State v. Eric G. Koula

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 8, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2017AP1995 Cir. Ct. No. 2010CF431

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ERIC G. KOULA,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for La Crosse County:
SCOTT L. HORNE, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2017AP1995

¶1 PER CURIAM. Eric Koula, pro se, appeals a circuit court order
that denied Koula’s WIS. STAT. § 974.06 (2017-18)1 motion seeking relief from a
judgment of conviction for two counts of first degree intentional homicide. Koula
contends that his trial counsel2 were ineffective by failing to properly investigate
and do the following: (1) file a Denny3 motion to implicate Koula’s brother-in-
law, Patrick Cowell, in the murders; (2) present evidence challenging the State’s
time-of-death evidence; (3) present evidence challenging the State’s physical
evidence; (4) present fingerprint evidence; (5) present financial evidence to
contradict the State’s theory of Koula’s motive; and (6) challenge actions and
statements by the State that Koula asserts were dishonest and misleading. Koula
also asserts that his postconviction counsel were ineffective by failing to pursue
those claims of ineffective assistance of trial counsel in Koula’s direct
postconviction motion. For the reasons set forth in this opinion, we conclude that
the circuit court properly denied Koula’s motion without a hearing. We affirm.

¶2 In July 2010, Koula was charged with two counts of first-degree
intentional homicide for the murder of his parents, Dennis and Merna Koula, and
one count of uttering a forged check for $50,000, which was purported to be
written by Dennis Koula, dated the day of the murders and cashed the following
day. In June 2012, Koula was convicted of all charges following a jury trial. The

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Koula was represented by a team of four trial attorneys, and by a team of two
postconviction attorneys. Accordingly, this opinion refers to Koula’s trial and postconviction
counsel in the plural.
3
State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).

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circuit court sentenced him to life in prison without the possibility of release to
supervision.

¶3 Koula, by counsel, moved for postconviction relief. He argued that:
(1) his trial counsel were ineffective by failing to object to a jury instruction as to
witness testimony that, shortly before the murders, Dennis Koula had made
statements about “cutting off the kids” financially; and (2) the real controversy
was not fully tried when the circuit court excluded the defense’s proposed
evidence supporting the defense theory that the murders were committed by a
hitman hired to kill Dennis and Merna Koula’s neighbor. Specifically, Koula
argued that the instruction invited the jury to speculate that Koula had a motive to
murder his parents if it believed that Dennis Koula had made the statements,
without requiring it to first determine that Koula knew that Dennis Koula had
made the statements. He also argued that the real controversy was not fully tried
when the court excluded evidence that a Google Maps search of the neighbor’s
address resulted in a marker pointing to Dennis and Merna Koula’s house.

¶4 The circuit court granted an evidentiary hearing on the motion.
Koula’s trial counsel testified that they agreed that they should have requested a
modification to the jury instruction to clarify that the jury would need to find that
Koula was aware of Dennis Koula’s statement of his intent to “cut off the kids”
before it could find that those statements showed Koula’s motive to kill his
parents.

¶5 The circuit court denied Koula’s postconviction motion. It found
that Koula’s trial counsel were not ineffective by failing to request a modification
to the jury instruction and that it had properly excluded the Google Maps

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evidence. We affirmed on appeal. State v. Koula, No. 2014AP2224-CR,
unpublished slip op. (WI App Oct. 22, 2015).

¶6 In June 2017, Koula filed the pro se WIS. STAT. § 974.06 motion
underlying this appeal. Koula argued that his postconviction counsel were
ineffective by failing to argue in Koula’s postconviction motion that Koula’s trial
counsel were ineffective as summarized supra in ¶1.4 The circuit court denied the
motion without a hearing. Koula appeals.

