Holland v. State, 77-485-CR
| Decision Date | 12 January 1979 |
| Docket Number | No. 77-485-CR,77-485-CR |
| Citation | 275 N.W.2d 162,87 Wis.2d 567 |
| Parties | Roy Walter HOLLAND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Court of Appeals |
David J. Becker, Asst. Atty. Gen. (argued) with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
Before MOSER, P. J., and BROWN and BODE, JJ.
At about 7:00 p. m. on January 9, 1974, the defendant Roy Holland (Holland) and Thomas Hoppe (Hoppe) gained entrance to the apartment of Mary Jans (Jans) and the victim, Lynn Westbrook (Westbrook). Once inside, Holland threatened Jans with bodily harm if she did not perform certain sexual acts. Holland does not contest his conviction of sexual perversion for those acts. Thus, we are only concerned with the murder conviction on this appeal.
Later that evening, Jans and Holland were in the living room while Hoppe and Westbrook were in the adjoining bedroom. Jans heard Westbrook scream, and Holland went into the bedroom. Holland returned and told Jans that Westbrook did not like what Hoppe was making her do. There was a second scream and a thud. Holland went back into the bedroom, and Hoppe emerged with "a wild violent look on his face." Hoppe told Jans that she had seen too much and began choking her. Jans broke free and was followed into the back bedroom where Hoppe began choking her again.
A knock at the front door caused Hoppe to stop choking Jans, and Holland came out of the other bedroom. Holland volunteered to go out the back door and get the person at the front door from behind. It was decided that Jans would answer the door instead. By the time Jans answered the door, the person had left. Holland told Jans that Westbrook was dead and that they would have to take her far away before letting her go. When the men began picking up things they had scattered about the apartment, Jans went into the kitchen and slipped out the back door to get help.
The men were gone by the time the police arrived. Westbrook was found in the bedroom adjoining the living room. She was alive but badly bruised about the head and neck and was having difficulty breathing. She died about a week later from irreversible brain damage due to lack of oxygen.
On January 25, 1974, Holland was charged with first degree murder, party to a crime, contrary to sec. 940.01 and sec. 939.05, Stats. That same day, Holland was bound over to stand trial, and an information was filed. At his arraignment, Holland stood mute, and a plea of not guilty was entered by the court. On April 1, 1974, Holland moved to have his trial postponed until sometime after Hoppe's trial. The motion was granted on April 11, 1974, and Holland's trial was set for June 3, 1974.
Hoppe's trial was held on May 13 to 22, 1974 and resulted in his conviction for second degree murder. On May 28, 1974, Holland moved for a change of venue because of the publicity surrounding the Hoppe trial. Media coverage had begun immediately after the attack, and every development in the case had been promptly reported. Hoppe's trial resulted in daily reports which summarized the testimony presented, including Hoppe's contentions that Holland had done the killing. All of the reports made reference to Holland's involvement. The motion for change of venue was denied after a hearing on May 29, 1974.
Holland's trial began as scheduled on June 3, 1974. The first day was devoted to selecting the jury. All but one of the jurors examined had heard of the case and the Hoppe trial, and most knew that Hoppe had been found guilty. Twelve prospective jurors were excused because they had already formed an opinion on Holland's guilt, and another three were excused for other reasons. Five other prospective jurors were challenged for cause when they expressed an opinion, but after reinstruction on the prosecution's burden of proof and the presumption of innocence, they stated that they could be open-minded and impartial. The challenges to these jurors were denied, and three of them became members of the jury.
At the close of the testimony, the jury was instructed on first degree murder, party to a crime. The instructions covered all three categories of the party to a crime statute, 1 and there was no instruction that the jury had to agree on which category applied. The jury found Holland guilty of second degree murder, party to a crime. Holland was sentenced to an indeterminate term of 24 years on the murder conviction.
