State v. Wyss

per misjoinder se im- is I determine Because trial, doI entitled to a new Leach permissible court erred the trial whether the issue not reach in the second against the defendant a verdict directing trial. phase bifurcated Nathan that Chief Justice state

I am authorized joins in this dissent. Heffernan Wisconsin, Plaintiff-Respondent-Petitioner, State Defendant-Appellant. Wyss, Elmer F.

Supreme Court April Argued 1985. 83-818-CR. 1985.—Decided June No. (Also reported 745.) in 370 N.W.2d plaintiff-respondent-petitioner the cause For the was argued Becker, attorney general, by Devid J. assistant Follette, on Bronson whom brief was C. La with attorney general. a brief defendant-appellant there was

For Shellow, Stephen Shel- Glynn, Brenner and M. Susan W. argument by S.C., Milwaukee, and oral Glynn, low & Stephen Glynn. M. of Wisconsin BABLITCH, The State J. A.

WILLIAM of court of a decision for review (State) petitions Wyss defendant, F. Elmer granted the appeals which justice. In a trial, in the interest (Wyss), a new Wyss July found 20,1982, on commenced trial which Dorthy wife, first-degree of his murder guilty the cir- the record that Wyss. a review of find from We enough strong this case was evidence cumstantial hypothesis every certainty reasonable ato moral exclude We hold of the defendant’s innocence. that before a new granted alleged miscarriage may an trial because reviewing substantia] justice, court must find produce degree probability that a new trial will a dif- appeals The court of failed to ferent result. make that finding grant- erred as a matter of and therefore law in ing hardly new We conclude there trial. a remote degree possibility, much less a substantial of probability, produce a that a new trial would different result. Ac- cordingly, appeals we reverse court of and reinstate judgment of conviction. we discuss the facts in this and

Before case the issues necessary review, posture on it is to raised discuss the in which this review reached this court and the reasons why and all we consider determine raised. issues Follow- ing Wyss’ July 27, 1982, on conviction it was learned that Brayshaw (Brayshaw), foreperson John L. of jury, county not was a resident of Dane and that he had background failed to disclose this and other information juror questionnaire in a and voir on dire. The defendant promptly moved circuit court for a mistrial and an vacating judgment. Following evidentiary order an postconviction hearing, the trial court denied the motion concluding (1) for mistrial that the defendant not right denied his county constitutional to a of jury governmental which crime occurred because no abridging right; action was involved in (2) this and juror’s misrepresentations there was no evidence that the regarding background against information revealed bias the defendant. appealed judg- subsequently from

The defendant first-degree convicting ment of him murder and from denying postconviction the order In an his motion. un- rejected appeals Wyss’ published opinion, the court of support contention evidence that the was insufficient evidentiary his conviction and thé trial court’s rul- ings appeals new trial. The to a court of entitled him rejected Wyss’ that he contentions was denied also county right before a trial a of constitutional trial, new was entitled to a of he as residents and that juror right, juror’s inaccurate answers in a because of Having questionnaire preju- on voir dire. found no appeals error, the court of nevertheless dicial chose to discretion, pursuant 752.35, Stats., its sec. exercise justice. a new trial the interest of and ordered appeals case, of found the closeness of justice juror candor us prob- the lack of “convince miscarried and ably has we should order a new trial.” subsequently petition review, filed a for The State Stats., pursuant propriety of 808.10, to test to sec. discretionary grant appeals’ reversal. the court of court, the defendant stated that because letter to level, prevailing appeals’ party at the court of he was the appeals the decision of the court was not adverse 809.62(1). Consequently, him under Rule the defendant understanding Neely State, it stated that was his (1979), he could 279 N.W.2d 89 Wis. 2d alleged claims petition on his cross-review appeals. How denied the court which were error argue issues if this that he would these ever, he indicated granted petition for This court review. the State’s court the grant petition for review and defend did the State’s alleged fully of error for our claims his ant briefed review. only the decision is the Neely “Because we stated:

In case, party a appeals ain by of the court reached result may for petition not favorable is the result whom dis- party simply because that the decision review of opinion.” Id. expressed in the agrees the rationale with law, the Neely articulation correct at 758. While rais- prevailing party from holding the its does bar losing granting ing upon this court’s its issues 690 Neely

party’s petition 757, 1; See for review. at n. cf. Alles, 368, 383-395, 2d State Wis. N.W.2d 378 (1982); Co., Cas. 507, Auric v. Continental 2dWis. (1983). 331 N.W.2d Neely, the defendant conceded that if this court granted petition review, for the State could its raise granting petition upon Neely of his issue for review. Although this n. 1. court did not reach or decide question prevailing party of whether the in the court always challenge appeals reasoning can in the appeals’ opinion upon granting losing court of of the petition party’s question implicitly review, expressed answered the rationale in State v. Alles. Alles, In State v. this court discussed the need for the (respondent) cross-appeal state to file a in the court pursuant 809.10(2) appeals, (b), Stats., to sec. to chal lenge a nonfinal order of the circuit court which was appealed unfavorable to the state when defendant from his conviction. This court stated that the state challenge brief, could the non-final order in its without filing 974.05(2), a notice of review under sec. or a cross- sought appeal raising “when all that is is the an error judgment. corrected, which, if would sustain the . . .” explained permit Alies at 390. We rationale for ting respondent to raise the issue its brief “is the accepted respondent’s appellate rationale that a judgment will or verdict not be overturned where the right, record reveals that the trial court’s decision was although wrong appellate court, reason. An for the con precept, power, appeal- has the sistent with that once an jurisdiction, able order is within its to examine all rulings they determine whether are and, erroneous if they judgment corrected, whether would sustain policy, in fact Id. order which was entered.” at 391. This appellate practice, which underlies extends to this court petition granted, Thus, as well. once a to review has been power rulings this court has to examine all objection properly circuit court to which preserved by and all conclusions reached appeals court of which respondent’s by brief, are raised to determine erroneous, they whether are and whether if corrected they judgment would sustain order of the circuit by court or the decision rendered appeals. court of examining Therefore, after the briefs and record, this court has decided to appeal review the entire in this case. following

We therefore consider the issues for review: 1. support Was evidence sufficient a conviction degree beyond of first murder a reasonable doubt? We conclude that the sufficiently evidence was strong to ex- certainty clude every to a moral hypothesis reasonable innocence and was support Wyss’ therefore sufficient first-degree beyond conviction of murder a reasonable doubt. testimony

2. regarding Was Dr. Hann’s statements Wyss by Dorthy made to him in course of his medical concerning treatment her her attitudes toward the properly defendant admitted? We conclude that properly evidence was admitted.

3. Was evidence of the defendant’s character trait of jealousy properly admitted? We conclude that this evi- properly dence was admitted. testimony concerning alleged

4. Was an threat made properly the defendant to the victim admitted? We properly conclude that it was admitted. juror Brayshaw, participation who was

5. Did the trial, deny county not a Dane resident at the time of the right and im- the defendant his constitutional a fair vicinage? partial it did not. jury of the We conclude that answering juror Brayshaw’s 6. Did lack of candor deny juror questionnaire on voir dire the defend- allegedly prevented law because it process ant due jury chal- peremptory an informed use of the defendant’s lenge? not. conclude that it did We 692 as a matter law in err of appeals the court of

7. Did granted trial it a new exercising discretion when its finding that there was justice first without of the interest that a new trial would degree probability of a substantial did. it result? We conclude produce a different discretionary grant reversal of this court 8. Should justice? in the interest of conviction We the defendant’s should not. that we conclude Sufficiency

I. the Evidence argues jury’s guilty defendant that the verdict guaranties fatally is inconsistent constitutional with process upon in that due it is based evidence insufficient beyond support a conviction under the reasonable constitutionally mandated for all criminal doubt standard disagree. proceedings. We first-degree

The defendant was convicted of the mur- wife, Dorthy Wyss, der of his which occurred on Novem- 17, 1981, trial, ber their Mount Horeb home. At produced Wyss’ guilt, State no direct evidence of but solely upon relied circumstantial evidence. finding guilty may upon is

A rest evidence 357, entirely State, v. 90 Wis. 2d circumstantial. Struzik (1979). fact, 363, court has 279 922 this N.W.2d noted times circumstantial evidence that: “[o]ften stronger satisfactory than direct evidence.” and more 194, 197, (1974). v. State, 62 2d 214 N.W. 450 Clark Wis. Regardless whether the evidence is direct or cir- sufficiently strong cumstantial, it must convinc- ing beyond a reasonable doubt in to establish the facts Lund, mind of the 2d triers of facts. State Wis. (1980). In order for circum- N.W.2d demanding “beyond stantial evidence to meet this a rea- standard, trier of fact must sonable doubt” be con- strong sufficiently vinced that the evidence is exclude certainty every hypothesis to a moral reasonable of inno- explained proper court has cence. Id. This use of jury as circumstantial evidence follows: upon, circumstantial evidence is relied “[W]hen strong sufficiently every must be exclude evidence hypothesis of innocence. reasonable This does not mean brought any that, sug if of the evidence forth at trial gests innocence, jury cannot find the defendant guilty. The function of the is to decide which evi not, is credible and which is dence and how conflicts in jury the in the innocence. The rule that must exclude are evidence to resolved. The thus, can with reason, reject suggestive testimony bounds of the circumstantial evidence every theory reasonable of innocence refers to the evidence which the could have believed and upon support relied its verdict.” State, Peters v. 70 22, 34, Wis. 2d (1975). (Footnotes 233 N.W.2d 420 omitted.) reviewing the record to determine whether suffi cient presented evidence was conviction, to warrant a this court must consider the evidence in a manner that is most favorable to the Stanfield, state. State v. 553, 563-64, 2d Wis. (1982). 314 N.W.2d 339 We have following stated that the appropriate test is the one for reviewing a apply challenges court to when defendant sufficiency of the evidence:

“ ‘The test is not whether this court is convinced of the guilt beyond doubt, a reasonable but whether defendant’s acting could, this court can trier conclude of fact reasonably, degree required be convinced of certi right tude the evidence which it had a believe only accept required as true. Reversal is when the evi favorably dence considered most to the state and con probative viction is so insufficient value and force it can be said as a matter law that trier of no acting degree reasonably facts could be convinced to that ‘beyond of certitude which the law defines as a reasonable quoting (citations omitted).” 564, Id. State doubt.’ at Burkman, 630, 643, (1980). v. 2d 96 Wis. 292 N.W.2d 641 solely upon based circumstan is the conviction When presently us, evidence, in the case before tial as if a uphold the conviction reasonable trier of court must strong enough that the evidence is convinced fact could be certainty every hypothe moral reasonable to exclude to a 564; State, Frankovis v. of innocence. sis Stanfield 141, 148, (1980). 2d 287 N.W.2d 791 94 Wis. The credi witnesses, including bility defendant’s, and the weight evidence, exclusively for the trier of fact. State, 368, 377, Whitaker 83 Wis. 2d N.W.2d (1978). reviewing record,

After we conclude that the evi- jury, presented dence was sufficient to convince the certainty, hy- a moral there was no reasonable pothesis Thus, of the defendant’s innocence. the evidence jury beyond was sufficient to convince reasonable Wyss guilty first-degree reasonable doubt that wife, Dorthy Wyss. upon murder of his The facts which we conclusion as base this are follows: Wyss p.m. on John

About 6:00 November Dorthy lying mother, Wyss, on floor found his dead Wyss’ in the basement recreation room of the Mount pathologist Horeb home. A determined that she had died between 2 a.m. and 12:00 noon on 17 from November multiple loss of blood due to knife wounds. He testified that her throat from had been slashed ear to ear down severing vertebra, major vessels, to the blood nearly arteries and veins on both sides. Death was receiving instantaneous after There wound. were upper chest, 33 stab and cut wounds in the area of the and 12-20 deep slash wounds on neck. There was a sawing groove exposed in one of the 3 vertebra. The fingers right of both her left and had at least hands two pathologist slash wounds which the classified as de- fensive wounds. He testified that the defensive wounds probably Dorthy prior Wyss’ were received to the time throat was slashed. He further testified that all the jagged irregular, wounds were and somewhat and were type consistent with the of wounds a dull serrated kitchen produce. knife, knife would Such a ap- with a blade of proximately inches, partially was found obscured 4*4 Dorthy Wyss’ right deep sawing beneath arm. The groove in the fourth cervical vertebra matched the ser- edge rated of this knife. Blood on the knife was consis- that of the tent with victim’s. people Wyss night

Four were in the home on Dorthy Wyss’ Dorthy defendant, Wyss, murder: children, Wyss (age their 13) and two JoReen and John Wyss (age 17). heard evidence that the defendant attended a night game Dorthy

basketball November 16 while Wyss was at various bars in Mt. A Horeb. friend of Dorthy Wyss’, drinking, with whom she had been testi- brought Dorthy Wyss fied that she home about 1:00 Laboratory a.m. A chemist with the State Crime testi- Dorthy Wyss’ fied that blood alcohol 0.21 level was percent. home about that he returned

