Muller v. State
| Decision Date | 04 March 1980 |
| Docket Number | No. 77-204-CR,77-204-CR |
| Citation | 94 Wis.2d 450,289 N.W.2d 570 |
| Court | Wisconsin Supreme Court |
| Parties | Kenley A. MULLER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
Kenley A. Muller, plaintiff in error, was convicted of first-degree murder, contrary to sec. 940.01, Stats., following a jury trial. He was sentenced to life imprisonment, and writs of error issued to review the judgment of conviction and order denying his motion for a new trial.
Richard M. Sals, Asst. State Public Defender (argued), with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.
Chris Heikenen, Asst. Atty. Gen., argued, for defendant in error; Bronson C. La Follette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., on brief.
On review, Muller (hereinafter defendant) raises issues concerning the submission of the verdict, admission of evidence and instructions to the jury.
Defendant Muller was convicted of the murder of Buford B. Troxel, sometimes called Pee Wee. On the date originally set for trial, the state moved for a continuance because Peggy Muller, wife of the defendant and an important state witness, was not available. Five witnesses testified as to numerous unsuccessful attempts to locate and serve subpoenas on Peggy Muller and her children. She had not obeyed a subpoena which had been left with her husband, the defendant, with whom it was believed she was then living. The trial court granted the continuance to a day certain and a body attachment was issued for arrest.
The trial commenced on the day certain and the state presented the testimony of 23 witnesses. The crime occurred in the city of Beloit.
Officer Harold Smith testified that at 2:19 a. m. on June 26, 1976, he was dispatched to 1147 1/2 Partridge avenue. When he arrived he saw Peggy Muller standing in the driveway. She was dressed in a robe and slippers and had a coat over her robe. She seemed nervous and frightened and kept looking up and down the street as she talked. She told Smith that she had just received a telephone call from her estranged husband, Kenley Muller, and that he threatened to shoot her and her boyfriend who was in the apartment. When asked what type of vehicle Muller would be driving, she told the officer it would be an orange Ford Bronco, and when asked what type of guns he might have, she said she did not know.
Officers Kevin W. Connors and Robbie Ray Lowery testified that they responded to a dispatch regarding a shooting at 1147 1/2 Partridge avenue in Beloit on June 26, 1976, at approximately 2:57 a. m.
Connors testified that when he arrived at the house, he saw two women standing in the driveway. They were later identified as Peggy Muller and Susan Lund. Peggy Muller was very excited, upset and crying, and said that she "knew he would come back on foot and shoot him." Connors proceeded to the rear of the house, went up the stairs to Peggy Muller's apartment, noticed that the kitchen door had been broken open, and proceeded down a hallway to the bedrooms. In one bedroom of the apartment he saw two small children on the bed and a white male lying on the floor, later identified as Troxel, partially leaning against a bed and partially against a closet door frame. He observed bullet holes in the right side of the man's neck, in his left shoulder and directly over the area of his heart. The paramedics arrived and pronounced Troxel dead.
Officer Lowery testified that when he arrived at the apartment, Peggy Muller told him that Arnie (the defendant) had shot Pee Wee (Troxel); and Randy Lund, who was on the porch, told him the victim was upstairs. When he asked Peggy Muller who was responsible, she said that Kenley A. Muller was responsible and that he was driving an orange Ford Bronco but he left on foot. This information, together with the fact that the defendant had guns or rifles in his possession, was dispatched to area law enforcement officers.
Susan Lund, who lived in the apartment below Peggy Muller at the time of the shooting, testified that Peggy Muller awakened her on the morning of June 26, 1976, by pounding on her door and saying "Please call the cops, Arn just shot Pee Wee." While they were waiting for the police, Peggy Muller told Susan Lund that Arnie had broken in through the kitchen door, that he had a gun and she had heard shots when she got downstairs. Susan Lund also testified that she had met Pee Wee Troxel when he was visiting Peggy, and that Kenley Muller visited Peggy frequently at her apartment.
During the presentation of the state's case evidence was introduced to prove that the prosecution had exercised due diligence in attempting to subpoena Peggy Muller to testify at the trial, but was unable to successfully serve the subpoena and therefore could not procure her attendance. On the evidence presented, the court found the state had established that Peggy Muller was unavailable.
The testimony of Peggy Muller taken at the preliminary hearing was then read into evidence at the trial. At the preliminary hearing, when Peggy Muller was asked about what had occurred on June 26, 1976, at about 2:57 a. m., she claimed a loss of memory. The state impeached her credibility by use of a prior inconsistent statement given by her to the police on June 26, 1976. It was this testimony from the preliminary hearing which was read into evidence at trial.
