Preview:

COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 7, 1999
                                                                                             A  party  may  file  with  the  Supreme  Court  a
                                                                                             petition  to  review  an  adverse  decision  by  the
                                                                   Marilyn L. Graves
                                                                                             Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                   Clerk, Court of Appeals
                                                                                             STATS.
                                                                   of Wisconsin
No.                                                                98-2460-CR
STATE OF WISCONSIN                                                 IN COURT OF APPEALS
                                                                   DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
PERRY C. LOVE,
DEFENDANT-APPELLANT,
SHAWNDON JOHNSON AND
NATHANIEL BEARDON, JR.,
DEFENDANTS.
APPEAL  from a judgment and  an order  of  the circuit court for
Milwaukee County:   DIANE S. SYKES, Judge.   Affirmed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.




No. 98-2460-CR
¶1                                                                                        WEDEMEYER, P.J.    Perry C. Love appeals from a judgment of
conviction for receiving stolen property and from an order denying his motion to
modify  his  sentence.    Love  raises  three  claims  of  error:                         (1)  the  trial  court
erroneously exercised its discretion when it refused to remove a juror for cause;
(2) the evidence presented at trial was insufficient to establish that he was guilty of
receiving  stolen  property;  and                                                         (3)  the  trial  court  erroneously  exercised  its
sentencing discretion by considering improper factors.
¶2                                                                                        Because the challenged juror’s bias was not manifest, the evidence
was sufficient to support the conviction for receipt of stolen property, and the trial
court did not consider improper factors in its sentence, we affirm.
I.   BACKGROUND
¶3                                                                                        The  State  charged Love  with receiving stolen property having a
value  of  more  than  $2,500,  as  party to  a  crime.    The  charge  was  based  on
testimony of police officers and citizen witnesses who claimed to have observed
Love and his two accomplices remove personal property from a GMC van owned
by Derrick McDowell, the victim of this incident, and load it into the Chevrolet
Suburban belonging to Love.
¶4                                                                                        A jury trial was scheduled for Love and one of his accomplices,
Shawndon Johnson.   During voir dire, a juror named Strack was questioned for
bias by attorneys for both Love and Johnson.   Based upon Strack’s responses to
the two defense counsel and the court, Love’s counsel requested that Strack be
removed for cause.   The trial court denied the request.   Thereafter, Love exercised
his first peremptory strike to remove Strack from the jury.
2




No. 98-2460-CR
¶5                                                                                          The  jury  found  Love  guilty  of  the  charge  and  the  trial  court
sentenced  him  to  seven  years  in  a  Wisconsin  state  prison.     Love  filed  a
postconviction  motion  to  modify  his  sentence,  which  was  denied.    He  now
appeals.
II.   ANALYSIS
A.  Juror Challenge.
¶6                                                                                          Love first claims that the trial court committed reversible error under
State v. Ramos,  211 Wis.2d  12,  564 N.W.2d  328  (1997), when it refused to
remove juror Strack for cause after he repeatedly indicated that he was unwilling
to apply the constitutional principles of the presumption of innocence and the
defendant’s right to remain silent.
¶7                                                                                          A trial court’s decision to deny a requested strike-for-cause may
only be overturned when the challenged juror’s bias is manifest.    See State v.
Ferron, 219 Wis.2d 481, 496-97, 579 N.W.2d 654, 660 (1998).   “Manifest bias” is
determined under a two-part test.   A trial court’s decision to deny a requested
strike-for-cause  should  be  affirmed  if  the  record  supports  a  finding  that  “the
prospective juror is a reasonable person who is sincerely willing to put aside an
opinion or prior knowledge; [and] … a reasonable person in the juror’s position
could set aside the opinion or prior knowledge.”   Id. at 498, 579 N.W.2d at 661.
¶8                                                                                          Thus, the first inquiry is whether the prospective juror is willing to
put aside bias based on an “opinion or prior knowledge.”   In practical application
there is no litmus test for this determination, nor any required verbal response
demonstrating the prospective juror’s disassociation from perceived expressions of
bias.  See id. at 501-02, 579 N.W.2d at 662.
3