The defendant testified p.m., sleep in the watched television went to 9:45 ground which he with wife. floor bedroom shared night sleep that he did not well that He testified Dor- approximately when he heard awoke at 1:00 a.m. immediately thy Wyss He come home. testified vomiting home, in the bath- after she came he heard her sleep. heard went He awoke later and room. He back vomiting He recreation room. testi- her the basement sleep in recre- that it was not unusual for her to fied arose, sleeping He cleaned the ation room on a couch. bed, approximately a.m., 2:20 went back to kitchen at got asleep. up a.m. and and fell He at 4:30 read awhile factory cheese which he a.m. at the 5:00 to work at went day, returned home that managed. the entire He worked only dinner. It was after evening, prepare and started in the basement that mother his discovered his son John his had been killed. wife he learned said the defendant killing her. He denied student, he high testified that went to

John, school p.m. He awoke sometime between 2:00 sleep 9:00 about single when he heard dull or dead- a.m. a.m. and 3:00 coming mother from the his basement scream ened never He testified he had heard his room. recreation investigate He like that before. did mother scream business, because, testified, it and if was none his he might arguing with the defendant there mother was his fight. stayed awake for a few minutes and went be a He got sleep. up He about 7:30 a.m. left back a.m. school about 8:00 he home from school

John testified when came evening November his asked him he father if night. previous responded heard mother the had John that he not. John testified that had defendant told him that had a “real doozie” when came she she home. police from After defendant learned that John scream, had heard a the defendant John if asked it could refrigerator have from the been noise ice in the machine responded he heard rather than a scream. had John that it not the was machine. testimony

The defendant’s no reference contains what- only soever to a scream. The sound the defendant testi- coming make, he wife fied heard his from the basement recreation room at about the time heard the John scream, “retching noise, vomiting.” awas The defend- fairly easily ant stated sound carried from the rec- Dorthy Wyss reation room which killed to their register bedroom and to John’s bedroom of a because running ceiling under the recreation room those always say, two He bedrooms. testified “we used to why they thing put the hell did that damn in because every darn from sound could be heard that rec room.” partially Dorthy Wyss’ right

The knife found beneath arm was described the defendant as his “favorite Wyss knife.” that the last testified time he saw this game knife when had left was he for the basketball on evening murder and it that on was the kitchen counter at that time. He stated that he had cleaned the kitchen at 2:20 a.m. and was certain the knife was not there. He also testified that he had checked the kitchen “ again morning area in the before he left for work nd [a] anything out, if there was still turned the dishwasher —I on and went work.”

JoReen nothing testified that she heard after she went night to bed the of November She 16. awoke about 7:30 a.m. and left for school 8:00 about a.m. neighbors living testimony heard arguments

across the street had overheard numerous be- continuing Wysses, tween the until 3:00 or sometimes morning. March, 1981, Dorthy 4:00 in to her fled daughter’s stating away, if house several doors she get gonna “didn’t he kill out was her.” [the defendant] spent night June, She in a local motel. In Dor- 1981, thy psychiatrist seeing told pro- whom had been she fessionally living January since that she was fear of trapped her felt and resentful husband, she marriage something in her and that had to be done about murder, deputy it. After the asked defend- sheriff ant whether he had ever threatened his wife. He re- sponded by saying, “I up told her if she didn’t clean act, her she defendant, would find throat her slit.” The however, testified that he made in refer- this statement danger Dorthy ence to Wyss faced from her associa- drug tion with warning, criminal dealers and was one of not threat. defendant, daughter Amble, Jackie tes-

Another Dorthy Wyss’ body shortly was discov- after tified that distraught, say, him Wyss she heard ered while Why you you get did make me mad at “Why did drunk? “just kept saying kind of you?” that he testified She why, why.” by deputies regarding problems in questioned

When Wyss extremely jeal- marriage, described himself as his go that wife out and be with He his liked ous. said bringing by people in bars and often would “flaunt this guys Lathrop home. ...” told detective that her He running being gone Lathrop around and bothered him. enough Wyss if she loud testified that told him that angered, point when came home to the where he was she argument get up he would and it would lead to an often Dorthy. Wyss Lathrop that told between himself and them occurred after or both of had been drink- this one argu- ing. that “there would The defendant testified got uptown in after went back ments she evenings also.” the evi- that pertinent conclusion to our

Other facts appear later support the verdict was sufficient dence in this section. entirely circumstantial. in case is

The evidence de- meet evidence to order for this circumstantial standard, evi- manding “beyond a doubt” reasonable strong a moral sufficiently to exclude dence must be hypothesis certainty every of innocence. reasonable hypothesis argues reasonable there is a defendant hypothesis that someone supports his innocence: the of 2:00 a.m. hours else killed wife between the his 12:00 noon. suggestion or in in this record

Because there is no may argument have else” defendant’s the “someone JoReen, else” children, the “someone John or been the suggested by the defendant would have to have been an unknown intruder. reasonably jury could conclude that the

We find that a strong sufficiently to exclude to a moral evidence was certainty hypothesis every reasonable innocence Wyss suggests for number of reasons. The motive his alleged drug involvement, victim’s i.e. the wife’s murder by supported the manner in the evidence is assuming carried out. Even which the murder was some Wyss for someone than to have mur- motive existed other jury reasonably Dorthy, dered could conclude hypothesis that an unknown intruder committed this could murder in the time frames which it have three Lastly, physical occurred record. has no basis supporting points evidence that the defendant to as totally hypothesis speculative so and so inconclusive give weight. reasonably that a could it no These fully reasons are examined more below.

A. Motive Dorthy Wyss implies involved The defendant was disreputable drug suggests as a mo- with dealers and this tive the evidence motive, for her murder. Whatever the conclude, strongly suggests, jury reasonably and a could intruder, became moti- if there an unknown he Dorthy Wyss only the home. vated to kill after he entered seriously argued intruder It cannot be that an unknown prepared person bent on came into the house to kill: a prepared, and cer- murder have much better would come tainly depended knife on a serrated would not have dull accomplish planned his murder. Wyss

Further, hypothesis failed falls short because this drugs in- an would have motivated to demonstrate extent, The truder to kill her after he entered the home. drug drug any, with if victim’s use or involvement shown. Even if the dealers was never defendant’s state- baggie marijuana respect ment with to a and some missing purse pills true, from the victim’s it cannot be seriously suggested that a desire to take these items prompted particularly murder, this manner in out. which the murder was carried assuming relating a Even motive other than one killing drugs (and existed for the victim there is none suggested record), jury reasonably in this could find unreasonable it is to believe that an unknown in- Wyss have plan truder would entered the home without a kill, would have murder, become motivated to chosen, found, particular would have much have less this handled white steak knife with a dull blade of about 4*/4 long accomplish inches ends. defendant him- The self testified that this knife was not on the counter when up put he had cleaned the kitchen and the dishes in the dishwasher at 2:20 a.m.

B. three time in which murder frames

could have occurred assuming Wyss’ Dorthy Even some motive existed for Wyss, murder someone other than could rea- sonably hypothesis conclude that the that an unknown in- Dorthy Wyss truder murdered in the three time frames in which it would have have occurred has no basis pathologist this record. The testified that the murder occurred between 2:00 a.m. and 12:00 noon on November 17, 1981. The murder could not have occurred between 4:30 jury accepted a.m. 5:00 if a.m. the defend- testimony got up ant’s that he at 4:30 and left for a.m. clearly work at 5:00 a.m. because he would have heard something. reason, For same also could murder not have occurred between 7:30 a.m. and 8:00 a.m. be- got cause that up was the the time children and left for school. examining hypothesis the defendant’s that an

Thus, came into house sometime be- “unknown intruder” wife, 12:00 noon and killed his we tween 2:00 a.m. and hypothesis frames in which that must look at three time 1) Between 8:00 a.m. and 12:00 could have occurred: home; Dorthy 2) other was Be- noon when no one than when children tween 5:00 a.m. and 7:30 a.m. were work; 3) asleep and Between and the defendant was everyone a.m. when home. a.m. and 4:30 was 2:00 1. Between 8:00 a.m. 12:00 noon. strongly suggests The and the could have evidence reasonably Dorthy Wyss before concluded that dead was. pathologist children left for school at 8:00 a.m. The likely testified that was much to have oc- the death more curred 2:00 than between a.m. and 6:00 between a.m. a.m. 6:00 and noon. pieces of testimony two other

That is corroborated for 8:30 Dorthy Wyss appointment a hair had evidence. appointment personally that day. made that had a.m. She averaged ap- day. 2-3 previous had p.m. She at 4:00 Sep- shop since pointments that hairdresser’s a month at Dorthy it The hairdresser testified of 1980. tember The appointments. Wyss’ practice timely for her to be appointment Dorthy she made told when hairdresser day that day off but her previous the 17th was that my day it for but do her” on off to she would “come day could early she in the so prefer to do it would she unlikely highly day It off. have the rest of appointment. Wyss Dorthy missed would have Dorthy Wyss failed testified that when hairdresser also calling Wyss 8:45 a.m. home at appear, tried she morning answered. no one twice but more Clinic, testified receptionist Dean Meyer, a at the Beth Wyss morning she called of November that on up appoint- a.m. to an and 9:00 set between 8:30 home no Thereafter she to ment. She received answer. tried Wyss’ every telephone home at intervals of Dorthy p.m. 5:00 until about but received no minutes to hour an answer. reasonably jury could conclude find a that the

We strong sufficiently to to exclude a moral evidence was certainty hypothesis that an unknown intruder killed Wyss Dorthy hours of 8:00 a.m. and 12:00 between noon.

2. Between 5:00 a.m. and 7:30 a.m. equally jury it unreasonable believe A could find be- this murder an unknown intruder committed children were 5:00 and 7:30 a.m. while the tween a.m. asleep. heard a sound in John JoReen Neither nor morning during early and were not hours house those suggests strongly awas evidence awakened. The raging frenzy. throat murder in a victim’s done ear, wounds from ear to there were slashed stab/cut attempt made wounds; 12-20 and there was an slash sawing body by separate the head from the already dead within vertebra the victim was after Dorthy being wounds on moments of dead. The defensive up struggle. put Wyss’ order indicate that she a hands 5:00 a.m. and to have between for this murder occurred a a.m., come into have 7:30 the intruder would had strange condi- in a darkened and semi-darkened house Dorthy tion, Wyss, become suffi- the house for search ciently her, the house for motivated kill search raging frenzy knife, kill her in a white-handled steak all attempted and have done while she to defend herself, waking the this without children. reasonably that the find conclude

We could strong sufficiently to moral to exclude evidence was certainty hypothesis an unknown intruder killed Wyss hours 5:00 a.m. and 7:30 Dorthy between a.m. a.m. a.m. Between 2:00 and

3. b:30 strong jury from the could rea- evidence which is There sonably frame which that is time in conclude this the Wyss heard Dorthy Wyss he was killed. John testified a.m. 3:00 his scream time 2:00 and mother some between dull, scream; a.m. a heard It was deadened he had never pathologist tes- his mother scream like that before. The likely tified it was much that the murder occurred more 2:00 a.m. rather than between between and 6:00 a.m. keep hair Dorthy 6:00 to a a.m. and 12:00 noon. failed appointment telephone The not an- 8:30 a.m. morning. swered that have Dor- for an intruder to killed order unknown a.m.,

thy Wyss intruder 4:30 the between 2:00 a.m. strange night in a would had to a house at have enter Dorthy, condition, search house for become darkened sufficiently her, for the motivated kill house search frenzy raging knife, kill in a white-handled steak her all attempted herself, have done while she to defend being it. de- without aware defendant sleeping well that fendant himself testified he was easily fairly night. He testified that carried sound from recreation The defendant room his bedroom. during got up he of times testified that number testimony vomiting. night. Wyss Dorthy heard His He respect any with That defendant silent scream. vomiting anything Dorthy Wyss did not hear heard but himself testified else is not The defendant believable. “every rec from that darn could heard sound in the room” his This murder occurred bedroom. reasonably jury “rec” con- We could room. find that sufficiently strong elude that the evidence was to exclude certainty hypothesis to a moral an unknown in- Dorthy Wyss truder killed between hours of 2:00 a.m. and 4:30 a.m. hypothesis

Lastly, support of his that an unknown Wyss wife, emphasizes intruder murdered his that no significant implicate items of evidence Further, him. he argues pieces physical that certain evidence affirma- tively presence indicate the of an unknown intruder. We argument. find merit in no either emphasizes significant

The defendant that no items of physical implicate evidence The State no him. found fingerprint fingernail scrapings incriminating or him. spots No bloodstains or person were found on his clothing. Nevertheless, ample had evidence they before it conclude, obviously did, as the de- fendant had time to clean himself at home or his workplace destroyed incriminating could have items clothing might wearing. of he have been The does record what, not indicate if any, bed clothes the defendant wore night. when he went any to bed that If there were destroy, factory clothes the cheese in- maintained an cinerator which constantly burned almost and which was readily accessible where the parked defendant his car. points

The pieces defendant to certain of evidence as supporting theory that an unknown intruder killed Dorthy:

1) brief, argues “[t]hey In his defendant found a also bloody leading doorknob, gar- to the basement from the age. analyses . .. Blood determined that the blood on the origin, doorknob was human but an unidentified person.” Although might a reader infer from the defend- ant’s statement that the blood on doorknob from the Dorthy Wyss someone (“but other than or the defendant an person”), unidentified the record that the indicates type lab technician was unable to the blood at all due although beyond Thus, the blood her control. conditions anyone’s origin, have could been includ- was of human ing Dorthy Wyss’ it (The defendant’s. doorknob or the leading question of the door from the the was on side garage garage, to the not from the to the base- basement ment.) argues, support

