State v. Hall

• Decision Date: 30 June 1981
• Docket Number: No. 80-222-CR,80-222-CR
• Citation: 307 N.W.2d 289,103 Wis.2d 125
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Danny Prince HALL, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 289

307 N.W.2d 289

103 Wis.2d 125

STATE of Wisconsin, Plaintiff-Respondent, v. Danny Prince HALL, Defendant-Appellant-Petitioner.

No. 80-222-CR.

Supreme Court of Wisconsin.

Argued June 3, 1981.

Decided June 30, 1981.

Mark Lukoff, First Asst. State Public Defender, for petitioner.

Michael R. Klos, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

COFFEY, Justice.

This is a review of a decision of the court of appeals, 300 N.W.2d 80, 98 Wis.2d 755, affirming in part and reversing in part a judgment of conviction and an order denying a motion for post-conviction relief entered in the circuit court for Milwaukee county, the Hon. MARVIN C. HOLZ, presiding. Following a jury trial, the defendant, Danny Hall, was convicted of first-degree murder, attempted first-degree murder, three separate armed robberies, one attempted armed robbery, as well as several other crimes. He was sentenced to a prison term of life plus twenty-five years with credit for pre-trial confinement. The court of appeals reversed the judgment of conviction and order denying the motion for post-conviction relief for the crime of attempted armed robbery, but affirmed the trial court's convictions of the defendant as to all of the other crimes.

The state does not challenge the appellate court's reversal and dismissal of the attempted armed robbery conviction, and therefore that issue is not before us. This review concerns the defendant's claim that the consolidation of the offenses in one trial dealing with three armed robberies and the attempted armed robbery incidents was improper.

On March 19, 1978, the district attorney filed an information ¹ charging the defendant Danny Hall, with, inter alia, twelve criminal offenses arising from three armed robberies that included one murder and one attempted murder and an attempted armed robbery at two gas stations and a White Hen Pantry store located in the north metropolitan Milwaukee county area. All of the crimes occurred between August 25th and September 2, 1978. The crimes charged were as follows: (1) August 25, 1978, the Citgo "Quik Mart" at 1602 East Capitol Drive, Shorewood armed robbery contrary to sec. 943.32(1)(a) and (2), Stats.1977, attempted first-degree murder contrary to secs. 940.01 and 939.32, reckless use of a weapon contrary to sec. 941.20(1)(c), carrying a concealed weapon contrary to sec. 941.23(1), Stats.1977, and injury by conduct regardless of life contrary to sec. 940.23 (counts 1 through 4 and count 12); (2) August 31, 1978, the White Hen Pantry store at 6829 North Teutonia Avenue, Milwaukee (hereinafter White Hen I) armed robbery contrary to sec. 943.32(1)(a) and (2), Stats.1977, battery contrary to sec. 940.19(1), and carrying a concealed weapon contrary to sec. 941.23(1), Stats.1977 (counts 5 through 7); (3) September 1, 1978, the Clark Service Station at 5909 West Good Hope Road, Milwaukee first-degree murder contrary to sec. 940.01, and armed robbery contrary to sec. 943.32(1)(a) and (2), Stats.1977 (counts 8 and 9); and (4) September 2, 1978, the White Hen Pantry store at 6829 North Teutonia Avenue, Milwaukee (hereinafter White Hen II) attempted armed robbery contrary to secs. 943.32(1) (a) and (2), Stats.1977, and 939.32, and carrying a concealed weapon contrary to sec. 941.23(1), Stats.1977 (counts 10 and 11). ²

Prior to trial, the defendant by motion requested severance of the charges relating to the Citgo Station and the White Hen I armed robbery charges from the counts arising out of the Clark station and the White Hen II incidents. In this motion and a supporting affidavit, the defendant claimed that he was entitled to severance because: (1) A joint trial of the 12 counts relating to the four separate incidents would unduly prejudice his case by (a) "creating a substantial likelihood that the jury will be confused," and (b) "overwhelming the jury with other crimes evidence that will make it impossible for the jury to fairly assess the evidence on any one count;" and (2) failure to sever would deprive the defendant of his "constitutional right to take the stand as a witness on (his) own behalf...." In support of the latter claim, Hall asserted that he wished to testify only as to the charges stemming from the Clark station and the White Hen II incidents and not those arising out of the Citgo and White Hen I crimes. Thus, he argued that joinder would leave him "no choice but to stay off the witness stand entirely," for he believed that his waiver of his Fifth Amendment privilege against self-incrimination as to any of the charges would be a waiver of that right as to all the charges jointly tried and he did not want to give up his Fifth Amendment rights as to the Citgo and White Hen I crimes "as my testimony on those matters would tend to incriminate me." In the supporting affidavit, Hall stated that he wished to offer an alibi defense and refute the statements he gave to the police regarding the Clark station counts, and further that he would testify that he did not go to the White Hen Pantry store on September 2, 1978 (White Hen II) with an intent to commit robbery nor did he make any overt actions consistent with such an intent. The trial court denied Hall's motion to sever on the ground that severance would not preclude the admission of evidence of the Citgo and White Hen I incidents at a trial on the Clark station and White Hen II crimes stating:

