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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 1, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0005-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
VICTOR YANCEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Victor Yancey has appealed from a judgment convicting
him, following a jury trial, of the armed robbery of Titus Ricks, in violation
of § 943.32(1)(b) and (2), Stats. He was sentenced to eight years in
prison. He was acquitted by the jury of
the armed robbery of Titus's mother, Bankie Ricks.
Appellate counsel for
Yancey has filed a no merit report pursuant to Rule 809.32, Stats.,
and Anders v. California, 386 U.S. 738 (1967). Yancey was served with a copy of the report
and has filed a response. Based upon an
independent review of the record and response as required by Anders
and Rule 809.32, we conclude that
no issue of arguable merit could be raised on appeal. The judgment of conviction therefore is affirmed.
Counsel's no merit
report discusses eight issues: (1)
whether the trial court erred in determining that statements made by Yancey's
father to a police detective were admissible under hearsay rules; (2) whether
the trial court erroneously exercised its discretion when it permitted a
photograph of Yancey, described by counsel as a "mug shot," to be
introduced as an exhibit at trial; (3) whether the trial court erroneously
exercised its discretion when it permitted the photograph to be reviewed by the
jury during its deliberations; (4) whether the evidence was sufficient to
support the verdict; (5) whether trial counsel rendered ineffective assistance
when he failed to request an instruction on attempted armed robbery or to
object to the prior statement of Yancey's father on confrontation grounds; (6)
whether the State was improperly permitted to amend the information before
trial to add the charge of armed robbery of Titus Ricks to the charge of armed
robbery of Bankie Ricks; (7) whether a new trial was warranted on the ground
that Titus Ricks was coerced into testifying against Yancey; and (8) whether
the trial court properly exercised its discretion when it sentenced Yancey to
eight years in prison.
Counsel's analysis of
issues two through eight and her determination that they lack arguable merit
are correct. In regard to the first
issue dealing with the statement given by Yancey's father to a police
detective, counsel applied a harmless error analysis, contending that even if
the trial court arguably erred in determining that the statement made by
Yancey's father was a prior inconsistent statement, its admission was harmless.
We need not resolve
counsel's harmless error argument because we conclude that the prior statement
was properly admitted by the trial court.
At trial, Yancey's father testified that he did not remember telling a
police detective that Yancey told him about the robbery and that it occurred
because of a drug deal, and did not remember telling the detective that he gave
his son $70 to return to the Ricks' family.
Counsel points out in her no merit report that when a witness states
that he does not remember making a statement, it is not the same as denying
making the statement. However, the
testimony of Yancey's father went further.
When asked if he could have made such a statement to the detective,
Yancey's father stated: "No. If I did, I would have remembered it, so I
didn't."
Because Yancey's father
expressly denied making a statement to the detective indicating that Yancey had
implicated himself in the robbery, the statement to the detective constituted a
prior inconsistent statement and was not hearsay. See § 908.01(4)(a)1, Stats. Moreover,
while the statement made by Yancey's father to the detective related statements
made by Yancey, these circumstances did not render it inadmissible because
statements by a party are not hearsay. See
§ 908.01(4)(b)1, Stats.
In his response, Yancey
raises several issues and contends that the judgment of conviction must be
reversed or the matter remanded for further proceedings. Initially, he contends that he was denied
his right to effective assistance of counsel and to select his own defense
because, rather than arguing mistaken identity and that Yancey did not commit
the crime, Yancey's trial counsel chose to argue that only one robbery had
occurred, rather than two. However, a
review of the record reveals that the primary focus of trial counsel's defense
was that Yancey did not commit the crime.
In both opening and closing argument, the testimony of the defense
witnesses, and the cross-examination of the State's witnesses, trial counsel's
defense was that Yancey did not commit the robberies and that the Ricks family
was mistaken in identifying him. Trial
counsel's closing argument merely added that, if the jury found that Yancey was
the perpetrator of the offense, they could find him guilty only of robbing
Titus Ricks, and not of robbing Bankie.
The record thus gives rise to no arguable basis for concluding that
Yancey's rights were violated by defense counsel's actions, particularly since
they apparently led to Yancey's acquittal on one of the counts.
Yancey also argues that
he did not know who or where he was when he was arrested, and that he was
taking different medications and could not "think straight" at the
time of the trial. Since nothing in the
record supports these allegations, or provides any arguable basis to conclude
that Yancey's ability to understand the proceedings against him or to
participate in his defense were impaired, these contentions provide no basis
for relief.
Yancey also objects that
he was provided with a preliminary hearing only on the charge that he robbed
Bankie Ricks, and did not have a preliminary hearing on the charge that he
committed an armed robbery of Titus Ricks.
He also objects to the amendment of the information on the day of trial
to include the charge of armed robbery of Titus Ricks.
Counsel correctly
analyzed this issue in her no merit report when she pointed out that the
inclusion of the new charge in an information was proper because the testimony
of Bankie Ricks at the preliminary hearing established probable cause to
believe that Yancey had committed two armed robberies by taking property from
both Bankie and Titus. Inclusion of the
additional armed robbery charge in the information was proper because a
prosecutor may file any charge in an information as long as it is
transactionally related to a count on which bindover was ordered. See State v. Akins, 198 Wis.2d 495, 499, 544 N.W.2d 392, 393
(1996).