2) in further of his defendant also hypothesis, “[hjairs were re- intruder unknown right her from the coroner’s . . . hand and trieved from bag bag. body body and one hair from Two hairs the being as not identifiable from the victim’s hand were Wyss children victim, the two from the the defendant or living at home.” pieces evidence, indicates record

As to these two following: right a) hairs of the six hand: Hairs from victim’s Dorthy Wyss blood,one hair from the stuck to the hand of Dorthy or that of the defendant was not consistent with comparison; Wyss; four hair was not one suitable Dorthy Wyss. By the similar to hair of were hairs Laboratory “similar,” Crime word the Wisconsin State analyst (that) mi- are consistent indicated “hairs croscopic could observed, and therefore characteristics originated from commonsource.” have bag: body b) five coroner’s Hairs from the body bag, labora- crime hairs from the the state obtained tory analyst de- similar that one hair was testified hair; to that of two hairs were similar fendant’s Dorthy Wyss, children; and, al- defendant, the two though specificity, it not state with record does Wyss’ remaining Dorthy hair. hairs were similar to two general (“There the were in that similar were some hairs bag body appearance with stan- with the—from the hair.”) [Dorthy Wyss’] head dard you highly likely analyst “[i]t’s that that testified living people [hair from] within the house- would find anyone hold and else would have visited the that house Thus, or in that a hair come contact with her.” from a person family who not a member of the was was found Dorthy’s hand, stuck that to two hairs that fell from body bag transport body used victim’s to .to morgue family totally were not from a member of the only family No evidence showed that inconclusive. lying used the recreation The victim room. on the was blood, pool Any previously floor in hairs left on the Wyss by to easily floor visitors home could have at- clothing tached themselves her bloodied hand. This evidence, which points support the defendant to in of his theory, unknown speculative intruder is so incon- so give jury weight. clusive that a reasonable could it no Given all of this evidence and the inferences extremely jealous drawn from it—the nature of the de- fendant, fights between the defendant and his wife frequently precipitated by were drinking after she went got uptown and in evenings, year back his statement a previous someday slit, she would find her throat his distraught daughter shortly statements overheard Dorthy’s body discovered, after you get “Why was did Why you drunk? why, you? did make . . me mad . why” conclude that evidence this record is —we strong enough certainty for a to a moral exclude every hypothesis reasonable of innocence. Evidentiary Challenges

II. argues The defendant trial committed rulings evidentiary reversible error in which denied his ruling Dorthy Wyss’ in limine. motions The first allowed psychiatrist testify Dorthy Wyss told him that she living in fear of felt her husband and that she trapped marriage. and resentful her The second rul- ing interrogated police Wyss allowed a officer who after Wyss testify that to told him that

the murder he was jealous when wife socialized with other The men. ruling testimony regarding third allowed the defendant’s you your “if clean-up that don’t statement his wife your act, up you may with throat slit.” wind reviewing evidentiary rulings, the trial court’s “ ‘ court, appeal question on is not he whether [t] ruling initially admissibility evidence, on the would in, permitted it to come but whether the trial court have accepted legal with exercised its discretion in accordance ” record.’ standards and in with the facts of accordance Alsteen, 723, State v. 324 N.W.2d 426 727, 108 Wis. 2d Wollman, (1982), quoting State Wis. 2d (1979). Thus, will find 273 N.W.2d 225 this court not if an abuse of there is a reasonable basis for discretion court’s determination. Alsteen at 727. the trial Psychiatrist

A. Statement limine to trial, filed a motion the defense Prior to who had Hann, psychiatrist, testimony by Dr. exclude weight anx- and loss Wyss Dorthy smoking, treated The de- January 1981. June of and iety neurosis between regarding testimony Dr. that Hann’s fendant contended by Dorthy Wyss would result made certain statements right of Wyss’ confron- denial in an unconstitutional Wyss Dorthy told testimony that was Dr. Hann’s tation. that living husband in fear of her him she marriage. trial The in her resentful trapped and she felt finding the statements motion, denied this court trustworthy reliable” “inherently so Hann were Dr. issue. the confrontation toas overcome did trial that the appeals concluded court of admitting testi Hann’s Dr. abuse discretion. its pur primary appeals mony. held The court trier confrontation, to ensure right pose upon satisfactory has a basis which to of fact evaluate prior statement, was the truthfulness of the satisfied given Dorthy Wyss’ reliability in inheres statements 74, Evans, (1970), Dutton to doctor. U.S. v. her quoting 149, Green, (1970). 399 U.S. California agree. We Bauer,

In State v. 109 Wis. 2d 325 N.W.2d 857 controlling legal this court detailed the (1982), standard applied resolving confrontation issue which presently us. before We stated: requisites are two “There to satisfaction of the con- right hearsay frontation evidence is [when admitteed]. First, dence must bear dence fits within a reliability admissible. Second, must be the witness unavailable. the evi- reliability. indicia of some If the evi- firmly hearsay exception, rooted generally can be inferred and evidence is reliability not, This inference of does how- ever, per make the evidence admissible se. The trial court must still examine the whether case to determine there are unusual clusion of the may circumstances warrant ex- which If evidence. evidence does fall firmly hearsay within a exception, rooted it can be ad- only upon showing mitted particularized guarantees a of trustworthiness.” Id. at 215. (1980). Roberts, also Ohio v. 448 U.S. 65-66 See Obviously requisite, unavailability, is satis the first argues, however, that fied in this case. The defendant requisite two reasons: the second not satisfied for 1) firmly did not fall within a rooted the statements hearsay exception; they did, 2) if the state and even ments were which un made under unusual circumstances dercut neither of their trustworthiness. We find that arguments these has merit. question trial court admitted the statement long

pursuant Stats., (4), to sec. 908.03 which codifies recognized hearsay exception made for for statements pro- diagnosis This section

purposes or treatment. : vides diag- purposes of medical “(4) for Statements purposes of made Statements treatment. nosis or describing medical diagnosis treatment or medical pain sensations, symptoms, or past present or history, or general ex- or inception character cause or or the reasonably pertinent insofar as

ternal source thereof diagnosis or treatment.” contends, however, statements The defendant hearsay “firmly rooted” deemed fall a cannot be within Roberts, they requird by Bauer because exception, as scope of not come the traditional that section. do within According traditionally al section defendant, to the patient’s report present lowed doctor relate Berger, past symptoms only. M. See J. Weinstein and Weinstein’s Evidence, (4) ^[01] 803-143 at (1984). argument, support points to the of the defendant this judicial 1974, which indicates council committee’s notes — change “major Wis that sec. constitutes a 908.03(4), Evidence, p. W.S.A., law. . . .” Rules of 467. consin expanded The committee notes indicate that this statute hearsay permit exception a doctor to the traditional of relate “statements of the character or external source according symptoms. Thus, de to the the cause” of the sig hearsay expansion exception is fendant this “firmly under the nificant because it demonstrates that testimony hearsay exception would Dr. Hann’s rooted” recounting Wyss him told have been Mrs. limited what brought anxiety, not certain her of fears which about anxiety. factor in her that the defendant was a causal argument question of reject find that We and “firmly hearsay exception a rooted” does whether is long accepted upon but rather turn rule has been how solidly grounded of reliabil- how it is on considerations ity very and right trustworthiness —the reasons for the to confrontation. hearsay exception

The rationale of issue here is clearly grounded reliability on considerations of go to Patients doctors to trustworthiness. receive treat strongly ment and are thus motivated to tell the truth. supra (1984). Weinstein and at 803-144-45 Berger, Advisory Federal 803(4), Committee’s note to Rule Fed Evidence, eral Rules of counterpart which federal 908.03(4), Stats., points guarantee of sec. out of trustworthiness “extends to statements as to causation” by patient physician. to a See Wisconsin Rules Evi dence, agree 2d at R266. Wis. We with the court of appeals’ patient’s phy conclusion “a statement sician, purposes diagnosis for treatment, made as to the cause or require source a symptom, meets the reliability ment confrontation purposes, absence of unusual hearsay circumstances.” Thus, exception under testimony Dr. which Hann’s was admit “firmly meaning ted is rooted” within the Bauer Roberts. however, inquiry here,

Our does not end because de- argues Wyss’ Dorthy to Dr. fendant statements Hann un- were made under unusual circumstances which Specifically, the dercut their trustworthiness. defendant Wyss’ Dorthy relia- contends were not statements being prob- 1) she ble because: treated for emotional was lems; 2) hypnosis part Hann had used as of his Dr. may treatment of her and thus the have been statements state; produced hypnotic while under the influence of a 3) actually char- and was of bad the evidence evidence and acter as a matter of law. was therefore unreliable according reject First, of these We each contentions. Wyss Dorthy Hann, psychotic to Dr. or delu- was not suffering anxiety Dr. sional but disorder. was from an always “was in touch with re- testified that she Hann Dorthy Wyss ality.” Second, evidence that there was no hypnotic the time these statements state at was Dorthy Wyss fact, Dr. Hann testified that were made. In January 30, 1981, to him from ten sessions with had put procedure 1981, he a formal used 12, June but once, during hypnotic only first her in a state her session January 30, made on 1981. statements at issue were hypnosis during session no the June Accordingly, that time. neither of these circum- used at Finally, reject preclude reliability. de- we stances argument unreliability of character fendant’s any bearing has Dor- evidence the trustworthiness of on thy’s conclude, to Dr. as statements Hann. We did argument appeals, court of that the defendant’s confuses reliability Dorthy Wyss’ the issue of statement grounds. inadmissibility Dr. Hann That with its on other person’s of a sec. evidence character excludable under 904.04(1), Stats., does make that evidence excluda- not ble in for it that Dor- instance, was admitted to show Wyss regardless thy husband, feared and resented her his character. dis-

We trial court did not abuse its conclude admitting Wyss’ Dorthy to Dr. cretion in statements right Accordingly, Hann. the defendant’s constitutional of this the admission confrontation was violated evidence. Jealousy

B. Evidence of Defendant’s sought to limine, In another motion in defendant by Wyss made exclude evidence of certain statements interrogation. Wyss during police statements those jealous as when wife socialized described himself Dorthy Wyss liked other with men indicated people by- talk to in bars and would often “flaunt this bringing guys home.” argues

The defendant the trial court committed prejudicial admitting testimony error in on the ground that it character, was evidence as a trait of his 904.04(1), Stats., pro- inadmissible under sec. which vides : “904.04 prove Character evidence not admissible to conduct; exceptions; (1) other crimes. Character evi- generally. person’s Evidence of a character or

dence a trait of his purpose character is not admissible for the proving of conformity that he acted therewith on particular occasion. . . .” We conclude that the trial court did not abuse its discre- admitting tion in this evidence because the statements an were admission as to motive, intent and admissible (2). under 904.04 sec. The statements were not admitted purpose showing for the the defendant acted conformity particular with a trait, character but rather purpose for the showing conformity that he acted in particular awith jealousy, emotional state, that this provided a motive and intent for the Therefore crime. by evidence (1). is barred sec. 904.04

The defendant next contends that trial court should have exercised its discretion and considered whether the probative value outweighed preju- the evidence its dicial Stats., provides: effect. Section 904.03, “904.03 Exclusion grounds of relevant evidence on prejudice, confusion, Although or waste of time. rele- vant, may evidence be excluded probative if its value substantially outweighed danger preju- of unfair dice, issues, misleading confusion of jury, or or by considerations delay, of undue time, waste need- presentation less of cumulative evidence.” object

However, the admis failed to the defendant ground prejudicial that its evidence on the sion this outweighed Consequently, probative value. the effect its engage balancing required to in trial not this court was process before it admitted evidence. McClelland (1978). 157-58, 2d 267 N.W.2d 843 Wis. State, provides 904.03, Stats., Therefore, no basis a sec. claim of error.

C. Possible Threat through defendant, limine, The another motion sought exclude evidence of his to his wife statement you up your you may up act, “if that don’t clean wind your argued with throat slit.” The that defendant Dorthy Wyss’ danger statement was a from reference drug association with one criminal and was dealers warning drug that a her throat. The associate would slit argument acknowledging strong court, trial while a that con- could made in the be made “that the statement was hanging with,” text of her conduct and who around she is testimony ruled The trial court found admissible. testimony that fact that “relevant because highly it is such a that that’s circumstance, coincidental in fact how she met her death.” hold that the We testimony. admitting not did abuse its discretion argues The defendant evidence should have been the statement was excluded as irrelevant because prior by kill threat that he would his the defendant danger warning wife, from but rather her was a about trial associates. defendant testified during his wife statement was regarding drugs. a discussion with made Lester son-in-law, The defendant’s (Amble), defendant Amble heard the testified he up act, tell his “that watch wife should clean her she hung crowd that with or she would find her she throat that he did not slit.” Amble testified take this statement defendant that he cut threat would her interrogated Wyss throat. An who officer testified that if he he asked the had ever threatened defendant wife. The defendant admitted he had volun- that he told teered her that she would find her throat up if slit didn’t clean she her act. Another officer testi- exchange. fied that he heard this

We conclude that the could find from the officer’s testimony that the defendant himself considered his state ament threat to his wife. Prior threats an accused against Simpson State, a victim are relevant. 83 Wis. 511, 2d 494, (1978). Thus, 266 N.W.2d we conclude that the trial court did abuse its in admit discretion ting grounds relevancy. the statement on

The defendant also that contends the statement was too probative remote to have value. an Remoteness is as pect relevancy. 159, Sonnenberg, State v. 2d 117 Wis. 172, 167, (1984). 344 N.W.2d 95 Amble that testified September this statement was made in or October of 1980, year Dorthy Wyss’ a little over before murder. The defendant that he had the testified made statement previously.” “a few months We do not find that the statement was too remote time Ac in to be relevant. cordingly, we do not find that the trial court abused its concluding admitting testimony in discretion after that it was not too remote in time.

