McKissick v. State
| Citation | 49 Wis.2d 537,182 N.W.2d 282 |
| Decision Date | 05 January 1971 |
| Docket Number | No. S,S |
| Parties | Alvin J. McKISSICK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 14. |
| Court | United States State Supreme Court of Wisconsin |
The defendant was convicted of violations of secs. 943.10(1)(a) (burglary) and 939.05 (party to a crime), Stats.
On April 14, 1967, police were summoned to a two-apartment building at 2725A North 15th street, Milwaukee, by the resident of the upper apartment who had heard noise in the lower apartment, the occupant of which was known to be at work. Upon the arrival of the police, defendant was observed at the side door of the building. He then scaled a fence, crossed over the roof of a garage, and ran at least two and one-half blocks through the neighborhood with the police officer in pursuit. He was found hiding in the attic of a house two and one-half blocks from the scene of the burglary.
Defendant was then taken to a police station where, after being advised of his rights, he stated he assisted another young man in breaking into the apartment and acted as lookout thereafter.
Investigation of the premises disclosed that a side window, previously nailed shut by the occupant, had been pried open. Numerous articles had been moved about from their customary places within the apartment; a shotgun, previously unloaded and kept behind a bedroom door, had been loaded with shells taken from a dresser drawer and placed on the bathroom floor; a strange piece of pipe was found on the kitchen floor. Nothing was found to be missing, however.
Trial was had to a jury and a verdict of guilty was returned on August 3, 1968. On August 23, 1968, the trial court sentenced defendant to an indeterminate sentence of not more than two years. Oral motions to set aside the verdict and to grant a new trial were made by defendant's trial counsel and were denied. Thereafter, different counsel was appointed by this court to represent defendant in whatever post conviction remedies he might have. Further post conviction motions were presented and denied. Writs of error were issued to review the judgment of conviction and post conviction orders.
Lloyd A. Barbee, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Lee Edward Wells, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.
Several issues are raised on this review. They are:
1. Did the method of jury selection and the jury as constituted provide defendant with an impartial jury as guaranteed by the constitutions of the United States and the state of Wisconsin?
2. Did the court abuse its discretion in refusing to grant defendant's motion for change of venue?
3. Was the state required to give defendant written notice prior to trial of its intention to rely on admissions made by defendant to police officers at the time of his arrest?
4. Did the instruction given with respect to defendant's prior conviction of disorderly conduct unduly prejudice the jury?
5. Did the state sustain its burden of proof with regard to the essential element of intent to steal?
1. Jury selection. Defendant challenges the jury which tried his case, contending that the jury was improperly selected and that the Negro race was not proportionately represented on the jury as finally constituted. Defendant never questioned the process of selecting the jury either before or at the trial or even in his first set of post conviction motions. Present counsel, in his independent post conviction motions, raised the question for the first time on July 25, 1969. He did not present any evidence of systematic exclusion of Negroes, nor any detailed basis on which the jury selection process could be challenged. Although we conclude that the motion was not timely made in the trial court and lacked any supporting evidence, we conclude, as did the trial court, that the motion should be considered on its merits.
Both the United States Constitution 1 and that of Wisconsin 2 require that the criminally accused be tried before an 'impartial jury.' It was long ago settled, and many times reaffirmed, that a conviction rendered by a jury from which Negroes have been intentionally and systematically excluded will not be allowed to stand. 3 This constitutional principle extends as well to the intentional and systematic exclusion of any identifiable group in the community which may be the subject of prejudice. 4 However, this exclusion may not be assumed or merely asserted. It must be proven by the defendant challenging the jury array: 5
6
Defendant made no such showing here, nor are his assertions supported in the law. The mere lack of proportional representation of races on a jury panel does not constitute discrimination, 7 and an accused is 'not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. * * * 8
States are permitted to decide for themselves the method to be used in the empanelling of jurors, and the method selected will not be tampered with provided it meets constitutional requirements. 9 The jury in this case was selected pursuant to sec. 255.04, Stats., which method has previously been examined and approved by this court as constitutionally proper. 10
Defendant further contends that the Milwaukee county system of two panels, one for criminal actions and one for civil, created a biased jury in his case. He contends that since the criminal panel is selected to serve for two months at a time (four months during the summer), while the civil panels serve for only three weeks, criminal jurors consequently have more experience in hearing criminal matters, which results in a bias in favor of the state. Defendant again offers no evidence nor citation of authorities. Obviously, his contention has little merit. Serving on a jury panel for the state for two or four months rather than three weeks hardly constitutes impressment into the service of the prosecutor. Obviously this added experience may work to the advantage of an accused as well as the state. In any event, a prima facie case has not been made by defendant.
2. Change of venue. Defendant contends that his motion for change of venue was improperly denied. On May 6, 1968, defendant was granted his motion for a continuance in order for a new panel of jurors to be available for the trial of his case. Defendant, as the basis for this motion, presented an article which appeared in the Milwaukee Journal on April 30, 1968, which article noted that the defendant was awaiting trial on a charge of fire bombing which occurred on August 2, 1967, during the Milwaukee riots. The article further noted that defendant's brother had been killed by police during the same incident. No other evidence was presented and no challenge to the truth of the news story was raised.
On the day of trial, August 1, 1968, an extensive voir dire of individual jurors was conducted by the court, a significant portion of which was held in chambers. Eight jurors admitted knowledge of these incidents and expressed the possibility of prejudice. These prospective jurors were all struck by the court. Another juror admitted reading of the incidents but expressed ability to decide the case on the evidence actually presented. Defendant's counsel did not move to strike for cause and he did not choose to exercise a peremptory strike. The motion for a change of venue made at this time was denied.
A change of venue may be a constitutional right in those cases where adverse community prejudice will make a fair trial impossible. 11 But the question whether a fair trial will in fact be impossible, framed in the motion for change of venue, is addressed to the discretion of the trial court. 12 This discretion is sharply circumscribed, however, and must rest upon consideration of the evidentiary matter presented. 13 Should such evidence give rise to a reasonable likelihood that a fair trial cannot be had, it is an abuse of discretion to deny a motion for change of venue. 14 Any doubt in the mind of the trial court should be resolved in favor of the defendant, 15 and in some cases the court may be required to act sua sponte. 16
The constitutional guarantee of a fair trial before an impartial jury is not, however, synonymous with a change of venue. Change of venue is only one method of guaranteeing a fair trial; others are voir dire and continuance. 17
The trial court's responsibility is to make inquiries of the jurors as to whether there is prejudice and to take such steps as may be necessary to insure a fair trial. 18
Courts have considered various factors as relevant in determining whether a change of venue should have been granted, 19 including: the 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.
In the instant case we have a situation where a news story concerning defendant was published four...
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Holland v. State, 77-485-CR
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...than the compelled relinquishment of the right to venue where the crime was committed. As this court said in McKissick v. State, 49 Wis.2d 537, 182 N.W.2d 282, 286 (1971): "The constitutional guarantee of a fair trial before an impartial jury is not, however, synonymous with a change of ven......
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