*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant. † Theodore Oswald, Appeals Court argument September No. 97-1026-CR. Oral 8, 1999. 1999.—Decided December WI App (Also 207.) reported in 606 N.W.2d to review denied. †Petition
On of behalf the defendant-appellant, the cause Buting briefs of Jerome F. was submitted on the and Williams, Kathleen B. Stilling of & S.C. of Buting F. Brookfield. There Jerome argument by was oral Buting. plaintiff-respondent, the cause
On behalf of Lundsten, of Paul assistant on the brief was submitted attorney general. Doyle, attorney general E. and James argument Paul Lundsten. There oral J., Anderson, and JJ. Brown, P. Nettesheim Before appeals ¶ ANDERSON, 1. J. Theodore Oswald judgment of conviction and a nineteen-count from postconviction denying A relief. his motion for order argues, bias, warranted, of trial is he because new of trial and ineffective assistance misconduct court erro- First, he that the circuit counsel. neously contends jurors three for denied his motions to remove forcing peremptory cause, him to his strikes use peremptory strikes Because he used his remove them. requests error, he a new trial where to correct a court statutory per- full entitlement receive his he would emptory strikes. during Additionally,
¶ insists that voir Oswald 2. opinions discussed their dire waiting guilt room. Claim- and the case while erroneously ing its discretion the court exercised by failing properly investigate alle- the misconduct gations, requests trial. a new Lastly, was denied contends that he 3. his trial counsel: assistance of counsel because effective (2) (1) erroneously request dire, voir failed to conducted (3) investigate properly change venue, failed to pursue defect defense. We mental disease or arguments reject these and affirm. criminal A detailed discussion of Oswald's necessary appeal. this Suffice it
activities is not robbery say, the armed Oswald's conviction flows from kidnapping institutions, a and a run- of three financial *5 ning gun battle with law enforcement after the third During robbery.1 gun police battle, the chase and a captain hostage police killed, and a and three participated officers were wounded. Oswald in the father, crimes with his James Oswald. The Oswald spree generated coverage crime print extensive from the Understandably, pre-
and electronic media.
publicity permeated
jury
process,
trial
selection
requiring
large panel,
court
call
circuit
a
to use
questionnaires
screening
panel
pro-
written
of
spective
and to conduct individual voir dire.
jury
After a
trial,
three-week
Oswald was
guilty
found
on all counts and
He
sentenced.2
then
thorough
discussion,
For a more
factual
see State v. James
Oswald,
App 3, 2,
2000 WI
Wis. 2d
JUROR BIAS
Background trial, the court heard 6. A few before weeks jury arguments regarding The court deter- selection. impaneled, jurors be three alternate mined that resulting jury panel selected from in a fifteen-member twenty-nine person jury pool. alternate Because granted party jurors seated, was would be each peremptory total strikes. strike seven additional juror questionnaires and to motions to use Oswald's jurors dire of the were both conduct individual voir granted. days. During place took over four 7. Voir dire the court to dire, of Oswald moved the course voir twenty-seven granted jurors The court for cause. strike requests appeal, On to strike. all but six of Oswald's by striking argues court erred not trial jurors this, he cause, and, because of three of these for given He contends that each of be a new trial. should strong by jurors and had exhibited bias or her these 939.32(l)(a), 939.05(2)(b), weapon, dangerous and a see §§ vest 939.63(l)(a)2 940.01(1), 939.64(2); party of to and one count and recklessly abetting first-degree endan- aiding crime of dangerous weapon, safety using bulletproof vest and a gering 939.63(l)(a)2 939.64(2), 939.05(2)(b), 941.30(1), see §§ years prison He consecu- was sentenced to serve Stats. (in years served tive life addition to ten to two sentences concurrently).
firmly guilty charged held that he was of the argues In addition, crimes. he that because the court failed to dismiss these cause, was forced peremptory challenges use his to remove them as and, deprived peremptory result, a challenges. of the full number begin by noting ¶ 8. We this case was not typical, highlighted by willingness as was the court's special adopt jury procedures. selection This case was unique only because of the enormous media cover- age charged activities, criminal but also because plan coverage of defense counsel's to turn the media positive into a factor for his client. Because the media consistently portrayed impressiona- had Oswald as an teenager who ble was victimized his abusive and *7 manipulating father, defense counsel desired reports. who had heard read such media Defense knowledge counsel reasoned that a with such likely support planned would defеnse strat- egy strategy Oswald's was not to his contest —coercion. physical participation in but, instead, to crimes theory participated focus on he that in the crimes by he because was coerced to do so his father. Counsel reports believed that the media contained information might important that not be at trial. As an admissible case, circumstance of this in mind we will bear theory reviewing Oswald's of defense while the record jury selection.
