list, there was one black and one Mexican
The state then called the two jury commissioners who were responsible for supplying names for the circuit court jury list. John A. Beni, aged fifty-nine, testified that he started with polling lists and from there picked people he knew to be impartial, alert, and of good moral character. He tried to get people from both sexes and of all nationalities, races, and vocations; but he did not consider age other than to get people he considered mature. In his words:
Although he did not intentionally omit people in the 21--24 age group, of the 800--850 names he submitted for the 1971 list there were possibly five or six persons known to him to be in the 21--24 year old group. Four or five of these were girls who bowled with his wife; on cross-examination he admitted he only believed them to be under twenty-five but could not be sure. He knew of 'quite a few' people in the 25--34 age group on the list, but could not name any on the spot.
George L. Schlitz, aged sixty-three, was the other jury commissioner who supplied the remaining 200 names on the 1971 jury list. His method of selecting potential jurors was to write down the name of anyone he came across who he believed would make a good juror and later check the person out for qualifications. If that method did not produce enough names, he would take a polling list to town officials and ask them who they thought would make good jurors....
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