¶7 When, as here, a defendant seeks relief under WIS. STAT. § 974.06
following a prior postconviction motion and appeal, the § 974.06 motion must
establish a “sufficient reason” for failing to previously raise any issues that could
have been raised in the earlier proceedings. State v. Escalona-Naranjo, 185
Wis. 2d 168, 185, 517 N.W.2d 157 (1994). A claim of ineffective assistance of
postconviction counsel may present a “sufficient reason” to overcome the
procedural bar. See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675,
682, 556 N.W.2d 136 (Ct. App. 1996). To establish that postconviction counsel
was ineffective, the motion must show that the claims now asserted are clearly
stronger than the issues that postconviction counsel chose to pursue. State v.
Romero-Georgana, 2014 WI 83, ¶¶45-46, 360 Wis. 2d 522, 849 N.W.2d 668.

¶8 A defendant is not automatically entitled to an evidentiary hearing
on his or her postconviction motion. State v. Bentley, 201 Wis. 2d 303, 310, 548
N.W.2d 50 (1996). The circuit court must hold an evidentiary hearing only if the

4
Koula also argued that newly discovered evidence entitled him to a new trial, but has
abandoned that argument on appeal. Koula also requested that the circuit court exercise its
discretion to grant Koula a new trial in the interest of justice, a request that Koula makes of this
court on appeal, and which will be discussed later in this opinion.

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defendant alleges “sufficient material facts that, if true, would entitle the defendant
to relief,” which is a question of law that we review de novo. State v. Allen, 2004
WI 106, ¶¶9, 14, 274 Wis. 2d 568, 682 N.W.2d 433. To entitle the defendant to a
hearing, the motion must “allege the five ‘w’s’ and one ‘h’; that is, who, what,
where, when, why, and how” as to the defendant’s claims. Id., ¶23. If the motion
does not set forth sufficient facts or presents only conclusory allegations, or the
record establishes conclusively that the defendant is not entitled to relief, the
circuit court may grant or deny a hearing at its discretion. Id., ¶9.

¶9 A defendant seeking a hearing on a WIS. STAT. § 974.06 motion
must “do more than assert that his postconviction counsel was ineffective for
failing to challenge on direct appeal several acts and omissions of trial counsel that
he alleges constituted ineffective assistance.” State v. Balliette, 2011 WI 79,
¶¶62-63, 336 Wis. 2d 358, 805 N.W.2d 334. The defendant must allege that
postconviction counsel’s “‘performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’” See id. (quoted source omitted). If the
allegations in a postconviction motion fail to establish either prong of an
ineffective assistance of counsel claim, we need not address the other prong. See
Strickland v. Washington, 466 U.S. 668, 697 (1984). A defendant must
demonstrate within the four corners of the § 974.06 motion that postconviction
counsel was ineffective for not raising specific claims of ineffective assistance of
trial counsel. See Romero-Georgana, 360 Wis. 2d 522, ¶64 (“We will not read
into the § 974.06 motion allegations that are not within the four corners of the
motion.”).

¶10 Koula asserts that he is entitled to a hearing on his WIS. STAT.
§ 974.06 motion. He argues that his motion sets forth material facts that, if true,
would entitle him to relief. He contends that his motion sufficiently alleges that

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his trial counsel failed to uncover and utilize material evidence at trial and that his
postconviction counsel failed to identify those claims of ineffective assistance of
trial counsel during postconviction proceedings. He contends that his motion
establishes that his postconviction counsel missed those obvious and strong claims
of ineffective assistance of trial counsel during postconviction proceedings, that
counsel’s failure to raise those issues cannot be justified, and that those issues
were clearly stronger than the issues postconviction counsel raised. Thus, Koula
asserts, the circuit court erred by denying his motion without a hearing. We
disagree.

¶11 As set forth above, Koula’s WIS. STAT. § 974.06 motion was
required to make the case of his postconviction counsel’s deficient performance.
To successfully plead ineffective assistance of postconviction counsel, Koula’s
§ 974.06 motion needed to do more than point to claims of ineffective assistance
of trial counsel that postconviction counsel did not raise. Koula needed to show
that the failure of postconviction counsel to raise those issues fell below an
objective standard of reasonableness. He was required to “overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound ... strategy.’” Strickland, 466 U.S. at 689 (quoted source
omitted). To show that his postconviction counsel performed deficiently, he was
required to establish that the claims he believes his postconviction counsel should
have raised were clearly stronger than the issues that postconviction counsel
pursued. See Romero-Georgana, 360 Wis. 2d 522, ¶¶45-46. Additionally,
because Koula’s claim of ineffective assistance of postconviction counsel was
premised on claims of ineffective assistance of trial counsel, he was also required
to establish that his trial counsel’s performance was both deficient and prejudicial.
See State v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369.