No. 98-2460-CR
¶9                                                                                        The second inquiry that the trial court must conduct is whether,
under all of the circumstances, a reasonable person could set aside the bias.   See
id.   Whether a prospective juror is biased and ought to be dismissed from a jury
panel for cause is ultimately a matter of trial court discretion.   See id. at 499, 579
N.W.2d at 661.   For reasons set forth, the trial court did not erroneously exercise
its discretion in refusing to strike prospective juror Strack.
¶10                                                                                       We first set forth the pertinent portions of the voir dire relating to
juror Strack:
[DEFENDANT’S   COUNSEL]:   Now,   there   are
some constitutional principles involved here.   For example,
is  there  anybody  who  believes  that  the  presumption  of
innocence that [the assistant district attorney] spoke about
should  not  apply,  that  Mr.  Love  is  innocent?     Does
everybody  appreciate  that  this  is  an  innocent  man?
Anybody disagree that he’s an innocent man right now?
Mr. Strack.
JUROR STRACK:   Um-hum.   Somewhat.   I don’t
think   it   would   get   to   this   extent   with   Detective
Zimmerman.   It wouldn’t be here if there wasn’t a great
deal of evidence against these people.
[DEFENDANT’S COUNSEL]:   You haven’t heard
any evidence at all yet, have you?
JUROR STRACK:   Well, just on that alone.
[DEFENDANT’S  COUNSEL]:   And  just  because
they  are  sitting  here,  they  must  have  done  something
wrong.   Is that what you’re saying?
JUROR STRACK:  Well, it’s either that way or I’m
to presume Detective Zimmerman’s a liar.
[DEFENDANT’S   COUNSEL]:   Well,   do   you
understand that you’re to weigh what the facts are?
JUROR STRACK:   Oh, yeah.
[DEFENDANT’S  COUNSEL]:   And  that  there  is
this  presumption  of  innocence.     Are  you  saying  the
presumption of innocence does not apply; is that correct?
JUROR STRACK:   Okay.
[DEFENDANT’S COUNSEL]:   You can accept --
4




No. 98-2460-CR
JUROR STRACK:   I’m going to be leaning towards
what he says.
[DEFENDANT’S   COUNSEL]:   Because   he’s   a
police officer?
JUROR STRACK:   Correct.
[DEFENDANT’S COUNSEL]:   And because he’s a
police officer, he has to be telling the truth; is that correct?
JUROR STRACK:   No.  But --
[DEFENDANT’S  COUNSEL]:   Can  you  clarify
that position of yours then.
JUROR  STRACK:   I  think  there  are  a  series  of
checks and balances probably that he has to, you know, it’s
not him and him alone.   However, I believe that it wouldn’t
get to this point.
[DEFENDANT’S COUNSEL]:   Do you understand
that the system of checks and balances includes the jury
and that you’re the decision makers, not the police officer
who arrests somebody on the street, but the jury are the
ultimate decision makers as to --
JUROR STRACK:   I’m saying he had a reason to
make the arrest.
[DEFENDANT’S  COUNSEL]:   Even  if  he  had
reason  to  make  the  arrest,  do  you  then  jump  to  the
conclusion that these people that are sitting before you are
guilty of a crime?
JUROR  STRACK:   I’d  have  to  hear  something
pretty good from that side, yeah.
[DEFENDANT’S COUNSEL]:   You’d have to hear
something good from the defense?
JUROR STRACK:   From you.
[DEFENDANT’S COUNSEL]:   Do you understand
that part of the law that Judge Sykes is going to give you is
that there is no burden on the defense, that it’s not for the
defense to provide you with any information, and we need
not provide you with anything and that the full burden rests
upon  [the  assistant  district  attorney]  to  prove  beyond  a
reasonable doubt that Mr. Love received stolen property
beyond a reasonable doubt.   Do you understand that that
full burden rests with [the assistant district attorney]?
JUROR STRACK:   Yes.
[DEFENDANT’S COUNSEL]:   And that right now
you  agree that Mr.  Love is innocent; isn’t that  correct?
5




