Hammill v. State

• Decision Date: 30 May 1979
• Docket Number: No. 77-052-CR,77-052-CR
• Citation: 278 N.W.2d 821,89 Wis.2d 404
• Parties: Jerold T. HAMMILL, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 821

278 N.W.2d 821

89 Wis.2d 404

Jerold T. HAMMILL, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

No. 77-052-CR.

Supreme Court of Wisconsin.

Argued May 2, 1979.

Decided May 30, 1979.

Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Chris Heikenen, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen. and Pamela Magee-Heilprin, Asst. Atty. Gen., on brief, for defendant in error.

BEILFUSS, Chief Justice.

The sole issue before us is whether the trial court abused its discretion during the Voir dire examination of one of the jurors.

After a two-day jury trial, Jerold T. Hammill was found guilty of first-degree murder, attempted first-degree murder and rape in violation of secs. 940.01, 939.62 and 944.01, Stats., for the unprovoked and brutal attack on a young couple during the early morning hours of July 4, 1975 in an isolated part of Goose Island Park in Vernon County. The defendant entered pleas of not guilty and not guilty by reason of mental disease or defect. The second phase of the bifurcated trial resulted in a jury finding that defendant Hammill was not suffering from a mental disease or defect at the time of the commission of the three crimes.

Hammill was sentenced to life imprisonment on the conviction of first-degree murder, an indeterminate term of imprisonment not to exceed twenty-nine years and nine months on the conviction of rape and an indeterminate term of imprisonment not to exceed thirty years on the conviction of attempted first-degree murder. The sentences were imposed consecutive to each other and consecutive to the sentence which the defendant was then serving. A postconviction motion was timely made for an order vacating the judgment and granting a new trial. The motion was denied.

The defendant has obtained writs of error to review both the judgment of conviction and the order denying postconviction relief.

Under the United States constitution a criminal defendant in a state court is guaranteed an impartial jury by the Sixth Amendment as applied to the states through the Fourteenth Amendment. ¹ Principles of due process also guarantee a defendant a fair trial by a panel of impartial jurors. In Wisconsin a defendant is entitled to a trial by an impartial jury as a matter of state constitutional law under sec. 7, art. I of the Wisconsin Constitution. ²

Control of the Voir dire examination rests primarily with the trial court. ³ Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895); Ham v. South Carolina, 409 U.S. 524, 527-28, 93 S.Ct. 848, 35 L.Ed.2d 46; Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). The trial court has broad discretion as to the form and number of questions to be asked. The exercise of this discretion and the court's restriction upon inquiries, however, are subject to "the essential demands of fairness." Aldridge, supra at 310, 51 S.Ct. 470.

The trial court's discretion in the impaneling of a jury was early recognized by Wisconsin courts. In Grace v. Dempsey, 75 Wis. 313, 320-21, 43 N.W. 1127, 1129 (1889), this court declared: ⁴

"In so far as there is an absence of statutory regulation or rule of court, the trial court must necessarily exercise a very large discretion in the impaneling of a jury; and the exercise of such discretion will not be disturbed except in cases of its abuse, or the violation of some rule of law. Santry v. State, 67 Wis. 67, 30 N.W. 226; Sutton v. Fox, 55 Wis. 531, 13 N.W. 477; Olson v. Solverson, 71 Wis. 663, 38 N.W.Rep. 329; Thomp. & M. Juries, secs. 258, 270, 271."

The statute controlling the Voir dire examination of jurors is sec. 805.08(1), and provides as follows: ⁵

"805.08 Jurors. (1) Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions."

The Voir dire examination of prospective jurors in the instant case was begun and completed on the morning of November 17, 1975. Reasonably anticipating some difficulty in selecting an impartial jury for a case of such notoriety, the trial judge had previously ordered that one hundred fifty jurors be made available. The court began the examination with a series of general questions which touched on the usual topics, I. e., The jurors' business and personal relationships with the parties, counsel or law enforcement personnel, sequestration problems and past experience as a victim of a criminal assault. In addition the court asked whether any juror had already formed an opinion about the case based on reports in the news media and, if so, whether that opinion could be set aside in order to leave the juror's mind open to a fair consideration of the testimony and evidence to be presented at trial, and decide the case from the evidence and the instructions of the court. Anyone expressing doubt on the matter was promptly excused by the court. Panel member Burch did not come forward at this time.

After the preliminary selection procedures had been conducted, counsel for the parties were given the opportunity to question the remaining prospective jurors individually. The state focused its attention on each juror's ability to heed the trial court's instructions regarding reasonable doubt and his or her willingness to accord due weight to psychiatric testimony. The defendant also examined the jurors individually about possible bias against psychiatrists and, echoing the court's general questions, interrogated them closely about whether they had previously read or heard anything about the crimes involved and, if so, whether they had a strong impression as to the proper outcome of the case.

In the course of selecting a panel of twelve jury members and two alternates in all, one hundred seventeen veniremen were called. Of these eighty-six were excused for cause; forty-seven because they were unable to set aside their opinions as to the merits of the case; thirty-one because they could not be sequestered; and eight for other reasons. ⁶

The defendant's objections to the trial court's conduct of the Voir dire proceeding center solely on the individual questioning of the first venireman Mr. Burch, the only panel member who indicated that he had neither read about not heard about nor discussed the case prior to that day. According to the defendant, the trial court abused its discretion and impinged on his right to a trial by an impartial jury both by impermissibly interjecting itself into defense counsel's questioning of venireman Burch and by refusing to grant the motion to excuse Burch for cause.

The examination of Mr. Burch was by far the most lengthy of the individual examinations of the prospective jurors. This was due in part to the fact that defense counsel, in his own words, was "sort of trying out the questions on the first one." In the course of the questioning the trial court frequently found it necessary to rephrase the defendant's questions in order to clarify the point that the juror's decision in the case was to be based on the testimony and evidence presented as well as on the instructions of the law which would be given by the court. The following colloquy is a typical example:

"Q. Mr. Burch as you now understand and are aware of your own feelings as to this case are you perfectly satisfied that you can hear the evidence in this case and make your decision on what you hear in this courtroom from this point on and not be influenced, not have a remaining influence after you hear all of this testimony from your feelings right now. I had better reword it, could you hear all of the testimony and arrive at a decision on the basis of that testimony that you are going to hear and not have a hangover from the feeling that you now have as to how you want the trial to come out. Are you perfectly satisfied that you can do that?

"COURT: Well now Mr. Woodmansee that has to be also coupled with the instructions of the law that he will be given.

"Q. Well Your Honor respectfully I am concerned about that because he at this point answering the question he doesn't have any idea what the instructions are going to contain.

"COURT: Well that is right. The point is will he listen to them and abide by those and apply them to the evidence which is introduced in Court and from there reach his verdict as a fair and impartial juror.

"Q. From what you have heard the Judge say and myself say, do you have a fair understanding of what the question is at this point Sir?

"A. Well I can understand the judge better than I can you.

"Q. Not unusual at all. Well Sir, would you be more likely to find the defendant guilty or on the other hand more likely to find the defendant not guilty of any given offense as a result of having reached the feeling that you now have as to this case?

"COURT: Well Mr. Woodmansee. I am going to ask Mr. Burch this question and I think that maybe that ought to terminate this Mr. Burch regardless of what your feelings are at this point can you set them aside and listen to the evidence which is produced here in the courtroom and listen to the instructions as to the law which are applicable will be given you by the Court and then reach your verdict from the...