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August 22, 1983


Appeal from a judgment and order of the Circuit Court for Milwaukee County: Michael P. Sullivan, Judge.

Petition to Review Denied.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Wedemeyer

Percy Brown (Brown) appeals from a judgment of conviction entered June 11, 1982, following a jury trial wherein he was found guilty of armed robbery, party to a crime, contrary to secs. 943.32(1) (b) and (2) and 939.05, Stats. Brown also appeals from an order entered January 19, 1983, wherein the trial court denied his post-conviction motion for a new trial. Because we hold that the trial court erred by refusing to sever Brown's case from the case of a codefendant, Michael Bowen (Bowen), we reverse and remand the cause for a new trial. *fn1

On January 21, 1982, a sandwich shop located at 1622 West Wells Street in the city of Milwaukee was robbed. Kristian Seals (Seals) testified that, at approximately 10:40 p.m., three black men entered the shop and demanded that he give them all the money. Seals stated that one of the men, whom he later identified as Brown, jumped over the counter, pulled out a revolver and demanded all the money from the cash register. After removing the money from the cash register, Brown and another man, whom he later identified as Bowen, told Seals to open the safe, whereupon they took loose currency and change from the safe. The three men then left the shop.

Brown's girlfriend, Lisa Hughbanks (Hughbanks), testified that on January 21, 1982, Brown came to her house at approximately 8:30 p.m. Hughbanks stated that Brown telephoned Bowen from her house at about 9:00 or 9:30 p.m. Hughbanks further stated that Bowen came to her house and that Brown and Bowen left together at approximately 10:00 p.m.

Bowen's mother testified that on January 21, 1982, he left her home at approximately 9:00 p.m. in a taxicab. Bowen told his mother that he was going to an east side restaurant to work in place of his brother Roosevelt, who had a toothache. Bowen's mother further testified that when Bowen left he was carrying with him a rather large portable radio.

Richard Osborn (Osborn) testified that he was a cook at a restaurant located on the east side of Milwaukee. Osborn further testified that Bowen entered the restaurant on January 21, 1982, between 10:00 and 10:30 p.m. Osborn stated that he was sure of the time because Bowen was supposed to replace his brother Roosevelt and he was late. He also stated that Bowen was carrying a large portable radio. At approximately 11:30 p.m., Bowen and Osborn got off work and Bowen gave Osborn a ride home. Osborn testified that Brown was waiting for Bowen in the car.

The restaurant manager, Jenny Kaminski (Kaminski), testified that she saw Bowen carry a large portable radio onto the premises at approximately 10:50 p.m., on January 21, 1982. Kaminski stated that she was sure of the time because she always looks at the clock when an employee comes to work to make sure he or she is on time. Kaminski also stated that she saw Brown enter the restaurant a minute after Bowen and that Bowen and Osborn left together sometime after 11:30 p.m.

Brown testified that on January 21, 1982, at approximately 8:35 p.m., he went to Hughbanks' home. Brown stated that he telephoned Bowen and at about 10:00 or 10:30 p.m., they took a taxicab to the east side restaurant. Brown stated that they remained at the restaurant until closing and they left in a car belonging to Bowen's brother which was parked in a lot across from the restaurant.

Brown and Bowen were tried together. At trial, following the close of the state's case-in-chief, an in-chambers conference was held to establish the number of Bowen's prior convictions. During this conference, the state informed the trial court and the other parties that it intended to cross-examine Bowen regarding the circumstances surrounding his arrest, i.e., he was arrested in a stolen car with a shotgun and had been convicted of another robbery.

The trial court ruled that the state could question Bowen on these matters. Following this ruling, Bowen's attorney stated that Bowen would not testify. At this point, Brown moved for a mistrial because he had based his defense on the assumption that Bowen would testify and establish his whereabouts at the time of the offense. Brown argued that the two cases should be severed and tried individually. The trial court denied Brown's motion, stating that it was improper for him to have based his defense on the assumption that a co-defendant would testify.

Brown raised the same issue in a post-conviction motion. As support for this motion, Brown filed an affidavit of Bowen's attorney stating that Bowen would freely and willingly testify on Brown's behalf at a severed trial to establish his whereabouts. The trial court again denied Brown's motion to sever, stating that Brown was not prejudiced by the trial court's refusal to sever because Bowen's testimony would have been merely cumulative evidence.

On appeal Brown argues that he was denied his due process rights to a fair trial, presentation of a defense, and compulsory process by the trial ...

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