Cranmore v. State
| Citation | 85 Wis.2d 722,271 N.W.2d 402 |
| Decision Date | 02 October 1978 |
| Docket Number | No. 77-384-CR,77-384-CR |
| Parties | Robert Allen CRANMORE, Patrick Rogers, and Brian Curtis Rolf, Plaintiffs in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Court of Appeals of Wisconsin |
Review Denied.
Melvin F. Greenbert, Asst. Public Defender, Madison, on behalf of plaintiff Cranmore.
Mark Lukoff, First Asst. State Public Defender, Milwaukee, on behalf of plaintiff Rolf.
Atty. Dominic H. Frinzi, Milwaukee, on behalf of plaintiff Rogers, with whom on the briefs was Howard B. Eisenberg, State Public Defender.
Pamela Magee-Heilprin, Asst. Atty. Gen., argued, for the defendant in error; Bronson C. La Follette, Atty. Gen., on brief.
Before DECKER, C. J., CANNON, P. J., and MOSER, J.
These criminal actions arose from the same incidents, were tried together, present numerous identical issues on appeal and were, therefore, consolidated for appeal purposes.
The three plaintiffs in error (hereinafter defendants), Robert Allen Cranmore, Brian Curtis Rolf and Patrick Rogers (the fourth defendant who is referred to in the opinion, Robert Prihoda, escaped from custody subsequent to his commitment to the Wisconsin State Prison System and is not a party to this appeal) were convicted by a jury of one count of first-degree murder, contrary to secs. 940.01 and 939.05, Stats. In addition, Rogers and Cranmore were convicted of four counts of armed robbery, contrary to secs. 943.32(1)(b) and (2), and 939.05, Stats. Rolf was convicted of three counts of armed robbery by the jury, having entered a guilty plea to an additional count prior to the commencement of testimony. Rogers and Rolf were found to have been masked so as to make it less likely that they would be identified during the commission of the crime, contrary to sec. 946.62, Stats.
Each defendant was sentenced to life imprisonment for conviction of first-degree murder (count one). For the first armed robbery (count two) each defendant was sentenced to an indeterminate term of not more than thirty years, that sentence to be served consecutive to the sentence imposed for murder. Rolf and Rogers were sentenced to an additional five-year term, to be served consecutive to the thirty-year term, for concealing their identity. On the next two armed robbery counts (counts three and four), defendants were sentenced to a term not to exceed thirty years, to run concurrently with the sentence imposed in count one; Rolf and Rogers were ordered to serve an additional five years consecutive to the sentences in counts three and four for concealing their identity. Finally, on the last armed robbery (count five), the defendants were sentenced to an indeterminate term not to exceed thirty years, consecutive to the sentence imposed in count two, Rolf and Rogers receiving the additional five years to be served consecutively to the term imposed in count five.
All postconviction motions were denied and the defendants brought writs of error to review the judgment of conviction and orders denying postconviction motions.
The trial of the defendants produced over five thousand pages of transcript. Although the evidence was clearly sufficient to establish the defendants' participation in this incident, the following is a brief overview of the central testimony.
These appeals arise out of the armed robbery of Bryant's Cocktail Lounge in the early morning hours of August 17, 1975. Bryant's is a two-story drinking establishment located on the corner of Ninth Street and Lapham Street in Milwaukee. There are bars located on both the upper and ground floors with tables and chairs for the patrons on both floors. The establishment may be entered or exited either from Lapham Street or from Ninth Street; the latter apparently is the main entrance. When entering from Ninth Street, one proceeds into a vestibule from which a number of steps and a glass door provide entry to the downstairs lounge. Immediately to the right upon passing through the glass door leading to the lounge is the stairway leading to the upstairs lounge.
During the course of this robbery, a number of bar patrons were robbed (the defendants were charged with the armed and masked robbery of three bar patrons and of Bryant's itself), two patrons were wounded by gunfire and off-duty Milwaukee police officer Dennis O'Bradovich was shot to death (Dennis O'Bradovich's name is also spelled Obradovich in various parts of the transcript).