The Jurors objects juror ques- ¶ 9. Oswald that the first during dire, G., tioned voir Jan should have been During preliminary questioning dismissed for cause. by pre- court, Jan on circuit G. stated that based publicity personal morals, trial and his he had own During guilty. reached the that Oswald prob- questioning, "it would Jan G. said that continued very put ably he had learned difficult" to aside what reach a verdict on the evidence about the case and . presented in the courtroom. prosecutor quizzed 10. When put he had heard and he could aside what
whether responded, hope I'd an "I that have read, Jan G. try." open enough I'd He mind to be to do that.... able try solely agreed decide the case later that he would during However, in he heard the trial. on the evidence response questions counsel, defense Jan G. from keep very it difficult for him admitted would be open during questioning He further mind. admitted he he should not be a because felt he believed strongly guilt.3 The circuit court so about Oswald's any follow-up questions. to ask Oswald's counsel failed argu- hearing to strike him for cause. After moved regarding from the motion to ments both counsel It strike, the denied the motion. concluded that court gave messages, although Jan G.'s answers mixed clearly responded that able to follow the he would be court's instructions. objects Next, T. Edward
should have been dismissed for cause. Edward T. juror questionnaire that he had seen the revealed tape gun capture on televi- video Oswald's battle questioned sion least ten times. The court Edward T. at *8 specifically about he remembered from the video what [Oswald] tape. replied, in He "It's obvious that taking part shooting, in the —in both the van and was 3 questionnaire prior completed Jan G. had written Responding question opinion his to voir dire. to a of commented, guilt, "Yes, guilty. my Oswald's he No doubt mind that was involved with his father." robbery, kidnapping say whatnot, so I would that my opinion guilty." be that he would be Never- by prosecutor theless, when informed tape during trial, video would be shown T. Edward agreed viewing tape the video as evidence would judge's make it easier for him to followthe instructions only to consider the evidence at admitted trial. How- by ever, asked if when defense counsel his guilt tape about Oswald's was based on both the video printed reports, replied "yes" and the media Edward T. put opinions and that he would not be able to those follow-up question prosecutor, In a aside. again T. Edward stated that the evidence included tape opin- the video he would be able to set aside pursue any follow-up ions.4 The circuit court did not questioning denying In of T. Edward Oswald's chal- lenge cause, the court stated that Edward T. was ques- nervous and there were "inconsistent answers to trying tions." The court reasoned that "he was to questions presented forthrightly answer the him as to completely possible." and as as argues ¶ 12. The final that Oswald should have been stricken for cause was Marcia W. Marcia W. taking hostage told the court that Oswald's a housewife "might her, and, result, traumatized as a she not be really able fair." She admitted that she did con- guilty upon tape sider Oswald based a video of the Although incident that she had seen on television. she agreed try put that she would what she knew out of mind, her she remarked that she was not sure if she totally it could block out. Defense counsel asked questions openness series relative to Marcia W.'s questionnaire, In his Edward T. wrote that he believed guilty guns Oswald to be "because premedi of collection of escape tation robberies and all at cost." *9 presentation her defense. In of a coercion the responses, previous night that she had
she revealed the phone prayer chain a call from her church's received only pray Oswald, she should not and was told that judgment." people in She sit but "for those who would pressure." a that she "felt lot of stated questioned her further about 13. When replied defense, Marcia W. that after ofthe coercion night phone up believed, all and that she call she was "[Y]ou there —I'm sure that have choice and that things anybody many every time takes action build you things I'm different into that and cause do saying isn't I still feel that's not an not that valid. wrong." right all know from excuse for a—I think we directly if asked she could follow court's When replied defense, on coercion Marcia W. instructions try if she could. After that she but was not sure being court, on the coercion defense instructed problem guess probably "I stated, I have а Marcia W. my part law, umm, mind of the conservative with try."5 I would but
¶ 14. Defense counsel moved to strike Marcia W. grounds inci- on the that she was traumatized from the hostage and she dent because she identified with on the coer- was sure she could follow instructions motion, The circuit denied the cion defense. court hearing holding from that Marcia W.'s trauma not unusual and there no evi- the incident was any way Theodore dence that "she was reactive ... to portion The failed to address the Oswald." court challenging ability fol- Marcia W.'s counsel's motion instructions. low coercion questionnaire, In her Marcia W. wrote her reaction gun subsequent tape apprehension the video of the battle and disgust "[gluilt, and fear." Oswald was grant ¶ 15. *10 Because court did not Oswald's jurors these cause, motions to remove three for peremptory used three of his seven strikes to remove pool. jury them from the He that the insists court erro- neously failing by its exercised discretion to remove grounds jurors. reversal, contends, This failure is peremptory it forced him to because use strikes cause, remove should who have been stricken for depriving statutory thus peremptory challenges. him of his full entitlement
Discussion ¶ 16. The United States and Wisсonsin Constitu- guarantee right tions a criminal defendant ato by jury. impartial Const, VI; trial See U.S. amend. juror expressed §I, 7. A Const, art. "has or who Wis. any any opinion, prejudice formed or is aware of bias or panel. in the case" should be removed from the See 805.08(1), juror Additionally, "[i]f § is not indif- Stats. juror in case, ferent shall excused." Id. be ¶ 17. should to avoid Courts strive even appearance Louis, 470, See State 156 bias. v. Wis. 2d (1990). 478, 484, Faucher, 457 488 In State v. N.W.2d (1999), 700, 716, 227 Wis. 2d our N.W.2d supreme terminology court clarified the to be used examining juror pro- when bias. We determine a will juror spective biased and is therefore should (1) prospective removed for if the is cause statuto- (3) (2) rily subjectively objectively biased, or biased biased. See id. Statutory
A. Bias statutorily if 18. A is biased groups prospective juror falls of the the legislature into one in deemed are biased as a matter of law has 805.08(1), § Faucher, 717, 596 See 227 Wis. 2d at Stats. statutorily Prospective jurors at are N.W.2d they marriage any related biased are "blood or attorney party any appearing in the or if or to case" "[have] they any financial interest the case." See 805.08(1). "Statutory pre § bias is a conclusion of law relationships on the are so mised inherently prone belief certain pаrtiality case- that an individual by-case inquiry State v. is not worth the time effort." *11 Kiernan, 736, 744, 760, 2d 764 Wis. 596 N.W.2d (1999). any juror party suggests that should Neither statutory for she have been removed bias because or 805.08(1) categories § fell into one of excluded only subjec persons. Accordingly, we will discuss the objective prongs juror and tive bias. Subjective
B. Bias juror prospective subjectively A 19. is biased juror a the record reflects that person is not reasonable sincerely willing any opinion is aside who to set juror prior knowledge prospective might or Kiernan, 745, See 227 Wis. 2d at at have. 596 N.W.2d "[S]ubjective refers 764. bias to the bias that is revealed prospective juror on it voir dire: refers to the juror's Faucher, 2d state mind." 227 Wis. frequently, prospec- 717, at 596 N.W.2d at Most a juror prejudice explicitly tive will not admit to inability Through juror's prejudice. to this set aside responses questions her verbal to voir dire and his or juror subjec- demeanor, the court can assess if the is tively See Kiernan, biased. 227 Wis. 2d at N.W.2d at 764. The court's determination of whether a juror subjectively finding is biased is a factual and will upheld clearly be unless erroneous. See id. We will now pro- review the court's determination that none of the spective jurors question subjectively were biased. reрeatedly expressed 20. Jan G. doubts about ability ignore opinions pretrial his publicity his formed from personal repeat- morals, his but he also edly willingness attempt put affirmed his aside opinions judge the case based on the evidence presented. candidly He confessed that he felt he was juror not the best choice for a because of his beliefs. The prosecutor's argument every court considered the jury pool feelings in the would have some toward coverage Oswald based on the media but that this disqualify juror. prose- alone should not Rather, the pointed only cutor disqualified out that a should
if he or she were unable to set this aside.
