State v. McConnohie, 81-1834-CR

• Citation: 113 Wis.2d 362,334 N.W.2d 903
• Decision Date: 01 July 1983
• Docket Number: No. 81-1834-CR,81-1834-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Rollin Lloyd McCONNOHIE, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 903

334 N.W.2d 903

113 Wis.2d 362

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Rollin Lloyd McCONNOHIE, Defendant-Appellant.

No. 81-1834-CR.

Supreme Court of Wisconsin.

Argued April 28, 1983.

Decided July 1, 1983.

David J. Becker, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent-petitioner.

James A. Walrath, argued, and Shellow, Shellow & Glynn, S.C., Milwaukee, for defendant-appellant.

HEFFERNAN, Justice.

This is a review of an unpublished decision of the court of appeals dated October 19, 1982, which reversed the order of the circuit court for Milwaukee county, JOHN F. FOLEY, Judge, denying Rollin Lloyd McConnohie's postconviction motions for a new trial. The court of appeals, in reversing the circuit court, based its order on sec. 752.35, Stats., discretionary reversal in the interest of justice. ¹ We reverse and remand to the court of appeals with directions that it consider the issues on appeal that it deemed unnecessary to consider when it based its decision solely on sec. 752.35.

McConnohie, after a trial to a jury, was convicted as a party to the crime of armed robbery. The robbery was of a gas station attendant, who identified McConnohie and Charles H. LaFrance as the two individuals who committed the robbery. The attendant testified that he approached a vehicle which had driven up to the apron of a Clark Oil Company service station, when the passenger, whom he identified as McConnohie, pulled a gun and told the attendant to give him his money or he would shoot. The attendant handed over his money, and the robbers drove away. The attendant stated he had a full and unobstructed view of the passenger's face for a period of about five seconds. The record demonstrates that the attendant identified McConnohie in a lineup held about five days after the robbery, and he also identified McConnohie during trial.

LaFrance was identified as the driver of the car; and at the time of trial, LaFrance had entered a plea of no contest to a charge of armed robbery as part of a plea bargain.

At trial McConnohie presented a two-pronged defense. First, he relied on the alibi that he and Jay Goldman were at a Milwaukee residence at the time of the offense. Second, McConnohie attempted to show that Jay Serio was LaFrance's partner in the armed robbery. McConnohie testified that he and Goldman had been together during the day and that he and Goldman met LaFrance and Serio after the time of the robbery and that LaFrance had told Goldman and McConnohie that they had just robbed a gas station.

Goldman's testimony at trial corroborated McConnohie's testimony with respect to the meeting with LaFrance and Serio. Goldman testified that LaFrance and Serio stated that they had "just [pulled] a job." Goldman also testified that, during the conversation, Serio pulled a gun out of his pocket and waved it around and said that it was a toy gun that had been modified so it would appear real.

There was impeachment of Goldman by the testimony of a Milwaukee police detective. According to the detective, Goldman gave a statement shortly after the robbery; and although Goldman, in that earlier statement, said he was with McConnohie and that the two of them had been at McConnohie's house until long after the robbery, Goldman had said nothing about any meeting with LaFrance or Serio.

There was also testimony by the filling station attendant that, although Serio was in the lineup with McConnohie and LaFrance, the attendant did not identify Serio as being a participant in the robbery. The trial court in chambers specifically asked defense counsel whether Serio would be called as a witness. Defense counsel stated he would not be, although the record shows that Serio was, at the time, in custody and could have been physically produced at the trial.

LaFrance was called as a witness; and although he had previously pleaded no contest, he invoked his right under the fifth amendment not to testify. The trial judge on that basis excused him from testifying.

In closing argument, defense counsel's principal position was that Serio, and not McConnohie, was the person with LaFrance at the time of the robbery.

Approximately six months after the conviction, McConnohie's counsel, a different attorney than the one who represented him at trial, secured affidavits from Charles LaFrance and Jay Serio, both of which exonerated McConnohie. According to Serio's affidavit, on September 28, 1980, the day of the robbery, he took his brother's pellet gun, and he and LaFrance filed it down to make it look like a real gun. He deposed that, on the way to Jepp's Tavern to meet Goldman and McConnohie, he and LaFrance stopped at the filling station, and that he pulled out the gun and told the attendant to give him money or he would shoot. At the time the affidavit was given, Serio was in prison at the Green Bay Reformatory.

