Schwenke v. State, 87-273
| Decision Date | 06 February 1989 |
| Docket Number | No. 87-273,87-273 |
| Citation | 768 P.2d 1031 |
| Parties | Keith Martin SCHWENKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Steven E. Weerts, Sr. Asst. Public Defender, Public Defender Program, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Karen A. Byrne, and Paul S. Rehurek, Asst. Attys. Gen., Cheyenne, for appellee.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
A jury convicted appellant Keith Schwenke of taking indecent liberties with his thirteen-year-old son. He now challenges the process by which that jury was selected and asserts as error a number of the trial court's evidentiary decisions.
We will affirm.
Appellant states the issues on appeal as follows:
I.
The trial court improperly conducted voir dire by pressuring jurors to ignore their biases and prejudices and erroneously refused, on three occasions, to excuse jurors for cause after they expressed bias or prejudice against the accused or against serving in a case of this nature.
II.
The trial court committed plain error by allowing a witness to testify for the sole purpose of prejudicing appellant's right to a fair trial.
III.
The trial court erred by allowing state's Exhibit No. 1 to go to the jury room.
IV.
The trial court erred by allowing uncharged evidence of prior sexual contact to reach the jury.
Keith Schwenke and his son shared an apartment at the Pioneer Apartments in Rawlins, Wyoming. At about 8:00 p.m. on March 16, 1987, fourteen-year-old Larry Lascano entered a storage area adjacent to the Schwenke apartment. Lascano testified that, while gathering some cleaning supplies from the storage room, he heard moaning and groaning noises which prompted him to look through a partially blocked window into appellant's bedroom. There, he claimed, he saw appellant laying face down on his son's back. Both the Schwenkes were naked, and appellant was repeatedly raising and lowering his hips over the child's buttocks. Lascano then ran out of the storage room, encountering his sixteen-year-old sister, Lucy, and her twelve-year-old companion, Nicole Trujillo. When the girls expressed disbelief at his description of what he had just witnessed, they went to the storage room so they could look through the window themselves. Both girls testified that they did so, and independently corroborated the boy's story. The children then alerted Lascano's sister-in-law. Although she never visually confirmed their allegations, she testified that she heard moaning noises coming from the storage area and relayed the story to the children's mother, Lucille Lascano, who called the police.
Officers Omen and Dixon of the Rawlins City Police responded to the call and, on the basis of their interview with the Lascano and Trujillo children, took appellant's son into protective custody. Two days later a criminal complaint was issued, charging appellant with incest, a violation of W.S. 6-4-402 (June 1983 Repl.). Subsequently, the state dropped that charge, electing to prosecute appellant under W.S. 14-3-105 (July 1986 Repl.), taking indecent liberties with a minor. A jury found him guilty of that offense, and on October 15, 1987, the trial court sentenced appellant to a term of seven to nine years in the Wyoming State Penitentiary.
A primary purpose of the voir dire inquiry is to determine whether prospective jurors have such prejudices or biases as would interfere with a fair and impartial decision. Ostrowski v. State, 665 P.2d 471, 488 (Wyo.1983). Because the trial court can more clearly observe the demeanor and responses of the panel during that inquiry, we defer to its judgment as to whether such prejudices or biases exist. Summers v. State, 725 P.2d 1033, 1040-41 (Wyo.1986). See also Smethurst v. State, 756 P.2d 196 (1987). Appellant asks us to depart from our usual deference, contending that the trial court manipulated three jurors so as to camouflage prejudices which would subject them to a successful challenge for cause. The record indicates appellant challenged those jurors for cause, but it also reveals he accepted the jury as finally empaneled. Lee v. State, 743 P.2d 296, 298 (Wyo.1987). Accordingly, we must review any improprieties found in the jury selection process according to a plain error standard. Gresham v. State, 708 P.2d 49, 55 (Wyo.1985).
To determine whether the plain error standard has been met, we apply a three-part test. First, this court must be able to discern unequivocally from the record what occurred at trial without resort to speculation. Second, appellant must demonstrate that what occurred constitutes a clear and obvious violation of a clear and unequivocal rule of law. Finally, that violation must have adversely affected some substantial right of appellant. Britt v. State, 752 P.2d 426, 428 (Wyo.1988).