On June 9, 1976, Holland filed a motion for post-conviction relief under sec. 974.06, Stats. A hearing was held on August 26, 1976, and the motion was denied on May 13, 1977. Writs of error to review the judgment and the order denying the motion for post-conviction relief were issued on July 25, 1977.
The issues presented on this appeal are: (1) did the trial court err in denying the motion for a change of venue, (2) was Holland deprived of his right to a fair trial by an impartial jury, (3) did the trial court err in instructing on first degree murder, and (4) did the trial court err in failing to instruct the jury that they all must agree on at least one of the categories of party to a crime before they may find Holland guilty.
A motion for a change of venue is addressed to the sound discretion of the trial court and will be granted if there is a reasonable likelihood that a fair trial cannot be had. 2 This court independently evaluates the evidence and documents presented in support of the motion. 3 Any doubt on this matter should be resolved in favor of the defendant. 4 The factors which this court is obliged to consider in determining whether a change of venue ought to have been granted because of community prejudice are:
(t)he inflammatory nature of the publicity; the degree to which the adverse publicity permeated the area from which the jury panel would be drawn; the timing and specificity of the publicity; the degree of care exercised, and the amount of difficulty encountered, in selecting the jury; the extent to which the jurors were familiar with the publicity; and the defendant's utilization of the challenges, both peremptory and for cause, available to him on Voir dire. In addition, courts have also considered the participation of the state in the adverse publicity as relevant, as well as the severity of the offense charged and the nature of the verdict returned. 5
The parties agree that the publicity surrounding the Hoppe trial permeated the area from which the jury was drawn. They agree that the publicity occurred shortly before Holland's trial and went into the specific facts of the case in significant detail. The primary dispute concerning the publicity is over its inflammatory nature.
Our examination of the newspaper articles and affidavits submitted along with the motion for change of venue and the motion for post-conviction relief shows that the publicity surrounding the Hoppe trial was informational. The articles summarized the testimony given on each day but did not editorialize. There were no assertions of Holland's guilt or calls for severe punishment of the perpetrators. Holland asserts, however, that informational news reports can become inflammatory when they are so frequent, detailed, and recent as the news reports in this case.
Where news reports are objective, informational, and noneditorial, they are not necessarily prejudicial. 6 Such news may inform possible members of the jury, but this is not necessarily objectionable. News reports become objectionable when they editorialize, amount to "rabble rousing," or attempt to influence public opinion against a defendant. 7 While the nature of the crime itself was somewhat inflammatory, the news reports did not add to this in any of these objectionable ways.
The degree of care exercised and the amount of difficulty encountered in selecting the jury is a good indication of any inflammatory impact of the news reports. The trial court's sensitivity to the potential community prejudice is evident in the extensive, in-chambers voir dire of the prospective jurors. Each juror was voir dired individually. Twelve prospective jurors were excused because they had already formed opinions. On the other hand, there were several jurors who had no hesitancy in stating that they would be completely open-minded and impartial. A panel of twenty-four was selected after fifteen jurors were excused for cause.
Almost all of the jurors were aware of the Hoppe trial and most knew that he had been convicted, although many were unsure of the degree of murder and number of charges which had been found. It is not necessary, however, that the jurors be ignorant of the facts and issues involved. 8 A juror may not be challenged for cause because he has obtained information on the case through newspapers unless he has become biased or prejudiced as a result. 9
Holland challenged for cause each of the prospective jurors who gave any indication of having formed an opinion in the case. Five of these challenged jurors were allowed to remain on the jury panel after reinstruction and an indication that they could be impartial. Two of them were struck with the defendant's peremptory challenges.
There is no claim that the State played any role in the publicity surrounding the case. It is agreed that first degree murder is the most serious crime with which a defendant can be charged.
Taking these factors together, it is clear that a change of venue was not necessary. The widespread publicity shortly before the Holland trial clearly informed the prospective jurors of the matters in issue. The publicity was not, however, editorialized or otherwise designed to convince the public of the defendant's guilt. The record...
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