LaFrance's affidavit was also obtained at the prison at Green Bay. It states that Jay Goldman telephoned him at about 8 p.m. on the day of the robbery. It was agreed that he and Serio were to meet McConnohie and Goldman at Jepp's Tavern. On the way to the tavern, he and Serio stopped at the gas station. Serio was in the passenger seat, and Serio pulled a gun on the attendant and told him to hand over his money. They then drove away and met McConnohie and Goldman at Jepp's Tavern.

In their affidavits, both Serio and LaFrance state that they met Goldman and McConnohie at Jepp's, and the affidavits substantially corroborate the testimony of Goldman and McConnohie.

The affidavits were presented to Judge John F. Foley, who presided at the postconviction hearing although he was not the trial judge. Judge Foley specifically rejected the argument that McConnohie should be granted a new trial in the interest of justice. He stated:

"With regard to the new--to the new material submitted, the--we have the two affidavits here that were submitted on September 1st, the Court must find, one, that it's very realistic to reflect that--that the non-appearance of these gentlemen was a tactical maneuver on the part of defense counsel. They were present, we have not--not gotten to the point in time, gentlemen, where we conduct trial by affidavit. You never were able to cross examine an affidavit. This testimony was present and for some reason, I'm not going to speculate, I don't have a crystal ball, the defense counsel did not choose to present that testimony on the record and this Court finds that there is no basis for any post-judgment relief predicated upon--upon that--this statement in the defendant's affidavit."

The postconviction court specifically addressed the question of reversal in the interest of justice and denied a reversal on that basis or on any other of the grounds asserted by the defendant at the postconviction hearing. The court of appeals based its decision solely on the interest of justice, because it was persuaded that justice had probably miscarried and that the defendant would not have been found guilty if the testimony of Serio was placed before the jury. ² It is not apparent from the record that the court of appeals even recognized that the trial court had addressed the question of reversal in the interest of justice and had specifically found that no new trial was warranted on that basis. The court of appeals, its decision demonstrates, addressed reversal in the interest of justice as an ab initio exercise of discretion. It stated:

"[T]he major fact in dispute at trial was the identification of the defendant and the major issue was the credibility of the witnesses. The testimony of Serio is highly significant and would very probably have changed the jury's determination of these issues."

The court of appeals stated that it was not clear from the record that trial counsel's failure to call Serio was an intentional strategic maneuver.

The parties agree that, where an appellate court elects to review a decision made in the interest of justice, the reviewing court must determine the propriety of that original decision on the basis of whether there had been an abuse of discretion. Where a trial court grants a motion for a new trial in the interest of justice, an appellate court should only reverse if the trial court abused its discretion. State v. Mills, 62 Wis.2d 186, 189, 214 N.W.2d 456 (1974).

This court has stated that it will not ordinarily review a court of appeals decision in a criminal case where only the question of the proper exercise of a trial court's discretion was before the court of appeals. State v. Outlaw, 108 Wis.2d 112, 120, 321 N.W.2d 145 (1982). Moreover, subsequent to reorganization of the Wisconsin court system in 1978, the question of whether justice has been done in an individual case is primarily and initially the concern of the court of appeals. A.B.A. Standards Relating to Appellate Courts sec. 3.00, commentary at 4 (1977). While the lack of justice or an erroneous result may trigger a review in this court, it is the general position of this court, pursuant to the standards adopted for reviewing cases (sec. 809.62, Stats.) that this court will not ordinarily review discretionary determinations by the court of appeals where that determination has not arguably at least, been based on an error of law. Particularly, this court ordinarily will refrain from reviewing court of appeals decisions made in the interest of justice, for there is no assumption by this court that its determinations are necessarily more just than those of a court of appeals. Although we emphasize that this court can never overlook its obligation to the justice function of the court system, under the constitutional reorganization of the courts in 1978, it has a primary duty to assure that the law is followed by all the courts in the hierarchy of the system and that the law be uniform throughout the state.

Our reluctance to interfere with the discretion of the...