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July 1, 1983


Review of a decision of the Court of Appeals. Reversing and remanding Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is a review of an unpublished decision of the court of appeals dated October 19, 1982, which reversed the order of the circuit court for Milwaukee county, JOHN F. FOLEY, Judge, denying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 post-conviction 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. *fn1 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 La France and Serio. Goldman testified that LaFrance and Serio stated that they had "just 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 La France 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 post-conviction hearing although he was not the trial Judge. Judge Foley specifically rejected the argument that McConnohie should be ...

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