Roehl v. State
| Decision Date | 03 May 1977 |
| Docket Number | No. 75-718-CR,75-718-CR |
| Citation | 77 Wis.2d 398,253 N.W.2d 210 |
| Parties | Thomas John ROEHL, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
Ruth S. Downs, Deputy State Public Defender, with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff-in-error.
Betty R. Brown, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-in-error.
The plaintiff-in-error, Thomas John Roehl, on September 19, 1974, was found guilty of two counts of armed robbery, contrary to sec. 943.32(1)(b) and (2) and sec. 939.05, Stats. He and a codefendant, Peter Olson, were sentenced to seven years on each count, to be served concurrently and consecutively to sentences previously imposed.
We conclude that no prejudicial error occurred during the course of the trial, that the evidence was sufficient to sustain the convictions, and that the sentences imposed did not result from an abuse of discretion. Accordingly, we affirm the judgment of conviction and sentence and the order which denied postconviction motions.
Roehl and his codefendant, Olson, who is not a party to this appeal, were members of a motorcycle club known as the "Milwaukee Outlaws." The alleged victims of the armed robbery were members of a rival motorcycle club known as the "Heaven's Devils." The "Heaven's Devils" members who were allegedly victims of the armed robbery that took place on April 26, 1974, were Robert Potrykas, Scott Girga, Michael Vermilyea, John Otto, William Bach, Thomas Ponchik, Terry Jahnke, David Wall, and Jack Guehrer.
The armed robberies took place in the apartment of Robert Potrykas, one of the "Heaven's Devils" members.
The record indicates that the removal of the patch or insignia of a rival motorcycle club member is considered to be humiliating to the "depatched" person and to his club. It apparently is analogous to counting coup, as practiced by the American Indians of the Plains.
The armed robbery charges are based upon the taking of the patches from members of the "Heaven's Devils" by Roehl and Olson, and the taking of a small sum of money, when accompanied by threat of the imminent use of force while armed with a dangerous weapon.
The defendants were charged initially with five counts of armed robbery, and the information reciting all of these counts was read to the jury by the judge at the commencement of the trial.
Count 1 recited that a shortwave radio was taken from Robert Potrykas; Count 2 recited that a patch was taken from Jack D. Guehrer; Count 3 recited that a patch was taken from Scott J. Girga; Count 4 recited that a patch was taken from Thomas J. Ponchik; and Count 5 recited that $3.00 was taken from Mike Vermilyea.
Because Potrykas, Guehrer, and Ponchik were never produced to testify, the counts concerning them were dismissed, and the jury returned a verdict in respect to the armed robbery from the persons of Girga and Vermilyea.
One of the errors alleged on this trial stems from the alleged prejudice which resulted from the reading to the jury of the information in respect to the three counts which were not proved and later dismissed.
The evidence in respect to what happened at Potrykas' apartment on the morning of April 26, 1974, is derived from the testimony of Scott Girga and Michael Vermilyea.
Count 3, on which Roehl and his codefendant were found guilty, alleged that a cloth "Heaven's Devils" patch was taken from Girga. Girga testified that Potrykas, a fellow "Heaven's Devil," called him to come over to Potrykas' flat to surrender his patch to the "Outlaws," who were there. When Girga entered the Potrykas apartment, he saw Peter Olson, a "Milwaukee Outlaw," pointing a .22 caliber handgun at him. Olson asked Girga for his "Heaven's Devils" patch. Girga testified that he handed over his patch because Olson had the weapon pointed at him. Girga said that he saw Roehl, a "Milwaukee Outlaw," and the defendant in this case, in the apartment. Girga testified that Ponchik, a fellow member of the "Heaven's Devils," arrived shortly thereafter. He saw Roehl pat down Ponchik, apparently in a search for weapons. He saw Olson place the cocked pistol at Ponchik's head, and then saw Roehl strike Ponchik on the side of the head with a glass decanter. This blow caused profuse bleeding, and subsequently Ponchik was taken to a hospital. Girga testified that he remained in the Potrykas apartment, "Because Peter Olson had a gun on me and nobody was going anywhere." He said he handed over his patch because he was afraid for Robert Potrykas' life. He stated that he turned over his patch because he had no other choice. He testified, however, that he did not recall that Roehl said anything when Olson asked for his patch and he did not at any time see Roehl with a gun. He did, however, see Roehl strike Ponchik with the decanter.
