State v. Brummer, 95-3037-CR
| Decision Date | 27 March 1997 |
| Docket Number | No. 95-3037-CR,95-3037-CR |
| Citation | 209 Wis.2d 600,568 N.W.2d 37 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Penny L. BRUMMER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: PATRICK J. FIEDLER, Judge. Affirmed.
Before VERGERONT, ROGGENSACK and DEININGER, JJ.
Penny Brummer appeals the judgment of conviction for first-degree intentional homicide while armed contrary to §§ 940.01(1) and 939.63, STATS. She contends that: (1) the trial court's denial of her motion to strike a juror for cause violated her constitutional right to a fair and impartial jury; (2) the trial court erroneously exercised its discretion in not granting a mistrial because of certain testimony elicited by the prosecutor; (3) the trial court erroneously exercised its discretion in denying Brummer's request for a theory of defense instruction; (4) the trial court erroneously exercised its discretion in permitting James Foseid to testify and in denying a new trial because of misconduct and improper rebuttal by the prosecution; (5) there was insufficient evidence to support the verdict; (6) the trial court erroneously exercised its discretion in allowing the State to introduce as adoptive admissions nonverbal conduct of Brummer and to introduce evidence that Brummer declined requests to submit to hypnosis; and (7) a new trial should be granted in the interests of justice. For the reasons explained in the opinion, we affirm the judgment of conviction.
Brummer was charged with the murder of Sarah Gonstead, whose body was found on April 9, 1994, in a wooded area north of Mineral Point Road approximately two miles west of Pine Bluff, Wisconsin. The cause of death was a single shot in the back of the head at close range. The pathologist performing the autopsy detected no other signs of injury to the body below the level of the head. Based on the fact that Gonstead was last known to be alive on March 14, 1994, and certain weather data, the pathologist determined that the time of death was sometime between March 14 to March 20, 1994.
Gonstead had been the longtime friend of Glenda Johnson. Johnson and Brummer met at their place of employment and developed a sexual relationship, but that relationship broke up in mid-February 1994. On March 14, 1994, Johnson saw Brummer at their place of employment and saw Brummer leave work that evening. The next day Brummer told Johnson that she and Gonstead had gone out barhopping the night before and that afterward Gonstead got out of Brummer's vehicle at the 3054 Club in Madison and started to walk to Johnson's apartment, which was nearby.
According to Gonstead's mother, Gonstead left their residence with Brummer about 8:00 p.m. on March 14, 1994, and was not at home when her mother returned from work on March 15. After calling Johnson and learning that Gonstead was not there and that Johnson had not seen her, Gonstead's mother reported her daughter's missing status to the police and also called Brummer. Brummer told Gonstead's mother that she had last seen Gonstead when she dropped Gonstead off between 11:00 p.m. and 11:30 p.m. on March 14 and Gonstead said she was going to walk to Johnson's.
The prosecution's theory was that Brummer shot Gonstead because she was either jealous of the friendship between Gonstead and Johnson or angry at Gonstead because she thought Gonstead was encouraging Johnson to resume having relationships with men. The defense theory was that someone else shot Gonstead. 1
Brummer contends that the trial court erroneously exercised its discretion in denying her motion to strike juror Jay Olsen for cause. Olsen is employed as a news photographer by a local television station. He indicated on his jury questionnaire that from his job he was quite aware of the case and some of the facts and details. He edited a videotape of Brummer's preliminary hearing. When asked on the questionnaire whether he had expressed an opinion about Brummer's guilt and, if so, what opinion, Olsen checked "yes" and wrote: "[A]fter hearing facts and stories about the case, I feel the defendant may be guilty." To the next question--whether if he had an opinion he was able to set it aside and base his verdict on the evidence presented at court--Olsen checked "yes," as opposed to "no" or "not certain."