¶ 21. The circuit court determined that Jan G.
subjectively
was not
biased.
It
"he,
believed that
clearly, responded
try
that he to follow whatever
essentially,-be
the court's
and,
instructions are
fair and
impartial...."
supports
finding
The record
the court's
*12
person
that Jan G. was a reasonable
and that he was
willingness
opinion. "[A]
sincere in his
to set aside his
prospective juror
respond
ques
need to voir dire
unequivocal
impartiality."
tions with
declarations of
Erickson,
State v.
758,
227
2d
Wis.
596 N.W.2d
(2000).
(1999),
749, cert. denied,
¶ T. 22. Edward put his questioned he be able whether would rationalizing that opinions "no," He first stated aside. tape airings multiple the video of had seen because alleged activities, he depicting criminal some of being guilt. However, after of Oswald's convinced was likely tape most would the video informed jury evidence, as could be considered and shown to opinions put The court aside. he could he felt gave conflicting answers T. that Edward believed forthright trying very and hard to be he was because juror's relies on the Such a determination nervous. was being questioned. is while Whether demeanor subjectively "only frequently be revealed will biased through Faucher, 227 Wis. demeanor." See his or her correctly relied at The court 718, 596 N.W.2d 2d at subjec- judge if he was demeanor to on Edward T.'s superior "[T]he tively in a circuit court sits biased. disposition pro- position demeanor and to assess the agree Accordingly, jurors." spective we with Id. subjectively finding Edward T. was not court's biased. expressed concerns about 23. Marcia W. also regarding ability particularly fair, a coercion
her
to be
having
personally
trau-
She also confessed
defense.
allegedly
feelings
reports
news
that Oswald
matic
from
reрeatedly
hostage. However, she
took a housewife
try
put
opinions
her
aside
that she would
stated
instructions.
follow the court's
subjective
It rea-
found no
bias.
24. The court
nothing
feelings of trauma were
that Marcia W.'s
soned
feelings
putting
herself
in fact
unusual
were
exactly
hostage,
position
as the
which
the same
during
trial.
to do
be asked
what
*13
expected
explore
Indeed, a court is
to "use voir dire to
a
juror's
prospective
predilections
fears, biases, and
and
fully expect
juror's
a
honest answers at times to be less
unequivocal."
than
Erickson, 227 Wis.
776,
2d at
accepted
N.W.2d at 759. The court
Marcia W.'s affirma-
try
opinions.
tions that she would
to set aside her
We
clearly
find that
the court's determination was not
question
erroneous. None of the
in
should have
grounds
subjective
been dismissed for cause on
bias.
Objective
C.
Bias
prospective juror
objectively
25. A
is
if
biased
person
prospective juror's position
"a reasonable
in the
objectively
judge
.
impar-
could not
the case in a fair and
tial
775,
manner." Id. at
activities prospective jurors expect will not have do not exposure; opinions our con- from such media formed juror's person in the cern is if a reasonable position ability put opin- aside these would have the case based on evidence ions and consider presented at trial.6 757, 765, Herrington, 41 2d 165 N.W.2d In State v. Wis. (1969) Dowd, 717, 722-23
120, 123-24 (quoting Irvin v. 366 U.S. (1961)), stated: supreme court however, totally ignorant jurors required, It is not swift, days widespread
of the facts and issues involved. In these
communication,
important
case can be
and diverse methods of
vicinity,
public
expected
in the
to arouse the interest of the
scarcely any
qualified
not have
of those best
to serve as
will
impression
This
as to the merits ofthe case.
formed some
case,
In this
the circuit court did not have
supreme
the benefit ofthe recent
court cases and there-
prospective jurors
fore did not address whether the
objectively
independently
were
biased. We will
supports
examine the record to determine whether it
they
objectively
determination that
were not
biased.
