Preview:

COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
February 27, 1996
A party may file with the Supreme Court                              This opinion is subject to further editing.
a petition to review an adverse decision                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                  Official Reports.
No.   95-3086-CR-NM
STATE OF WISCONSIN                                                   IN COURT OF APPEALS
                                                                     DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JESSIE WHITE,
Defendant-Appellant,
CAROLYN D. GARLAND,
Defendant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  VICTOR MANIAN, Judge.  Affirmed.
Before Wedemeyer, P.J., Sullivan and Schudson, JJ.




No.   95-3086-CR-NM
PER CURIAM.     A jury found Jessie White guilty of robbery as
party to a crime in violation of §§ 943.32(1)(a)1 and 939.05, STATS.  The trial court
sentenced him to ten years in prison with 149 days sentence credit.
The  state  public  defender  appointed  Michael  A.  Yamat  to
represent White on appeal.    Yamat has filed a no merit report pursuant to
RULE 809.32,  STATS.,  and  Anders  v.  California,  386  U.S.  738  (1967).    White
received a copy of the no merit report, and he has filed a response.
The no merit report addresses whether the trial court erroneously
exercised its discretion by permitting the attorney for White's accomplice to
testify and by permitting introduction of a letter written by White to the victim.
The no merit report also addresses whether trial counsel was ineffective when
counsel stipulated that White had five prior convictions and when counsel did
not request a presentence report.   Additionally, the no merit report addresses
whether White could seek sentence modification.   Yamat concludes that these
possible issues have no arguable merit.   Based upon our independent review of
the record, we conclude that his analysis of these issues is correct.
Yamat  also  addresses  the  issue  of  whether  the  trial  court
erroneously exercised its discretion when it denied White's motion in limine to
preclude evidence concerning the accomplice's guilty plea.   White objected to
the proposed evidence in a pre-trial motion and again at the beginning of the
accomplice's testimony.   The trial court allowed the evidence, reasoning that it
was relevant to the accomplice's credibility.
Yamat concludes that the introduction of evidence concerning the
guilty  plea  was  permissible  because  its  purpose  related  to  the  witness's
credibility.   See Virgil v. State, 84 Wis.2d 166, 183, 267 N.W.2d 852, 861 (1978).
Yamat's analysis is incomplete, however.    Evidence can not be admitted to
bolster a witness's credibility before credibility is attacked.  See State v. Johnson,
1  White was initially charged with violating § 943.32(1)(b), STATS., and this is the subsection
listed on the judgment of conviction.  At the close of testimony, however, the State moved to amend
the information to § 943.32(1)(a).   After remittitur of the record, the trial court should correct the
judgment of conviction to reflect the correct subsection.
-2-




No.   95-3086-CR-NM
149 Wis.2d 418, 427, 439 N.W.2d 122, 125 (1989).   Thus, the trial court's rulings
were premature.
We conclude, however, that the error was harmless, because the
accomplice's credibility was challenged during her testimony.   The accomplice
made a statement to police when she was arrested.   Shortly before trial, she
repudiated her confession and alleged improper police practices during an
interview with the defense investigator.   Her testimony at trial, for which she
was  given  use  immunity,  was  contradictory.     As  the  trial  court  later
characterized  her  testimony,  she  was  either  "very  confused  or  resistant  to
answering questions at the end.   It was obvious, when we got to the end of her
testimony, that she was just saying whatever anybody wanted her to just so she
could get off the witness stand."
Both the no merit report and White's response address whether
the evidence was sufficient to support a guilty verdict of the crime of robbery.
This  court  will  affirm  a  conviction  if  it  can  conclude  that  a  jury,  acting
reasonably, could be convinced, beyond a reasonable doubt, by evidence the
jurors had a right to believe and accept as true.   State v. Barksdale, 160 Wis.2d
284, 289-90, 466 N.W.2d 198, 200 (Ct. App. 1991).   The evidence is considered in
the light most favorable to the jury's verdict, and the jury is the sole judge of the
credibility of the witnesses.   See State v. Toy, 125 Wis.2d 216, 222, 371 N.W.2d
386, 389 (Ct. App. 1985).
Here, part of the crime was videotaped by a passerby, and White
admitted that he was involved.   The issue was whether the incident was a
lover's spat (and a battery) or a robbery.   The victim testified that White was a
stranger and that he grabbed her from behind, threatened her, and demanded
her money.   She testified that she gave him money from a check she had just
cashed after he attempted to reach into the pocket where she had it.    All
inconsistencies in the testimony that the victim gave at trial, the preliminary
hearing, and White's revocation hearing were fully presented to the jury.   The
accomplice  told  the  police  that  she  had  driven  White  to  a  check  cashing
business so he could select a victim, that White stated he saw which pocket a
girl put the money in, and that after driving around according to White's
directions, White got out of the car and told her where to meet him.   After
White returned to the car, he pulled money out of his pocket to count it, and he
-3-




No.   95-3086-CR-NM
said that he hoped he had not hurt the girl.    The accomplice's attempted
repudiation of the statement was fully explored during her testimony.
White claimed  that he had  met the  victim  about two  months
before the crime and that the two had dated and been intimate.   The incident
occurred because he was jealous that she had flirted with other men.   White's
sister testified that White had introduced the victim as his girlfriend several
days before the crime.   The truthfulness of White's testimony was suspect.   He
did not know that at the time of the crime, the victim, whose given name was
Schynitha, had a two-month-old child, that she had complications from the
delivery and was house bound for much of the two months prior to the crime,
and that she was known to friends and family by a nickname, Ne-Ne.
Considering the testimony at trial, it was reasonable for the jury to
believe the victim and not White.   There was sufficient evidence to support the
guilty verdict.
The no merit report and White's response also address the issue of
whether the trial court erroneously exercised its discretion by sentencing White
to the maximum term.  White argues that the sentencing guidelines supported a
lesser sentence.   Deviation from the sentencing guidelines is not a basis for
appeal  of  a  sentence,  however.    Section                                          973.012,  STATS.     Further,  when
reviewing the guidelines, the sentencing court was incorrectly told that White
had two, rather than five, prior convictions.
As fully discussed in the no merit report, the court considered the
seriousness of the offense, White's character, and the need to protect the public.
See State v. Larsen, 141 Wis.2d 412, 427, 415 N.W.2d 535, 541 (Ct. App. 1987)
(seriousness of the offenses, defendant's character, and need to protect the
public  are  primary  factors  to  be  considered  by  trial  court  exercising  its
sentencing discretion).   Yamat's analysis of this issue is correct, and there was
no erroneous exercise of discretion.
Our  independent  review  of  the  record  did  not  disclose  any
additional  potential  issues  for  appeal.    Therefore,  further  proceedings  on
White's  behalf  would  be  frivolous  and  without  arguable  merit  within  the
-4-




No.   95-3086-CR-NM
meaning of Anders and RULE 809.32(1), STATS.   Accordingly, the judgment of
conviction is affirmed, and Yamat is relieved of any further representation of
White on this appeal.
By the Court.—Judgment affirmed.
-5-

Download 9936.pdf

Wisconsin Law