COURT OF APPEALS DECISION DATED AND RELEASED August
31, 1995 |
NOTICE |
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. 94-3440-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JEFFREY
A. COBB,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: JACK F. AULIK, Judge. Reversed and cause remanded with
directions.
Before
Eich, C.J., Sundby and Vergeront, JJ.
PER
CURIAM. Defendant, Jeffrey A. Cobb,
acted as a drug informant for the Dane County Narcotics Enforcement Team and
the City of Fitchburg Police Department.
However, the police concluded that Cobb had made unauthorized drug
deals. Detective Summers forwarded this
case to the district attorney for prosecution.
The
State concedes that Cobb was denied a jury trial on all the elements of the
offense of delivery of cocaine as a party to the crime. The State concedes that State v.
Villarreal, 153 Wis.2d 323, 450 N.W.2d 519 (Ct. App. 1989), requires
that the defendant must waive on the record his or her right to a jury trial
when the court removes any element of the crime from the jury's
consideration. Plainly, Cobb is
entitled to a new trial.
However,
the State requests this court to decide that the trial court properly refused
to give a privilege instruction requested by Cobb. Any such advice on our part would be gratuitous. Cobb joins in the State's request because a
decision on that issue will be needed to provide guidance to the trial court at
the new trial. We decline to give such
advice because Cobb's request for such an instruction will undoubtedly be based
at the new trial on different facts.
Surely, Cobb will attempt to construct a record which will provide
greater justification for the instruction.
We therefore decline the parties' invitations.
However,
this court may not accept the state's concession of error without satisfying
ourselves that the concession is properly made. Rudolph v. State, 78 Wis.2d 435, 447, 254 N.W.2d
471, 476 (1977) ("We deem it to be the duty and responsibility of this
court to carefully examine the record before setting aside a conviction, even
where error has been confessed ...."), cert. denied, 435 U.S. 944
(1978). We agree with the State that State
v. Villarreal requires that the defendant waive proof of an element of
the crime personally and on the record.
By
the Court.--Judgment and order
reversed and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.