We are mindful that
arewe
admonished to consider the
along
facts
circumstances of voir dire
with the facts
Faucher,
involved
the case. See
Wis. 2d at
point,
¶ In brief, 29. his Oswald claims that all the spective jurors expressed strong opinions that he was guilty. opinions, argues, go "straight These he to the ability presume heart of the issue: their the defen- proven guilty charges." dant innocent unless of the However, the facts and circumstances of this case reveal that this statement is Oswald, incorrect. For during securing jury heart of issue dire voir was a strategy. part amenable to his coercion defense As a of strategy, opting this Oswald was not to contest his participation in the crimes. His tactical decision was protest guilt. strategy not to ing This involved search- particular juror; type juror for a this ideal would presume that Oswald was innocent but would be coverage influenced the media and also could be particularly true in is criminal cases. To hold that the mere exis- any preconceived guilt tence of notion as to the or innocence of an accused, more, presumption is sufficient to rebut the without of a prospective juror's impartiality impossible would be to establish juror lay impression standard. It is sufficient if the can aside his or presented and render a verdict on the in based evidence court. type particular supportive defense. The of a coercion sought important is an circumstance surrounding the voir dire. sought jurors Considering that the defense argues defense, the State to its coercion
amenable misconceptions have a reasonable would pro- points that the defense means. It out such a what receptivity spective their to a asked about were fully explained to defense, it coercion but was never juror, contends, it would have them. A reasonable primarily a and most of this case as homicide viewed imply questions that this on coercion seemed charges. complete to all the a defense agree that this is a reasonable inference 31. We Marcia instance, dire. For W. to draw from initially voir probably could not consider remarked that she people their defense make own coercion because later seek to be excused from them. choices and cannot judge briefly However, after the summarized how applied case, in the she coercion defense would be might problem have a such a stated that she still with try could to consider it. A coercion defense but she person respond reservations to reasonable with legal questions she did not about a defense that possibly might completely assumed understand and guilt. circum- the defendant of Under the relieve any replied manner that stances, Marcia W. willingness person her would. She affirmed reasonable *16 try to to follow the court's instructions but confessed trepidation. person her position A reasonable in Marcia W.'s prior opinions
could set aside his or her judge impartially. conclude that Marcia W. the case We objectively was not biased. W., In addition to Marcia Oswald also objectively
argues T. that Jan G. and Edward were strong opinions biased of because their that he was guilty. question strength jurors' First, we the of these opinions. jurors equivocated Both in the answers and messages they gave again Second, the court. we note strategy employed that the defense at voir dire was not jury panel consisting only jurors to secure of who they presume stated could Oswald innocent until proven guilty; sought jurors rather, the defense with coverage some of awareness the media and an amena- bility ato coercion defense. Recently,
¶ 33. the Faucher court determined prospective juror objectively that a biased because strength the of his about a case's crucial Faucher, witness. See Wis. 2d at 596 N.W.2d reaching conclusion, at 785. In this the on court focused juror's "strongly held belief case's crucial present In contrast, witness. See id. situation dif- juror, strength fers because unlike the Faucher prospective jurors' opinions changed during importantly, opinions and, voir dire their did not con- cern the central issue in the case. present
¶ 34. In the case, both Jan G. and equivocated responses regarding Edward T. in their put opinions. they their abilities to aside their When changed responses being their initial from not to able guilty opinions willingness set their aside to a sincere try they opinions do so, showed that these were ingrained pri not mary Furthermore, attitudes. Oswald's during
concern dire voir was to seat who potentially support strategy. could his coercion defense Following strategy, sought jurors this Oswald's defense exposed coverage to the media about the crimes and his yet, open believing and, father's behavior perform Oswald was coerced to those acts. This defense theory was the crucial issue in this case and neither *17 T.!s that Oswald was Jan G.’s. nor Edward prevent judging guilty them from the defense's theory impartial fair and manner. in a juror candidly prospective
¶ confessed 35. Each opinions prospec- any preconceived held. The he or she questioned jurors each waivered when about the tive strength opinions prior opin- these of these —whether strong they disregarded. not Like ions were so could serving any person unfamiliar with reasonable who is expected of him or her in will be as what jurors prospective that role, the informed the court that guilty, they opinions that had but Oswald was try they willing and would to follow court's were prior opinions put these aside and con- instructions to Although only presented at trial. sider the evidence initially her assured the court that or each guilty responses opinions firm, their further were prior opinions questioning not these were revealed that unchangeable by ingrained instruc- attitudes court presentation and the of evidence. tions Considering special facts and circum- 36. surrounding dire, voir conclude that stances this we position person T.'s in Jan G.'s or Edward reasonable prior opinions. The set aside his or her record could objec- that neither Jan G. nor T. was shows Edward tively biased. prospective sum, In we determine that the
jurors The should not have been dismissed for cause. not it denied motions to court did err when Oswald's jurors jurors strike these because the were statutorily, subjectively objectively biased. Because Oswald has failed to demonstrate prospective were fact biased and the court *18 by denying argu- erred his them, motions to strike his statutory ment that he his full was denied entitlement peremptory strikes because of his efforts to correct the court's error has no merit and fails.
JUROR MISCONDUCT argues day ¶ 38. Oswald that on the fourth of voir dire the court misused its discretion when it request investigation allegations denied his for an into juror possible allegations possible of misconduct. The of initially during misсonduct arose the voir dire of prospective juror Roger K. When the court asked him exposure Roger had, about how much media he had K. replied, days "I know I've learned more in the last 3 sitting [waiting] here down there in that room about day happened." this case I than have since the that it Roger ¶ 39. admission, After K.'s requested that the court strike him for con- cause and investigation prospective duct an into the content of jurors' waiting conversations in the room. The court requests.7 permitted denied both However, the court question remaining prospective the defense to jurors waiting about the room did conversations but any previously questioned jurors not call back to be topic. questioned on prospective examined this The defense remaining jurors super- and the bailiff who waiting jurors vised the room. of the Two who were 7 granting Circuit courts are to err on cautioned the side of jurors practice motions to remove for cause because such appearance long may avoids the of and in bias rim save the judiciary's Mendoza, time and See v. Wis. resources. State (1999). 838, 864, case, 2d 596 N.W.2d In court this granted twenty-one twenty-seven of Oswald's motions to strike jurors appeal of сause. Oswald does not the court's denial Roger motion to strike K.
