Nyberg v. State

• Decision Date: 18 January 1977
• Docket Number: No. 75--716--CR,75--716--CR
• Parties: Robert NYBERG, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 524

249 N.W.2d 524

75 Wis.2d 400

Robert NYBERG, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75--716--CR.

Supreme Court of Wisconsin.

Argued Dec. 2, 1976.

Decided Jan. 18, 1977.

The plaintiff in error, Robert Nyberg, Jr., (hereinafter defendant), was convicted, after a trial to the court and jury, of delivery of a controlled substance in violation of secs. 161.41(1)(b) and 161.14(4)(k), Stats. He was sentenced to an indeterminate term not to exceed three years. Execution of the sentence was stayed and he was placed on probation for three years, with four months to be served in the county jail. In his postconviction motions the defendant asserted he was entitled to a new trial because of procedural errors in the trial and the trial court's abuse of discretion in ruling on his trial motions.

Melvin F. Greenberg (argued), Asst. State Public Defender, with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Michael R. Klos (argued), asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

BEILFUSS, Chief Justice.

The defendant contends that the trial court abused its discretion in (1) not striking three jurors for cause because of bias shown at the voir dire examination of the jurors, (2) in failing to grant a motion for mistrial because the principal state witness conversed with two jurors after they were sworn but before testimony was taken, and (3) for failure to grant a motion for mistrial because the state's witnesses violated a sequestration order. The defendant also contends he is entitled to a new trial in the interest of justice.

The facts which gave rise to the prosecution are as follows:

The defendant Nyberg and the principal prosecution witness, Harold Lofkvist, both in their twenties, had lived in the Hayward area most of their lives. They had gone to grade and high school together and had seen each other, intermittently, since that time. Lofkvist testified that during the last five years he had not seen the defendant on a social basis and was not a close friend. The defendant testified he had seen Lofkvist several times and on a friendly and social basis.

On February 16, 1975, by chance, Lofkvist met Nyberg in a bar in Cable, Wisconsin. Lofkvist asked the defendant Nyberg 'if he could get some stuff for me.' Nyberg told Lofkvist he could but not right then and that it was available in the Barnes area. Lofkvist next saw Nyberg a few days later at the Northern Lights Steakhouse in Lenroot, Wisconsin, where Lofkvist tended bar. Lofkvist and Nyberg went to a bank room and Nyberg sold Lofkvist three bags of marijuana for $45.

Shortly after this transaction Lofkvist went to the sheriff's office, gave the marijuana to Deputy James Poppe and stated he had obtained it from Nyberg. Prior to the purchase Lofkvist talked to Deputy Poppe about the defendant. Lofkvist supplied information to the sheriff's department on at least one occasion and was instructed on what to do when purchasing marijuana. Although Lofkvist was not paid as an informant, he was reimbursed the $45 paid to Nyberg.

The defendant Nyberg admitted selling the marijuna. His defense at the trial was entrapment, based upon his claimed friendship with Lofkvist and Lofkvist's arrangement with the law enforcement officers.

On voir dire examination the three challenged members of the jury panel admitted knowing Deputy Poppe. Mr. Trettin stated he grew up with Poppe and considered him a close friend. He later qualified this statement saying he didn't meet socially with the deputy but only casually on the street. Trettin stated he would not be embarrassed to make a decision that showed disbelief of Poppe's testimony. Mr. Henriksen also stated that he was a very good friend of Poppe but that it would not be embarrassing to make a decision contrary to that which Poppe was advocating. Mr. Tainter knew Poppe and was a retired deputy sheriff. The defendant contends it was an abuse of discretion not to strike the above mentioned members of the jury panel for cause. It is argued this is especially true because five members of the panel were excused by the court because of their friendship with the defendant's family. However, these prospective jurors stated it either would or might be embarrassing to find against the defendant.

