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COURT OF APPEALS DECISION DATED AND FILED January 31, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No.
2002CF651 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Willie E. Harris, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Milwaukee County: michael b. brennan, Judge. Affirmed.
Before Wedemeyer, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. A jury convicted
Willie E. Harris of possession of cocaine with intent to deliver, as a
party to a crime, a violation of Wis.
Stat. §§ 961.41(1m)(cm)1 and 939.05 (2001-02).[1] Harris filed a postconviction motion seeking
a new trial, arguing that because the circuit court accepted a stipulation at trial
that the substance was cocaine without conducting a jury-trial waiver, he was
denied his right to a jury trial on each element of the charge against
him. The circuit court denied the
motion, reasoning that Harris’s claim was controlled by State v. Benoit,
229 Wis. 2d 630, 640, 600 N.W.2d 193 (Ct. App. 1999), which held that
stipulation to one element of a charge does not constitute waiver of the right
to a jury determination on that element if the jury is instructed on the
element, and the court does not resolve the issue on its own. We agree with the circuit court that Benoit
is dispositive, and we therefore affirm.
¶2 Police observed Lamont Hoover and Harris in a
motor vehicle conducting a “hand-to-hand transaction of an unknown
object.” As they approached the
vehicle, the officers saw Harris, who was seated in the front passenger seat,
lean forward in a manner consistent with placing something under the front
seat. The police removed both men from
the vehicle. Under the passenger seat,
one of the officers discovered two plastic sandwich bags containing a white
substance, which the officers believed to be cocaine base. Police searched the vehicle and recovered
five more bags of the white substance.
Field tests indicated that the substance in all the bags was cocaine
base.
¶3 The substance was submitted to the State
Crime Laboratory for weighing and testing.
It submitted a report, which is not included in the record. There is no dispute, however, that the
report indicated that the substance recovered from Hoover and Harris was
cocaine base. Prior to trial, the State
offered Harris a written stipulation regarding the contents of the report, but
Harris initially declined.
¶4 Although the record is silent on when or how
Harris agreed to the stipulation, the State announced during opening
statetments that “[t]he parties have already agreed that the substance that
they have received, and they caught the defendant with was cocaine.” At the end of its case, the State presented
a stipulation signed by Harris, in which he agreed that the substance seized
from the car was “to a reasonable degree of scientific certainty … cocaine
base.” The record demonstrates that the
circuit court explained to the jury that the parties had agreed to certain
facts and read the stipulation to the jury.
¶5 When it instructed the jury, the circuit
court laid out the elements of the crime with which Harris had been charged,
including the element that requires proof that the substance was cocaine. It also instructed the jury that it should
find Harris guilty if it was “satisified beyond a reasonable doubt that the
defendant possessed cocaine, that the defendant knew or believed that the
substance was cocaine and that the defendant possessed the substance with the
intent to deliver it.” The jury found
Harris guilty, and the circuit court sentenced him.
¶6 Harris subsequently filed a postconviction
motion, requesting a new trial. He
argued that the circuit court should have conducted a colloquy with him
regarding the stipulation because the stipulation, which involved an element of
the offense, deprived him of his right to a jury trial on that element. See State v. Hauk, 2002
WI App 226, ¶31, 257 Wis. 2d 579, 652 N.W.2d 393. He argued that under Hauk,
when a defendant stipulates to an element of a crime, the circuit court must
conduct a personal colloquy with the defendant “to determine whether or not
[he] clearly indicate[s] [his] willingness and intent to waive [his] rights to
a jury trial on all elements of an offense.”
He maintained in the circuit court – as he does on appeal – that absent
such a colloquy, a new trial is required.
The circuit court denied the motion, reasoning that Benoit
requires a different result. We agree
with the circuit court.
¶7 In Benoit, the defendant was
charged with having been a party to a burglary. Prior to trial, Benoit and his trial counsel stipulated that the
owner of the property had not consented to the burglary, nonconsent being the
second element of burglary. 229
Wis. 2d at 634. At trial, Benoit
again told the the circuit court that he stipulated to the nonconsent
element. Id. at 635. In instructing the jury, the circuit court
pointed out that the parties had “stipulated or agreed to the existence of
certain facts, and you must accept these facts as conclusively proved.” Id. The circuit court subsequently noted that the owners had not
given their consent to the burglary. Id.
¶8 On appeal, Benoit argued that the circuit
court should have conducted a thorough colloquy with him on the nonconsent
element to ensure that he was knowingly, intelligently, and voluntarily waiving
his right to a jury trial on that element.
Id. at 636. He
maintained that, as a consequence, he was entitled to a new trial.
¶9 This court rejected Benoit’s argument, noting
that Benoit’s concession simply relieved the State from having to call the
owner to testify that he did not give Benoit permission to burglarize his
restaurant. Id. at
636-38. The court reasoned that Benoit
had waived only one issue – nonconsent – and the jury had still been instructed
on the nonconsent element. See id.
at 636-37. In addition, the jury made
“a complete and final determination of guilt based on the evidence
presented.” Id. at
637. As such, this court held that the
waiver on nonconsent “was a matter of expediency … not subject to such concerns
as juror prejudice, distraction or confusion of issues.” Id. at 640. We concluded that there are no “special
protections for a defendant seeking to stipulate to an element of a crime where
(1) the jury is instructed on the element and (2) the court does not resolve
the issue on its own.” Id.
¶10 Contrary to Harris’s argument, Hauk
is inapposite. In that case, Hauk’s
attorney indicated that Hauk “wished to stipulate to some of the elements of
bail jumping,” the crime with which she had been charged. 257 Wis. 2d 579, ¶8. The circuit court approved the stipulation
and, as a result, the “jury was not informed that Hauk was charged with bail
jumping and did not decide whether Hauk was charged previously with a felony or
misdemeanor, whether she was released from custody on bond, or whether she
intentionally failed to comply with the terms of her bond.” Id. The jury was asked “to determine only whether Hauk had committed
a crime.” Id. The court specifically rejected the State’s
argument that Benoit controlled, noting that the “holding in Benoit
… applies only when ‘the jury is instructed on the element[s].’” Hauk, 257 Wis. 2d 579, ¶33
n.8. We held that Benoit
was not dispositive for Hauk because Hauk’s jury “was not instructed on any of
the elements of bail jumping.” Hauk,
257 Wis. 2d 579, ¶33 n.8.
¶11 Here, Benoit is dispositive
because, as in this case, Harris simply conceded in the stipulation that the
substance seized by police was cocaine.
As in Benoit, the stipulation was a matter of expediency
“not subject to such concerns as juror prejudice, distraction or confusion of
issues.” Benoit, 229
Wis. 2d at 640. The circuit court
also instructed the jury on each element, including the requirement that the substance
was cocaine base, and the jury, not the court, determined whether the evidence
supported guilt on each element. Id. Harris did not waive his right to a jury
trial on any element, and he received the jury’s determination on each element.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.