"Finally and determinative of the issue irrespective of the other considerations, evidence concerning the Citgo and first White Hen Pantry offenses, ... are (sic) material and necessary to the State's case to prove the defendant's identity and intent concerning the murder which occurred at the Clark Oil Station and the intent to rob in the attempted robbery charge at which time the defendant was apprehended. Because that evidence is essential to prove every element of the crimes charged and the probativeness thereof outweighs potential confusion, time required and prejudice, the Court will admit such evidence. Severance would not cure the defendant's act of remaining silent upon some of the counts while testifying on others."

The court of appeals affirmed the trial court's denial of severance holding that the court's denial was proper and did not constitute an abuse of discretion. It rejected the defendant's claim that he was unconstitutionally required to choose between complete silence and effecting a waiver of his privilege against self-incrimination by testifying, stating " 'a defendant's subjective impressions of what he is "forced" to do during his trial are (not) enough to render his (failure to testify) involuntary.' "

The facts brought out at trial as to each of the four separate incidents are as follows:

I. Citgo Service Station

On August 25, 1978, at about 11:30 p. m., the defendant, after pumping $3 of gas into his car, walked into the Citgo Quik Mart at 1602 East Capitol Drive in the village of Shorewood. At the time Hall entered the station, he asked the only employee on duty, Reilly, for the key to the men's room in the presence of two or three other patrons in the store. Reilly gave the key to the defendant and Hall left Reilly's sight, walking toward the bathroom. Hall returned from the men's room about 15 minutes later. In the interim, Reilly's other customers had left and he was now alone in the station. Hall re-entered the station and walked to the rear of the building, picked up a package of styrofoam cups and carried them to the counter where Reilly was standing at the cash register, awaiting payment for the gas. Reilly started ringing up the sales, the gas and the cups, and asked the defendant if he was going to "party." Hall said "yes" and then stated "Make it quick. Make it quick." At this point, Reilly noticed that the defendant had a gun and was pointing it at his mid-section in a threatening manner. Reilly, realizing it was a holdup, opened the cash register, stating "take what I got" as he stepped away from the register. Thereupon, the defendant put the cups down on the counter, reached over the cash register with his left hand, took the money and raised his right hand holding the gun and shot Reilly in the face just below the right eye. Although the shot could have been fatal to Reilly, the bullet failed to strike any vital organs as it was lodged in Reilly's right posterior neck and subsequently removed and used in evidence.

Following the robbery, a "forensic photographer" investigating the scene found an expended .25-caliber pistol shell casing on a shelf in the station and this item was also retained as evidence.

II. White Hen Pantry I

On August 31, 1978, at about 1:25 a. m., Hall entered the White Hen Pantry at 6829 North Teutonia Avenue, Milwaukee, and asked the clerk, Kurt Eckenrod, the only person in the store at the time Hall entered, for a pack of cigarettes. Eckenrod tossed the cigarettes on the counter and started ringing up the sale when he felt "something" hit the left side of his head and heard a "bang." Eckenrod fell to the floor dazed and heard the defendant depressing the keys and buttons on the two cash registers in an attempt to open them. Hall then searched Eckenrod's pockets and removed his wallet and keys. As he was leaving, Hall encountered a person known as Ronald Winkler who was driving into the White Hen Pantry's parking lot and, after walking to the driver's side of Winkler's car, stated "You better get to a telephone because the clerk inside has been shot and there is blood all over the place." Winkler summoned the police who, upon arrival, rendered aid to the victim and, upon investigation, discovered and retained as evidence a spent bullet and shell casing from a .25-caliber pistol found on the floor behind the checkout counter.

III. Clark Station

Gene Paul Opalewski, attendant at the Clark station at 5909 West Good Hope Road, Milwaukee, was murdered during an armed robbery...