Rohl v. State, 78-121-CR

• Decision Date: 06 April 1979
• Docket Number: No. 78-121-CR,78-121-CR
• Citation: 279 N.W.2d 722,90 Wis.2d 18
• Parties: Marvin ROHL, a/k/a Marvin Rosinsky, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Court of Appeals

Page 722

279 N.W.2d 722

90 Wis.2d 18

Marvin ROHL, a/k/a Marvin Rosinsky, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 78-121-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 22, 1979.

Opinion Released April 6, 1979.

Opinion Filed April 6, 1979.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Deputy State Public Defender, and Ron A. Kaminski, Manitowoc. A supplemental brief was submitted by Stephen M. Glynn of Shellow & Shellow, Milwaukee, for plaintiff in error.

Bronson C. LaFollette, Atty. Gen. and Kirbie Knutson, Asst. Atty. Gen., for defendant in error.

Before MOSER, P. J., and BROWN and BODE, JJ.

BROWN, Judge.

On July 10, 1972, Mary Glander was found dead in her apartment. After an investigation had been conducted and an autopsy performed, it appeared that Mary Glander had died as a result of blows to the heart and chest area, and that a fire had been set after she had suffered the blows. There was also evidence of robbery or theft.

On July 11, 1972, the police received a telephone call from the father of the plaintiff in error, Marvin Rohl, (the defendant) informing them that he believed Marvin and another son, Randall Rohl, were involved in the crime. The next day the police obtained a search warrant and searched Marvin and Randall's residence. No evidence of the crime, however, was discovered. Shortly after the search, the police questioned Sue Nelson, a friend of Marvin's sister. She told the police that Marvin had shown her a bloody stick that was used to hit Mrs. Glander. She claimed that the stick was in Marvin's bedroom closet. A subsequent search was conducted, but no stick was ever found. However, based on Sue Nelson's statements of conversations that she allegedly had with Marvin and her statement that Marvin had shown her the stick, Marvin was arrested, and on July 29, 1972 charged with first-degree murder, arson, robbery and sexual perversion.

After the preliminary hearing, the sexual perversion count was dismissed, and the defendant was bound over for trial on the other three charges.

A trial was held beginning October 30, 1972, and on November 4, 1972, the jury returned verdicts of guilty of third-degree murder, arson and robbery. A motion for a new trial was made on December 2, 1972. The trial court dismissed the robbery charge, denied the motion for a new trial and entered a judgment of conviction on third-degree murder and arson. The defendant was sentenced to twenty (20) years on the third-degree murder charge and five (5) years on the arson charge, the sentences to run consecutively. The convictions were affirmed by the Wisconsin Supreme Court in Rohl v. State, 64 Wis.2d 443, 219 N.W.2d 385 (1974), Rehearing denied, September 4, 1974.

On May 15, 1977, a petition for post-conviction relief was filed pursuant to sec. 974.06, Stats., which alleged that Sue Nelson had acknowledged committing perjury in her trial testimony. The motion was accompanied by Miss Nelson's sworn affidavit in which she admitted perjury in all material respects of her trial testimony. She asserted that she had taken a polygraph examination which confirmed the truth of her perjury admissions.

After the post-conviction motion was filed, the district attorney and the police department were ordered to give defense counsel access to all the records in the case. The defense counsel later learned that a silver flashlight found at the scene of the crime was the property of the victim, Mrs. Glander. Accordingly, on November 22, 1977, an amended petition was filed by the defendant alleging that exculpatory evidence had not been turned over to the defendant at trial, and that consequently the defendant had been denied his constitutional right to due process. The amended petition was later supplemented by an affidavit of Patrick J. Harlow, the assistant prosecutor in the defendant's trial. The affidavit stated that Mr. Harlow knew prior to trial that the flashlight found at the scene and depicted in a photograph introduced at trial was the property of the victim, and had been returned to the victim's son and daughter-in-law without ever being submitted to the Wisconsin State Crime Laboratory. This fact was never disclosed to the defendant.

The defendant's post-conviction motions, as amended, alleged that the State's use of perjured testimony and its failure to produce exculpatory evidence had deprived the defendant of a fair trial and due process of law. Following a hearing to determine whether an evidentiary hearing was appropriate, the circuit court rejected the defendant's request for an evidentiary hearing and denied the motions for post-conviction relief. The defendant is appealing from both the order denying an evidentiary hearing and the order denying the motion for a new trial.