No. 98-2460-CR
You got to believe that in your heart.   Do you believe that
in your heart?   This is an innocent man sitting here?
JUROR STRACK:   No.
[DEFENDANT’S   COUNSEL]:   So   what   Judge
Sykes told you the law is, you   can’t accept the law?   Are
you refusing to accept your oath as a juror that you took
earlier today?
….
[DEFENDANT’S  COUNSEL]:   …  They  did  take
an earlier oath though to tell the truth during this voir dire
process.   And Judge Sykes told you that the law is that this
man is presumed innocent.   Did you accept that as the law?
JUROR STRACK:   That’s the way it’s done, yeah.
[DEFENDANT’S   COUNSEL]:   Well,   do   you
accept the fact that the [sic] Mr. Love is innocent?
JUROR STRACK:   Yeah, okay.   He’s innocent.
[DEFENDANT’S COUNSEL]:   And that the state
has to overcome that presumption of innocence.
JUROR STRACK:   Correct.
[DEFENDANT’S COUNSEL]:   By proof beyond a
reasonable doubt?
JUROR STRACK:   Correct.
[DEFENDANT’S  COUNSEL]:   Do  you  think  it’s
unfair that [the assistant district attorney] has to prove that
Mr.  Love  is  anything  but  innocent  by  proof  beyond  a
reasonable doubt?
JUROR STRACK:   No.   I think he probably can do
it.
[DEFENDANT’S COUNSEL]:   You think he can
overcome  that  presumption;  is  that  what  you’re  saying?
You have heard no facts in this case yet, have you?
JUROR STRACK:   Well, no, of course not.
[DEFENDANT’S  COUNSEL]:   And  part  of  what
you  have  to  do  is  hear  facts  before  you  can  reach
conclusions, correct?
JUROR  STRACK:   The  conclusions  that  I  have
reached  is  that  we  wouldn’t  be  here  unless  something
occurred.
[DEFENDANT’S  COUNSEL]:   Your  Honor,  I’m
going to ask that Mr. Strack be stricken for cause.
6




No. 98-2460-CR
THE COURT:   I’m not going to entertain that at
this point.   I think there is perhaps a misconception at work
here between the attorney and the juror.   The presumption
of innocence is a legal presumption that the jury is required
to   apply,   and   it   exists   for   obvious   reasons   of   a
constitutional nature, that it is the state’s burden to prove
the defendant guilty beyond a reasonable doubt, and the
jury must be made to understand that they have to apply
that legal presumption, the presumption of innocence, in
order to hold the state to that burden of proving each and
every element of the offense beyond a reasonable doubt
before the end of a case a juror independently or as a jury
in a group of 12 jurors can ever vote to convict somebody
of a crime.   And so you need to be committed as a juror to
apply presumption of innocence and to hold the state to the
burden of proof the law requires it in order to convict the
defendant which is proof beyond a reasonable doubt.
Do you think you can do that, sir, regardless of what
kind of thoughts are going through your mind about what
the  investigation  in  this  case  might  or  might  not  have
involved and what the prior proceedings in this case might
or might not have involved based upon your knowledge of
how the system works?
JUROR STRACK:   Yeah, okay.
THE  COURT:   I  mean,  it  sounds  to  me  you’re
making some assumptions of what has preceded this day in
the life of this prosecution and in the life of this criminal
investigation.                                                       What  you  need  to  do  is  put  those
assumptions to the side, whatever they are based on, and
commit yourself to applying the presumption of innocence
which is a legal presumption, and it’s an abstraction to a
certain extent, but it is a legal presumption you are required
to apply as well as to hold the state to its burden of proof
factually  and  apply  that  burden  of  proof  beyond  a
reasonable  doubt  to  the  state  when  you  evaluate  the
evidence at the end of the case.   Do you think you can do
that?
JUROR STRACK:   (Nods head.)
THE COURT:   That’s a yes?
JUROR STRACK:   Yes.
THE COURT:   Thank you.
….
[CO-DEFENDANT’S    COUNSEL]:   And    Mr.
Strack, back to you.   I don’t want to pick on you because
we have gone through quite a bit of questioning already.   I
7




