Rohl v. State
| Decision Date | 26 November 1974 |
| Docket Number | No. S,S |
| Citation | 223 N.W.2d 567,65 Wis.2d 683 |
| Parties | Randall ROHL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 116. |
| Court | Wisconsin Supreme Court |
Ron A. Kaminski, Manitowoc, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
The victim, Mrs. Mary Glander, an elderly lady, resided at 1010A South 12th street, Manitowoc, Wisconsin. On July 10, 1972, at approximately 2 p.m., Mrs. Marguerite Reitemeyer, who occupied the lower half of the duplex at the same address, discovered the victim's body. Mrs. Reitmeyer entered the victim's apartment through the open rear door, having found the front door locked. When she entered the apartment, she saw smoke and the victim's body was on the day bed. She immediately called the fire department.
Captain Daniel Andrastek of the Manitowoc fire department arrived at the scene shortly after being called. He testified that he found the nude body of the victim on the day bed, an apartment full of smoke and heat, charred paper and remains and evidence of two fires in the apartment. James Powers, the county coroner, arrived on the scene shortly before 3 p.m. and pronounced the victim dead.
William D. Rossiter, director of the state fire marshal bureau, investigated the incident and testified that there were two different fires in the apartment and that, in his opinion, there was no question that the two fires had been set intentionally by human hand.
Dr. John Fodden, a pathologist who performed the autopsy on Mary Glander, testified that she had sustained a deep wound above the right ear which was produced by a severe blow to the head; that she had a similar injury to her lower lip; that she had bruises on her neck, arms and chest area, several broken ribs; and that she had internal hemorrhages in her head, neck and chest, especially near her lungs and in the muscles of her heart. He testified that, in his opinion, the death was due to hemorrhaging in the heart muscles with concussive brain damage and loss of blood being ancillary causes. The doctor also testified that the victim was alive when the fires were started, as evidenced by the manner and degree to which she was burned. Further, the doctor testified that the blows leading to death were delivered by a firm but resilient object such as a bag filled with sand, or the ball or heel of a person's foot. The doctor testified that, in his opinion, the injuries could not have been caused by a wooden pole. Finally, the doctor fixed the time of death as somewhere between 4 and 6 a.m., July 10, 1972, and stated that the victim probably did not live longer than an hour after receiving the blows.
An important witness in the trial was Sue Nelson, age thirteen, who was called as a witness on behalf of the state. Miss Nelson was granted immunity at the request of the state pursuant to sec. 972.08(1), Stats., from prosecution or penalty that might have been imposed as the result of her testimony. Miss Nelson's testimony was treated as that of an accomplice and the trial court so instructed the jury with appropriate instructions as to her credibility.
Miss Nelson testified that on the date of the crimes, July 10, 1972, she left her house at about 2 a.m. She walked over to the Rosinsky house where she met the defendant, Randall Rohl (a/k/a Randy Rosinsky), his brother, Marvin Rosinsky (a/k/a Marvin Rohl), and his sister, Cindy Rosinsky. She arrived at the Rosinsky house at approximately 2:20 a.m. She testified that she came to the house in response to a telephone call from Marvin some time earlier. The four people left the Rosinsky house at approximately 2:30 a.m. and proceeded to a park directly across from the Glander residence. The defendant, according to Miss Nelson, was carrying a flashlight and a wooden pole. Cindy and Miss Nelson were told to wait in the park and the defendant stated he hoped ". . . she (Glander) is still in the hospital and not home." Sue Nelson testified that she had told Marvin that Mrs. Glander was in the hospital some time in June. The defendant, carrying a flashlight and pole, and Marvin went across the street and into the downstairs front entry of Mrs. Glander's residence. The defendant and Marvin remained in the house approximately twenty minutes, or from about 2:45 to 3:10 a.m., according to Miss Nelson's timetable, and that when she next saw them they were on the side of Mrs. Glander's building, laughing. As they approached, Miss Nelson noted that they still had the pole, which looked like it had blood on it, but that they did not have the flashlight. Miss Nelson described the clothing the brothers were wearing. She also testified that the four of them remained in the park for about five minutes during which time the defendant stated, 'We knocked her down and we killed her. " The defendant then gave the pole to Marvin, who gave it to Miss Nelson. The four of them returned to the Rosinsky house where they remained an additional five minutes. During this time Marvin gave Miss Nelson two rings, a bracelet, a necklace and $53, and Miss Nelson gave the pole back to Marvin. Sue Nelson then returned to her home, arriving between 4 and 4:30 a.m. Some two weeks later, the defendant's mother gave her the pole, which she then gave to a friend, Dennis St. John, along with the jewelry and the money.