Nolan v. Venus Ford, Inc., 64 Wis.2d 215, 218 N.W.2d 507 (1974), extensively discusses the dismissal of prospective jurors for cause. There must be more than a suggestion of partiality. Id. at 222, 218 N.W.2d 510. Citing Kanzenbach v. S. C. Johnson & Son, Inc., 273 Wis. 621, 79 N.W.2d 249 (1956), the court noted with approval that an appropriate question for a panel member is whether he or she believed he or she could decide the case fairly on the evidence. ¹ A trial court must honor challenges for cause whenever it may reasonably suspect that circumstances outside the evidence may create bias or appearance of bias. Nolan, supra, 64 Wis.2d at 223, 218 N.W.2d [75 Wis.2d 405] at 511. These guidelines are equally if not more important in a criminal trial where the accused may eventually be deprived of his or her liberty.

The trial judge conducted a thorough voir dire and this was supplemented by counsel. Panel members who stated they could not decide the case on its merits were dismissed. Some of those dismissed were friends of the defendant's family. Another was dismissed because he was a friend of Deputy Poppe and Mrs. Lofkvist. One member was dismissed because she had discussed the case with someone and formed an opinion concerning the innocence or guilt of the defendant. Because one woman had children who were involved in a marijuana case she asked to be, and was, excused. Panel members were dismissed not because they were or were not friends of the defendant or a witness but because they believed they could not decide the case fairly on the evidence. Just as some panel members were not discharged for cause even though they knew Deputy Poppe, others were not discharged for cause although they were acquaintances of the defendant's family.

The trial court used the correct standard for dismissing panel members for cause. Whether a juror is to be dismissed for cause rests within the sound discretion of the trial court. ²

The number of jurors available had been exhaused. By agreement, the defendant exercised his right to four peremptory challenges. The state waived one and struck three. We conclude there was no abuse of discretion in impaneling the jury.

At the recess, after the impaneling of the jury but before the opening statement had been made, Lofkvist went up to and engaged two jurors in conversation, while they were in a corridor. The district attorney immediately intervened and informed Lofkvist not to talk to members of the jury.

The defendant's counsel made a motion for a mistrial. The trial judge examined the jurors in chambers concerning the incident and afforded defendant's counsel a right to participate in the examination. The jurors stated that they did not know Lofkvist nor that he was to be a witness. Lofkvist told one of the jurors that he went to school with his son and a brief discussion ensued about armed service compensation. Nothing was said that in any way related to the trial which was about to commence.

Prior to the recess the trial court had extensively admonished the jury not to discuss the case with anyone. The trial judge concluded that the brief conversation between Lofkvist and the two jurors had not prejudiced either the defendant or the state and denied the motion.

The defendant argues that his whole defense of entrapment was dependent upon whether the jury believed him or Lofkvist as to the degree of friendship that existed between then prior to the sale of marijuana. The defendant claimed he believed he and Lofkvist were good friends and that he was induced to purchase the marijuana for him because of that friendship, not knowing that in fact Lofkvist was a police informant who was trying to persuade him to violate the law. ³ He further argues Lofkvist attempted to ingratiate himself with the jurors which could affect the jurors' evaluation of the credibility of the two witnesses.

The defendant places much reliance on La Valley v. State, 188 Wis. 68, 205 N.W. 412 (1925), which stood for the proposition that a jury trial must not only be devoid of any improper influences by officers of the state but also from any appearance thereof.

In Shelton v. State, 50 Wis.2d 43, 50--51, 183 N.W.2d 87, 92 (1971) we stated: 'Several of our earlier cases are consistent with this rule; however, the rule has been relaxed to the extent that there must be some showing of probable prejudice.' ⁴

The conduct of the witness Lofkvist in his attempt to ingratiate himself with two of the jurors was improper. It is improper for any witness to attempt to ingratiate himself with the jury--more so if that witness is an officer of the state and an important witness. The question remains--did his misconduct result in probable prejudice of the jury? The state argues it is just as probable that the reaction of the jury was unfavorable to Lofkvist and that it examined his testimony more critically.

The trial judge was aware of the standard to be applied. He examined the jurors, noted the conversation was unsolicited by them and unrelated to the case, and that the jurors did not know Lofkvist or that he was to be a witness. In the exercise of its discretion the trial court, based upon the judge's examination and observation of the jurors, concluded neither party was prejudiced by the incident. The trial judge, from his face to face confrontation, is in a much more favorable position to fairly make this determination than is a reviewing court from the examination of an inanimate record. From our review of the record we conclude the trial court applied the right standards and procedures...