III. Trial Court’s Denial Defendant’s

Motion Mistrial Following Wyss’ 27, July conviction on it was Brayshaw, jury, learned that foreperson was not a county. promptly resident of Dane The defendant a mistrial and an order va- circuit court for

moved alleged Bray- cating judgment. that The defendant county of Dane not a resident shaw concealed he was he failed Wyss’ to reveal trial and time of the division corrections. employment with connection defense counsel would have defendant stated Brayshaw been for cause had these facts moved to strike peremptory exercised strike to known, and would have jury had that motion denied. him from the been remove argued process was selection The defendant by Brayshaw’s failure informa- disclose this tainted thus, constitu- tion, the defendant was denied his rights process due assistance tional the effective of counsel. hearing evidentiary

An was held the defendant’s on following re- motion at which time information Brayshaw questionnaire juror Janu- received a vealed. jurors ary prospective out to 1982, which was sent Bray- polling list. selected from the November, living Madison, Dane mother shaw was with his ques- county, completed he and returned at the time parentage inquired juror’s The form about the tionnaire. single, juror married, di- and also asked whether the is Although Brayshaw divorced, he vorced widowed. single. Brayshaw indicating marked the box that he was through question about the which asked drew a line though ages nine-year-old a he had of his children even son. returning Bray- juror questionnaire,

Shortly after county Dam, Madison, shaw Dane Beaver moved from changed Dodge county. Brayshaw part move, As job employment at his and took a as an electrician Waupun, Waupun Wisconsin. Institution in Correctional qualified to Brayshaw approved Subsequently, was as appear, juror under as a serve and was summoned Brayshaw penalty undisputed was not law. It is asked, anyone, nor did he advise about he whether had changed county employment moved from Dane his juror questionnaire. initially completed he since why indicating When asked he checked box that he single divorced, Brayshaw was rather than indicated that single opposed he considered himself as to divorced. Brayshaw explained age failure to reveal the of his stating long “[m]y prior son legal life as it as nobody’s lawful is business.”

During voir dire, any jurors the court asked whether acquainted personnel. Bray- were with law enforcement respond though working shaw did not even he was Waupun daily, Correctional Institution and had albeit negligible, guards prison contact with and had met with police a concerning allega- officer on several an occasions tion that activity. he was involved in serious criminal Brayshaw respond also when failed the court asked any jurors acquainted whether were with the district attorney’s Brayshaw did, office. however, have contact attorney’s with problem the district office because of support payments. with his child

Brayshaw respond testified that he failed to to the question acquaintance court’s about his en- with law forcement prison officers because did not consider he guards personnel. law enforcement He further testified that he acquainted did not law indicate he was with though enforcement officers even he had had contact police thought with a officer because he the word “acquainted” having meant more than had mere contact with Brayshaw gave response someone. similar when why asked about he failed to indicate that he acquainted attorney’s with members of the district of- fice. He also testified that he did know that the in- dividual regarding he had had contact with the child support matter was attorney’s from the district office.

717 hearing Following- evidentiary postconviction on the motion, court, trial in a memorandum the the defendant’s for mistrial. The decision, motion denied the defendant’s approved quali- Brayshaw was as trial found that appear, penalty under of law. fied and was summoned anyone neglected Brayshaw advise that he was While longer county that em- resident of Dane and his no a juror changed completed ployment the had since he had fact, questionnaire, he asked to do so. no was not questions residency voir dire. asked on The about were governmental was in- no action trial court found that vicinage given denying Wyss jury a of volved in the Brayshaw longer only in Dane that he no resided knew county. no constitu- the concluded that Thus, trial court deprivation tional occurred. Brayshaw’s mis- trial

The court also determined regarding representations questionnaire jury on the background status, parentage infor- marital other against any defendant. mation did not reveal bias “given subsequently facts trial court stated that any disclosed, prejudice it is reasonable to believe against juror State, would have been against court concluded the defendant.” The trial there was no evidence that the verdict prejudice. result bias or grant general rule, a whether

As decision deny motion for trial within discretion a a new lies McDonough Inc. v. Equipment, trial court. Power Greenwood, 845, (1984). Ct. 850 U.S. S. the rel- position to The trial court is in the best evaluate facts or later discovered evance undisclosed evidence impact trial. outcome to consider their on the (8th Cir. McMahan, United States F.2d on motion 1984). Thus, the trial court’s determination juror judgment because a new trial or relief from 718 during fully to

failed disclose information voir dire is re only versible for either an abuse discretion or for a clear error of law in the exercise of its discretion. McCoy Goldston, 654, v. 1981) 657 (6th ; F.2d Cir. 341, United 606 F.2d Vargas, (1st States Cir. 1979). appeals In this the court of case, affirmed the trial denial of the court’s defendant’s motion for a mis trial. Jury Vicinage

A. the right defendant his asserts that under the sixth Constitution, amendment of the United States and the Constitution, I, 7, entirely Wisconsin art. be tried sec. by county residents which the crime occurred juror Brayshaw was violated because did reside in county court, Dane when the case was tried. The trial as argument rejected above, stated this and concluded that deprivation no constitutional occurred. appeals

The court of declined to reach issue of vicinage whether provision applies amendment’s sixth however, found, to the states. The Wisconsin I, guarantee Constitution art. sec. does a defendant right “by jury impartial county to a trial an of the or district wherein the offense been shall have commit- ted; county previously which or district shall have been by Despite appeals’ ascertained law.”1 court of rec- ognition agree, held, of this it constitutional and we right, objections residency that “the case law is firm: to the juror, grounds, if even based on constitutional are not argues right I, The state that the conferred sec. under art. right jury Constitution, Wisconsin is the to a drawn from the county, jury persons county not to a are who residents time of the trial. We do not issue reach this because whatever argument, change the merit of this result would not given right. case the defendant waived this if made for the first

grounds reversal for a new trial or Wyss waived conclude after the trial.” We time vicinage failing question by right jury residency Brayshaw during voir dire about his then serving failing on object on the to his longer county. ground a resident of Dane was no he (* 367) (1865), Elderkin, 19 Wis. 388 Rockwell v. granted case, trial “on trial court a new based a civil showing jurors that one of the had removed affidavits county county Dane of the trial] from said [the County, defend- and fact was not known to the that this 367). (* attorney, at ant or his the trial.” Id. 389 before stating: This court reversed having discovered, after Elderkin circumstance of “The trial, jurors from the the removed that one of had grant- opinion sufficient cause for county, is not in our ing objection taken before prevailed If had been new trial. might by way on challenge, it have trial, grounds; strictly too late. after we think is technical trial but im- objection It which does not affect is an intelligence juror, no partiality presumption furnishes of the and justice against think of the We verdict. disregarded Id. 390 it should be after verdict.” (* 368). appeals’ reli-

The defendant contends that the court of finding Rockwell an error ance on waiver was both law and an error of fact. ap

First, contends that Rockwell is defendant case, plicable because, was not here as a civil Rockwell heightened subject requirements juror fairness to the by impartiality proceedings imposed upon criminal the sixth amendment United States Constitution I, article 7 of the Wisconsin Constitution. sec. argument explicitly rejected Hickey State, v. This 744, (1882). Hickey, 490, 11 a crim 12 Neb. N.W. 745 invoking an case, Supreme ear inal Court the Nebraska (1876), Saunders, v. 4 Neb. 581 decision, lier Wilcox 720 Rockwell,

which on relied held failure to chal lenge juror sworn, before he was when nonresi- dency upon proper inquiry could been have ascertained on dire, objection. voir of the constituted a waiver The overwhelming weight authority position sustains this even when a provision, constitutional such as the one the right upon, provides defendant the defendant relies vicinage. Powers, to a Accord State v. 613 (Mo. 955, 1981); App. S.W.2d 957 Ct. United States v. Haywood, (D.C. 1971) ; 452 1330, F.2d 1332 United Cir. Rosenstein, 1929) ; States v. (2d 34 F.2d 634 Cir. 630, State, 1911); Herndon v. 85, (Ala. App. 56 So. 86 State Wainwright, v. 1962); (Kan. 376 P.2d 831 State v. 829, 473, McCombs, 1947) ; 181 (Kan. P.2d State v. 474-76 Olson, (Minn. ; Danner, 437, 1935) 263 v. N.W. 439 State 1924); 475, (Mont. State, 226 P. v. Marino 197 N.W. 396, (Neb. 1924); Comes, 397-98 State v. 268 N.W. (S.D. 1936); Vaughn State, S.W.2d (Tex. 1938). argues appeals’ defendant also that the court of re- upon

liance Rockwell was erroneous the Rockwell because expressly holding court premised finding upon its that its juror’s presumption nonresidence furnished “no against justice (* of the verdict.” Rockwell at 390 368). We find the same conclusion to be in this true disagree case and thus the defendant’s assertion with juror Brayshaw consciously that misrepresented his county simply of residence. There is no that evidence to finding effect in accept the record. We the trial court’s juror responded that the appear, to a summons to under penalty law, of and never voir dire was asked on about residency. his Thus, presump- we too conclude that “no against justice tion of verdict” should be inferred Brayshaw’s from Id. nonresidence. Juror Candor

B. Lack appeals appeal as- defendant to court On misleading Brayshaw’s on and answers false that serted juror questionnaire prevented him in a voir dire challenge right peremptorily exercising to from Brayshaw, that him to new trial for a and thus entitled argument, appeals, rejecting this court of reason. The adopted Equip- McDonough Power rule enunciated in liability products case, to be em- as the rule a ment, respond determining juror’s ployed failure to in awhen party accurately questions a a on voir dire entitles trial. new two-step test. The McDonough Court established a

The a new trial such that in order obtain “a Court held juror party situation, that a first a must demonstrate honestly question on voir a material failed to answer response correct dire, and then show a further challenge provided for basis would have valid The McDonough Equipment cause.” court 850. Power appeals, applying two-part test, assumed Brayshaw dishonestly questions put to him answered part McDonough first test was satisfied.2 appeals However, the second the court of concludedthat step The McDonough test was not satisfied. “ Brayshaw’s appeals [n] mari- stated that either grounds prison employment provided tal status nor challenge 805.08(1), him for cause Stats.” under sec. provides: This section appeals trial court of did determine whether clearly honestly finding Brayshaw responded

court’s purposes opinion, erroneous. It stated that of its it assumed otherwise. Jurors. (1) “805.08 Qualifications, examination. The called by oath person court shall examine on each who is juror juror as a to discover whether the is related marriage any any party or attorney ap- blood or to

pearing case, any in the or has financial interest in the case, expressed any or has or formed opinion, or is any prejudice juror aware of in bias or the case. If a juror case, not indifferent in the shall be excused.” appeals We that the court of adopting conclude erred in McDonough two-part in test total the rule as to be applied in proceedings Wisconsin 805.08(1), based on sec. Stats. Billy

In McDonough, parents Greenwood and his sued McDonough Equipment, Incorporated Power to recover damages by Billy sustained when his feet came con- riding tact with the blades of a lawn mower manufac- by McDonough. McDonough tured Equipment Power at During dire, 846. the voir attorney the Greenwoods’ prospective jurors following asked question: “ many yourself any you ‘Now, how or have mem- your family any in- bers jury, injuries farm or at immediate sustained severe any necessarily Billy, not as but sustained as severe home, at on the whether it was an accident or any disability pro- work that or resulted longed pain you any suffering, that is members ” your family immediate ?’ Id. at 847. Payton, eventually juror, Ronald who did became respond question. to this After a three week trial jury verdict, McDonough. Subsequent found for Payton’s juror the Greenwoods had learned that son been injury involved in time, a serious which one fact Payton during had not voir dire. revealed The Green- permission ap- woods moved the district court for proach members and for a mistrial. dis- granted ap- trict permission Greenwoods proach juror Payton regarding allegedly injuries sus- tained son but denied for a new trial their motion

723 being of of the exam- the results ever informed without Payton. ination of Appeals of held appeal, Court

On the Tenth Circuit prejudiced juror had the Green Payton’s silence challenges right peremptory and thus to exercise woods’ McDonough v. Power required Greenwood a new trial. 1982). (10th Equipment, F.2d Cir. On Inc., 338, Court, Supreme the the United States before certiorari correctly argued appeals the court of Greenwoods right peremptory of the of chal impairment held that showing lenge prejudice. without a of error is reversible “good They faith” nondis the of the maintained that completely juror of are “actual bias” the closure and the impairment per the determination of irrelevant to challenge. Wyss same emptory Defendant raised this argument appeals. appeal in his before court of argu- Supreme rejected this

The United Court States fully explaining The Court ment without rationale. its simply stated: pri represents important “A trial an investment important resources, it ill vate and social serves simply recreate finality wipe end of clean the slate challenge lacked peremptory process counsel because objectively he have an item of obtained from a which should information juror Mc dire on voir examination.” Equipment Donough Power 850. given rejection

