State v. Koller
| Citation | 87 Wis.2d 253,274 N.W.2d 651 |
| Decision Date | 30 January 1979 |
| Docket Number | No. 76-006-CR,76-006-CR |
| Court | United States State Supreme Court of Wisconsin |
| Parties | STATE of Wisconsin, Respondent, v. Robert Lee KOLLER, Appellant, Gregory Allen Frankovis, Defendant. |
Francis R. Croak, Kathleen Ortman Miller and Cook & Franke, S. C., Milwaukee, and a supplemental brief by James R. Glover and Shellow & Shellow, Milwaukee, for appellant.
Marguerite M. Moeller, Asst. Atty. Gen., with whom on briefs, was Bronson C. La Follette, Atty. Gen., for respondent.
This is an appeal to review a judgment of the Milwaukee County Circuit Court, the Honorable John L. Coffey, presiding, entered October 24, 1975, convicting the defendant of robbery, party to a crime, in violation of secs. 943.32(1)(a), and 939.05, Stats. (1975), and from the denial of defendant's motion for a new trial under sec. 974.02, deemed denied January 22, 1976. In addition, in a supplemental brief, the defendant appeals from the order of the trial court denying his 974.06 postconviction relief motion, entered June 23, 1978.
The questions presented by this appeal are:
1. Was the defendant denied the effective assistance of counsel, contrary to the Sixth Amendment of the United States Constitution, because his attorney also represented his codefendant at trial?
2. Was the evidence sufficient to support the judgment of conviction?
3. Was the defendant denied the benefit of the presumption of innocence because the trial court, in its instruction to the jury, failed to include the statement "a defendant is not required to prove his innocence."?
4. Did the actions of the trial court indicate a bias against the defendant and deny him the right to trial by jury in an impartial forum?
5. Was the defendant denied his right to call witnesses in support of his defense and to due process when the trial court excused a witness from testifying who asserted his privilege against self-incrimination after being advised that the state might re-file charges against him which had been previously dismissed?
6. Did the trial court err in striking testimony given by the witness prior to his assertion of the privilege against self-incrimination?
7. Should the trial court have reassigned the case to another judge to hear the 974.06 motion on the ground that he was a material witness to the events that occurred during the unrecorded conference at the bench?
We conclude that the judgment and orders should be affirmed.
At approximately 3:30 a. m., Sunday, April 27, 1975, Gregory Nauertz went to the New Yorker bar to meet his girlfriend who was an employee of the establishment. He testified that as he entered the front door to the tavern, he was grabbed and thrown to the floor. He saw that the person on top of him was Gregory Frankovis, the codefendant of Robert Lee Koller, the appellant in this case. Nauertz was able to observe only Frankovis, who began to beat Nauertz about the face with his fists. Nauertz also testified that he heard Frankovis telling someone, "kick him in the head, let's kill him." After hearing that statement, Nauertz felt somebody kicking him in the head and choking him, but he did not know who was doing the kicking. He testified that at the time he was being kicked in the head, Frankovis was sitting on top of him, straddling his body with his feet pointed toward Nauertz's feet.
At trial, Nauertz identified a wallet and chain which had been kept in his pocket and clipped to his belt on the night of the beating incident. He had $37 in the wallet when he entered the New Yorker. He did not know whether the wallet left his possession while he was in the New Yorker, but he discovered it was missing when he was at the hospital. He next saw the wallet in the Police Administration Building when the police returned it and the $37 to him.
Nauertz testified that he did not know Koller, but that he had known Frankovis for about a year. On cross-examination, he admitted that he and Frankovis had testified on opposite sides in another criminal trial earlier in the year, and that the defendant in that case was a friend of Frankovis'. He admitted that he did not like Frankovis, but he denied that he had a grudge against him.
The two police officers who were the first to arrive on the scene testified that they looked through the window of the front door of the New Yorker and saw Frankovis on top of Nauertz choking him. There was a dispute in the trial record as to the lighting conditions in the alcove of the tavern where the fight was going on. The state's witnesses testified that there was sufficient light to see what was going on, while the defense witnesses testified that the alcove was very dark. One of the police officers testified that he had shone his flashlight through the window of the front door on the people fighting in the hallway. Patrolman Randy Baier testified that he saw Koller making kicking motions with his feet. While he never actually saw Koller's feet make contact with Nauertz's body, he added, "he certainly couldn't have missed him." Baier identified Koller at trial, but the Assistant District Attorney who prepared the criminal complaint, testified on cross-examination that when the police officers described the incident at the time the complaint was drafted, Baier was able to identify Frankovis, but not Koller as one of the participants in the fight. Patrolman Peter Simet testified that he saw Koller kicking Nauertz in the side, and that when the bartender came to open the door for the police, he saw Koller run toward the rear door of the tavern.
