State v. Wollman

• Decision Date: 09 January 1979
• Docket Number: No. 76-541-CR,76-541-CR
• Citation: 86 Wis.2d 459,273 N.W.2d 225
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John J. WOLLMAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 225

273 N.W.2d 225

86 Wis.2d 459

STATE of Wisconsin, Plaintiff-Respondent, v. John J. WOLLMAN, Defendant-Appellant.

No. 76-541-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 29, 1978.

Decided Jan. 9, 1979.

Thomas J. Balistreri and Shellow & Shellow, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for respondent.

HEFFERNAN, Justice.

The defendant, John J. Wollman, was tried by a jury and convicted of two counts of rape, contrary to sec. 944.01, Stats. The appeal is from an order which denied Wollman's motions for a new trial and postconviction relief.

This case arises out of the same events discussed in the case of a co-defendant, David Peter Medrano, decided by this court on June 30, 1978. State v. Medrano, 84 Wis.2d 11, 267 N.W.2d 586 (1978). Because the general background of facts is essentially the same as that set forth by the court in Medrano, we do not repeat in detail the chronology of the event. Suffice it to say that the charges against Wollman arose as a result of his alleged conduct at a "party" at a rural farmhouse in the vicinity of Plymouth, Wisconsin. Two young women who attended the party, Cynthia Miller and Diane Kenealy, reported to authorities that at the party they had been forced to engage in numerous acts of sexual intercourse and sexual perversion. Miller and Kenealy both identified Wollman, the defendant and appellant herein, as one of the men who forced them to have sexual intercourse. Wollman and five other men were charged with rape or abnormal acts of sexual gratification as a result of their conduct at the same party. All six defendants were tried together.

Two issues are raised by the appellant which we believe are appropriate for disposition on this appeal. Three additional issues are also asserted, but those were decided in the court's opinion in Medrano and will not be discussed extensively herein.

The first issue is in respect to the admissibility of evidence that Kenealy saw a handgun on the person of Medrano Prior to the time that Wollman allegedly raped her. It is also asserted that the denial of a continuance of trial requested by Wollman's counsel constituted an abuse of discretion, a denial of due process, and a denial of the effective assistance of counsel. We conclude that each of these issues, under the evidence, must be resolved against the appellant.

During the course of the trial, Kenealy testified that, after Medrano raped her, she saw him place what looked like a handgun in the belt of his pants. The fact that Medrano was carrying a weapon was corroborated because, when Medrano was arrested, he was carrying a pistol tucked in his pants. Medrano's possession of a firearm at the time the rapes took place is uncontested. Following Kenealy's rape by Medrano, Kenealy was raped by Wollman, the appellant in the instant appeal.

The original statement by Kenealy that she saw Medrano in possession of a handgun was not objected to. Subsequently, however, the count against Medrano for carrying a concealed weapon was severed and tried separately, but the court refused to instruct the jury to disregard the evidence in respect to the weapon. The trial judge's ruling followed arguments by the state that the fact that Kenealy believed that she had seen a weapon on Medrano's person was relevant to her state of mind at the time Wollman and others later came into the room and raped her. The state argued that this fact was probative of lack of consent. It should be pointed out that Wollman stated that Kenealy had offered to have intercourse with him. Hence, "consent" was an issue at trial.

Counsel for Wollman argued on the motion that the jury should be instructed to disregard the weapon testimony, because there was no evidence to show that Wollman had any knowledge of the presence of the weapon. He asserted that the evidence of the presence of the gun would have a prejudicial effect on his client.

The chronology of the events is important. It is undisputed from the record that the rape of Kenealy by Medrano preceded the rape by Wollman. The state argued, although it never tied the presence of the gun to Kenealy's state of mind at the time of the Wollman rape, that it was reasonable to infer that, after seeing that one of the rapists was armed, it was less likely that she consented to the subsequent acts of intercourse, I. e., that it was more likely that her will to resist was overborne by the knowledge that one of her rapists was armed with a deadly weapon.

We are satisfied that the evidence that Medrano was armed and that Kenealy knew this fact was relevant to Kenealy's state of mind when she was shortly thereafter raped by another male at the party. The evidence that one of the group members was armed had the tendency to make more probable a crucial element of the crime of rape lack of consent. Sec. 904.01, Stats., defines relevant evidence:

"904.01 Definition of 'relevant evidence'. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

The fact, however, that the weapon evidence was relevant to the issue of consent does not necessarily mean that the trial judge should have admitted it into evidence and permitted the jury to consider it. Sec. 904.03 contemplates circumstances under which relevant evidence may be excluded. That section provides:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Whether such relevant evidence should be excluded therefore goes to the trial court's discretion to weigh the probative value of the evidence against the possibility of prejudice or other factors which might impede the orderly and expeditious disposition of the issues at trial. Chapin v. State, 78 Wis.2d 346, 353, 254 N.W.2d 286 (1977); Kelly v. State, 75 Wis.2d 303, 319, 249 N.W.2d 800 (1977).

The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971). The test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised.

In this case the court listened to arguments in respect to the relevance and probativeness of the evidence, as contrasted to the potential prejudice to the defendant. The trial court, after hearing arguments, concluded that the evidence was relevant and probative and that the arguments for the admission were not outweighed by the possibility of prejudice because, as the court stated, the "other alleged acts of intercourse . . . occurred subsequent to the viewing of that gun." This rationale was also explained in this court's opinion in Medrano, supra, 84 Wis.2d at 22, 267 N.W.2d at 591:

"One of the reasons the trial court permitted the evidence of Medrano's gun to remain on the record after the gun charge was severed was that Diane Kenealy testified that two of the defendants had sexual intercourse with her after she had seen Medrano put what looked like a gun in his waistband. According to the trial court, evidence of the gun was relevant to the charges against the two defendants who allegedly had intercourse with Kenealy after Medrano."

Although there was other evidence which tended to prove that neither Miller nor Kenealy had consented to the acts of intercourse and, therefore, the probative effect of the presence of the weapon was cumulative, we are satisfied that the trial judge correctly addressed the question of admissibility and, on the basis of the facts and the arguments presented at trial, reached the conclusion that the probative value of the evidence was not outweighed by the danger of unfair prejudice. We are satisfied that, in the exercise of discretion, the evidence of Medrano's possession of the gun was properly admissible in the case against Wollman.

Wollman also argues that the admission of the evidence that Medrano possessed a gun was ground for the severance of his case from Medrano's. In view of the relevance and probativeness of the gun testimony, we are satisfied that, even though severance had been granted, the gun evidence would properly have been admissible in the separate trial of Wollman.

It should be pointed out, moreover, that the argument for the severance of Medrano's case from that of the other five defendants was considered in Medrano, supra at 22, 267 N.W.2d 586. We therein accepted the trial court's position that the presence of the gun in Medrano's waistband was relevant to the charges against Wollman and another defendant. The gun evidence was relevant to the guilt or innocence of Wollman. We are satisfied that neither a severance nor special instructions which would have limited the relevancy of the gun evidence to Medrano alone were appropriate under the circumstances. The evidence was properly admitted in the discretion of the trial court.

Additionally, Wollman asserts that he was denied due process and the right to effective counsel because the trial court denied his motion for a continuance of the trial. The record shows that Wollman was originally represented by Attorney William Burke. On March 21, 1975, ten days prior to the time the case was scheduled to be tried, the court granted Burke's request for leave to withdraw and appointed Attorney John N. Gunderson to represent Wollman. At that time the court advised Wollman that a substituted attorney might find it difficult to prepare an adequate...