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10/25/83 STATE WISCONSIN v. GERALD COLLIE IVY

October 25, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
GERALD COLLIE IVY, JR., DEFENDANT-APPELLANT



Appeal from a judgment and an order of the Circuit Court for Milwaukee County: Clarence R. Parrish, Judge.

Petition to Review Granted.

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

The opinion of the court was delivered by: Moser

Gerald Collie Ivy, Jr. (Ivy) appeals from a judgment of conviction for armed robbery -- party to a crime in violation of secs. 943.32(1) (a) and (2) and 939.05, Stats., and for injury by conduct regardless of life -- party to a crime in violation of secs. 940.23 and 939.05. Ivy raises five issues on appeal: (1) whether the trial court erred in refusing to instruct the jury that a fact which has been stipulated to by the parties must be accepted as conclusively proven; (2) whether the trial court's instructions on liability for aiding and abetting were erroneous insofar as the jury was not told that the shooting victim's injury must be a natural, probable consequence of the intended crime of armed robbery; (3) whether the jury instructions were constitutionally deficient in that they failed to inform the jury that it must find that Ivy was aware that the principals were armed; (4) whether the trial court erred in not submitting Ivy's proposed instruction on the issue of identification; and (5) whether the evidence was insufficient to sustain the convictions. Because we conclude that the jury instructions were constitutionally deficient in that they failed to inform the jury that it must find Ivy was aware that the principals were armed, we reverse.

On August 19, 1981, two men entered a Clark station on North 27th Street in Milwaukee and shot and wounded an employee, Alvin Harrison (Harrison), and took an unknown amount of money. Neither of these individuals was apprehended by the police.

Roosevelt Hutchison (Hutchison), a thirteen-year-old boy from the neighborhood, and his sixteen-year-old brother were across the street from the service station during the armed robbery. The corner where they stood had no street light. While his brother was a few feet away talking to someone, Hutchison talked to a man whom he later identified as Ivy. Hutchison heard two shots from the station and observed two men exiting the building. When Hutchison asked the man if he knew the other two, the man told him to shut up. As the two armed robbers ran down the street, the man ran in the same direction.

Ivy was arrested at his home at 2 a.m. on August 20, 1981. Ivy's alibi was that he had been at his sister's and brother-in-law's house watching "The Rockford Files" on television at the time of the robbery. This was corroborated at trial by the testimony of Ivy's sister and brother-in-law.

Because Ivy's sister, who has a learning disability, gave confusing testimony as to what time "The Rockford Files" began, the district attorney agreed to stipulate that the program began at 10:30 p.m. The jury was informed of the stipulation at the close of trial but was not instructed, contrary to defense counsel's request, that it had to accept the stipulated fact as conclusively proven.

Defense counsel requested a tailored instruction on the issue of identification. The trial court refused to give it, stating that Wis J I -- Criminal 141 was adequate.

The jury returned a verdict of guilty on both counts. Ivy was sentenced to eight years on the armed robbery -- party to a crime conviction and five years (to be served concurrently) on the conviction for injury by conduct regardless of life -- party to a crime.

At a hearing on motion for post-conviction relief Ivy raised three of the issues concerning jury instructions that he raises in this appeal. The trial court rejected his arguments and ordered Ivy's post-conviction motion denied. This appeal followed.

EFFECT OF STIPULATION

Ivy contends the trial court erred in refusing to instruct the jury that a fact to which the parties have stipulated must be accepted as conclusively proven. We hold that the trial court's refusal was erroneous but that it was harmless error.

Under Wis J I -- Criminal 162 a jury is advised that it must accept a stipulated fact as conclusively proven. *fn1 Old, but still good, Wisconsin case law supports this instruction. *fn2 Of course, a trial court may refuse to accept a proposed stipulation and may then make findings ...


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