This prior inconsistent statement of Peggy Muller introduced at the preliminary hearing reflected that on June 26, 1976, she was separated from the defendant. At 2:57 a. m. she was in the bedroom of her apartment with Buford Troxel when she heard a loud noise outside. In this statement given to the police, Peggy Muller stated that she was sitting on the edge of the bed looking out of the bedroom window and saw the defendant. She unlocked the bedroom door which exited onto the porch and told Pee Wee to go. He refused, indicating that he was going to face the defendant. Pee Wee walked out of the bedroom and down the hall toward the kitchen. Peggy Muller went out the other bedroom door onto the porch and toward the steps. In so doing, she saw the defendant standing in the kitchen with a gun in his hand. She saw the defendant walk from the kitchen into the hall, heard two shots, ran to the first floor apartment and banged on the front door and bedroom window of Randy and Susan Lund. She received no response, so she ran down the street to another house and knocked on the door. While she was there she saw the defendant running down the street.
In her statement Peggy Muller also said that after Officer Lowery gave her children to her, her daughter kept saying that "Arnie had killed him."
Portions of a deposition of Peggy Muller taken on August 26, 1976, in a custody proceeding between Peggy Muller and her former husband, Richard Hanson, were also read into evidence. Hanson was attempting at that time to get custody of their daughter, Shelley Hanson, and Peggy Muller was questioned by Hanson's attorney regarding the incident on June 26, 1976. Peggy Muller's description of her knowledge of the crime was basically the same as she had given the police on June 26, 1976.
A pathologist testified that an autopsy was performed on the body of Buford Troxel and revealed that the cause of death was a gunshot wound in the heart.
Douglas A. Witt, Rock County Deputy Sheriff, testified that on June 26, 1976, at 3:31 a. m. he was sent to Walker Road to investigate a report that an injured person was lying alongside the road. When responding to this assignment, he saw the defendant's orange Bronco parked on the shoulder of Walker Road, and as he proceeded to the residence he saw a body, later identified as the defendant, lying on the ground.
Officer Richard Pomeroy of the Beloit police department testified that at 3:47 a. m. he went to the scene on Walker Road. He inspected the defendant's Ford Bronco parked on Walker Road and observed a bullet hole in the windshield which had been made by a projectile going from the inside to the outside. He saw a handgun on the hump in the center of the floor of the Bronco, several .22 caliber live cartridges scattered on the front seat, blood on the front seat, and a pellet pistol on the floor in the back of the vehicle.
Ronald Northrup, a paramedic, testified that while taking the defendant to the hospital, he asked the defendant if the defendant realized what he had done and the defendant replied, "Yes." Northrup then asked him, "Do you feel sorry or have any remorse for what you done?" The defendant said, "Negative, in fact, I would do it again."
The defense presented the testimony of the defendant's sister, Judy Pulaski, his aunt, and of the defendant.
Judy Pulaski testified that in April or May, 1976, Peggy Muller moved out of the house she was sharing with her husband, Kenley Muller, and took an apartment by herself. In June, 1976, Pulaski informed the defendant that his wife, Peggy, was being unfaithful to him. The next time Pulaski discussed Peggy's affair with the defendant was approximately one hour before the shooting on June 26, 1976. At that time she told the defendant the name of the man Peggy had been seeing and what type of car the man drove. Pulaski had learned the man's name was Pee Wee Troxel from several acquaintances and it was common knowledge that he and Peggy were going together. Pulaski had seen Troxel's car at Peggy's apartment on several occasions and had seen him there once.
The defendant testified that at the beginning of June, his sister told him that Peggy was seeing another man, and he could not believe it. After midnight on June 26, 1976, he went over to his sister's house and she told him that the man Peggy was seeing was Pee Wee Troxel and described his car. The defendant was mad and upset, so he left his sister and telephoned Peggy from a phone booth. They talked about Troxel. The defendant told her he was...
To continue reading
Request your trial
-
State v. Moats
...disturb this determination unless the record shows that the ruling was manifestly wrong and an abuse of discretion. Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980). We hold that the trial court in this case did not abuse its discretion when it admitted into evidence as an excited utte......
-
State v. Huntington
...the excited utterance exception has three requirements. First, there must be a "startling event or condition." Muller v. State, 94 Wis.2d 450, 466, 289 N.W.2d 570 (1980). Second, the declarant must make an out-of-court statement that relates to the startling event or condition. Finally, the......
-
State v. Fencl
...error by giving Wis. J. I--Criminal 1100, is equally without merit. This court recently approved that instruction in Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980). Because we find the errors in this case to be harmless, we hold that a new trial is not Judgment and order affirmed. BE......
-
State v. Hunt
...of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed." Cf. Muller v. Wisconsin, 94 Wis.2d 450, 461-62, 289 N.W.2d 570, 576-77 (1980) (declarant's statement admitting in a custody hearing to having sex with the man that her estranged husband k......