Vermilyea testified that, in response to a call, he too went to Potrykas' flat. When he arrived, Roehl told him to put his patch on the kitchen table. He did so and explained, "Because there was a man standing there bleeding and I saw a gun in Peter Olson's belt, and I was afraid for my life, so I put the patch down." Roehl told Vermilyea that he had been picked up on some charge and wanted $15 toward his bail. Vermilyea gave $3.00, all he had, to Roehl. Vermilyea stated he paid Roehl, "Because * * * I was afraid for my life." Roehl, however, never used force, nor threatened the use of force, in the presence of Vermilyea. Vermilyea made no protest to Roehl because he saw Ponchik bleeding and saw Olson with a gun in his belt, which Vermilyea thought might have been used to inflict the wound.
Terry Jahnke, who was also a member of "Heaven's Devils," stated that he also was called to the Potrykas apartment, and when he arrived, he gave his patch to Roehl. Roehl also asked for bail money, but Jahnke had no money with him. Although Roehl made no direct threat of force, Jahnke handed over a patch to Roehl, at Roehl's request. He indicated that he was intimidated by Olson. He said that, if he had had any money, he would have handed it over,
It was on these facts that Roehl and his codefendant were found guilty of armed robbery, sec. 943.32(1)(b) and (2), Stats., and as parties to a crime under sec. 939.05. These statutes provide:
The evidence was sufficient to convict Roehl.
The facts revealed at trial indicate that Roehl, with whom we are concerned on this appeal, demanded that the patches and the money be turned over, but be made no direct threats to either Girga or Vermilyea. He did, however, in the presence of Girga, strike Ponchik on the head with a decanter. During the entire episode, Olson was armed with a handgun, and at various times pointed it at one or more members of the "Heaven's Devils," and in the presence of Girga and Roehl held the cocked weapon to Ponchik's head.
It is clear from the undisputed facts that the combined conduct of Olson and Roehl constituted the threat of imminent use of force against the owners of the property for the purpose of compelling the owners to relinquish possession of their property.
Each of the defendants was charged with being "concerned in the commission" of the crime under sec. 939.05, Stats. Because the charge is that of being armed with a .22 caliber revolver, and there is no evidence that Roehl was armed, his complicity under the statute was that of an aider or abettor.
Aiding and abetting has been explained in Hawpetoss v. State, 52 Wis.2d 71, 187 N.W.2d 823 (1971). Therein we defined those "concerned in the commission" of a crime and stated:
"The elements of complicity, or aiding and abetting are that a person (1) undertakes conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime, and further (2) he consciously desires or intends that his conduct will yield such assistance." (at 78, 187 N.W.2d at 826)
In that same case we pointed out that, where one person knew the other was committing a criminal act, he should be considered a party thereto when he acted in furtherance of the other's conduct, was aware of the fact that a crime was being committed, and acquiesced or participated in its perpetration. See also State v. Nutley, 24 Wis.2d 527, 129 N.W.2d 155 (1964); State v. Haugen, 52 Wis.2d 791, 191 N.W.2d 12 (1971); Taylor v. State, 55 Wis.2d 168, 197 N.W.2d 805 (1972); and State v. Cydzik, 60 Wis.2d 683, 211 N.W.2d 421 (1973). These cases hold that defendants may be found guilty of being concerned in the commission of a crime if, between them, they perform all the necessary elements of the crime with mutual awareness of what the other is doing. It is not necessary that each defendant be present at the scene of the crime.
On the basis of the law applicable to aiders or abettors, and on the basis of the...
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