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COURT OF APPEALS DECISION DATED AND RELEASED July 18, 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. 95-3074-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TOUCHIA YANG,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Monroe County:
MICHAEL J. McALPINE, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Counsel for Touchia Yang has filed a no merit report
and a supplemental no merit report pursuant to Rule 809.32, Stats. Yang was advised of his right to respond to
the reports and has elected not to respond.
Upon our independent review of the record as mandated by Anders v.
California, 386 U.S. 738 (1967), we conclude that there is no arguable
merit to any issue that could be raised on appeal.
Yang was convicted by a
jury of attempted first-degree intentional homicide, attempted armed robbery
and operating a vehicle without the owner's consent. Each of these crimes carried a penalty enhancer for their
connection to gang activity. The court
sentenced Yang to ten years in prison and a consecutive ten years'
probation.
The no merit report and
the supplemental no merit report address the sufficiency of the evidence,
whether the court properly admitted Yang's statements into evidence, whether
the court correctly ruled that the State's striking of the only Asian-American
juror was for reasons other than race and whether the sentence constituted a
proper exercise of discretion. We
confirm counsel's analysis of these issues.
The complaint charged
that Yang, along with other members of his gang, attempted to rob Bill's Gun
Shop, using a stolen car for their getaway.
The owner testified that two young men entered his store and one of them
pulled out a gun and announced that it was a holdup. The store owner pulled out a revolver and one of the perpetrators
fired a shot. The owner felt the heat
of the muzzle blast on his face. He
returned fire, striking one of the robbers.
The State also presented
testimony of Yang's accomplices who testified to his involvement in these
crimes. They indicated that the robbery
had been previously planned and the possibility of murdering the owner was
discussed. They testified that Yang
accompanied them to the gun shop and stayed in the car, fully aware that the
car was stolen and that his companions intended to rob the store and kill the
owner if he "did anything stupid."
One of the co-conspirators testified that they intended to steal guns to
be used to fight against another gang.
The jury also heard a tape-recorded statement by Yang and a police
officer's statement describing another statement by Yang that can reasonably be
construed as an admission that he accompanied his gang to the gun shop with
full knowledge of their plan.
The jury rejected the
defense argument that Yang was forced to accompany the gang. It reached its verdict based on an
assessment of the witnesses' credibility.
In light of the highly deferential standard of review, any challenge to
the verdict would lack arguable merit. See
State v. Alles, 106 Wis.2d 368, 376-77, 316 N.W.2d 378, 382
(1982).
The record discloses no
basis for challenging the admissibility of Yang's statements. The trial court found that the officers
informed Yang of his Miranda[1]
rights and that Yang waived his rights.
The court found that the statements were not coerced and admitted them
into evidence. See State
ex rel. Goodchild v. Burke, 27 Wis.2d 244, 265, 133 N.W.2d 753, 764
(1965), cert. denied, 384 U.S. 1017 (1966). These findings are not clearly erroneous. See § 805.17(2), Stats.
The defense objected to the admission of one of Yang's statements
because the defense attorney had not seen the statement until shortly before
the trial began. The defense also
requested a continuance in light of the statement to allow counsel additional
time to interview a witness. The trial
court personally set up a weekend interview with the witness to avoid the
prospect of delaying the trial. The
record does not establish any prejudice to the defense from the trial court's
refusal to delay the trial.
The record also supports
the trial court's finding that the State excluded the only Asian-American juror
on the panel for reasons other than race.
The defense objected when the State struck the only Asian-American from
the panel. The State answered the
objection by stating that the reasons for striking the juror were that he had
previously served on a jury that acquitted the defendant, he had trouble
answering some of the prosecutor's questions and the prosecutor perceived that
the prospective juror disliked the police.
The trial court also noted that the juror was very anxious about work
conflicts and that the only reason the court did not earlier excuse him was
because he was the only juror of Asian descent. The court followed the procedures set out in Batson v.
Kentucky, 476 U.S. 79, 95-97 (1986), and appropriately found that the
prosecutor did not engage in purposeful discrimination or act in a manner
inconsistent with the Equal Protection Clause when he struck that juror.
Finally, there was no
basis for challenging the exercise of the trial court's sentencing
discretion. The court considered the
seriousness of the offenses, Yang's character and the need to protect the
public. See McCleary v.
State, 49 Wis.2d 263, 276, 182 N.W.2d 512, 519 (1971). The sentence imposed does not shock the
public conscience. Ocanas v.
State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975).
Our independent review
of the record discloses no other basis for appeal. Therefore, we relieve Attorney Sheila Stuart Kelley from further
representing Yang and affirm the judgment of conviction.
By the Court.—Judgment
affirmed.