Referring to Olsen's questionnaire, the trial court began by asking Olsen if he would be able to put out of his mind what he had heard and read about the case and decide the case only on the evidence he hears in court, according to the court's instruction. Olsen answered: "I'm not a hundred percent positive of that" and went on to describe that he had heard something about Brummer's military service and remembered seeing on the videotape of the preliminary hearing someone get upset and run out of the room crying. In response to the court's next question, Olsen answered that he did understand that everything he had been exposed to was not evidence. The court asked again whether Olsen could put that out of his mind and decide the case based only on what he heard in court:
A I would--I would like to think so. I'm not a hundred percent positive of that. I know you're innocent till proven guilty and nothing not in the courtroom is not evidence. But making sure that that--you know, to keep that distinction. I've never been on a jury before, so I'm not really sure how that would affect my judgment.
Q All right. Let's put it another way. Let's assume you're on the jury. You're deliberating. Obviously, those proceedings are secret. Would you understand that your obligation as a juror, when you're involved in the discussions, you can only discuss evidence and law?
A Yes.
Q And would you be able to avoid bringing up, for instance, the tape that you edited?
A I think I could avoid bringing it up. It would still be in my mind. I would know, if it's not brought up in court, that kind of stuff, that it's not admissible, and I don't think I'd have a problem with not bringing it up to the other jurors.
Q Do you realize that the tape you edited--first of all, you were not there when the tape was taken?
A No, I did not actually shoot the videotape.
Q And do you understand that that is not evidence?
A Right.
Q And that one person's reaction to the situation may be different than another person's reaction?
A Absolutely.
Q And that the only reaction that really matters to a juror is based upon what they hear in court?
A Right.
Q Knowing the obligation of a juror, knowing that both sides are entitled to a fair trial, do you think you could give both sides a fair trial?
A I think so. I mean, you know, not being ever in the process before, I'm not sure. I mean, I mean, I know you're not supposed to form opinions. That kind of thing. The business I'm in, I've been in court a lot of times shooting through the glass and attended a lot of hearings and, you know, how that plays in the long run, I'm not really sure, not having gone through the process. It's impossible for me to say, you know, yes, no, distinctly.
I understand how it's supposed to work, and I feel that I could probably put it aside. I'm just, you know, not a hundred percent positive.
Q But do you feel you could follow your oath as a juror?
(Footnote added).
After the prosecutor and defense counsel asked Olsen questions unrelated to this appeal, defense counsel established that Olsen had not heard anything about the results of pretrial motions in the case and had no knowledge of the legal activities that had occurred during the last two to three weeks. In response to defense counsel's question whether Olsen could refrain from telling fellow jurors about evidence he knew of that was prohibited by the court, Olsen stated:
A. I think so. I don't think that I would have a problem, you know, keeping what I know to myself that's not supposed to be said to anyone.
In response to defense counsel's question whether Olsen believed in the concept that evidence that was judicially ruled illegal should not be considered, Olsen answered:
A I understand that. I think I could put that aside, although, like I said, I'm not sure. Some of the things I know, you know, if they're not entered into evidence, how they would play into my mind.
In response to the defense counsel's questions about the opinion Olsen referred to in his questionnaire, Olsen stated that he realized and believed that people are innocent until proven guilty. When asked by defense counsel whether he could put aside any opinion he had and listen to the evidence before the jury fairly and objectively and make his decision of guilt or innocence based only on that, and not on any preconceived attitude, Olsen answered:
A Once again, I think I could. When it comes down to the eleventh hour, I don't know if I would be sitting there the whole time, well, I know this and that. Not being through the process before this end of it, I'm not really sure, you know, what the mind, how the mind plays that.
The court then continued examination of Olsen:
Q That's the situation for everybody that's ever been a juror. Let me put it this way. You fulfill your obligation, again, when you follow the court's instructions, based on the evidence you hear in court. There is no right or wrong verdict from the standpoint of a juror. There's only one that's correct based on what you've heard in court and what you've heard in court alone. So you fulfill your obligation as a juror as long as you're fair and impartial, deciding the facts based upon the law and nothing more. Do you understand?
A Um-hum.
Q Do you feel you could do that?
A I think so. Definitely, I don't know if I can say yes or not with a definite--I think I could. Can I...
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