The defendant has raised the following issues on appeal:

(1) Did the trial court err in denying the defendant a new trial based on the evidence in the record showing that the State had failed to produce exculpatory evidence at trial?

(2) Did the trial court err in denying the defendant an evidentiary hearing on whether the defendant was entitled to a new trial due to prosecutorial misconduct?

(3) Did the trial court err in denying the defendant an evidentiary hearing on whether the defendant's conviction was based on perjured testimony?

FAILURE TO PRODUCE EXCUL PATORY EVIDENCE

On a motion under sec. 974.06, Stats., the defendant has the burden of proving that he is entitled to relief. Sec. 974.06(6), Stats. The defendant is only entitled to relief if he can show by clear and convincing evidence, State v. Carlson, 48 Wis.2d 222, 230, 179 N.W.2d 851, 855 (1970); State v. Reppin, 35 Wis.2d 377, 385, 151 N.W.2d 9, 13 (1967), that the judgment was rendered without jurisdiction or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the defendant as to render the judgment vulnerable to collateral attack, sec. 974.06(3)(d), Stats. In this case, the defendant has alleged that he is entitled to a new trial because there has been such a denial or infringement of a constitutional right that the judgment is vulnerable to collateral attack. He has alleged that prior to, during, and for six years after his trial the State failed to disclose exculpatory evidence material to guilt or innocence which resulted in a denial of a fair trial and due process of law under the fourteenth amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution. This allegation, if proven, entitles the defendant to a new trial under sec. 974.06(3)(d), Stats.

Suppression of evidence or information favorable to an accused has long been held to violate due process when the evidence is material to guilt or innocence, irrespective of the good faith or bad faith of the prosecution. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Amundson, 69 Wis.2d 554, 577, 230 N.W.2d 775, 787 (1975); Nelson v. State, 59 Wis.2d 474, 479, 208 N.W.2d 410, 412 (1973). The exculpatory evidence, however, must be in the exclusive knowledge or control of the State before it will be considered suppressed. State v. Calhoun, 67 Wis.2d 204, 212-17, 226 N.W.2d 504, 507-10 (1975); Lampkins v. State, 51 Wis.2d 564, 575-76, 187 N.W.2d 164, 170 (1971); State v. Clarke, 49 Wis.2d 161, 179, 181 N.W.2d 355, 364 (1970).

Thus, the defendant is entitled to a new trial if he has shown by clear and convincing evidence that:

(1) the State failed to produce some evidence;

(2) the evidence not produced was in the sole knowledge or control of the State;

(3) the evidence was favorable to the defendant; and

(4) the evidence was material to guilt or innocence.

The record and files in this case show the following. On the first day of trial, the State introduced several photographs of Mrs. Glander's apartment after she was found dead. One of the photographs introduced by the State was a picture of a dresser with the drawer open. The photograph showed that the contents of the dresser drawer had been ransacked, and on top of the contents in the drawer was a silver flashlight. Several days later, just before the State's chief witness, Sue Nelson, took the stand to testify, the State asked that the pictures be given to the jury and circulated. Sue Nelson then took the stand and began testifying. She testified that at about 2 a. m. on July 10, 1972 she went over to the defendant's home and met the defendant, his brother Randy and his sister Cindy. They met in the driveway and proceeded to walk to Washington Park across the street from Mrs. Glander's apartment.

The prosecutor then asked Sue Nelson the following questions:

Q. Do you recall if anybody was carrying anything?

A. Yes.

Q. And who was carrying something?

A. Randy.

Q. And what was he carrying if you recall?

A. A flashlight and a pole.

Q. And can you describe that flashlight for us?

A. It was silver that's all I know.

She then testified that Marvin and Randy went across the street into Mrs. Glander's apartment. After they came out they returned to the park where she and Cindy were waiting. The prosecutor then asked her the following question:

Q. Sue, you testified before that on the way over to the park Randy was carrying a flashlight and a pole. Did you see such a flashlight after the defendant and his brother came from the Glander house?

A. No.

Later in her testimony, Sue testified that about four weeks before the trial, Mrs. Rosinsky, the defendant's mother, had asked her to go back to Mrs. Glander's apartment and get the flashlight that Marvin and Randy had left there.

This testimony, together with the photograph which had been shown to the jury shortly before Sue's testimony, created the strong inference that the flashlight...