questioned admitted conversations waiting place guilt room.8 Oswald in the Oswald's again requested took inquiry of that the court conduct qualified previously to serve had been who they participated panel had on and determine guilt. of affected the discussions Oswald's been request was also denied. This hearing, postconviction Oswald's 40. At the only misconduct was the additional evidence testimony prospective juror Jacqueline M. had who jury panel. Jacqueline M. testi- stricken from the been waiting room, she heard at least fied that in the while jurors express opinions that Oswald three *19 joke guilty a the and waste of was and that trial was jurors, S., that of these William time. She stated one jury panel seated on the that decided case. was denying post- ¶ 41. its In oral decision Oswald's trial, for a stated that conviction motion new court Jacqueline It it did not find M. to be credible. noted that many opportunities alleged report the she had had to discussions to the court or bailiff but never mentioned by investi- them until she was contacted defense's gators. The court inferred that because defense presented support no other witnesses to its clаim sup- Jacqueline M. no besides ported other witnesses significantly, her assertions. Most the court given juror she had false answers on her stressed that questionnaire. response questions if In she might any physical problems which had or emotional jury if service, she had ever been the interfere with physical violence, victim of and she had been example, For one testified that none of the other opin prospective jurors trying convince him of a certain was guilty. express opinions ion that Oswald but was relationship, Jacque- in a involved violent or assaultive line M. said "no." contrary
¶ 42. To the on cross-examination dur- ing twenty-three days dire, voir she testified that signing questionnaire physically before her she was fireplace poker her assaulted husband with a during the assault feared that her life inwas imminent danger. police She also testified that had been police called to her home son, to remove her that the drinking alcohol, noted that she had been and that this period significant was a turmoil in life her in which prescribed psychotropic was she medications. The Jacqueline testimony court concluded that M.'s unreliable because these events occurred within two or filling juror questionnairе, three weeks of her out the questionnaire on she failed include them. The court also held that Oswald failed to make a suffi- showing cient that misconduct occurred. appeal, apparently argues
¶ 43. On by denying request the trial court erred inquire to further allegations into the misconduct because it prevented learning gave him from whether William S. during actually false answers voir dire and was biased. He claims that William S. did not admit to such strong guilt during conviction of Oswald's voir dire as alleges Jacqueline expressed waiting M. in the prospective juror incorrectly room. Because a answered *20 question during requests a material dire, voir a new trial.
¶ 44. A trial court has broad discretion over how including dire conducted, voir examination is the questions prospective form and number of of asked jurors. State, 404, 408, See Hammill v. 89 Wis. 2d 278 (1979). Accordingly, 821, N.W.2d 822 will dis- we
85 showing decisions without a turb the court's voir dire 408, 278 See at misused its discretion. id. that the court 822-23. N.W.2d at postcon- the and After a review of voir dire 45. hearing records, too conclude that Oswald we
viction juror showing make of misconduct failed to a sufficient trial. bases his claim to warrant new Oswald allegation gave S. false misconduct on his that William prospective questions. to voir dire When а answers during juror gives dire, a new answers voir erroneous only juror incorrectly if trial awarded "the will question responded incompletely on voir to a material probable that dire-, so, if . . . it is more than not surrounding and circumstances under the facts particular against case, the was biased mov- Wyss, ing party." 681, 726, 124 2d 370 State v. Wis. (1985), grounds on N.W.2d overruled other Poellinger, 493, 451 State v. 153 Wis. 2d N.W.2d (1990). Therefore, must show that the court Oswald investigate by denying request previ- erred ously jurors impaneled court because had granted it, information have arisen that William gave question to a material S. incorrect answers against prejudiced him. has Oswald failed either of these factors. demonstrate produce fails that First, evidence gave William S. an incorrect voir dire answer. Assum- testimony, ing veracity Jacqueline M.'s her allegation waiting is that the in the opinions guilty. room discussed that Oswald was This entirely opinion is consistent William S. with expressed questioning. dire William S. voir admitted juror questionnaire in his he did have questioning. and in dire He testified from voir believing seen, what he had he would have a hard time *21 expressed that he But, Oswald was involved. also a willingness ability put opinion aside and Accordingly, listen to the evidence. Oswald does not provide showing during evidence that William S. liеd during voir dire because William S.'s admissions voir alleged waiting dire were consistent with the room conversations. Second, Oswald does not demonstrate that against prejudiced Considering
William S. was Jacqueline him. M.'s characterization in the context of discussions William S.'s voir dire appears prospective jurors answers, it that the were referring opinions pretrial to their that based on the publicity coverage, participated and media in charged previously As have discussed, crimes. we prospective juror opinion partic- held the that Oswald ipated prospective juror crimes, in the was not against biased Oswald because such was strategy.9 consistent with his coercion defense Based on these reasons, we find that Oswald did not suffi- ciently prove gave that William S. incorrect voir dire against prejudiced answers or was him. The court's proper denial of Oswald's motion for a trial new exercise of discretion.
INEFFECTIVE OF ASSISTANCE COUNSEL argues
¶ 48. Oswald that was he denied effective respects. assistance of trial in counsel three he First, maintains counsel conducted voir dire a defi- Second, cient manner. insists because of the pervasive publicity continuous and "cir- that created a atmosphere" trial, cus-like for his his counsel was supra See pp. text 79-80. *22 change failing request a of venue. to deficient properly Lastly, objects his counsel's failure to to investigate a or defect mental disease and advance defense. components to a claim of 49. There are two of counsel: demonstration
ineffective assistance performance and a demonstra was deficient counsel's performance prejudiced the deficient tion that such 258, Smith, 273, 207 2d State v. Wis. defendant. See (1997). 379, Oswald has the burden to 558 N.W.2d 386 attorney's perform prove components. See An id. both light that "in of not deficient unless it is shown ance is circumstances, all the identified acts omissions the range professionally compe the wide of were outside Guck, 661, 669, v. 170 2d assistance." State Wis. tent 1992) (Ct. (citation omitted). App. 34, 490 38 N.W.2d performance thus assess whether such was reason We particular under the circumstances case. able 1, 25, 496 96, 2d Hubanks, See v. 173 Wis. N.W.2d State 1992). (Ct. performance App. limited 105 Deficient is duty the law or is clear such that situations where enough raise counsel should know reasonable 68, 85, 2d McMahon, v. 186 Wis. 519 issue. See State (Ct. 1994). App. 621, 628 N.W.2d performance found, is 50. Even deficient we proves that the will not revеrse unless defendant- actually deficiency prejudiced his or her defense: that deprive as to errors were so serious the defen- counsel's a fair trial —a trial result is reliable. See dant of whose Johnson, 127, 2d N.W.2d 121, State v. 153 Wis. 449 (1990). words, In 845, 848 other errors of counsel must actually defense, effect on the for not have adverse conceivably every error that could have influenced reliability undermines the of the result outcome probability "[T]here [must be] proceeding. a reasonable 88 unprofessional that, errors, counsel's but for the result proceeding ofthe would have been A different. reasona- probability probability ble is a sufficient undermine 129, confidence in outcome." Id. at 449 N.W.2d at (citation omitted). 848
¶ 51. Whether counsel's actions constitute inef- question fective assistance is a mixed law and fact. Pitsch, See 124 628, 633-34, State v. Wis. 2d 369 (1985). 711, 714 N.W.2d We will not overturn circuit findings concerning court's of fact the circumstances of strategy the case counsel's conduct and unless the findings clearly Knight, are erroneous. See State v. 168 (1992). 509, n.2, Wis. 2d N.W.2d How- *23 ever, the final determinations of whether counsel's performance prejudiced was deficient and the defense questions are of law which this court decides without deferеnce to the circuit court. See id.
