COURT OF APPEALS DECISION DATED AND RELEASED September 10, 1996 |
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. 95-2638-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALONZO R. PERRY,
Defendant-Appellant,
LUEGENE HAMPTON,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
STANLEY A. MILLER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Alonzo Perry appeals his conviction on one count of
first-degree intentional homicide, party to a crime, see §§ 940.01(1)
and 939.05, Stats., two counts of
attempted first-degree intentional homicide, party to a crime, see §§
940.01(1), 939.05 and 939.32, Stats.,
and one count of armed robbery, party to a crime, see §§ 943.32(1)(a)
and 939.05, Stats. Perry raises three issues on appeal: (1) whether the trial court misused its
discretion when it denied his motion to admit the transcript of testimony given
at the trial of a co-actor when the witness invoked his right against
self-incrimination and was thus “unavailable” to testify at Perry's trial, see
Rules 908.04(1)(a)
and 908.045(1), Stats.; (2)
whether the trial court misused its discretion by sentencing Perry to the
mandatory life sentence for a Class A felony when there was evidence to suggest
that he was not the “prime shooter”; and (3) whether the trial court's denial
of Perry's motion to suppress his statements to police was a misuse of
discretion. We affirm.
I.
This case arises out of
an incident that occurred shortly before 2:30 a.m. on August 13,
1994. City of Milwaukee police officers
patrolling in a squad car heard gun shots and saw muzzle flashes along a
sidewalk outside a tavern. As the
officers approached the scene with their squad-car lights unlit, they saw one
man lying in the street behind a blue Cadillac, and two males standing closer
to the car. Both of the men standing
near the car were dressed in black clothes, and wore knit ski masks. The police also saw that both of the men
were carrying handguns. Upon seeing the
squad car, both men fled on foot and were chased by the two police
officers. They were caught and
immediately arrested. The two males
were later identified as Perry and his half-brother Luegene Hampton.
Michael Moore testified
that he and Walter Parker had just left a tavern with their friend Harry
Roberts. According to Moore, Roberts
owned the blue Cadillac, and as they were getting in the car, they were robbed
and shot by armed gunmen wearing clothes and ski masks identical to those worn
by Perry and Hampton. Moore sustained
several gunshot wounds but survived.
Roberts died as a result of his wounds.
Police officers
testified at the suppression hearing that Perry was advised of his Miranda
rights, after which he agreed to make a statement. Perry admitted that he was involved in the robbery. The officers who questioned Perry testified
that he understood the questions asked of him during their interviews, and that
he freely and voluntarily waived those rights.
One of the officers testified that he wrote down Perry's statement and
then read it to Perry verbatim, after which Perry signed it. Perry and Hampton were tried separately.
II.
A. Perry's
first claim of error is that the trial court erroneously exercised its
discretion by applying the hearsay rule to bar receipt of Jonathan Burnley's
testimony given during Hampton's trial.
When Perry called Burnley to testify during his trial, Burnley invoked
his Fifth Amendment privilege. He was
therefore unavailable. See Rule 908.04(1)(a), Stats.
Perry then sought to have a transcript of Burnley's Hampton-trial
testimony admitted. See Rule 908.045(1), Stats.
During Hampton's trial, Burnley had allowed a brief direct examination
by the State before he invoked his Fifth Amendment privilege. Perry concedes in his brief that the State's
direct examination of Burnley at Hampton's trial ended abruptly and prematurely
by Burnley's invocation of the privilege.
The decision to admit or
exclude evidence rests within the discretion of the trial court and will not be
upset unless that discretion is erroneously exercised. State v. Stevens, 171 Wis.2d
106, 111, 490 N.W.2d 753, 756 (Ct. App. 1992); State v. Barksdale,
160 Wis.2d 284, 287, 466 N.W.2d 198, 199 (Ct. App. 1991). Perry argues that the admission of Burnley's
testimony from the Hampton trial was necessary to protect his right to confront
witnesses. He further contends that the
incomplete direct examination of Burnley at the prior proceeding was adequate
enough to give the statement such indicia of reliability that it should have
been admitted into evidence.
We do not address
Perry's arguments. As the State
correctly points out, Perry has failed to present us with an adequate appellate
record. The transcript of Burnley's
testimony at the Hampton trial is not included in the appellate record. We are limited to matters in the record. State v. Pettit, 171 Wis.2d
627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).
Although Perry includes a portion of the prior testimony in the appendix
to his brief, we cannot consider any materials in an appendix that are not in
the record. State v. Smith,
100 Wis.2d 317, 322, 302 N.W.2d 54, 56 (Ct. App. 1981), overruled on other
grounds, State v. Firkus, 119 Wis.2d 154, 350 N.W.2d 82
(1984); State v. Aderhold, 91 Wis.2d 306, 314, 284 N.W.2d 108,
112 (Ct. App. 1979).
B. Perry's
second claim of error is his contention that the trial court misused its
discretion by sentencing Perry to the mandatory life sentence for his
conviction of first-degree intentional homicide as party to a crime. Perry contends that because there was
evidence to suggest that he was not the “prime shooter,” the trial court
erroneously exercised its discretion by imposing a life sentence, even though
Perry was convicted of a “Class A” felony.
Ordinarily, this court applies a standard of review deferential to the
discretion of the sentencing judge. Ocanas
v. State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). In this case, however, the trial court had
no discretion to impose anything other than the mandatory life sentence for a
Class A felony. Section 939.50(3)(a), Stats.
A lawful conviction as party to a crime makes Perry as liable as the
principals who directly committed the crime.
See § 939.05, Stats.;
State v. Ivy, 119 Wis.2d 591, 605, 350 N.W.2d 622, 630 (1984); State
v. Cydzik, 60 Wis.2d 683, 688, 211 N.W.2d 421, 425 (1973). Perry was convicted of a Class A
felony. Therefore, the trial court could
have imposed only one sentence: life
imprisonment, which it properly did.
C. The third
claim of error is Perry's contention that the trial court misused its
discretion when it denied the defense motion to suppress statements that Perry
made to the police shortly after he was arrested. The standard of review is whether the findings of historical fact
made by the trial court are clearly erroneous.
See Rule 805.17(2),
Stats., made applicable to
criminal proceedings by § 972.11(1), Stats. Questions of law including whether the
defendant's constitutional rights were protected require independent appellate
review. State v. Turner,
136 Wis.2d 333, 344, 401 N.W.2d 827, 832–833 (1987). A defendant's statement is voluntary if it was the product of a
free and rationale choice under the totality of the circumstances. State v. Moats, 156 Wis.2d 74,
94, 457 N.W.2d 299, 308 (1990).
The trial court heard
testimony from detectives at the suppression hearing that it found credible
indicating that they administered Miranda warnings, which Perry
understood and waived. Perry makes the
claim that somehow his waiver was ineffective because he had smoked a marijuana
cigarette laced with cocaine eight hours earlier. Yet, Perry conceded that when he was asked by detectives at the
time of questioning whether he was under the influence of drugs or alcohol, his
answer was “no.” He testified that he
lied to the police because he “didn't want to bring it up.” The trial court's findings of historical
fact are not clearly erroneous. Based
on our independent review of the constitutional facts, the trial court properly
denied the suppression motion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.