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COURT OF APPEALS
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 3, 2011
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
A. John Voelker
Acting Clerk of Court of Appeals
Cir. Ct. No. 2007CF2834
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
DERRICK D. BROWN,
APPEAL from a judgment of the circuit court for Milwaukee
County: DANIEL L. KONKOL, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
Derrick D. Brown appeals from a judgment of
conviction, entered upon a jury’s verdict, on one count of possession with intent to
deliver more than forty grams of cocaine. Brown contends that the trial court
erroneously approved a stipulation wherein Brown agreed that the substance
police recovered was, in fact, cocaine weighing 123.69 grams. We conclude the
court properly accepted the stipulation and we affirm the judgment.
Just before Brown was apprehended, the police, who were following
up on information from a confidential informant, observed Brown discard a plastic
bag. An officer recovered the bag, and its contents tested positive for cocaine.
At a pretrial conference, the State indicated that the parties would
stipulate to the test results of the plastic bag’s contents so that a crime lab analyst
would not have to be produced as a trial witness. Defense counsel agreed that
Brown was willing to concede that the substance recovered was cocaine. Brown
himself did not speak, and the stipulation was not discussed further that day.
At a subsequent pretrial conference, the trial court indicated its
understanding that the parties were prepared to stipulate that 123 grams of cocaine
were recovered. The court then had a discussion directly with Brown. Brown first
acknowledged that the State had to prove both that the substance was cocaine and
that it weighed more than forty grams. Brown also confirmed that he understood
he had a right to have a jury determine whether the State had fulfilled its
evidentiary burden. The court then asked:
Q: And your attorney is indicating that you’re willing to
agree that the substance involved was, in fact, cocaine and
that the amount of the substance was 123 grams; is that
A: I don’t know what it was, but he told me something like
that. He said it may go smoother.
The court then noted, “If you don’t know that it was cocaine, that is one of the
elements that the State has to prove, that it was cocaine and you knew it was
cocaine. If you say you didn’t know it was cocaine, then I really don’t think you
can stipulate it was cocaine[.]”
Defense counsel interjected, explaining that the real issue in the case
was possession. He said that he had explained to Brown that absent a stipulation,
the State would call a chemist to talk about the scientific process used to test the
bag’s contents, and that a stipulation was “simply a question of making things go
smoother.” The court then attempted to clarify further for Brown, but when
Brown continued to express some confusion, the State suggested that “for the sake
of making a safe record, we shouldn’t go along with that stipulation.” That
hearing was on a Tuesday; the court set the matter for trial the following Monday.
On the first day of trial, prior to voir dire, the State indicated that the
stipulation would be renewed. Defense counsel agreed, telling the court that he
had spoken with Brown on Thursday, Saturday, and Sunday, and that Brown was
prepared to stipulate that the police recovered 123.69 grams of cocaine. The trial
court engaged Brown in a colloquy. This time, Brown expressed no confusion,
and the court accepted the stipulation.
On appeal, Brown contends that the trial court erroneously approved
the stipulation because it “was aware that Brown did not truly want to agree to the
stipulation and waive his rights to trial upon the elements subject to stipulation.”1
The State complains that Brown never challenged the stipulation in the trial court,
either by objection or by postconviction motion. Therefore, the State concludes, he should be
precluded from raising the issue now on appeal. See State v. Caban, 210 Wis. 2d 597, 604, 563
N.W.2d 501 (1997). We decline to invoke this waiver doctrine in this case. See Ford Motor Co.
v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987).
First, we observe that while Brown may have expressed some
confusion or reluctance to enter the stipulation during a pretrial conference, it does
not necessarily follow that he remained reluctant to enter the stipulation on the day
Contrary to appellate counsel’s assertion that “nothing materially
changed” between the two dates, it appears that trial counsel—who met with
Brown three times between the hearing with the aborted stipulation and the day of
trial—determined the source of Brown’s confusion, then explained away to
Brown’s satisfaction any lingering doubt Brown might have had.2 We therefore
discern no impropriety or inadequacy in the court’s acceptance of the stipulation
even though Brown had earlier expressed some equivocation.
See State v.
Tomlinson, 2001 WI App 212, ¶37, 247 Wis. 2d 682, 635 N.W.2d 201.
Second, appellate counsel characterizes the stipulation as an
inadequate waiver of a jury trial.
Despite the court’s reference to Brown
“voluntarily giving up his right to a jury trial,” it does not appear such was the
intended role of the stipulation. Instead, Brown was merely conceding facts as
they related to the weight and nature of the substance police recovered. See State
v. Benoit, 229 Wis. 2d 630, 636-37, 600 N.W.2d 193 (Ct. App. 1999) (defendant
stipulating to certain facts “waived his right to challenge” issue but was not
surrendering right to jury trial). Indeed, the jury was still instructed that in order
to find Brown guilty of possession with intent to deliver cocaine, it would have to
It appears that Brown may have initially thought he was stipulating to the element that
he knew the substance was cocaine as opposed to the element that the recovered substance simply
find that the substance in question was, in fact, cocaine. See id. Accordingly, the
court’s colloquy was more than adequate for accepting the stipulation.3
We also conclude that any error by the court in entertaining the
stipulation when re-raised by the parties on the day of trial was invited error. See
Tomlinson, 247 Wis. 2d 682, ¶36. Brown affirmatively approved the stipulation
after the court rejected it once; he will not be heard to disavow it on appeal. See
State v. Gary M.B., 2004 WI 33, ¶11, 270 Wis. 2d 62, 676 N.W.2d 475; Shawn
B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992); State v.
Michels, 141 Wis. 2d 81, 98, 414 N.W.2d 311 (Ct. App. 1987). We similarly
reject any “plain error” argument.
By the Court.—Judgment affirmed.
This opinion shall not be published.
See WIS. STAT. RULE
However, it appears that the court did not instruct the jury about determining the
weight of the substance recovered, see WIS JI—CRIMINAL 6001, although introductory
instructions reminded the jury that Brown had been charged with possession with the intent to
deliver more than forty grams of cocaine. It is not clear why the instruction on weight was not
given; Brown had initially requested it. Nevertheless, we conclude there is no reversible error
because: (1) we conclude that the colloquy was also sufficient to serve as a jury waiver on the
weight element, see State v. Hauk, 2002 WI App 226, ¶36, 257 Wis. 2d 579, 652 N.W.2d 393;
(2) there was no contemporaneous objection to the lack of a jury instruction, either when the
court listed the instructions it would give or when it actually gave them, see State v. Laxton, 2002
WI 82, ¶¶25-26, 254 Wis. 2d 185, 647 N.W.2d 784; and (3) at no point was it ever in doubt that
the weight of the recovered substance far exceeded the forty grams as charged.