No. 98-2460-CR
just want to make sure that everybody understands, that the
law is gonna -- the judge is gonna instruct you on the law
and  gonna  instruct  you  to  essentially  say  that  neither
defendant has any burden to prove anything, to put any
case on whatsoever, so that the defendants never have to
testify.   They never have to call a witness.   Nobody has to
ask any questions really, and you said at one point during
the  questioning  that  the  defense  would  have  to  put
something up pretty good to convince you that they didn’t
do this, didn’t do what they are charged with.    Do you
understand that that’s what the judge is going to instruct
you on; do you understand that?
JUROR STRACK:   Yeah, I understand your words.
They have witnesses, correct?
[CO-DEFENDANT’S COUNSEL]:   Well --
JUROR STRACK:   And they will be on the stand,
correct?
[CO-DEFENDANT’S  COUNSEL]:   That  remains
to  be  seen,  but  what  you  have  to  understand  is  neither
defendant has the obligation to call a witness or present any
evidence.
JUROR STRACK:   Okay.   I understand that.   They
can say something in rebuttal.   True or false?
[CO-DEFENDANT’S COUNSEL]:   Well, they can
if they want to, but what I’m asking you to at least agree
with me on, do you understand that the judge is going to
instruct you that that’s the law?
JUROR STRACK:   Yeah.
[CO-DEFENDANT’S  COUNSEL]:   Okay.     Can
you live with that?
JUROR STRACK:   Sure.
[CO-DEFENDANT’S COUNSEL]:   You can, okay.
¶11    When a trial court engages in the exercise of “striking for cause” an
individual prospective juror for lack of impartiality, a question of historical fact
arises.   The question for the trial court to determine is did the juror swear that he
or she could set aside any opinion he or she might hold or entertain and decide the
case on the evidence and the instructions given by the court.   See Patton v. Yount,
467  U.S.  1025,  1036  (1984).    This  fact  determination  is  essentially  one  of
8




No. 98-2460-CR
credibility, sometimes highly influenced by demeanor.   As observed by the Patton
court:
It is well to remember that the lay persons on the panel may
never have been subjected to the type of leading questions
and cross-examination tactics that frequently are employed
….    Prospective  jurors  represent  a  cross-section  of  the
community,  and  their  education  and  experience  vary
widely.   Also, unlike witnesses, prospective jurors have had
no briefing by lawyers prior to taking the stand.   Jurors thus
cannot  be  expected  invariably  to  express  themselves
carefully   or   even   consistently.                                                    Every   trial   judge
understands this.   The trial judge properly may choose to
believe those statements that were the most fully articulated
or that appear to have been least influenced by leading.
Id. at 1039.
¶12    Juror Strack’s responses to Love’s trial counsel’s statements and
inquiries cast initial doubt about his impartiality.   The trial court quite obviously
witnessed  the  exchange  between  defense  counsel  and  the  prospective  juror.
Love’s counsel requested that Strack be struck for cause.   The trial court put off a
decision  on  the  request  and,  as  set  forth  above,  advised  Strack  about  his
responsibilities as a juror.   The court, in effect, asked for a commitment from
Strack that he would apply the presumption of innocence and make the State meet
its burden of proof.   Strack’s response was “Yeah, okay.”   Continuing, the court
then  asked  Strack  if  he  could  put  aside  any preconceived  assumptions  when
examining the evidence and still hold the State to its burden of proof.   First he
nodded and then responded, “Yes.”
¶13    Later,  when  advised  by  Johnson’s  trial  counsel  that  neither
defendant had any burden to prove anything or to testify, Strack was asked if he
understood that the court would instruct him “that that’s the law” and if he could
9