We conclude such a is correct challenges acquired peremptory a constitutional have not urged footing. approach adopt we Thus, decline require by Wyss appeals would which before court of right granted party’s a new trial to be whenever peremptory challenge impaired. has been v. Ala Supreme Swain Court

The United States recognized im bama, 202, (1965), 380 U.S. challenges stating: portance peremptory nothing “Although is in the Constitution of ‘[t]here requires Congress which the United States [or grant challenges,’ peremptory Stilson United States] States, challenge 250 the most nonetheless U.S. rights important secured ‘one to the accused,’ States, v. United 151 U.S. Pointer 408. right impairment of the The denial or is reversible error showing States, a Lewis United prejudice, without supra; v. States, 140; Gulf, Harrison v. United 163 cf. U.S. Fe R. v. Shane, Colorado & Santa Co. 348. U.S. ‘For arbitrary is, capricious it right; fails of its full at 378.” as Blackstone an and says, freedom, and it must be with full it exercised or States, purpose.’ supra, Lewis United Swain, at U.S. 219. There little doubt court or is if the trial the prosecution Wyss right deprived had to his the ef challenges fective peremptory exercise his it would provided grounds have Vargas, for a new trial. 606 F.2d citing States, Harrison v. United 163 U.S. 140 (1896), Gulf, Shane, Colorado & Santa Fe R. Co. v. States, 348 (1895), U.S. and Lewis v. United 146 U.S. 370 (1892). But such not is the situation Neither here. the prosecution trial court deprived nor the the defendant right of his peremptory to the effective of his exercise challenges. suggestion There no is here that either the prosecution court or juror knew or known of should have Brayshaw’s status, parentage, employment, marital or acquaintance personnel with law enforcement or the dis attorney’s Brayshaw’s juror trict It office. answers lack problem and of answers that caused this and abridged right intelligently the defendant’s exercise challenges. peremptory his argues prejudice defendant since the

harm to juror, him are no less when it is a rather than prosecution, the deprives him of his effec- peremptory tive exercise of challenge, the result disagree. adopt should be the same: a new To trial. We per grant a se rule and a new trial a defendant

every juror a on voir instance which dire answers a question place would dishonestly, strain on the long judicial system could not As McDon- it endure. ough, Court noted: only parties, costly, not but “Trials are also for jurors performing duty society their civic and for pays judges support personnel which man- who age judicial sys- It our seems doubtful trials. provide litigants

tem would have resources with perfect trials, they possible, keep were and still abreast constantly increasing McDonough of its case load.” Equipment Power at 848. Accordingly, Vargas court, find, we as did that: he, fully un questions juror “If had answered the intensive subjected to more doubtedly, would have been interrogation by disclosed. and the full the court facts of information lightly do treat the concealment We despite its prospective system, juror, but perfect. It based jurisprudence, vital our is not role in guilt can person’s assumption or innocence on that a the representing a persons twelve best be determined try community. to eliminate of We fair bias the cross section questionnaires dire juror voir prejudice by and and absolutely however, way, of There no examination. is honestly insuring juror prospective answer will that a which secrecy questions put within him. The the to us, prevents necessarily juror’s cloaked are deliberations mo finding and from out the reasons in most cases ever betrays his an individuad for a verdict. When tivations as was determine, only try to trust, recourse is to the showing bias or here, a done whether there was such of protects, inso prejudice require This new trial. to a as jury trial. humanly integrity possible, as is far it but defendant, a A new windfall for trial would be a pros on prophylactic effect or would no deterrent have at 346. pective jurors.” Vargas, F.2d United States added.) (Emphasis inquiry when Thus, proper focus we conclude that the is ruling in situation new trial on motion for a a litigant. against juror whether was biased agreement spite McDonough of our with the Court’s argument rejection that a new trial is mandated juror’s a or whenever nondisclosure concealment inter- intelligent party’s peremptory with feres a exercise strikes, adopt McDonough part we to two decline test proceed- rule as the to be followed Wisconsin criminal ings. McDonough The Court held: trial “To invalidate the result of a three-week because juror’s mistaken, though ques- response a a honest tion, something perfection is to insist on closer to than system judicial give. expected our can . . . be We hold situation, party that must first obtain a new trial in such a juror that a failed to demonstrate answer hon- estly show that a correct basis for a question dire, a material on voir and then further response provided would have a valid challenge McDonough for cause.” Power Equipment at 850. We conclude that the better rule is that in order trial, litigant (1) awarded a new must demonstrate: juror incorrectly incompletely responded that the ato question dire; (2) material on so, voir if it is probable more than not that under the facts circum surrounding particular juror case, stances against moving party. See, biased e.g., McCoy, F.2d at 659. problem step McDonough with the first in the test an any inquiry honest answer forecloses further

into potential juror the area believe, bias. We as did five Supreme members of the United ex- States Court as pressed concurring Blackmun, opinions of Justice with whom joined, Justices Stevens O’Connor Brennan, Justice joined, with Justice whom Marshall part that the first adequately protect of the test does not parties may prejudiced by who be other than dishonest may answers. An honest ob- answer be nevertheless

727 technically may answer A correct jectively incorrect. incomplete. conclude that an honest We nevertheless incomplete, objectively or should incorrect answer, it is if making moving in- party from further preclude the juror As one has stated: respect bias. court quiry with right questions “Although has a to have a defendant prospective jurors, failure truthfully by the answered proper response question re make to a juror to aof qualifications automatically entitle garding does not by proper inquiry to a new trial. The a defendant rights appellant’s were such cases is whether respond properly. by juror’s prejudiced failure to Beauregard State, App., (1979), 2d v. Ala. Cr. 372 So. denied, 44, Ala., 2d and cases cited therein. cert. 372 So. 161, Hall, (1970), Freeman v. 286 Ala. 238 So. 2d supreme our court stated: “ proper inquiry the trial court ‘We hold that for improper allegedly trial, grounded new on motion on responses responses by prospective jurors lack on probable preju has dire, voir whether this resulted in appears general dice to the movant. This to be rule throughout State, country. . . .” Bufford 1172, 1980). (Ala. App. (Emphasis 2d So. Cr. added.) Vargas, Accord United (The States v. 606 F.2d 344. party seeking established rule is that the new trial juror prove because of nondisclosure must bias or prejudice.) ; (Mo. v. Scruggs, State 551 S.W.2d 1977). App. (The determining chief consideration granted whether a mistrial should be is whether prejudiced.) defendant was depart

We therefore part from first of the Mc- Donough inquiry test which denies into the area of potential juror prospective juror pro- bias whenever a question vides an honest posed. answer to the It is too A limited. subjectively may honest answer well be objectively person may given A believe, incorrect. vagueness ambiguities language inherent in and the intelligence person, of that and education that he or she answer, yet giving may an that is honest answer McDonough objectively Equipment See Power incorrect. (“jurors experts necessarily English at 849 are in Furthermore, usage.”)- person a could ques- answer a response technically is correct, tion with a but objectively incomplete. An incomplete which is answer might po- pertaining information to the conceal vital juror. prospective tential a correct or bias of com- suggest, plete given case, in a answer could juror. Thus, individual be a would biased we cannot agree McDonough with Court that a new trial prospective juror provides a never warranted whenever question posed. an honest answer to the find that the We approach better is to allow a movant to reach the issue of juror juror bias whenever the court determines that a given incomplete has an incorrect or answer to a material question on voir dire. McDonough part test,

As to second trial, party in Court held that order to obtain a new given response juror must show that had the a correct question dire, voir a asked on a valid for a chal- basis lenge accept for cause would be demonstrated. If we express language McDonough, are we concerned narrowly. it entirely could be read too This concern implicitly recognized by Justice Blackmun concurrence, joined by Justices Stevens O’Connor. reading McDonough language A (“and narrow then further response show that a correct would provided have challenge cause.”) a valid basis for a suggests response the correct in and of itself must challenge demonstrate the basis for a for cause. approach

The harshness easily of this can be demon strated. example personal Take for injury case where prospective jurors all they any are asked if have chil respond, fails to but not juror has a child A who

dren. recently child, her child had been only have a but does she litigant If injured accident. badly automobile an having sought once learned trial ordered to have a new answer, litigant juror’s that would not incorrect of the language McDonough opinion prevail was if the narrowly. applied A correct answer on voir dire would juror prospective did have a child. have that been McDonough language However, applying literally, prove this correct answer would not to be sufficient provide juror a basis to strike this for cause. correct child”) in and of it I would not (“yes, answer have a However, challenge cause. if provide a a for self basis for allowed, inquiry that not were it would reveal further only child, did she have a that that child had but been injured possibly seriously and, in an accident automobile antagonistic feelings against that she harbored drivers of automobiles who caused accidents and insurance com panies complete inquiry A contested benefits. would prospective juror sufficiently have revealed that the was provide challenge biased to a valid basis for a for cause. Thus, reading McDonough we conclude that a narrow very fails to take into possibility account the real that a complete answer, although correct providing and/or challenge itself, may a for provide basis well the basis questions responses for further that do uncover bias. Therefore, we conclude as Blackmun did Justice in his concurring opinion, that: regardless “Thus, juror’s is honest of whether a answer option, dishonest, or determining it remains within a trial court’s biased, post- whether a order a hearing opportunity trial at which the movant has the circumstances, exceptional or, demonstrate actual bias the facts are such bias is be inferred. See 215-216, Phillips, 209, (1982) Smith v. 455 U.S. 102 S. Ct. ; 944-945, id., 221-224, L. Ed. 2d at Ct., concurring).” S. (O’CONNOR, J., at Mc 948-949

Donough Equipment (Blackmun, Power at J., 850. con curring.) hearing, If, posttrial movant can show that the juror respond incorrectly did incompletely ques- or to a tion, the movant must then opportunity be afforded the regardless to demonstrate bias of whether a correct re- sponse question to a voir asked on dire would in and of provided itself have a valid challenge basis for a cause. applying standard, this second a trial court should

recognize prospective juror may the bias of a implied. 805.08, actual or See sec. Stats. That statute challenge provides bias, if for cause there is actual i.e., prospective juror expressed if the “has or formed any opinion, prejudice or is any aware of bias in the provides case.” The challenge statute also for cause if implied bias, there is specific grounds and sets forth automatically disqualify that will prospective jurors regard without person to whether that actually biased, is i.e., juror if “the by marriage related any blood or party any or attorney appearing case, in this or has a financial interest in the case.” may surrounding

Bias be inferred from facts and cir cumstances. The trial court must be satisfied that it is probable juror more than against not that the was biased litigant. e.g., McCoy, See 652 F.2d at 659. Whether juror a particular question answered a on voir dire honestly dishonestly, or or whether an inaccurate or in complete intentional, answer was inadvertent or are fac tors determining to be considered in juror whether the was biased. Id. State, See Burkett 845, v. 319 A.2d 848- (Md. 1974) ; People 49 Espinoza, v. 669 P.2d (Col. App. 1983); United Moss, States 591 F.2d (8th 1979). Thus, Cir. a by material nondisclosure juror resulting purposefully from a answer, incorrect may concealment or other mendacious

deliberate conduct by the totality sufficient itself or under of circum If stances for a court to find bias. the court considers prospective juror’s on voir answers dire its ulti bias, mate determination of the court should consider the following factors:

(1) question sufficiently did inquire asked into subject juror; matter to be disclosed (2) responses were jurors of other to the same question put sufficient person a reasonable on notice required; that an answer was (3) juror did the become aware of his her false or or misleading during anytime answers the trial and fail notify McCoy, the trial court? F.2d at 659. questions court, turn

We now to before this based juror on 1) the standard we have enunciated: whether incorrectly Brayshaw incompletely responded to a ma- question terial voir dire if and, so, 2) on is it more probable juror Brayshaw, than under the facts surrounding particular case, circumstances was against Wyss. biased Elmer Brayshaw responded juror incompletely find that

We questions juror questionnaire and on to material question response voir dire. marital to the about Brayshaw status, indicating checked the box he complete single, question whereas a to this would answer Brayshaw have indicated he had divorced. been neglected During also had a to reveal that son. voir he juror Brayshaw dire, correctly ques- failed to answer regarding acquaintance tions with law his enforcement personnel attorney’s contact with the district part office. We that part conclude the first of the two juror incorrectly test Brayshaw is established: in- completely responded questions to material voir dire. on conclude, however,

We part that the second of our part case, two test not has been met. In this the trial court determined that under facts and circumstances surrounding juror particular Brayshaw case, was against prejudiced not biased or the defendant. The trial court stated: suggest juror “To the non-disclosures

prejudiced speculate. defendant is to It could be argued that each of the non-disclosures could have shown pre-disposition against the State. point fact, record, “In on this I cannot find that juror prejudiced way the that his was one or the other. I find jurors, verdict, like those of the other eleven upon was based the evidence.” accept findings court, We of the trial and conclude regard that the trial court’s determination in this was clearly showing erroneous. There is no in this record Brayshaw actually against biased the defendant. any Nor are there facts and circumstances demonstrated may simply from which bias be inferred. There is no juror evidence in this record which demonstrates that Brayshaw’s incomplete incorrect or answers were the any juror result of bias. Nor is there indication that Brayshaw intentionally tried to conceal information or purposefully gave Thus, an incorrect answer. we con- clude the trial court did not abuse its discretion denying the defendant’s motion for mistrial. Discretionary Interest

IV. Reversal Justice appeals, finding any court of no merit in granted error, defendant’s claims nevertheless justice, pursuant defendant a new in the trial interest appeals 752.35, to sec. Stats. The court of determined justice proceedings had in the miscarried below. appeals finding upon joint The court of based its

733 case”; (1) the “closeness of the factors: effect of two juror Brayshaw (2) likelihood “would have from the had he more candid- excused or struck been questions trial court’s on voir dire.”3 ly answered the reaching appeals in this result stated that The court of may granted many that a trial cases indicated new not be appears optimum it that a retrial under unless circum- acquittal. Nonetheless, in an stances will result the court appeals did not of make a determination to that effect granting discretionary reversal. argues appeals State the court of erred as a granted matter of law when it a new trial in the interest justice concluding without first that there was a sub- degree stantial probability that a different result produced would agree. at a new trial. We McConnohie, In State v. 2d Wis. N.W.2d (1983), court discussed the standard of review appropriate assessing for correctness appeals’ grant 752.35, of a new trial under sec. Stats. ordinarily any We stated that we decline to review dis cretionary appeals order of the court of when it is based upon proper law. view the McConnohie at 369. We “ [p] articularly, stated that this court will refrain from reviewing appeals court of decisions made in the interest justice, assumption by there is no this court that its necessarily just determinations are more than those of appeals.” the court of having Id. at accepted 368. Once review appeals’ grant of the court of of a new trial the interest of justice, uphold we must dis court’s cretion if its decision is appropriate made on facts and 3 The defendant did not raise either the closeness of the case juror or the lack of urging grant appeals candor in the court of discretionary Bather, argument reversal. upon it based its claimed prosecutorial appeals excesses. The court of determined that claimed excesses did not occur. reasonably the correct law and thus is one which a court could have Id. reached. at 370.

