Hoppe v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN
• Citation: Hoppe v. State, 246 N.W.2d 122, 74 Wis.2d 107 (Wis. 1976)
• Decision Date: 19 October 1976
• Docket Number: No. 75--180--CR,75--180--CR
• Parties: Thomas F. HOPPE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

Page 122

246 N.W.2d 122

74 Wis.2d 107

Thomas F. HOPPE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--180--CR.

Supreme Court of Wisconsin.

Argued Sept. 14, 1976.

Decided Oct. 19, 1976.

Ronald L. Brandt, Deputy State Public Defender (argued), Howard B. Eisenberg, State Public Defender, on the brief, for plaintiff-in-error.

David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-in-error.

HEFFERNAN, Justice.

The defendant, Thomas F. Hoppe, was found guilty of murder in the second degree of Lynn Westbrook and the attempted first-degree murder of Mary Jans. Hoppe was sentenced to ten years for the attempted first-degree murder and twenty years for the second-degree murder, with the terms to be served consecutively.

On this appeal Hoppe contends that he was deprived of his constitutional right to a fair trial, because the trial judge improperly denied his motion for change of venue because of community prejudice, that there was insufficient credible evidence to support the convictions, that prosecutorial misconduct by the district attorney during the course of trial denied him due process, and that, because of cumulative errors, he should be granted a new trial in the interest of justice. In respect to each of these contentions we conclude that they are without merit and affirm the judgment.

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 outlined in McKissick v. State (1971), 49 Wis.2d 537, 545, 546, 182 N.W.2d 282, 286:

'(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.'

Where evidence is presented by the parties in respect to the factors outlined in McKissick, a trial judge is obliged to grant a change of venue if there is a reasonable likelihood that the defendant will not receive a fair trial. The question of change of venue is addressed to the trial judge's discretion, and any doubts in the mind of the trial judge should be resolved in favor of the defendant's motion. State v. Herrington (1969), 41 Wis.2d 757, 763, 165 N.W.2d 120. The trial judge's exercise of discretion in the denial of such motion will, therefore, not be set aside in the absence of an abuse of discretion. Deference must be paid by this court to the trial judge's determination, although we are obliged to review the evidence ab initio in determining whether the trial judge's discretion was appropriately exercised. This court said in State ex rel. Hussong v. Froelich (1974), 62 Wis.2d 577, 591, 215 N.W.2d 390, 398:

"The difficulty of impressing upon the record a true concept of the public sentiment in the county is manifest. Just as the trial judge is in a better position to weigh the testimony of witnesses who appear before him, so is he in a better position to judge of the public sentiment of the county. He is on the ground and in a position to sense, in a way that this court cannot, the true sentiment of the community and to judge much more correctly whether it is such as to prevent a fair trial on the part of the defendants."

In analyzing whether the trial judge properly exercised his discretion, it is necessary for this court to determine whether there was a reasonable likelihood of community prejudice prior to, and at the time of, trial and whether the procedures for drawing the jury evidenced any prejudice on the part of the prospective or impaneled jurors.

In respect to community prejudice, we are concerned with the nature of publicity, the degree to which the publicity permeated the community, the timing and specificity of the coverage in relationship to the time of trial, the degree of state participation in the dissemination of the publicity, and the publication of information that was not admissible at trial.

In respect to the jurors called and impaneled at trial, this court must address itself to the care used by the court in selecting the jury, the difficulty with which the jury was selected, the familiarity of prospective and impaneled jurors with the case, the use made of challenges to jurors, and the nature of the verdict rendered.

The record shows that the two victims of the crimes charged here were students at the University of Wisconsin-Oshkosh, that the defendant Hoppe and Roy Holland secured entrance to the students' apartment by a ruse, that one or both thereafter forced the women to have sexual relations with them, and that subsequently one of the women, Lynn Westbrook, died as a result of strangulation and the other, Mary Jans, was the victim of a strangulation attack, from which she managed to escape.

It is apparent that crimes of this nature would make a substantial impact upon the community and would be the subject of extensive media coverage. The facts adduced at the motion for a change of venue bear this out.

The crimes occurred on the evening of January 9, 1974. Between January 11 and January 25, 1974, the two leading newspapers in the area, the Oshkosh Daily Northwestern and the Appleton Post Crescent, published 24 news articles in connection with these crimes. These two newspapers were distributed, respectively, to 59 percent and 39 percent of all households in the area. It is apparent that the likelihood that the community and the prospective jurors would be informed about the general nature of the crimes and some of its specifics was very high. However, it has been repeatedly held that an informed jury is not necessarily to be equated with a partial or biased jury and that mere familiarity with specific facts will not, in itself, disqualify jurors. Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Tucker v. State (1973), 56 Wis.2d 728, 202 N.W.2d 897. ¹

Where the reporting is objective, informational, and noneditorial, it is not to be considered prejudicial. State v. White (1975), 68 Wis.2d 628, 229 N.W.2d 676; Jones v. State (1974), 66 Wis.2d 105, 223 N.W.2d 889; Hussong, supra, 62 Wis.2d p. 594, 215 N.W.2d 390.

The record fails to reveal any evidence of biased or inflammatory television or radio coverage. The predominant tone of the coverage in both newspapers is objective and informational.

An article of the Oshkosh Daily Northwestern did, however, state that both of the individuals arrested for the crimes had prior criminal records of burglary and escape. The same paper carried a report of the security measures utilized in the courtroom during the preliminary proceedings because of the possibility of trouble and the 'sensitivity of the case.' A police officer was reported as stating that, in view of the nature of the crimes, people might be tempted to shoot the defendants.

The Appleton Post Crescent on January 11, 1974, reported Mary Jans' statement to the police and, in a later article, stated that Jans described Lynn Westbrook's screams at or about the time of the fatal assault as 'the most God-awful scream of my life.' Perhaps the least objective material that appeared in any of the papers was the Appleton Post Crescent's report of the statement of the dean of students of the University of Wisconsin-Oshkosh in which he said that the student population was mollified by the prompt arrest of the two suspects. He was quoted as saying:

"They (the police) don't make many mistakes. I have a lot of respect for them. They're very professional."

He described the students' reaction to the crimes as:

"The kind of anger where you say, 'if I could get my hands on the men who did it, I'd wring their necks.' There's the same sort of feeling in the community . . ."

As stated above, the defendant did have a record of prior unrelated crimes, which were reported in the press. However, as we stated in State v. Nutley (1964), 24 Wis.2d 527, 129 N.W.2d 155, such information in regard to unrelated prior convictions does not create such prejudice as to compel a new trial because of inflammatory and prejudicial publicity.

It is apparent that the news articles were not favorable to the defendants, but they do not rise to the inflammatory level that evidences the inability to afford a fair trial in the community. The articles were informational and uneditorialized. They were not of such magnitude as to compel the trial judge to conclude that an impartial jury could not be impaneled. Inflammatory and prejudicial coverage by the news media which would make it impossible to afford a fair trial is exemplified in Rideau v. Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. In that case the accused's confession was televised to 105,000 of the 150,000 homes in the area from which the jury was to be drawn. Another example of widespread prejudicial publicity is afforded by Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. Thousands of articles, cartoons, and editorials were published urging the conviction of Sheppard, implying that he had confessed to the murder of his wife and detailing his extramarital affairs.

We are satisfied that the trial judge did not abuse his discretion in respect to finding that the pretrial publicity was not so prejudicial as to make unlikely a fair trial. By and large, the media coverage was informational and accurate.

It is also important to note that, although the coverage was hardly favorable to the defendants, most of the...