A. Dire Voir ¶ per 52. Oswald contends that his counsel's during during formance questioning voir dire was deficient the jurors. prospective per
of three Counsel's argues, ineffective, formance was because these follow-up admitted bias and ask counsel failed to questions themof the court move to strike them for contrary, reviewing cause. To the the after record testimony, voir dire and counsel's Machner10 we con clude that counsel's conduct of voir dire was not deficient. argues
¶ 53. that his counsel conducted voir dire in the same manner as in was held deficient (Ct. Traylor, 393, State v. 170 Wis. 2d 489 626 N.W.2d App. 1992), State 2d Zurfluh, 436, and v. 134 397 Wis. (1981). Machner, 79, 2d
10Statev. 101 Wis. 303 633 N.W.2d 1986). (Ct. App. prospective In a Zurfluh, N.W.2d during juror expressed she court voir dire that to the "might See Zurfluh, able to fair." felt she not be proceeded at at 155. The court 2d 397 N.W.2d Wis. juror's juror explain prospective duties, to replied Next, the court that she understood them. making problem a fair her she have a asked would pro- impartial of the evidence. The and spective determination might. juror replied: "I I I'm don't afraid know. might. might. I I I'm I have; want but afraid wouldn't being just Id. I'm honest." refused to remove the 54. The circuit court
juror prospective It for cause. See id. bеlieved juror, impar- despite expressing difficulties, could still tially disagreed. held decide case. We See id. We expressed signifi- prospective juror that because the ability fairly cant doubts her decide case questioned impartially, further the court should have any See her about these doubts. id. Without additional prospective juror's doubts, clarification of the we deter- partial mined that she was and should have been See id. dismissed cause. Traylor applied 55. The court hold- Zurfluh
ing
performance
and found a defense counsel's
failing
follow-up questions
pro-
ask
deficient for
conclusively
spective
determine
the law as
whether
would follow
*24
by
Traylor,
See
170
2d at
instructed
the court.
Wis.
example,
performed
now examine defense counsel's dire contested voir con- begin questioning duct. We with the juror, quizzed First, James H. the circuit court James questionnaire "any H. his about statement his that person fleeing police appear armed from the tends to guilty." James H. reaffirmed to the court that he appear believed that such acts made an individual guilty. responding questions However, while from prosecutor, H. James later stated he that believed guilt that he decide could Oswald's innocence based only presented on the evidence at trial. Defense counsel questions. then asked James H. six Counsel first quizzed any opinions if he about had formed guilt. replied, "[TJruthfully about Oswald's James H. point appear guilty." ... at this he to be would Counsel responded asking strong opinion him was, how this impar- if other, one and if favored side or he was might tial. James H. admitted that he not completely impartial, man, but that he was a fair did particular argu- not favor one side and would listen ments and evidence. 57. Oswald also contests counsel's voir dire
questioning Dorothy L., who stated that she held an guilty. response In that Oswald to the prosecutor's questions, Dorothy L. stated she open keep mind listen to the evidence. questioned hypothetical When she asked, were would she be able to vote convict Oswald very Dorothy responded at that L. moment, that she *25 presenting so the State would unable to do without be the counsel asked her evidence of crimes. Defense questions she to which she stated that would numerous very evidence, her do her best to consider all the that outcome, that she mind not set to and was was regarding arguments willing a coercion to hear defense. questioning dire The final contested voir 58. jurors, Joy Like
was that of H. the other Joy opinion questionnaire expressed her in her H. guilty. court When asked replied statement, she need lis- this she testimony reaching ten to before evidence guilt. pro- decision on Oswald's The court ultimate opinion ask her if she could set aside her ceeded to presented at make Joy on the trial. her decision evidence replied: H.
Well, I honesty pretty in all think that would be any- to do. hard for me to difficult It's understand body in this area . . . would able that out put be you say know. I I wouldn't that I completely, mean try, I'm it saying couldn't but ... would be difficult have influence prior my not to some information decision. During questioning prosecutor, from the
Joy just opin- certain H. stated that because she has a opinion ion does not mean that would not now change presented. after evidence was She stated she would wait until she heard all the evidence to con- clusively up Again, prosecutor
make her mind. only asked her she could set her aside and judge guilt Joy based on the trial evidence. H. say yes. responded: supposed I "I I'm know don't very tough. I know. I don't think so. think it would It *26 very would be for me optimistic say to I could do I that.... don't think it's quite humanly to tell possible you the truth." After prosecutor repeated question, said, H. "I I
Joy that could" set hope my aside prior opinion judge case on the only evidence She then presented. affirmatively answered the prose- cutor's question regarding whether she was to willing follow the law the court's per instructions. She replied, "It's difficult I try" but would to a fair and be impartial juror. 61. Defense counsel then asked Joy H. numer-
ous questions, including following excerpted testimony.