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¶12 To repeat, Koula’s postconviction counsel pursued the following
claims in Koula’s direct postconviction motion: (1) that Koula’s trial counsel
were ineffective by failing to object to the jury instruction regarding Dennis
Koula’s statements; and (2) that the real controversy was not fully tried when the
circuit court excluded Koula’s proposed Google Maps evidence, which would
have supported the defense theory that a professional hitman intended to kill a
neighbor rather than Dennis and Merna Koula. An evidentiary hearing was held
on the ineffective assistance of trial counsel claim. Trial counsel agreed at this
hearing that there was no strategic reason for failing to object to the jury
instruction, and that postconviction counsel proposed a better version. The
Google Maps evidence claim relied on the defense theory advanced at trial and
postconviction counsel presented additional evidence to support the significance
of the Google Maps evidence. Additionally, the Google Maps evidence claim did
not require Koula to overcome the two-prong hurdle of showing deficient
performance and prejudice required by a claim of ineffective assistance of counsel.
We evaluate whether Koula’s current claims are clearly stronger than those that
were presented by postconviction counsel.

¶13 First, Koula asserts that his trial counsel failed to uncover and
present evidence implicating Cowell in the murders, including evidence that
Cowell has a history of violent behavior, domestic violence, and threatening
violence with a firearm; that Cowell served in the military and thus had training
with firearms; that Cowell has a history of alcohol abuse, antisocial traits,
dishonesty, and unemployment; that Cowell had a strained relationship with
Dennis and Merna Koula; that Cowell and his wife (Dennis and Merna’s daughter)
were struggling financially around the time of the murders; that Dennis Koula had
recently told his daughter that he was cutting off his financial support to her and

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No. 2017AP1995

Cowell, and that she and Cowell had a fight the morning of the murders; and that
Cowell did not have a valid alibi for the evening of the murders. Koula asserts
that his trial counsel had no reason for failing to pursue a Denny motion seeking to
present evidence implicating Cowell, rather than Koula, in the murders. However,
Koula has not established that this claim of ineffective assistance of counsel was
clearly stronger than the claims that counsel chose to pursue. In particular, Koula
does not overcome our presumption that it was reasonable trial strategy to pursue
the professional hitman theory rather than pursue a Denny motion to implicate
Cowell, who Koula acknowledges had an alibi that he was home with his wife and
daughter on the night of the murders, even if Koula now questions that alibi.
Koula has not explained why it would not have been reasonable strategy for
counsel to forego the Denny motion in light of the alibi. This claim of ineffective
assistance of trial counsel was not clearly stronger than the claims postconviction
counsel pursued.

¶14 Second, Koula asserts that his counsel failed to uncover and present
evidence that challenged the State’s time-of-death theory. He argues that the
State’s evidence that Merna Koula was killed at 5:41 p.m. was based on flawed
computer forensic evidence that indicated that her last key stroke was done at that
time, before she was shot while sitting at her computer. He argues that an expert
computer evaluation would have contradicted the State’s key stroke evidence.
However, Koula has not set forth what evidence his trial counsel should have
presented that would have clearly contradicted the State’s theory as to the time of
the murders. Moreover, other evidence supported the State’s theory that the
murders happened during that timeframe, including evidence indicating that
Dennis Koula was murdered as he arrived home from work, including the time
that Dennis Koula left work and the drive time between his work and home. This

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claim of ineffective assistance of counsel is not clearly stronger than the issues
raised.

¶15 Third, Koula asserts that his counsel failed to uncover and present
physical evidence that challenged the State’s description of how Merna Koula was
shot. He contends that the State’s theory that Merna Koula was shot in the back of
the head with a rifle by a person standing behind her was impossible based on the
physical dimensions of the room and the firearm, and the lack of gunshot residue.
He also argues it was improper for the State to display the firearm at trial and
argue that it was the murder weapon, without any proof that it actually was the
murder weapon. However, Koula fails to sufficiently explain why we should
conclude that this argument would have been clearly stronger than the arguments
raised.

