State v. Baker, 98-3489-CR
| Decision Date | 26 January 2000 |
| Docket Number | 98-3489-CR |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. State of Wisconsin,Plaintiff-Respondent, v. Cory T. Baker,Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Racine County: GERALD P. PTACEK, Judge. Affirmed.
Before Brown, P.J., Nettesheim and Anderson, JJ.
1. PERCURIAM.
Cory T. Baker appeals from a judgment of conviction for attempted first-degree intentional homicide, first-degree reckless injury, second-degree recklessly endangering safety and seven counts of first-degree recklessly endangering safety.1 He argues that the trial court's refusal to remove a juror for cause deprived him of the full benefit of peremptory challenges, that the evidence was insufficient to support the recklessly endangering safety convictions and that he was denied a fair trial by commentary in the prosecutor's closing argument that he had the ability to subpoena witnesses. We conclude that there is no error warranting reversal of the judgment or a new trial. We affirm the judgment.
2. Baker was charged as a result of a confrontation at the Racine home of Robert and Phyllis White on September 16, 1997. Baker and several others went to the Whites' home. A struggle on the porch took place and shots were fired at Robert. Robert was wounded in the abdominal area. Shots were also fired at Robert's stepson and brother-in-law and in the direction of the White home, which was then occupied by Phyllis and several family members.
3. Baker was tried with codefendant Tai Minor.2 Each defendant was allowed three peremptory challenges to jurors. During jury selection, potential juror Paul D. expressed knowledge and feelings he had about an unrelated shooting of a delivery person in Racine. Paul had a business relationship with the victim of that homicide. Outside the presence of other potential jurors, the trial court questioned Paul about his ability to be fair and impartial. Paul expressed that he did not think there was anything that would affect his ability to be fair and impartial and that he would try his best to just look at the evidence presented. When asked by codefendant's counsel, "Now, do you feel you could be fair and impartial?", Paul responded, "Not a hundred percent." Paul indicated that he would not want someone like himself to be on a jury if his son were the accused. Baker's counsel inquired whether Paul was aware that in the delivery driver case a young African American male was arrested and that guns were involved.3 Paul knew these facts. Paul was asked, "Do you think that would interfere at points in your ability to keep your emotions out of things?" Paul answered, "I believe it could." The trial court asked one final question, "Again, your answer is that your decision in this case if you are picked here would be based on the facts of this case and the law as given to you by the Judge and not based on what happened in another crime, is that correct?" Paul answered, "Yes, I'd try, yes."
4. Both defendants moved to remove Paul from the jury panel for cause. The request was denied. The trial court ruled that Paul was "upset by another matter that is totally unrelated to this ... but it's clear I think he will decide the case based on the evidence and law as given." Baker used one of his peremptory challenges to remove Paul from the jury. He now argues that he was denied the benefit of his peremptory strikes because he had to use one to remove a juror who should have been removed for cause. See State v. Ramos, 211 Wis. 2d 12, 24-25, 564 N.W.2d 328 (1997); State v. Kiernan, 221 Wis. 2d 126, 137, 584 N.W.2d 203 (Ct. App. 1998), aff'd, 227 Wis.2d 736, 596 N.W.2d 760 (1999).
5. In State v. James H. Oswald, 2000 WI App 3, 4, Nos. 97-1219-CR, 97-1899-CR, this court had an opportunity to integrate four recent supreme court decisions discussing all aspects of juror bias.4 Those cases clarified the state of juror bias jurisprudence in Wisconsin by adopting the terms "statutory," "subjective" and "objective" bias. See id. "Subjective bias refers to the prospective juror's state of mind." Id. "A prospective juror is subjectively biased if the record reflects that the juror is not a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the prospective juror might have." State v. Theodore Oswald, 2000 WI App 2, 19, No. 97-1026-CR. Objective bias exists when the prospective juror's relationship to the case is such that no reasonable person in the same position could possibly be impartial even though the juror desires to set aside any bias. See James Oswald, 2000 WI App 3 at 4.
6. Our review of a trial court's determination on both the subjective and objective bias is deferential. See id. at 5. With respect to subjective bias, the recent decisions "nail down the proposition that `questions as to a prospective juror's sincere willingness to set aside bias should be largely left to the circuit court's discretion.'" Id. at 6 (quoting State v. Ferron, 219 Wis. 2d 481, 501, 579 N.W.2d 654 (1998)). The trial court is charged with not only considering what the prospective juror says but also with viewing the prospective juror's manner and body language. See id. Thus, in reviewing the circuit court's determination of subjective bias, Id.
7. "[E]xclusion of a juror for objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case to be tried or the juror's intractable negative attitude toward the justice system in general." Id. at 8. The deference afforded the trial court's determination of objective bias is slightly less than that applicable to a determination of subjective bias because the conclusion of whether the facts add up to objective bias is intertwined with the factual findings. See id. at 5.
8. Baker argues that Paul should have been removed from the jury because Paul's answers gave an appearance of bias and only said that he probably could set aside prior opinion and be impartial. See Ferron, 219 Wis. 2d at 499. To the extent Baker is suggesting that Paul was objectively biased, we easily reject that notion.5 None of the reservations Paul expressed with regard to his jury service had to do with the facts of this case, any witness in this case, the defendant's constitutional rights or a disdain for the criminal justice system. Paul's expressions stemmed from an unrelated incident. It was not error to refuse to strike Paul for objective bias. See James Oswald, 2000 WI App 3 at 21 (); Theodore Oswald, 2000 WI App 2 at 29-32 ().
9. With respect to whether Paul was subjectively biased, we acknowledge that upon examination by the defense attorneys Paul was equivocal in his ability to decide the case without memory of the recent homicide.6 Again, we note that Paul's misgivings related only to his reaction to an unrelated homicide. It is an unfortunate reality that not all jurors can be free from the emotional ardor created by the level of criminal activity in our communities. The critical circumstance here is that in the final moment Paul expressed that he would try to make a decision in this case based on the facts and law of this case and not on what happened in the other crime. A prospective juror need not give unequivocal assurances of his or her ability to decide the case without influences of daily life. See James Oswald, 2000 WI App 3 at 19; Theodore Oswald, 2000 WI App 2 at 24.
10. The trial court was in a better position to determine if Paul was sincerely willing to put aside his knowledge and opinions of the unrelated homicide. The trial court found it clear that Paul could do so. That finding is not clearly erroneous. Therefore, Paul was not subject to dismissal for cause and Baker was not denied the benefit of his peremptory strikes.
11. Baker challenges the sufficiency of the evidence to sustain his conviction of first-degree recklessly endangering safety as party to a crime. We may not reverse a conviction on the basis of insufficient evidence "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).
12. The State was obligated to prove that Baker was aware that his conduct created a substantial risk of death or great bodily harm to another person. See Wis JI-Criminal 1345. Baker argues that the State failed...
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