No. 98-2460-CR
live with that.   He replied, “Sure.”   Subsequent to this exchange, the trial court
denied Love’s request to strike Strack for cause.
¶14    When reviewing a trial court’s action, if the trial court fails to make
a factual finding that appears from the record to exist, we may assume facts to
support the decision and any conflicts or conflicting inferences will be resolved in
favor of the trial court’s ultimate conclusion.   See State v. Angiolo, 186 Wis.2d
488, 495, 520 N.W.2d 923, 927 (Ct. App. 1994).
¶15    From a raw reading of the voir dire transcript, Strack’s responses
could  be  assigned  either  a                                                             “Yes”  or  a   “No”  answer  to  whether  he  was  a
“reasonable  person  who  is  sincerely willing  to  put  aside  an  opinion  or  prior
knowledge.”   The trial court had to decide to which responses of the prospective
juror it would give more weight based on what it heard and observed.   Just as a
jury is at liberty to make findings of credibility without explication, so may a
judge sitting as a finder of fact.   See United State v. Harris, 507 F.2d 197, 198 (3d
Cir. 1975).   We cannot replicate the occasion and, hence, we must recognize the
special deference accorded the discretionary determinations of the trial court when
finding facts relating to striking a juror for cause.   Without explication by the trial
court, we can draw no other inference but that “demeanor” was the determining
factor in the court’s refusal to strike Strack for cause.   From the record, we cannot
conclude that the trial court’s inferred findings are clearly erroneous or that the
trial court erroneously exercised its discretion.
¶16    The question remains then whether a reasonable person in Strack’s
position could set aside any expressed “opinion or prior knowledge.”   The mere
expression of tentative opinions or impressions acquired from other sources is not
necessarily a disqualifying factor.   The mere existence of a preconceived notion as
10




No. 98-2460-CR
to the guilt or innocence of an accused, without more, is insufficient to rebut the
presumption of a prospective juror’s impartiality.   To hold otherwise would be to
establish an impossible standard.   It is sufficient if the juror can lay aside his or her
impression or opinion and render a verdict based on the evidence presented in
court.   See Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).
¶17    Every prospective juror comes to jury service with the experiences
of their everyday life.   From these experiences, judgments and impressions are
formed.    Jurors’ impressions about the administration of justice can be varied.
Only when a juror’s opinions are so deeply rooted, as evidenced by responses
during voir dire, that no amount of reasonable admonition will properly level the
playing  field  will  we  conclude  that  no  reasonable  person  can  put  aside  the
predilection or bias.
¶18    The record here does not present that point of no return.   The trial
court was cautious and deliberate in exploring Strack’s opinions and impressions.
After explaining a juror’s obligation, the court asked for a commitment from
Strack.   It received such twice, however in-artfully expressed.   In the context of
this case, we conclude that a reasonable person could put aside the commonplace
types of opinions and impressions expressed by Strack.   The two-part Ferron test
has been met.
B.  Insufficient Evidence.
¶19    Love next contends that the evidence was insufficient to establish he
was  guilty  of  receiving  stolen  property.     In  reviewing  a  challenge  to  the
sufficiency of the evidence, we:
may not substitute  [our] judgment for that of the trier of
fact unless the evidence, viewed most favorably to the state
11