However, we have never hesitated to discre reverse tionary determinations where the exercise of discretion 371; is based on an error Id. of law. First Wis. Nat. Bank Inv., 359, Oshkosh v. 364, KSW 71 2dWis. 238 of (1976). N.W.2d 123 As this court has stated in State Hutnik, 754, 763, v. 39 Wis. 2d 159 (1968), N.W. 2d 733 judge upon a bases the exercise of his discretion “[i]f law, beyond an error of his conduct is the limits of dis Roraff, cretion.” See also ex rel. State Schulter v. 39 342, 349-50, (1968). 2d Thus, Wis. 159 25 if N.W.2d appeals exercising court of makes an error of law in its pursuant discretion, Stats., 752.35, sec. it has com an case, mitted abuse of its discretion. In the instant we appeals erred, conclude that the court of as a matter granted law, when it a new trial in the interest of justice determining without first whether there was a degree probability substantial that a new trial would produce a different result. 752.35, Stats., provides

Section appeals the court of upon with grant two bases discretionary which to provides: reversal. This section “Discretionary appeal reversal. In an court of appeals, appears if it from the the real record that con- troversy that fully tried, probable has not been or that it is justice any miscarried, may has for reason the court judgment reverse the appealed from, regard- or order less of in proper objection appears whether the motion or may entry record and proper direct of the judgment or remit entry case or the trial court for proper judgment trial, new and direct the making of such pleadings amendment in the and the adoption of procedure such court, in that not inconsistent with rules, statutes or necessary are accomplish as justice.” the ends of

735 ways: Thus, may a new trial ordered either of two fully controversy has (1) not been whenever real (2) probable justice has for tried or whenever it Separate any reason criteria exists for de- miscarried. termining two distinct situations. each of these may power dis appeals its exercise

The court part 752.35, sec. cretionary the first under reversal probability finding of a different Stats., without the real con concludes that on retrial when it result troversy e.g., v. fully See, State tried. has not been (1983) ; Cuyler, 133, 142-43, 662 110 2d 327 N.W.2d Wis. ; (1976) State, 651, v. 2d 654 Garcia Wis. N.W.2d Logan State, 2d N.W. 2d 171 Wis. (1969); 407, 2d Wolff, Lorenz v. 45 173 N.W.2d Wis. (1970). that situations in which 129 The case law reveals controversy fully may have the have been tried arisen not factually ways: jury (1) in two distinct when the erroneously given important opportunity to hear testimony case, important that an of bore on issue e.g., Cuyler, Logan; (2) Garcia and when the properly before it had evidence not admitted which. so fairly may a clouded issue that it crucial said controversy E.g. fully the real was not Lorenz. tried. court not confined In either these is situations, of apply in Lock formula articulated to the mechanistic (1966), which State, 110, 2d 142 N.W.2d 183 Wis. required a probability it of different to find substantial previously result on As we have retrial. Lorenz at 414. situations, apparent we “it cannot noted such is using say, rule of Savina restated mechanistic [which [petitioning rule], party] Lock a retrial on plaintiff Thus, probably would win.” Lorenz at 415. liberty must have the in such situations consider totality of determine whether circumstances and required justice accomplish new trial is the ends controversy fully the real has not been tried. because 142; Cuyler at Lorenz at 415. grounds ordering a new trial under the second 752.35, Stats.,

part probable when it sec. justice changed miscarried, has have not they since first appeared 2405m, 214, in sec. Stats. 1913 created ch. Laws of 1913. the time inception From of the statutes’ bright Lock, until no line rule was articulated for deter mining justice an individual when had miscarried in case. involving However, prior Lock, a reversal cases be miscarriage justice implicitly com cause of a had plied probability with that the the standard a different result had to be established before a new trial would State, 605, 606, be ordered. See Paladino v. 187 Wis. ; (1925) Hintz, N.W. 320 State v. 200 Wis. (1930). unequivocally

N.W.54 Lock established the rule determining miscarriage to be followed for when a justice, part 752.35, Stats., under the second of sec. has occurred. We “In order stated: for this court probability exercise its discretion and for such a to exist we would at least have to be convinced that defendant should not guilty justice have been and that de found mands the given defendant be another trial.” Id. at 118. (Emphasis added.) requirement repeatedly

This has been reiterated has become a firm fixture criminal law. Wisconsin restating For the most see recent cases the Lock rule Ruiz, 200, State v. 177, 2d 118 Wis. N.W.2d 352 347 (1984) ; Cuyler, 142; 226, State, at Roe v. 95 2dWis. 242-43, 152; (1980); 290 291 Frankovis N.W.2d at Rogers State, 682, v. 774, 93 Wis. 2d 287 N.W.2d (1980). requirement, Consistent with this this court has denied a defendant a reversal in the interest of justice on numerous occasions it because could not con clude produce that a new trial would a different result. See, e.g., Haskins State, v. 408, 425, 97 Wis. 2d 294

737 55; 152; Neely (1980); at Frankovis N.W.2d at Boyer State, (1979). 2d Wis. N.W.2d appeals determined, In the the instant case court suggestion agree, and we that the record contains no controversy fully that Thus, the real has not been tried. appropriate applied law to in the be instant case is the Lock However, rule. both the State and the de- agree though fendant appeals, the court of not ex- plicitly, upon totality relied Lorenz when it considered the ordering circumstances a new trial in this matter. appeals implicitly rely on

If the court of did in fact parties agree, inap- Lorenz, as both reliance was propriate. In Lorenz this court dealt with the situation reviewing may discretionary when a order rever- Stats., part 752.35, sal under the first when the sec. controversy fully real has been tried. plaintiff injured Lorenz, was in an automobile driving

accident when the car he was was struck from by behind defendant Wolff’s vehicle. Lorenz testified following complaints after several weeks of minor accident, developed he a terrific headache and went eye. developed partial paralysis blind his left He also right of his side and was disabled and unable to as work neurosurgeon diagnosed A result. problem Lorenz’s aas berry aneurysm. was decided at trial basic issue was aneurysm by accident or

whether caused aneurysm. aggravated pre-existing whether the accident presented Lorenz at 411. There at trial was evidence competent aneurysm and the medical witnesses that subsequent disability the automobile were the result of physicians contrary accident. Other testified to view. jury’s Id. 412-13. Critical on determination credibility plaintiff this issue was the as to complaints they nature of his when arose. was that Lorenz essence of the defendant’s case headaches, they did, or if

did not have severe he predated accident, disability that his as and was not Id. severé as he 415. Defense contended it was. at interjected repeatedly counsel own his observations that Lorenz was not disabled because defense counsel and they engaging his son claimed saw Lorenz in certain physical activity. stated, As this court vice “[t]he testimony attorney’s] this own observa- [the properly he, by tions were not in evidence and clear implication, attempted to measure credibility against Lorenz reputation own for truth and verac- ity.” Id. at 425. court, granting

This a new trial in the interest justice, jury concluded that before it had evi- properly dence that was not admitted in the trial. Id. at 426. This jury court found that was unable to impartially and unprejudicially evaluate truth and veracity plaintiff Lorenz because defense counsel con- indulged sistently improper prejudicial conduct during the course of the trial. Id. 414. an Such evaluation critical was because Lorenz’s credibility aspect was a crucial of his Thus, case. this court concluded that controversy fully the real was not tried because “the prevented circumstances of the trial a fair trial of the factual issues the case.” Id. at 426. granting say, a new trial court this was unable to given relationship the causal between the blind- paralysis ness hotly disputed, that Lorenz probably would on win retrial. Id. at 415. Neither was this court able Cuyler, to make such a determination in Logan. Garcia or In each cases, of these criminal judgments reversed the trial court’s of convic- granted tion and new trials because the real contro- versy fully had not major been tried. The issue is each of these cases credibility was the of the defendants. given opportunity jury the to hear relevant not

The was testimony important that bore on that issue. impose re- policy not to a for this court is It sound reviewing upon courts to find that a different quirement probable ground when for dis- on retrial is result controversy reversal is that the real has not cretionary reviewing Normally,, a fully tried. court will be been probable predict will on unable to what the outcome be controversy tried or was was not when real retrial may accurately that it and clouded so sidetracked case, is fully it was tried. Such not the said that not ground however, discretionary when the reversal 752.53, part Stats., that under the second of sec. i.e. is probable justice Thus, that has we it is miscarried. appeals rely if did conclude that the court of in fact on reaching result, its that mis- Lorenz reliance was placed. appeals that the Lock rule of concluded

The court applicable case not instant case because this was one,” being a also what it labeled “close in addition responses Brayshaw juror re involved inaccurate Accordingly, garding qualifications. the court of his appeals Schultz, 624, 242 relied on Maahs v. 207 Wis. permit of (1932), reversal the interest N.W. alleged response by justice juror inaccurate a because qualifications, any finding regarding his without that The court produce result. trial a different a new would Schultz, N.W. “Maahs v. 207 Wis. stated: though sus the evidence (1932), establishes even gave juror verdict, a inaccurate the fact that tains the regarding responses qualifications his when discretionary ground reversal picked, for a was can be ap trial.” the court and a new We conclude misplaced peals’ reliance on Maahs for several reasons. First, not in the interest the Maahs court did reverse juror’s justice merely concern about (cid:127)of because of its regarding responses qualifications. The inaccurate juror’s expressed grave par- about concerns tiality. court stated: concerning knowledge testimony Fuhrman’s “This easy obtain, only it after case was diligent attorney part defendant’s effort on showing bearing upon he was able to make this qualifications juror Fuhrman. This evidence leaves upon impression juror our minds the distinct revealed, Fuhrman knew more this case than he about suspicion suppressed and leaves the that he his knowl- edge of the purpose.” case for some Id. at 637.

Second, the court also concerned about the failure give of jury the trial proper court to instructions negligence. as to This court stated: question “While we are reluctant to hold that 1 as framed, given and the upon question, instructions that error, constitute reversible jury we are satisfied that the would have had a conception much clearer duty of their question if the expression had contained the ‘the con- trolling cause’ controlling instead of ‘a cause.’ areWe also requested satisfied that of the de- instructions fendant, or some them, given, of if would have been beneficial understanding of the mat- ters submitted to them.” Id. at 638. Finally, perusal Maahs court stated that: of “[a] with, very grave the record us leaves doubts to the as justice of the verdict rendered in this ease.” Id. We conclude that this determination was the functional equivalent stating of the verdict in this case was incorrect produce and that a new trial would a different result. It Lock, was not until subsequent which came Maahs, that such a determination was ar- explicitly ticulated.