One of the primary witnesses for the state was Vera Tuitczenko, an admitted accomplice of the defendants. In August, 1975 Tuitczenko, a juvenile runaway, was living with Rogers in Milwaukee. At the time she left home she took with her, and subsequently gave to Rogers, a .22 caliber Arminius revolver. The revolver was loaded with .22 caliber long rifle shells manufactured by Sears and Roebuck. Tuitczenko testified that on August 16, 1975 while she and Rogers were having lunch, he announced his intention to "hold up" Bryant's. Later that day she accompanied Rogers to Bryant's so that he could see the interior, but they were refused service because Rogers was not properly attired. They returned to another bar where they had seen Cranmore and Prihoda earlier. Cranmore and Prihoda conversed with Rogers out of earshot of Tuitczenko. From there she drove the three to Rogers' residence where they changed clothing and she, on directions from Rogers, retrieved an automatic handgun from the bedroom, turning it over to Rogers. Tuitczenko then drove the three in Rogers' car toward Bryant's while Rogers, Cranmore and Prihoda discussed robbing it. Upon arrival, however, Prihoda insisted that it was "too risky" and all four returned to the Seventh House Bar where Rolf was recruited.
Cranmore, Rogers, Rolf, Prihoda and Tuitczenko then drove back to Bryant's where Tuitczenko dropped them off and was told to wait in a nearby alley. During the ride between the Seventh House Bar and Bryant's Lounge, all the defendants discussed the holdup and Rogers gave directions regarding the various defendants' activities inside the bar. Prihoda and Cranmore were to go to the upstairs lounge, Rolf and Rogers were to go to the downstairs lounge, with Prihoda and Rolf acting as "runners."
After waiting in the designated alley a short while, Tuitczenko heard gunshots coming from the vicinity of Bryant's. She started the car and drove back in the direction of Bryant's until she saw Cranmore, who told her to "get out of here."
After Tuitczenko had testified to the foregoing events, she was later recalled to the stand and testified to Cranmore's statement to her that when he had come upon Dennis O'Bradovich while leaving Bryant's he aimed his gun at O'Bradovich's head and emptied the gun and, he thought he had killed him.
The state then produced a number of witnesses as to what transpired inside Bryant's Lounge, including the robberies of the victims with which the defendants were charged.
Cranmore and Prihoda were both identified as being upstairs, both were armed and both threatened the life of one or more patrons, one stating to a patron: "Keep your head down or I'll blow it off."
Rogers and Rolf were both identified as being in the downstairs lounge and carrying weapons. They both threatened the lives of patrons, either verbally or by placing their weapons in close proximity to a vital part of the body of a patron. Rolf forced one of the bartenders to empty the cash from one of the cash registers into a white pillow case. The bartender estimated that $500 had been in the cash register.
The other primary witness for the state was Milwaukee police officer Gerald Drefahl. He testified that he was Dennis O'Bradovich's partner on the police force. On that evening he and O'Bradovich had been out with O'Bradovich's parents and fiancee celebrating O'Bradovich's recent engagement. After leaving O'Bradovich's parents, Drefahl and his date and O'Bradovich and his fiancee proceeded to Bryant's. They were seated for a short time in a booth when Drefahl noticed a man wearing a blue ski mask over his face and waiving an automatic handgun come into their section of the bar. They were ordered at gunpoint to the front of the bar and were told to lie facedown on the floor.
After they had complied, Drefahl observed Officer O'Bradovich remove his revolver from the purse of his fiancee and crawl to a position in front of the door leading to the vestibule. Drefahl followed him. Having reached this position, Officer O'Bradovich began to raise himself up, looking in a south-southwesterly direction. He then made an abrupt swing to the southeast where a figure with a mask was standing. Officer O'Bradovich fired two rounds from his revolver at the figure and there was a return of fire, three shots if not more, one of which wounded O'Bradovich in the leg. O'Bradovich fired one more shot and rolled backwards through the door and into the vestibule.
Officer Drefahl then returned to the position where his date and Dennis O'Bradovich's fiancee were lying. He informed them that he was going outside and began to move towards the vestibule door. However, he heard someone running down the stairs and looked up to see Cranmore firing into the crowd in the downstairs lounge. There was another person behind Cranmore, but Drefahl was unable to see him. The gun that Cranmore was firing sounded as though it was a smaller caliber than a .38.
There was a brief pause in the firing and Drefahl heard someone say: ; that voice came from the southeast corner of the bar. Drefahl then observed three people at the door leading to the vestibule, one of whom was Cranmore. As they opened the door leading to the vestibule, three shots rang out; the sound was consistent with the earlier firing of Dennis O'Bradovich's .38 caliber revolver. As those shots were fired, Drefahl observed all of the defendants lie prone on the top step in the...
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