Q ... I I'm going following know to be on up things you that I know have strong opinions. ... Is there anything you else that need to tell your us about... ability to impartial be fair and in this case?
A ... I don't come to the table impartial by any point. means at this
Q you yourself Do having find bias towards one particular side or the other?
A I against your Yes. ... would be biased client. Q know, thing you You the other I said that to you you talking wanted ask about that indicated my client you young you said that man that opinion had an that he needs to take responsibility. you Now I'd like to ask you have formed this now you before the case is even started. Do feel that your responsible mind is set that he is for the offenses he's charged with? opinion... I have that
A Is it set like stone? guess ... so I the answer [the trial] it is before starts is, asking could it ever be yes, you're I do have it. If anything possible. I is changed guess Q it suggest required I don't want to that would be you that know you forget everything have to either, I going possible but because that's be to this is keep coming point we all back guess you have are so opinions whether or not... impossible you make it strong going that it's you in this case? Can answer that? impartial They strong I . . . are. are they probably A think It enough. It would be difficult. would be difficult.
Q guess just trying I I'm to understand whether or strong the or so [your opinion point is] not... set to you open hearing . . . that can't be to both sides and deciding just legal the case on the evidence and instructions? listen, certainly certainly
A I I would ... would listen, my opinions my but I do think that. . . and strong begin to with and I think it would [are] bias part... influence or... it in how I hear play would I the rest of the evidence or what do with the rest of the evidence.
Q concerns that even You seem to have some you may asked to set it aside and decide though be you on the evidence that couldn't do that? Yes,
A I do have concerns with that. record, 62. After dire reviewing voir two ¶ First, are each things apparent. expressed guilty equivocated initial that Oswald was and opinion to some in degree responses questions about
94 ability strength put his of that or her it question- Second, the aside. record reveals substantial ing dialogue jurors court, between and the prosecution In instance, each and defense. defense sought juror's opinions by counsel of the clarification asking follow-up questions. Defense counsel conducted thorough questioning much more about the juror's expressed Traylor doubts than was conducted performance categorized and his Zurfluh, cannot be respect. as deficient in this However, 63. raises Oswald one additional con
tention. He claims that his counsel was also deficient requesting for not these stricken be for cause. Whether defense counsel should move the court to strike cause is or her tactical decision Brunette, to make. State v. 431, See 220 Wis. 2d (Ct. App.), 444-45, N.W.2d 174, 180 denied, review (1998). 220 Wis. 2d To N.W.2d show defi performance, cient Oswald must show that his representation objectively counsel's unreasonable. 445-46, See id. at at 583 N.W.2d hearing, 64. At Machner defense counsel expected potential jurors testified that he would preconceptions partici- have whether pated in the crimes due to the extensive media coverage. selecting jurors main His focus in was to seek open those who coercion defense strat- *28 egy. overly He not concerned that a had a guilty opinion only because such addressed juror's participated had in belief crimes, would which not be contested at trial. request
¶ 65. that he not Counsel testified did Joy H. be stricken cause because there was just more to her than the answers she told court. "[W]e open-minded felt that underneath we had an trying really person listen to what we were that would say despite he Counsel added that to her reservations." following she was on the facts: based these conclusions per- university professor, political her married to a honesty experiences, of her and the sonal beliefs and Joy that he Likewise, counsel testified viewed answers. "inherently Dorothy mothers, more L., H. and both as Dorоthy L. to the issues." Counsel felt that sensitive theory. expressed openness some to the coercion Coun- why directly questioned he did not sel was not move to strike James H. testimony, Based on counsel's counsel ability considering
sought jurors open with the to be any preconceptions theory spite in defense, the they may of guilt. He decided have had about Oswald's Joy Dorothy good H., all that James H. and L. would be jurors they open to the defense's because strategy. that defense counsel's decisions We conclude jurors reasonable, not strike these to move to were tactical decisions and do not constitute deficient performance. Change
B. Venue right that he was denied his 67. Oswald asserts by assistance of counsel his counsel's failure effective request change of venue for his trial. Because charged criminal activities received enormous media including coverage, coverage cap- live television of his alleges county potential in the ture, he that the prejudiced." "inflamed and This assertion is were proved, ques- contends, the fact that potential jurors only tionnaires the admitted media they exposure, "hope- but also evidenced thаt were lessly bias[ ]." infected with *29 Normally, proper the venue for a criminal county
trial is the
the crime
where
was
See
committed.
971.19(1),
may request
§
Stats. A defendant
the court
change
county securing
the trial's
venue
another
impartial jury
possible
county
not
is
where
971.22(1),
§
the crime occurred. See
Stats. When a
represented by counsel,
defendant
is
he or she dele
gates tactical decisions to counsel.
Brunette,
See
220
443,
2dWis.