The defendant, in addition to offering evidence attacking the credibility of the testimony of Sue Nelson, offered alibi evidence to show that he was at a bar and a party the night of the crime. The defendant testified that he went to a movie early in the evening of July 9, 1972, and that he then went to Lang's Lounge where he remained until 2 a.m., July 10, 1972. He testified that he was then asked to a party at Gerald Nechodomu's where he remained continuously until after 4:30 a.m. He related that at the party a girl named Dawn Martz had become ill and he had helped her. He testified that he tried to take someone's wallet while at the party, and that he was chased out of the party and down the street for attempting to do so. After eluding his pursuers, he returned home. He also stated that at his brother's trial he had testified that he had gone to a movie with his brother that night, but that they had both gone home immediately thereafter. He testified that his former statement was a lie which he made up because Miss Nelson was lying to convict his brother, and that he feared that if he told the police he was on the street at 4:30 in the morning they would have blamed him for the crime.
Defendant then called two witnesses, Michael Lang, the manager of Lang's Lounge, and William Brault, a bartender there, who confirmed that the defendant had been in their bar until 2 a.m. on July 9, 1972. Six additional witnesses, Steve Thomas, Bruce Stelzer, Gary Kunz, James Frisch, Michael Schumacher and Gerald Nechodomu, all of whom were at the alleged party, were called by the defense and testified so as to confirm that; a party had been held, that Dawn Martz had been present and had gotten sick; that the defendant had been present until after 4 a.m.; and that he had been chased out of the party after he had tried to steal a wallet. However, none of these witnesses were able to state on what day the party occurred. There was testimony that Stelzer and Schumacher reported the attempted theft of the wallet to the police officers Duveneck and Kocourek. The two officers denied getting such a report.
The defense further called Dawn Martz who testified that she attended only one party at which the defendant was present and that she was sure that it was the night in question. She remembered the night because she broke up with her boyfriend later that week and that they were able to get back together just before the following Saturday, July 15, 1972, when her boyfriend returned to Germany. She also testified that she and her boyfriend had gone out with his mother and a friend earlier in the evening and that they had started drinking at Hansen's Happy Hour, another bar in Manitowoc.
In rebuttal, the state called Beverly Kerwin, the mother of the boyfriend of Dawn Martz. She testified that she had not been at Hansen's Happy Hour with her son and Dawn on July 9, 1972, but that she had been there with them on either July 3 or 4, 1972. The state also called Marlene Budsberg who testified that she was at the party testified to by the defense witnesses, but that it could not have been on July 9, 1972, or the morning of July 10, 1972, because she never went to a party when she had school the next day. July 9, 1972, was a Sunday. In post-trial proceedings the defendant unsuccessfully attempted to prove that Marlene Budsberg recanted this testimony after verdict and judgment.
The defendant raises the following issues on this review:
1. Can the conviction stand upon the uncorroborated testimony of an accomplice?
2. Is the evidence sufficient to support the conviction?
3. Should the trial court have suppressed the testimony of the defendant given at the trial of his brother?
4. Did the application of the alibi statute to defendant have a prejudicial effect on the outcome of the case?
5. Should a new trial be granted in the interest of justice?
UNCORROBORATED TESTIMONY OF ACCOMPLICE AND SUFFICIENCY OF EVIDENCE.
The defendant asks this court to reexamine the well-established rule that in this state a jury can convict upon the uncorroborated testimony of an accomplice. This same argument has been made in several cases in the last few years and in each instance this court has declined to alter the rule. Most recently, the state public defender has made the argument, citing virtually the same authority from the same foreign jurisdictions, in Sass v. State (1974), 63 Wis.2d 92, 216 N.W.2d 22, and Rohl v. State, supra.
In the Rohl Case, 64 Wis.2d page 449, 219 N.W.2d page 387, this court quoted approvingly...
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