The fact that the
information was amended to include the second count on the day of trial does
not render it invalid. Amendments to an
information may be permitted with leave of the trial court and within a
reasonable time after arraignment, provided the defendant's rights are not
prejudiced. Whitaker v. State,
83 Wis.2d 368, 374, 265 N.W.2d 575, 579 (1978). In this case, no basis exists to conclude that Yancey was
prejudiced because the second charge arose out of the same incident and
evidence as the first, Yancey's misidentification and alibi defense were the
same for both charges, and the witnesses for both the State and the defense
were the same for both charges.
Moreover, at a scheduling conference held in the trial court on December
20, 1994, which was eight days after the preliminary hearing and more than two
months before trial, defense counsel and the prosecutor discussed the fact
that, before the case went to trial, an amended information including the count
related to the robbery of Titus Ricks would be forthcoming. No arguable basis therefore exists to
conclude that Yancey was surprised or prejudiced by the amendment.
Yancey also objects that
he was never identified in a lineup, and that the photograph used in the
pretrial identification photo array should not have been admitted into evidence
at trial because it was a mug shot and implied to the jury that he had a
criminal record. Both of these
arguments are without arguable merit.
The law does not require a lineup.
See State v. Isham, 70 Wis.2d 718, 724-25, 235
N.W.2d 506, 510 (1975). Moreover, the
admission or exclusion of evidence lies within the discretion of the trial
court and will not be disturbed absent an erroneous exercise of
discretion. State v. Mordica,
168 Wis.2d 593, 602, 484 N.W.2d 352, 356 (Ct. App. 1992).[1] Relevant evidence generally is admissible,
but may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. See id.
at 604, 484 N.W.2d at 356.
Yancey's primary defense
at trial was that the Ricks family misidentified him as the perpetrator of the
robbery. The photo of Yancey used in
the array was relevant to establish the credibility of members of the Ricks
family, who told police immediately after the robbery that Yancey was the
person who robbed them. Their
credibility was enhanced by evidence that, after telling police that they knew
the perpetrator was Victor Yancey, they were able to select his photograph from
a photo array.
The trial court acted
within the scope of its discretion in determining that any danger that the jury
would infer from the photo that Yancey had a criminal record could be
ameliorated by a limiting instruction.
The trial court gave such an instruction here, instructing the jurors
that there are many reasons why a photograph like this might exist, and that
they must not draw any negative inference about the defendant based upon
it. Because jurors are presumed to
follow a proper admonitory instruction, no arguable basis exists to conclude
that the trial court erroneously exercised its discretion by admitting the
photograph into evidence. See State
v. Lukensmeyer, 140 Wis.2d 92, 110, 409 N.W.2d 395, 403 (Ct. App.
1987).
Yancey next argues that
the police never obtained a search warrant to search his house, and that this
proves that he was not the person who committed the crime. This argument provides no basis for relief
because no physical evidence was ever offered or introduced into evidence at
trial. In fact, at trial, testimony
indicated that no physical evidence connecting Yancey to the crime was ever
found. Since no evidence therefore existed
which could have been the subject of a motion to suppress, and since evidence
was placed before the jury indicating that the police were unable to find
physical evidence connecting Yancey to the crime, Yancey's allegations
concerning a search warrant provide no arguable basis for challenging his
conviction.
Yancey also raises
arguments concerning the sufficiency of the evidence to support his
conviction. He argues that no physical
evidence connected him to the crime, that inconsistencies existed in the
testimony of members of the Ricks family, and that some of the Ricks testified
that they saw Yancey in the summer of 1994, which he alleges was impossible
because he was incarcerated. He also
objects that all witnesses to the crime did not testify, and that the mother of
his alibi witness was not called to testify.
Absent a showing that
the additional witnesses referred to by Yancey would have added any material
testimony to the record, their absence gives rise to no arguable basis for
relief on appeal. In addition, in
arguing that Yancey was misidentified, defense counsel pointed out to the jury
that no physical evidence connected Yancey to the crime, that inconsistencies
existed in the testimony of the prosecution's witnesses, and that their
description of their assailant was inconsistent with evidence indicating that
Yancey was limping because of an injured leg on October 19, 1994, the day the
crime occurred. Defense counsel also
presented evidence that Yancey was not in Milwaukee during the summer of 1994,
when some of the Ricks claimed to have seen him. However, the weighing of the evidence and resolution of conflicts
in the testimony was for the jury. State
v. Poellinger, 153 Wis.2d 493, 506, 451 N.W.2d 752, 757 (1990). Because credible evidence supports the
jury's verdict, it cannot be disturbed by this court. See id. at 507, 451 N.W.2d at 757-58.
Yancey's remaining
argument is that the trial court asked him whether he wanted a mistrial when
jurors saw him "locked up" during deliberations, but that his trial
counsel preferred that he not take it. He
also contends that his brother has delivered him a message indicating that
Titus Ricks told him that he was not certain of his identification when he
identified Yancey in court. He further
represents that Titus Ricks "is willing to talk to somebody. He stated he saw the person who did
it."
Neither of these issues
provides a basis for relief. Nothing in
the record indicates that the jurors observed Yancey restrained in any way, or
what actions were taken in response to such an observation if it occurred. In addition, the allegations regarding Titus
Ricks are second-hand, unclear and unsubstantiated. No arguable basis exists to order further proceedings or disturb
the judgment of conviction based on such unsupported and vague
allegations.
This court's independent
review of the record discloses no other potential issues for review. The judgment of conviction therefore is
affirmed and Attorney Ellen Henak is relieved of any further representation of
Yancey on appeal.
By the Court.—Judgment
affirmed.