We conclude that neither the Maahs nor the Lorenz applicable rule is determining justice in whether has 752.35, Stats.; prong second of under the sec. miscarried in rule must be followed such a situation. the Lock appeals Thus, of erred as a matter of the court law justice of granting a new trial in the without interest degree determining probability to a substantial likely produced result was to be different on retrial. appeals Having erred the court determined exercising discretion, its we con matter of law as a appeals’ order exceeded the court of clude Bank First Wis. Nat. Osh its discretion. limits of quoting Hutnik at 763. Therefore its dis kosh at 364 cretionary determination is void reversal re quired. 751.06, to sec. power, pursuant has the

This court propriety of below,4 Stats., consider set forth con- granting in this case. We discretionary reversal power our appropriate to exercise clude that it is statute, discretionary review, rather pursuant remanding appeals for the this case to the court of than application the McConnohie of the law. While correct ordinarily this court will not exercise noted that court where either the trial discretion under sec. 751.06 its appeals the court has first exercised its dis- grant trial, appropri- it to new we find that is cretion a to in several reasons. McCon- ate do so this case for stated, already ap- in First, at 370. as we have nohie appeal supreme Discretionary “751.06 reversal. In an in the controversy court, appears if it record that the real has from the any fully tried, probable justice been it that has not or is for miscarried, may judgment order reason court reverse the or the from, regardless proper appealed motion or ob of whether the entry jection appears may in the of the record direct the and entry proper judgment or remit the trial court for the case the making judgment trial, proper or the for a and direct new adoption pleadings such of such of amendments in the procedure rules, court, in as not inconsistent with statutes necessary accomplish justice.” are of ends legal standard, plying appeals’ of an incorrect court discretion exercise of is void. Thus we not treat do this the same case we would treat cases in which as appeals the trial court or court of actually exercised Second, specifically its discretion. the defendant has stated that “this court entering would be correct its grant pursuant 751.06, of a new trial to sec. Wis. own Stat.,” fully argued and has briefed and this for issue Finally, our review. we believe that the interests of judicial speedy economy, litigants, reduced costs to the appeals finality of resolution best decisions are by considering grant- served propriety ing discretionary fully reversal in this case. We have parties considered the issues raised and have carefully lengthy examined the rather record in this case. We therefore conclude remanding this case appeals to the good court of judicial is not a use of doing resources so duplicative would necessitate efforts. legal conclude that when the correct

We standard is alleged applied, neither closeness the case nor juror lack candor alone or in are combination justice sufficient lead to the conclusion that has mis simply carried in this case. We can not conclude to a degree probability substantial that a new trial would contrary produce a in this To the different result case. we . . believe not case where . “[t]his ” guilty.’ Rogers defendant ‘should have been found Berg quoting State, 729, 746, 41 Wis. 2d (1969). N.W.2d 189 believe the evidence is more We any dispel regarding than sufficient doubt de guilt. fendant’s opinion,

As we stated earlier in this the evidence enough strong this case was to exclude to a moral cer- tainty every hypothesis reasonable of the defendant’s finding Contrary appeals’ to the

innocence. case, was a close we conclude the evi- that overwhelming. in dence this case was We also conclude Brayshaw’s juror may lack of candor have while right intelligently interfered with the defendant’s peremptory challenge, exercise a there is no indication Brayshaw anything impar- in the record that but express finding juror tial. The trial court made an Brayshaw any prejudice against did not have bias or Wyss. simply defendant Thus there is no indication that an incorrect result was reached in this case. Accord- ingly, portion appeals we reverse this of the court of judgment and reinstate the of conviction.

By appeals is the Court. —Decision of the court of re- judgment of reinstated. versed and conviction is CALLOW, (concurring). I WILLIAM G. J. concur reasoning opinion. majority with the result and of the separately I write to address the discussion dissent’s discretionary classes of cases which reversal may granted. be instances, opinion the two as majority discusses law, in case in which dis- in the statute and

set forth cretionary appropriate. They (1) when- are: reversal is (2) fully controversy ever not been tried or the real has any justice probable reason whenever it has for Page to create a The dissent seeks miscarried. 735. category discretionary reversal third of cases in which notwithstanding language may granted, statutory category contrary. of such a also to the The creation directly past by this court. runs counter to cases decided Relying State, case, on Paladino v. a 1925 State Hintz, case, Schultz, case, a 1930 and Maahs v. a 1932 that, the dissent concludes when the circumstances of a e proceedings case “rais doubt about sufficient 744 jury” justify

the court’s a trial before new view {Infra, p. 754, Abrahamson, J., dissenting), the review ing prob court does not to find a have substantial ability of a different result at How new trial. ever, specifically all three of these cases based their reversal on justice the court’s conclusion that had mis State, See 605, carried. Paladino v. 606, 187 Wis. 205 ; (1925) N.W. 320 Hintz, State v. 642, 200 636, Wis. ; (1930) 229 54 N.W. Schultz, 624, Maahs v. 207 Wis. 638, (1932). 242 N.W. 195 The dissent also fails to Lock State, note that v. 2d 31 Wis. 142 N.W.2d (1966), upon by 183 a case decided in and relied 1966 time, unequivocally this court since that established the rule determining miscarriage to be followed for when a justice finding has occurred: There must abe of a probability substantial produce that a new trial would a different result. Id. at 118.

I am authorized to state that Justices Roland B. Day, Steinmetz, Donald Ceci, W. Louis J. and Wil- join liam A. Bablitch concurring opinion. in this ABRAHAMSON, (dissenting). SHIRLEY S. J. The appeals judgment court of reversed the of conviction justice, exercising pur the interest of its discretion 752.35, suant to sec. I Stats. 1983-84.1 would affirm appeals. decision of the court of 762.35, 1983-84, provides Sec. Stats. as follows: Discretionary appeal “752.35 reversal. In an to the court of appeals, appears controversy if it from the record that the real fully tried, probable justice has not been or that it has any miscarried, for may judgment reason the court reverse the appealed regardless from, proper order of whether motion or objection appears may entry in the record and direct proper judgment entry or remit the case to the trial proper judgment trial, making or for a new and direct pleadings adoption proce such amendments in the of such court, dure in that rules, not inconsistent with statutes for as are necessary accomplish justice.” the ends of

Violating McConnohie, precepts of State (1983), majority sub 2d 334 N.W.2d Wis. justice present interest of in the view of the stitutes its appeals. majority court of case for that of the reading by the result it desires a strained reaches prior ap our cases and of the decision of the court of peals appeals a declaration that the court of im properly interpreted our cases and committed an error of law. applies appeals, court of and sec. to the

Sec. 752.35 They lan- applies use the same to this court.2 751.06 guage referred to as the statutes they are often and although justice,” authorizing in the interest of “reversal justice” appear phrase in the “interest of does not the majority language. appeals the of and the Thus court practice interpreting properly turn to cases this court’s applicable interpret- powers as in and under sec. 751.06 ing appeals’ practice powers the of and under sec. court 752.35. grant expressed its reluctance has

This court often justice and has stated a trial in the interest new only exceptional discretionary power in its it exercises 133, 141, N.W.2d Cuyler, 327 v. 110 2d State Wis. cases. 752.35, 751.06, appears to (1983). like sec. 662 Sec. reviewing categories a court under which establish two 2 1983-84, provides 751.06, as follows: Sec. Stats. supreme appeal Discretionary in reversal. In an “751.06 controversy has court, appears the real if it from the record that justice fully tried, probable has for not been or that it is judgment may any miscarried, reverse the the court reason proper appealed from, regardless motion or order of whether entry objection record, may appears and in the direct entry proper judgment court for the to the trial or remit the case making trial, proper judgment direct or for a new adoption pleadings of such and the such amendments in the rules, procedure court, as statutes or not inconsistent with necessary accomplish justice.” are ends 2405m, substantially 1913. Stats. the same sec. Sec. 751.06 is as (1) may whenever the real contro- a trial: order new tried; (2) versy fully whenever it is has not been any justice reason has miscarried. probable that statutory frame- have established within Our cases reviewing work three cases in which classes of may order a new trial.

(1) squarely falls first class of cases category: statutory “fully may tried” There dis cretionary controversy reversal the real whenever has fully controversy fully not been tried. The real is not generally tried the fact finder because did not hear all the relevant evidence. When a case falls within this class, may though the court reverse even the court can not conclude probability that a exists that the defend ant guilty would not be found in a new trial. State Cuyler, 133, v. Wis. 2d (1983) 327 N.W.2d 662 (evidence erroneously ; excluded) Logan State, Wis. 2d 128, (1969) (counsel’s N.W.2d 171 place failure to highly testimony relevant evidence). into (2) squarely The second class of falls cases within statutory miscarriage justice category: There may discretionary be a prob- reversal whenever it justice able any that reason has miscarried. For a probability such to exist in class cases, this of it must appear that the guilty defendant would be found not in justice a new trial and that demands the defendant given be words, another trial. In other “a new trial justice in granted the interest only will be if there has apparent an miscarriage been justice ap- it and pears that optimum a retrial under circumstances will produce a different result.” State, Jones v. 70 2dWis. 41, 56, 233 (1975). N.W.2d 430 See also Ruiz, State v. 118 177, 200, Wis. 2d 347 (1984); N.W.2d 352 Haskins State, v. 408, 425, 97 Wis. 2d (1980); 294 N.W.2d 25 Frankovis State, v. 94 141, 2d 152, Wis. 287 N.W.2d (1980); Rogers 791 v. State, 682, 694, 93 Wis. 2d 287

747 Boyer (1980); 647, v. 2d State, 91 Wis. N.W.2d 774 Hoppe 674, (1979); State, v. Wis. 2d 284 N.W.2d 30 74 (1976) ; 107, 122, State, 122 Lock v. 31 246 N.W.2d Wis. (1966). 110, 118, 142 2d N.W.2d 183 dis- (3) cases sometimes discusses A third class of “miscarriage justice” lan- cretionary in reserval fully controversy guage and times in “real other statutory language, times the tried” other uses categories language phrase “in well as the of both as class, justice.” falling in the interest of cases justify the circumstances of the case the court’s exer- cising discretionary power its reverse even the when dif- court cannot conclude that the outcome would be ferent on a retrial.3 in the court reversed numerous cases which

There are justice” the of “miscar- or on basis “in interest of justice” riage concluding a new trial that without argument acknowledges in in its brief and oral state in D’Acquisto, 2d v. 124 Wis. brief in State this case and in its brief) (see 758, (1985) 1 of the that there is n. N.W.2d 781 small, limited, unusual —in which a class of cases —albeit reading may court conviction when the court’s reverse a court, reason, in in the for whatever record convinces ought justice The state the case. another hear terest of Washing apply urges, however, v. Strickland “prejudicial of cases. in this class ton error” test to reversals Washington p. Strickland v. 20. The State’s brief this case majority appears test test is not an outcome-determinative as only require Washington adopt would Strickland here. probability be different that the result would there be a reasonable alleged probability as error, defined without with reasonable probability outcome.” “a sufficient to undermine confidence - Washington, -, Ct Strickland v. U.S. S. (1984). probability in the A confidence sufficient to undermine same, majority’s however, as the outcome does not seem to requirement de a substantial the court state that “there is gree produce probability a different re that a new would trial Dyess, 222 v. 124 370 N.W.2d See also State Wis. 2d sult.” 628, (1985); (1985); Pitsch, v. 124 2d 369 N.W.2d 711 Wis. State Ludwig, 600, (1985). State v. 124 2d 369 N.W.2d 722 Wis. 748 key result;4 case but different produce

would Wolff, v. 45 Lorenz cases is class of of this illustrative (1970). Lorenz 129 407, N.W.2d 2d 173 Wis. jus of whether that “for the determination said court necessarily not con “is miscarried” tice has formula” that the result of the “mechanistic fined” to Lorenz, supra, 45 will different. the second trial Lorenz, at 414. in which evidence and state 2d In Wis. erroneously (in were admitted ments of counsel con erroneously 1 cases where evidence was trast to class excluded), concerned that “the court was evidence fairly weighed.” may Upon not have been Id. at 415. record, Lorenz review of court concluded that erroneously as a result of the admitted evidence get counsel, statements of the defendant did a “fair not trial,” 425, id. at probable and that “there was a mis- carriage justice,” 426. id. at The Lorenz court never spoke in controversy having terms of the real not been fully tried. The conviction reversed “in the inter- justice,” though est of 426, id. at even the court could , “say, using not , the mechanistic . . rule that on a re- plaintiff trial probably would win.” Id. at 415. Wisconsin, Air Inc. Airlines, Inc., v. North Central 98 2d 301, Wis. 296 (1980), 749 N.W.2d the court con- cluded that get full, did defendant “a fair trial case,” 318, issues of the id. at when an erroneous given significant instruction was issue, on a and “that probable there was a miscarriage justice because liability issue had not fully been properly tried.” Id. The court would not declare it believed the outcome would be different on Id. retrial. See also 4 See, e.g., State, 605, Paladino v. (1925) ; 187 Wis. 205 320 N.W. Co., Koss v. A. Geo. 243, Schulz (1928); 196 Wis. 218 N.W. 175 Hintz, State v. 636, 200 Wis. (1930); 229 N.W. Jacobsen State, 304, 205 Wis. (1931); Flatz, N.W. 142 Volk v. 206 Wis. (1931); 239 N.W. Schultz, Maahs v. 207 Wis. (1932). N.W. 195 C.E.W., 2d Interest Wis. N.W.