at
¶ 70. In of the State's evidence against tapes depicting flight Oswald—video Oswald's hostage capture with a and his while armed and wear- bulletproof ing eyewitnesses, vest, ballistics plans evidence, his for the handwritten crimes and police confession to officers—defense counsel theorized *30 that Oswald for his client was that the best defense performed criminal to acts he was coerced the because by that: do his father. Counsel testified so it be ultimately convinced that would [W]e were Waukesha jury... to seek the ... from preferred... County fact lot of had seen despite people the that a this ... of the facts of the video and were well aware [a] I think the reason for that was ... case. And community Ted feeling among the Oswald's father; that different from that of his position was was unu- relationship the father and son so between presentation the of our aspects sual that coercive of image [T]he the media.... [by] were ... forth put high school fairly young client was intact of a our vulnerable, young, very look[ing] very student . . . . . felt that that was very impressionable. [W]e . to entirely that we chosе consistent with defense that there present in this case ... and we concluded in having impaneled a jury would be from benefit County. Waukesha presented
¶ 71. well-reasoned testi- Counsel mony strategy, support in of and it is not this court's his prerogative second-guess counsel's reasonable tacti- 485, Felton, 502, v. 2d cal decisions. See State 110 Wis. (1983). reject We Oswald's con- 329 N.W.2d for not tention that his counsel was deficient reviewing change prospec- requesting a venue after jurors' juror questionnaires. The tive answers to questionnaires only regarded opinions expressed in the opinions held about Oswald's opinions alleged participation in the crimes. The questionnaires did not reflect on revealed his mind, state of which was the focus of coer- Oswald's regard in cion His actions this defense. counsel's cannot construed as deficient but rather are consis- planned strategy. tent defense with only remaining arguments ¶ 72. Oswald's are (1) reaching that: the conclusion that a coercion sys- feasible, defense was counsel failed to conduct a polling county community; tematic the Waukesha (2) eventually Oswald's case from severed prior allowing plenty trial, father's two months request change. for time counsel a venue Neither of performance. these contentions evidences deficient Conducting systematic opinion poll county of the is necessary profession- act not an that is considered *31 ally competent Additionally, assistance. the decision of request change whether to a is a deci- venue tactical sion under the control of defense counsel. Counsel weighed testified that he the alternatives of the case professional judgment possible and in his the best argue defense for his client was to coercion and that a by remaining coercion defense would be benefited county. We conclude that counsel was not deficient failing change request a of venue. C. Mental Disease Defense argument ¶ 73. Oswald’s final that his counsel sufficiently was ineffective is that his counsel did not investigate or advance a defense that Oswald be should responsibility exonerated of of a because mental dis- Although ease or defect. Oswald admits that he actively participated pursue in not to a decision defense, mental disease he now claims that this deci- fully postconviction sion not a was informed one. At the hearing, expert psy- witness, the defеnse's Minnesota chologist Gilbertson, Dr. he James confessed that legal unfamiliar with Wisconsin's standard for a He that if he defense. further testified mental disease legal for a standard had aware Wisconsin's been opined defense, would have mental disease he result, a Oswald satisfied this threshold. As performed effectively, if his counsel had asserts that support defense for a mental disease Gilbertson's prejudicial, This was he would have been revealed. potentially argues, and denied him a viable defense. hearing, postconviction At the trial counsel a defense stated that he had considered mental disease psy- beginning a retained from the of the case. Counsel Gary Kendziorsky, chologist, he had Dr. who interviewing previously After used and trusted. Kendziorsky not Oswald, concluded that he was men- tally ill. disease 75. Counsel determined that mental Kendziorsky's on the basis of
was not viable defense other He that Oswald evaluation and factors. testified wanting 'crazy "play was adamant about game'" and enter a mental disease defense. Counsel strategic that he consider- further stated discussed pursuing such a defense with his client. ations about They that Oswald would evaluated discussed could court and state exаminers and that State from, evidence these examinations receive potentially weakening mind, Oswald's state of the coer- cion defense. Counsel averred that believed *32 mental disease defense was inconsistent with how presented himself, him Oswald how others described planned and the coercion defense. Counsel recom- they mended to Oswald that focus on the coercion pursue not a mental disease defense. defense and accepted counsel's recommendation. his complains an ill- 76. Oswald now that this was should informed decision. He claims his counsel 100 psychologist Gilbertson, have learned that a opinion supporting defense hired to render an the coer- supported defense, cion also have a mental disease defense. Gilbertson's initial mental disease assumption determination was based on an erroneous legal about Wisconsin's standard. He testified that "complex posttraumatic Oswald suffered from a stress generally accepted disorder" diagnosable that was a satisfy legal disease but could Wisconsin's standard. Oswald maintains that he had been effec- tively represented, his counsel would have continued serious consideration of a mental disease defense. replies
¶ 77. The State that the record indicates fully that counsel considered a mental defense, disease rejection. Additionally, and Oswald consented to its it argues, required "[CJounsel shop- was not to continue ping expert opinion for a different after received a qualified expert...." agree. from reliable We light In circumstances, of the made counsel an ade- quate inquiry possible into a mental disease defense. "Competent representation does not demand that repetitive counsel seek examinations of defendant expert supportive until an is found who will offer a opinion." Williams, v. P.2d California (Cal. 1988). ability produce conflicting Oswald's psychological postconviction hearing evaluation at the inquiry does not in that the itself establish factual inadequate. The record that his counsel made a reveals reasoned and considered choice to the mental abandon disease based case defense on the facts of the and his judgment appropriate strategy. of the most trial rationally strategic Because counsel's decision was law, founded on the facts and we conсlude representation was not deficient.
CONCLUSION summary, ¶ even In we determine that 78. jurors expressed opinions though prospective that against guilty, they him. was were not biased Oswald jurors subjectively The were not biased prospective juror confirmed he or she each because opinion willing put guilty aside, nor were they they objectively did have biased not because ingrained opposed A to the coercion defense. attitudes trial of misconduct is not warranted new because present proof did sufficient because impaneled jurors during dire lied voir and were against prejudiced him. Similarly, request for a trial 79. Oswald's new of of his trial counsel the ineffective assistance
because adequate ques- His dire fails. tioning counsel conducted voir prospective jurors reasonable, and made request on that the tactical decisions which Finally, regarding strike cause. counsel's deci- court for change request pursue sions not to venue perform defense, mental counsel did not defi- disease ciently well-reasoned, but made considered strategic seeking decisions best interests of client.
By Judgment and order affirmed. Court.— (concurring). NETTESHEIM, J. I concur my concurring in same reasons stated App Oswald, v. 2000 WI 2d State James Wis. day. 103, 606 238 released this same N.W.2d