The transcript here is clear with regard to the voir dire of three of the panel members of which appellant now complains. Prospective juror Martinez initially indicated that her strong feelings about child molestation might adversely affect her ability to judge the facts. She believed that children would not lie about such things. The trial court advised her that strong feelings would not disqualify her as a juror, provided she could impartially hear and weigh the evidence. In response, Ms. Martinez revealed that she would not, in every instance, presume a child's testimony to be true. She later suggested that her decision in favor of either appellant or the state would be based upon the amount of factual and testimonial substantiation offered to support their respective stories. The trial court denied appellant's challenge for cause.
Prospective juror Conway suggested that she might improperly infer appellant's guilt from the fact that he was being tried. The trial court explained that, despite the jury's strong feelings about child abuse, it must presume appellant innocent until the state has proved all the elements of his guilt beyond a reasonable doubt. When Mrs. Conway stated that she could hold the state to its burden of proof, the trial court refused to excuse her for cause.
Appellant's challenge of prospective juror Gerstner arose after a confusing dialogue which seemed to indicate her intention to apply a preponderance of the evidence standard of proof to the state's case. Noting that appellant's questions may have caused her confusion, the trial court attempted to clarify the reasonable doubt standard for Ms. Gerstner. Then, upon her assurance that she could follow the appropriate standard, the trial court denied appellant's motion to disqualify her for cause.
The record is clear concerning the trial court's conduct during the voir dire of these three panel members. However, appellant must establish that this conduct constitutes a clear and obvious transgression of an unequivocal rule of law. The scope of the voir dire examination lies within the discretion of the trial court, and a challenge for cause permits the rejection of prospective jurors only on "a narrowly specified, provable and legally cognizable basis of partiality * * *." Engberg v. State, 686 P.2d 541, 548, 549 n. 6 (Wyo.1984). The limited grounds which will support a successful challenge for cause are set out in W.S. 7-11-105 (June 1987 Repl.) and W.S. 1-11-203 (1977). 1 Those statutes provide, in pertinent part:
(a)(ii) That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused.
(a)(vi) Having formed or expressed an unqualified opinion or belief as to the merits or the main question of the action. The reading of newspaper accounts of the subject matter before the court shall not disqualify the juror either for bias or opinion;
(a)(vii) The existence of a state of mind in the juror evincing enmity or bias for either party.
To determine whether a prospective juror exhibited such bias or prejudice as would require the trial court to dismiss him for cause, we must examine the prospective juror's voir dire testimony as a whole, without placing undue emphasis on any single response. Patterson v. State 691 P.2d 253, 255 (Wyo.1984), cert. denied, sub nom. Spoon v. Wyoming, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 311 (1985). A speculative bias will not result in a successful challenge if the trial court determines that the prospective juror is able to decide the case solely on the evidence presented and according to the trial court's instructions on the law. Summers, 725 P.2d at 1039. The trial court's determination in this regard is an exercise of discretion, and we will not disturb that discretion unless appellant demonstrates that it was abused. Gresham, 708 P.2d at 55-56; see also Martin v. State, 720 P.2d 894, 896-97 (Wyo.1986) (defining judicial discretion).
In the present case, none of the three panel members can be said to have formed or expressed an opinion concerning appellant's guilt. The trial court could reasonably conclude that the three prospective jurors would execute their duties as jurors in accordance with the law and the evidence before them. We hold, therefore, that appellant has failed to demonstrate that the trial court abused its discretion by denying appellant's challenges for cause. There was no plain error.
That is not to say, however, that this court is entirely comfortable with such a deferential standard of review; nor is it to say that the trial court in this case should escape criticism. Both the decisions of this court and the statutory pronouncements of our legislature have recognized the vital role of voir dire in the fact-finding process. The validity of any factual determination depends on whether the fact-finder is, in truth, impartial. We fear, however, that all too often the dialogue of voir dire is less a search for this impartiality than it is a series...
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