¶16 Fourth, Koula asserts that his counsel failed to uncover and present
an analysis of the fingerprint lifted from the firearm that was alleged to be the
murder weapon, which Koula asserts would have excluded him. He argues that
his trial counsel retained a fingerprint expert in California who excluded Koula as
the source of the fingerprint taken from the rifle. He asserts that it is unknown
why his counsel did not present that evidence at trial. However, Koula does not
explain what evidence he would present to support this claim. Accordingly, we
are not persuaded that this would have been clearly stronger than the arguments
raised.

¶17 Fifth, Koula asserts that his counsel failed to uncover and present
more complete financial evidence to refute the State’s theory that Koula killed his
parents out of financial desperation. He argues that counsel did not present all
available evidence to establish that his parents were willing to continue helping

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him financially, that Dennis Koula intended the $50,000 for Koula, and that
Dennis Koula intended to cut off his financial support to his daughter and son-in-
law, but not to Koula. He argues that more complete financial information would
have disproven the State’s theory that Koula had a financial motive to kill his
parents. However, trial counsel presented a significant amount of evidence in an
attempt to counter the State’s theory that Koula had a financial motive to murder
his parents. The argument that counsel should have done more in support of this
defense would not have been clearly stronger than the arguments raised.

¶18 Sixth, Koula asserts that his counsel failed to uncover and present
evidence relating to misleading and dishonest evidence presented by the State. He
asserts that examples of the State’s misleading evidence include the following:
that Koula had told friends that he had a receipt from a purchase on the Friday
evening of the murders prior to public knowledge that the murders occurred on
Friday evening; that Koula was untruthful about feeling his father’s leg when he
located the bodies and that the leg was stiff; that Koula had no valid reason for
falsifying a threatening note to himself after his parents were murdered; that Koula
had attempted to destroy incriminating evidence; that Koula’s tan colored truck
was black, and therefore matched a description of a truck seen at Dennis and
Merna Koula’s home on the evening of the murders; that Koula’s call to 9-1-1
after locating his parents indicated that there was no television noise in the
background, despite Koula’s report that the television was loud when he arrived; a
photograph of Koula’s key in his parents’ door; that only the window blinds in the
room in which Merna Koula was found were closed; and driving times between
various locations. None of these claims of ineffective assistance of trial counsel
are sufficiently explained to establish why they are clearly stronger than the claims
postconviction counsel chose to pursue.

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¶19 We reject Koula’s claim that the cumulative effect of his trial
counsel’s errors established a claim of ineffective assistance of counsel that was
clearly stronger than the issues raised. We are not persuaded that, together,
Koula’s assertions of trial counsel error would have supported a claim of
ineffective assistance of counsel that was clearly stronger than the issues raised in
Koula’s direct postconviction motion.

¶20 Moreover, Koula needed to show how he intended to establish
deficient performance of both trial and postconviction counsel if he were granted
an evidentiary hearing. Balliette, 336 Wis. 2d 358, ¶68. Koula does not explain
what testimony or other evidence he would present at a hearing that would
establish that his trial and postconviction counsel failed to properly identify issues
or that their choices were not reasonable and strategic. Rather, he asserts that, at a
motion hearing, counsel would answer questions as to why these issues were not
pursued. The mere fact that counsel did not pursue identified claims, without
more information, does not demonstrate ineffectiveness, and “[w]e will not
assume ineffective assistance from a conclusory assertion[.]” See Romero-
Georgana, 360 Wis. 2d 522, ¶62 (stating that the mere fact that postconviction
counsel did not pursue certain claims does not demonstrate ineffectiveness).

¶21 Lastly, Koula contends that we should reverse his convictions under
WIS. STAT. § 752.35, on the ground that the real controversy was not fully tried as
a result of counsel’s errors. We are not persuaded that the real controversy was
not fully tried, and, therefore, we decline to exercise our discretion to reverse on
that ground. Accordingly, we affirm.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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