No. 98-2460-CR
and the conviction, is so lacking in probative value and
force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.   If any possibility
exists that the trier of fact could have drawn the appropriate
inferences from the evidence adduced at trial to find the
requisite guilt, an appellate court may not overturn a verdict
even if it believes that the trier of fact should not have
found guilt based on the evidence before it.
See State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990)
(citation omitted).   Under this standard of review, we conclude that the record is
sufficient to uphold the conviction.
¶20    To convict Love of receiving stolen property the State had to prove
that:                                                                                       (1) he, or a person with whom he was a party to the crime, intentionally
received the GMC van or acquired control of it;  (2) the GMC van was stolen
property at the time it was received; and (3) when the GMC van was received, he
knew it was stolen.
¶21    The record reveals the following.    On May  20,  1996, the victim,
McDowell, was sitting in his GMC van parked at a gas station located at 1432
West Locust Street in the City of Milwaukee.    Co-defendant Johnson and an
unidentified person approached the van.   Johnson pointed a handgun at McDowell
and ordered  him out of  the van.    Johnson  yanked a  gold chain from around
McDowell’s neck.   Johnson and his companion then drove off in the van going
north toward Burleigh Street.   An attendant at the gas station who witnessed the
incident called 911.
¶22    At approximately  1:23 a.m., shortly after the reported robbery, a
police  officer  on  patrol  in  the  area,  observed  the  stolen  van  behind  a  green
Chevrolet Suburban.   His attention was drawn to the two vehicles because of their
proximity to each other and their high rate of speed.   He attempted to follow them
12




No. 98-2460-CR
but, because of the route they traveled, he lost sight of them when they turned west
onto Keefe Avenue.
¶23    Bruce Smith lived in the 4300 block of North 15th Street, about a
four or five minute drive from the site of the robbery.   He heard the slamming of
car doors in the alley behind his home.   He observed two or three men moving
things from a van to a Suburban.   Because he believed the men were stripping the
van, he called 911.   When the police responded, they observed the van and the
Suburban parked next to each other.   They observed three men.   When the men
saw the officers, they fled on foot.   The three were co-defendant Johnson, Love,
and Nathaniel Beardon.  All three were apprehended after a short pursuit.
¶24    Police brought the three back to the alley where the two vehicles
were  located.  Police  also  had  conveyed  McDowell  to  the  alley.    McDowell
identified Johnson as the person who had pointed the gun at him and taken his van.
He could not identify the second man who was originally with Johnson.
¶25    When the police searched Love, they found an auto alarm pager in
his  pocket  which  had  been  taken  from  the  van.    When  police  searched  the
Suburban, which belonged to Love, they found a stereo taken from the van, and
the gold chain which had been yanked from McDowell’s neck.   Lastly, the police
recovered a leopard-print facemask from the Suburban.   The gas station attendant
who witnessed the robbery had reported that one of the assailants wore a leopard-
print bandanna.
¶26    From this summary, it is evident that Love and his co-defendant had
acquired control or received the van either at the gas station or in the alley where
they began to strip the van of either equipment or personal property belonging to
McDowell.   There is no doubt that McDowell’s van was stolen.   From Love and
13




No. 98-2460-CR
Johnson’s driving pattern and subsequent actions, a reasonable inference can be
drawn that they knew the van was stolen.   The record is sufficient to support a
conviction for receiving stolen property.
C.  Sentencing.
¶27    Finally, Love claims that the trial court erroneously exercised its
sentencing  discretion  when  it  focused  exclusively on  the  uncharged  crime  of
armed robbery without giving any consideration to the charged crime of receiving
stolen property.   The court sentenced Love to seven years for receiving stolen
property; whereas, it sentenced Johnson to twenty-five years for armed robbery, as
a repeater.
¶28    A trial court, when imposing a sentence for one crime, may consider
other uncharged and unproven offenses, since the other offenses are evidence of a
pattern of behavior,  which is an index of the defendant’s character--a critical
factor in sentencing.   See Elias v. State, 93 Wis.2d 278, 284, 286 N.W.2d 559, 562
(1980).
¶29    In its sentencing remarks, the trial court opined it was not restricted
in its sentencing evaluation to just the particular facts and circumstances that
supported  the  conviction,  but  rather,  could  take  into  account  the  total
circumstances giving rise to the car-jacking and the receipt of stolen property.   In
sentencing each defendant, the trial court did differentiate between the nature of
each conviction, but certainly acted within the proper parameters of its sentencing
discretion.   The court did not err and we sustain its sentence.
By the Court.—Judgment and order affirmed.
Recommended for publication in the official reports.
14

Download 14423.pdf

Wisconsin Law