In the of (1985). 2d 47 agree cases, I the with are cases civil these

While argument what that “Lorenz and in oral position state’s fully discretionary say reversal is about has to Lorenz agree the state’s criminal I with applicable to cases.” argument there is a difference at oral that if position application and secs. and 752.35 civil of 751.06 in the cases, court, liberty inter- the because criminal willing case, ests in a criminal be more involved should case in to reverse a criminal than civil the interest justice. of objectives

These three of cases reflect the classes system: justice guilty only our criminal shall guilt only by a trial in which is dem- convicted and fair beyond a onstrated doubt. reasonable majority apparently retains the three opinion The places formula” the “non-mechanistic classes of cases but statutory cases) only first (what within the I call class 3 controversy has not been category, i.e., “the real that fully discussion the Lorenz case tried.” its ignores to mis- majority Lorenz court’s reference carriage justice tried,” equates “fairly the words Lorenz, statutory which are used in with words majority Lorenz “fully tried.” states that Thus controversy fully court “concluded that the real was not prevented tried because ‘the circumstances of the trial ” Page of the case.’ trial issues of the factual fair that, added.) majority (Emphasis concludes The 738. tried,” appellate court “fairly if a case has been “a substantial need not state its belief there produce degree trial would probability that a new may 734) reverse (at p. but a different result” says the unfair- only if the court conviction —if “fully having been ness case not involved resulted tried.” majority’s the court must conclude that test degree probability a new a substantial

“there is produce a different result” is set forth with trial would Through authority. any out citation to a Lexis search I Supreme only could find two Wisconsin Court cases using Boyce, this test. See State v. 75 Wis. 2d (1977), State, and Roe v. N.W.2d 95 Wis. 2d 226, 243, (1980) (quoting Boyce). 290 N.W.2d 291 Al though language variation, in our cases has some speak probability the other cases of a that a new trial produce result, would degree different not substantial probability. of obviously appeals although

The court of concluded, it terms, never opinion used these in its the defects in the trial fundamentally rendered the trial unfair. appeals The court of inferred from the foreman’s misbehavior an . . “attitude . inconsistent with his [the juror’s] (Ct. App. opinion duties” slip page 30). concern, This case,” combined with “the closeness of the appeals’ the court of in the trial. undermined confidence majority appeals, concludes that court of exercising conviction, its discretion to reverse the com- According reasoning mitted an error of law. to the of opinion, majority appeals the court of erred as fol- appeals lows: the court of concluded that “the record suggestion controversy contains no that the real has not fully (Ct. been App. slip tried” opinion, page 26) but rather miscarriage justice; there had been of appeals the court of regarding did not state a belief “a degree substantial probability of that a new trial would produce result”; a different reversal under the statu- tory miscarriage justice category of reversal —unlike statutory under the fully tried category requires, ac- — cording majority to the opinion, the court state a belief that degree there “a is probabil- substantial of ity that a new produce trial would result”; a different majority, appeals erred says of

therefore, reversing conviction when it of law a matter as miscarriage justice but of there was a concluded degree probability of “a substantial there was not that produce a different result.” Put trial would that a new way, according majority, to the the court another when it reversed the con- appeals made an error of law explained to reverse in terms of a viction, its decision miscarriage justice than rather in terms of a failure controversy, fully and then try the real failed to regarding degree prob- the substantial state a belief ability of a new trial. as to the outcome engaging semantic majority in a it, I

As see analysis, majority’s had game. According to the shell under “real appeals put discussion its the court of controversy fully shell, tried” instead under “miscarriage justice” shell, there would have been no law, not have reviewed error of and this court would appeals’ of To the court of exercise discretion. avoid here, appeals the result the court of should have said: excluded; erroneously relevant evidence was no rele- no erroneously admitted; no erroneous vant evidence was given; no instructions were the record thus contains suggestion fully controversy the real has not been tried; circumstances outside the trial and the record show, may however, closeness case the case fairly tried, not have been and therefore the real contro- versy fully was not It tried. was omission of this last majority’s statement results in the declaration of error of law. appeals

I do think of not it can be said court an treated the “not committed error of law because it fairly ground discretionary (the tried” reversal “miscarriage jus- case) subcategory class 3 as a separate, category tice” than independent or as a rather fully subcategory controversy “the was not as a real tried.” appeals'

I find no of law in the can error discretionary reversal, I discussion of not would discretionary might its I review determination. reach my a different result were I to exercise own discre tion, but that As this issue. court said McConnohie, State v. 113 Wis. 2d 334 N.W.2d (1983), assumption “there is no this court that just its necessarily determinations are more than those appeals.” of a court of

I appeals would hold that applied the court of correct law when it exercised its discretion to reverse a justice conviction it after concluded “that probably has miscarried and should order a trial.” App., [it] new Ct. slip opinion page at 28. appeals although

The court of concluded that errors would not justify a reversal and the evidence support conviction, presence sufficient juror aof whose “attitude was inconsistent with his (Ct. App. slip duties” opinion page 30) and the justified closeness of the case a new trial. The court appeals’ reasoning reversing the conviction is reasoning similar to the this court has used in several cases. previously This court has concluded that way court’s uneasiness with the plus case was tried justified closeness of the evidence a new trial. State, Paladino v. 605, 606, 187 Wis. 205 N.W. 320 (1925), where evidentiary numerous errors were al leged, this court said: appear “While there to be no errors sufficient work a reversal of judgment, opinion the the court is of the

that a new trial should be ordered in this case for the appears reason that probable justice it has mis- carried. 2405m, Sec. It not is Stats. is held that there not sufficient evidence upon to sustain a verdict. But the whole opinion record this court is of the in the

753 justice of should interests and in furtherance there trial, purposely a new of that fact we upon re- view any frain from comment the While the evidence. complained errors versal ful have an are not work re- of sufficient to a being very rule, under the this a close and doubt- case, opinion the we are of the defendant should opportunity presenting of the to matter another jury.” 636, 642, 54 Hintz, In 229 State v. 200 Wis. N.W. citing (1930), court, Paladino, expressed doubts this the the of the case. The about case because of closeness regarding expressly Hintz court state a belief did a result.5 636, 641-42, (1930), Hintz, .2d Wis. N.W State v. presents ordinary “Manifestly an the situation

the court wrote: weight evidence, the of is for the determination which conflict of finding jury. power the disturb the of of the court to discovery jury the verdict. In to sustain the of evidence ends with perhaps this should be stated that interest exactness it the of finding subject qualifications: of one is where the rule is to two facts, contrary physical jury and the other the is established probabilities. contrary There it the reasonable where is to all of is is no room operation here, however, the either of these for of involved, physical qualifications. the facts There are no upon probabilities depend to be drawn the inferences reasonable . . rule more facts in the case. . No from established thoroughly by than that the decisions of this court established may probed conflicting facts be drawn from the where inferences any Viewing question jury. . . from . the case is one question light principles, angle, all and in the established question. plain jury presented Whatever intent defendant’s doubts we verdict, may concerning justice this entertain juris by power it rules of our prudence designed to disturb is limited established sanctity findings fact, protect society jury. function which has constituted committed escape contemplate conclusion, the reflec- “As we we cannot by a curtain of tion that times one’s liberties are shielded gauze. question of defendant’s merest This leaves the evidence greatest it is the function intent to defraud in the doubt. While doubt, probable to of the justice resolve it seems us thia such cir- has miscarried rendered. Under verdict 754 appeals

The court Maahs v. relied on Schultz, 207 (1932), 624, 638, 242 Wis. N.W. 195 which in turn authority reversing cited Paladino Hintz, as for in justice. juror case, the interest of Maahs In the did relationship party not reveal his with a or his knowl edge Although recognized of the case. the court juror had the revealed the information he would not disqualified cause, have been still the court had grave subject juror’s doubts whether a to the verdict permitted influence should be that “there is to stand. The court said nothing so essential the administration justice partiality.” seeming as Id. avoidance at 637. Because the Maahs court concluded that question circumstances raised a serious as to the im partiality juror “justice of the and therefore the verdict,” the Maahs court exercised its discretion re judgment. verse the majority opinion unpersuasive attempt

The in its distinguish Paladino, and Maahs from the case Hintz majority at bar. The declares that those courts’ “de- equivalent stating termination was functional produce Page would a different trial result.” 740. I dis- agree. saying, simply each case as the appeals says case, court of in this that the circumstances proceedings of the case raise doubt about the sufficient justify jury. in the view court’s a trial before a new discretionary reversal, I Because I would affirm by majority need not reach the other issues decided opinion.6 Nevertheless, I comment on voir power 251.09, cumstances it is within our a new order trial. Sec. State, Stats.; Paladino 187 205 320. Because Wis. N.W. question guilt passed upon we think the of defendant’s should be jury, [j]udgment another . . . reversed.” [is] 6 D’Acquisto, This State v. case and 2d N.W. Wis. question (1985), date, 2d of even lead me to the wisdom importance in the law. Even of its

dire issue because majority join join I mandate, would not I to were opinion voir dire issue. its on the emphasis lawyer’s responsibility on the

This court’s adequate protect the a and voir dire full conduct Welding Inc. Hour well established. See client is After 744, Management Co., 734, 108 2d v. Laneil Wis. 324 ; 788, (1982) Shilcutt, v. 119 2d 686 State Wis. N.W.2d (1984) (Heffernan, 812, concur 350 N.W.2d 686 C.J. ring). Yet, present illustrates, the case voir dire as relatively may exercise the court become a useless unless remedy party adequate juror a a mis affords an when or fails full states material information to make dis closure of material information. clearly majority opinion not does

Unfortunately, the determining trial a new when its test articulate juror material informa- misstates if a be ordered should opin- majority The full to make disclosure. tion or fails (1983). McConnohie, 2d 334 N.W.2d 113 Wis. State supervisory Perhaps with this court’s be more consistent it would grant if, appellate principles when we power review with of and case, we appeals’ in this as we did decision review of court discretionary Per appeals’ reversal. not review the court of would haps ultimately majority does of the court what the we should do regarding is, here, its own discretion exercises this court reversal. reversal, discretionary unlike appeals’ court of to the Deference reversal, war- discretionary not court’s the circuit deference ranted because than information appeals no more has the court granted. trial should newa whether to determine this court and— court as appeals record the same reads The court Con- witnesses. the trial and observed this court—has like discretionary re- appeals’ the court of sequently, treat we should rulings court the circuit generally treat we as decision versal written the same examine court and the circuit in which this issue. expertise on rule the same have and materials defer- initio without ab the decision makes this court such cases the circuit court. ence to rejects set forth the United States Su ion the test preme McDonough Co., Inc. Court in Power v. Green Pages (1984).7 wood, 104 Ct. 727- U.S. S. majority test somewhat then states its own 730. parts opinion. differently At one different majority opinion point, the “rule is states litigant trial, awarded a new in order to be juror (1) incorrectly in must completelyresponded demonstrate: question

to a material on voir dire; (2) probable so, if that it is more than not that surrounding par under the facts circumstances against juror moving case, ticular was biased party.” Page apparently 726. This is the test majority applies. point opinion, At another in the how says majority proper ever, the that “the in focus of quiry juror ... is the whether was biased whether litigant prejudiced Page the was as a result.” 725. majority says The also that the test bias is whether juror probable it more against is than not that was the biased litigant. Pages the 730-731. The word “biased” majority opinion not is defined. The refuses to limit statutory “challenge “bias” to a or common law p. expand test,8 peremptory cause” or to to “a “bias” 7 - McDonough Co., Greenwood, -, Power Inc. v. U.S. (1984), originated S. Ct. 845 is a case which in federal district entirely Supreme court. It not clear is whether the Court’s hold ing procedure is a matter of federal or federal constitutional law. majority opinion This court’s does not state whether its test is an interpretation statute, constitution, of a state the state the or federal Constitution. challenge 805.08(1), 1983-84, relating Sec. for cause Stats. to provides as follows: Qualifications, (1) examination. “805.08 The court Jurors. person juror shall examine on oath each as a to dis- who is called juror by marriage any cover whether the is related or to blood party any attorney appearing any case, or to has finan- in the or expressed any opinion, case, in cial interest the or has formed party (i.e., a test challenge” page of whether test, peremptory exercise of the deprived of the effective was challenge). majority’s the test and varying statements juror questions. If several raise

application of its test litigant On the assumed? prejudice to found, is bias is ques- majority conclude what basis does incorrectly in- juror this case tions, which the Page ? answered, Since completely material 731. were correctly questions juror material to answer here failed litigant presumed? 731), why prejudice (p. is factors time sets out for the first Inasmuch as the court determining court circuit considered why juror (page 731), is this court whether biased affirming of discretion here circuit exercise court’s remanding court’s rather than the matter for the circuit re- consideration of factors? How will these application The ma- view a circuit court’s test? jority applies apparently “clearly erroneous” stan- dard the circuit court’s determination of whether juror prejudiced (biased), page if as question, prejudice (bias) is a fact and also talks about abuse discretion in terms of the circuit court’s decision deny the motion for retrial. open majority’s leaves too discussion Because the majority the voir questions, join the on many I cannot appeals I the court of dire issue. Because conclude juror any prejudice in the case. If or is aware of bias or Any party juror case, ob- be excused. indifferent in the shall support juror may jecting to a introduce evidence cause abridging objection. This shall not be construed as section any right supplement party to the court’s manner of either any person qualifications, examina- examination of but such as to questions.” repetitious upon hypothetical shall not tion or based law, thereby abusing an its dis- did not commit error of cretion, I would affirm decision of the court of appeals. Wisconsin, Plaintiff-Respondent,

State of D’Acquisto, Defendant-Appellant-Petitioner. Domonic

Supreme Court April No. Submitted on 84-339-CR. briefs 3, 1985.— 28, 1985. Decided June reported 781.) (Also in 370 N.W.2d

Case Details

Case Name: State v. Wyss

Court Name: Wisconsin Supreme Court

Date Published: Jun 28, 1985

Citation: 370 N.W.2d 745

Docket Number: 83-818-CR

Court Abbreviation: Wis.