When Patrolman Robert Gross arrived on the scene, he was waved down by Patrolman Baier and told to cover the rear door of the tavern. As he approached the rear hallway, he saw a man come out the rear door and throw a black wallet with a chain attached to it onto the ground. He testified that he stopped the man, and when he asked for his name, the man replied Robert Koller. Gross walked the man back into the tavern. However, when Patrolman Gross identified the man in court, he identified Frankovis, not Koller. The wallet was identified as belonging to the victim, Gregory Nauertz.
Despite Patrolman Gross's failure to identify Koller in court, Officers Larry Parr and David Nowak identified Koller as the man with whom Patrolman Gross entered the tavern. Gross turned over the man he stopped behind the tavern to Officer Parr.
Barbara Johnson, Nauertz's girlfriend, testified that Frankovis and Koller grabbed Nauertz as he entered the front door of the tavern. She said that Frankovis said, "I'm going to kill you," and started to beat Nauertz. Koller, she said, was kicking Nauertz for about three to five minutes. She said that she heard Koller say to Frankovis, "you were dead." She said that Frankovis told Koller to kick Nauertz in the head and that Koller did so. She testified that when the police began to pound on the front door, Koller ran toward the back door. Frankovis was still on top of Nauertz when the police arrived. She admitted to having been convicted of obstructing justice for lying to a police officer when she falsely told him that a sixteen year old girl working in a bar was eighteen. She also admitted that she had given false testimony in another criminal trial in which the defendant had been a close friend of Nauertz's. She and Nauertz broke off their relationship shortly after the beating incident, although she testified at trial that she was still in love with him.
Koller testified that the bartender had shut off all the lights in the bar, and that only the telephone lights were on. He said that he was about to leave the bar when he became aware of a scuffle in the alcove of the front entrance. He claimed that he told Ms. Johnson to get away because she might get hurt. He also claimed that he did not get involved in the fight and that any kicking he might have done was merely to disentangle his feet so that he could leave the bar. He testified that he saw someone he assumed was Frankovis involved in a Koller testified that he left the tavern through the rear door.
Frankovis testified that he did not start the fight with Nauertz. He claimed that as he was walking out the front door of the tavern, he was struck in the eye. He also testified that he heard Koller's voice saying, "let's not get involved in this, why didn't you stop." Frankovis said, "I was in the process of defending myself of getting hit anymore times unexpectedly and laying on the floor scuffling."
Both defendants were found guilty by the jury. Koller received an indeterminate sentence of not more than four years at the state prison at Waupun. Frankovis received an indeterminate sentence of not more than six and one-half years at Waupun.
Additional facts will be set forth in the balance of this opinion.
The right to counsel guaranteed by the Sixth Amendment of the United States Constitution includes the right to be effectively represented. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. A defendant is entitled to the undivided loyalty of his attorney. As the United States Supreme Court said in Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942) ...
To continue reading
Request your trial
-
State v. Sanchez, 94-0208-CR
...Representation must be effective. Cuyler v. Sullivan, 446 U.S. 335 [100 S.Ct. 1708, 64 L.Ed.2d 333] (1980); State v. Koller, 87 Wis.2d 253, 274 N.W.2d 651 (1979); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 Felton, 110 Wis.2d at 499, 329 N.W.2d 161. Thus, although the standard formulated i......
-
State v. Wilson, 87-0761-CR
......Johnson, 135 Wis.2d 453, 455, 400 [149 Wis.2d 895] N.W.2d 502 (Ct.App.1986); State v. Bernal, 111 Wis.2d 280, 283, 330 N.W.2d 219 (Ct.App.1983). . A conviction for second-degree murder may be based in whole or in part upon circumstantial evidence. State v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651 (1979); Johnson, 135 Wis.2d at 456, 400 N.W.2d 502. The qualities of conduct necessary to prove criminal conduct in a second-degree murder case are found in the act itself and the circumstances of its commission. State v. Hooper, 101 Wis.2d 517, 542, 305 ......
-
State v. Doss
...order to return the funds. ¶ 62 A criminal conviction can be based in whole or in part on circumstantial evidence. State v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651 (1979). In particular, the intent to defraud that must be established for a conviction under Wis. Stat. § 943.20(1)(b) may b......
-
State v. Hooper
...may be based wholly on circumstantial evidence, State v. Marshall, 92 Wis.2d 101, 121, 284 N.W.2d 592 (1979); State v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651 (1979). Indeed, as recited in the Wisconsin Jury Instructions Criminal, § "It is not unusual in a criminal case to rely upon circ......