State v. Wyss

• Decision Date: 28 June 1985
• Docket Number: No. 83-818-CR,83-818-CR
• Citation: 370 N.W.2d 745,124 Wis.2d 681
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Elmer F. WYSS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 745

370 N.W.2d 745

124 Wis.2d 681

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Elmer F. WYSS, Defendant-Appellant.

No. 83-818-CR.

Supreme Court of Wisconsin.

Argued April 3, 1985.

Decided June 28, 1985.

David J. Becker, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Stephen M. Glynn, Milwaukee, argued, for defendant-appellant; Susan W. Brenner and Shellow, Shellow & Glynn, S.C., Milwaukee, on brief.

William A. BABLITCH, Justice.

The State of Wisconsin (State) petitions for review a decision of the court of appeals which granted the defendant, Elmer F. Wyss (Wyss), a new trial, in the interest of justice. 120 Wis.2d 677, 356 N.W.2d 495 (1984). In a jury trial which commenced on July 20, 1982, Wyss was found guilty of the first-degree murder of his wife, Dorthy Wyss. We find from a review of the record that the circumstantial evidence in this case was strong enough to exclude to a moral certainty every reasonable hypothesis of the defendant's innocence. We hold that before a new trial may be granted because of an alleged miscarriage of justice, the reviewing court must find a substantial degree of probability that a new trial will produce a different result. The court of appeals failed to make that finding and therefore erred as a matter of law in granting the new trial. We conclude there is hardly a remote possibility, much less a substantial degree of probability, that a new trial would produce a different result. Accordingly, we reverse the court of appeals and reinstate the judgment of conviction.

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

The defendant subsequently appealed from the judgment convicting him of first-degree murder and from the order denying his postconviction motion. In an unpublished opinion, the court of appeals rejected Wyss' contention that the evidence was insufficient to support his conviction and that the trial court's evidentiary rulings entitled him to a new trial. The court of appeals also rejected Wyss' contentions that he was denied his constitutional right to a trial before a jury of county residents and that he was entitled to a new trial, as of right, because of a juror's inaccurate answers in a juror questionnaire and on voir dire. Having found no prejudicial error, the court of appeals nevertheless chose to exercise its discretion, pursuant to sec. 752.35, Stats., and ordered a new trial in the interest of justice. The court of appeals found that the closeness of the case, and the lack of juror candor "convince us that justice probably has miscarried and we should order a new trial".

The State subsequently filed a petition for review, pursuant to sec. 808.10, Stats., to test the propriety of the court of appeals' grant of discretionary reversal. In a letter to this court, the defendant stated that because he was the prevailing party at the court of appeals' level, the decision of the court of appeals was not adverse to him under Rule 809.62(1). Consequently, the defendant stated that it was his understanding of Neely v. State, 89 Wis.2d 755, 279 N.W.2d 255 (1979), that he could not petition for cross-review on his alleged claims of error which were denied by the court of appeals. However, he indicated that he would argue these issues if this court granted the State's petition for review. This court did grant the State's petition for review and the defendant fully briefed his alleged claims of error for our review.

In Neely we stated: "Because the decision is only the result reached by the court of appeals in a case, a party to whom the result is favorable may not petition for review of the decision simply because that party disagrees with the rationale expressed in the opinion." Id. at 758, 279 N.W.2d 255. While Neely is a correct articulation of the law, its holding does not bar the prevailing party from raising its issues upon this court's granting of the losing party's petition for review. See cf. Neely at 757, n. 1, 279 N.W.2d 255; State v. Alles, 106 Wis.2d 368, 383-395, 316 N.W.2d 378 (1982); Auric v. Continental Cas. Co., 111 Wis.2d 507, 516, 331 N.W.2d 325 (1983).

In Neely, the defendant conceded that if this court granted his petition for review, the State could raise its issue upon the granting of his petition for review. Neely, 89 Wis.2d at 757, n. 1, 279 N.W.2d 255. Although this court did not reach or decide the question of whether the prevailing party in the court of appeals can always challenge the reasoning in the court of appeals' opinion upon the granting of the losing party's petition for review, this question was implicitly answered by the rationale expressed in State v. Alles.

In State v. Alles, this court discussed the need for the state (respondent) to file a cross-appeal in the court of appeals, pursuant to sec. 809.10(2)(b), Stats., to challenge a nonfinal order of the circuit court which was unfavorable to the state when the defendant appealed from his conviction. This court stated that the state could challenge the non-final order in its brief, without filing a notice of review under sec. 974.05(2), or a cross-appeal "when all that is sought is the raising of an error which, if corrected, would sustain the judgment...." Alles, 106 Wis.2d at 390, 316 N.W.2d 378. We explained that the rationale for permitting a respondent to raise the issue in its brief "is the accepted appellate court rationale that a respondent's judgment or verdict will not be overturned where the record reveals that the trial court's decision was right, although for the wrong reason. An appellate court, consistent with that precept, has the power, once an appealable order is within its jurisdiction, to examine all rulings to determine whether they are erroneous and, if corrected, whether they would sustain the judgment or order which was in fact entered." Id. at 391, 316 N.W.2d 378. This policy, which underlies appellate practice, extends to this court as well. Thus, once a petition to review has been granted, this court has the power to examine all rulings of the circuit court to which objection was properly preserved and all conclusions reached by the court of appeals which are raised by the respondent's brief, to determine whether they are erroneous, and whether if corrected they would sustain the judgment or order of the circuit court or the decision rendered by the court of appeals. Therefore, after examining the briefs and the record, this court has decided to review the entire appeal in this case.

We therefore consider the following issues for review:

1. Was the evidence sufficient to support a conviction of first degree murder beyond a reasonable doubt? We conclude that the evidence was sufficiently strong to exclude to a moral certainty every reasonable hypothesis of innocence and was therefore sufficient to support Wyss' conviction of first degree murder beyond a reasonable doubt.

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

3. Was evidence of the defendant's character trait of jealousy properly admitted? We conclude that this evidence was properly admitted.

4. Was testimony concerning an alleged threat made by the defendant to the victim properly admitted? We conclude that it was properly admitted.

5. Did the participation of juror Brayshaw, who was not a Dane county resident at the time of the trial, deny the defendant his constitutional right to a fair and impartial jury of the vicinage? We conclude that it did not.

6. Did juror Brayshaw's lack of candor in answering the juror questionnaire and on voir dire deny the defendant due process of the law because it allegedly prevented an informed use of the defendant's peremptory jury challenge? We conclude that it did not.

7. Did the court of appeals err as a matter of law in exercising its discretion when it granted a new trial in the interest of justice without first finding that there was a substantial degree of probability that a new trial would produce a different result? We conclude that it did.

8. Should this court grant discretionary reversal of the defendant's conviction in the interest of justice? We conclude that we should not.

I. Sufficiency of the Evidence

The defendant argues that the jury's verdict of guilty is fatally inconsistent with constitutional guaranties of due process in that it is based upon evidence insufficient to support a conviction under the beyond a reasonable doubt standard constitutionally mandated for all criminal proceedings. We disagree.

The defendant was convicted of the first-degree murder of his wife, Dorthy Wyss, which occurred on November 17, 1981, in their Mount Horeb home. At trial, the State produced no direct evidence of Wyss' guilt, but relied solely upon circumstantial evidence.

A finding of guilty may rest upon...