State v. Delgado, 96-2194-CR
| Citation | 588 N.W.2d 1,223 Wis.2d 270 |
| Decision Date | 21 January 1999 |
| Docket Number | No. 96-2194-CR,96-2194-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Carlos R. DELGADO, Defendant-Appellant-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
For the defendant-appellant-petitioner there were briefs by Joseph E. Schubert and Brennan Collins, Milwaukee and oral argument by Joseph E. Schubert.
For the plaintiff-respondent the cause was argued by Paul Lundsten, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
This is a review of a published decision of the court of appeals, State v. Delgado, 215 Wis.2d 16, 572 N.W.2d 479 (Ct.App.1997), which affirmed an order of the Circuit Court for Milwaukee County, Jeffrey A. Kremers, Judge. The order of the circuit court denied defendant Carlos R. Delgado's motion for a new trial.
¶2 The issue presented is whether the circuit court erroneously exercised its discretion in denying the defendant's motion for a new trial. The circuit court's denial of the defendant's motion for a new trial is based on the circuit court's finding that juror C. 1 was not biased against the defendant and that the defendant therefore was accorded a fair trial with an impartial jury.
¶3 The defendant was convicted by a jury of six counts of first degree sexual assault of two young girls. Juror C. failed to disclose during voir dire that she had been a victim of a sexual assault when she was a child. Juror C. revealed this fact during jury deliberations.
¶4 The circuit court found no actual or inferred juror bias. We conclude that the circuit court's finding of no inferred juror bias is clearly erroneous because it is not supported by the record. As a result, the circuit court's finding that the defendant failed to demonstrate that it was more probable than not under the facts and circumstances surrounding this case that the juror was biased against the defendant was also clearly erroneous.
¶5 Because the circuit court denied the defendant's motion for a new trial based on findings that were clearly erroneous, we conclude that the circuit court's denial of the defendant's motion for a new trial was an erroneous exercise of discretion. Accordingly we reverse the decision of the court of appeals and the order of the circuit court denying the defendant's motion for a new trial. We remand the cause to the circuit court for further proceedings not inconsistent with this opinion. 2
¶6 The facts are undisputed for purposes of this review. On January 29, 1993, the defendant was convicted by a jury of six counts of first degree sexual assault on two girls who were ages 7 and 9 when the assaults occurred.
¶7 During voir dire the circuit court asked each prospective juror to answer eight questions of a biographical nature. The sixth question was "whether you have ever been a victim or witness to a crime."
¶8 Juror C. did not disclose in response to this question that she had been a victim of sexual assault when she was a child. Juror C. stated that she worked at an institution of higher learning, that she had never before served on a jury and that she had "not been a victim or witness of a crime."
¶9 The assistant district attorney asked juror C. the following question: "In connection with your [employment], have you had occasion to deal with any sexual abuse issues involving children or adult survivors of sexual abuse?" Juror C. answered, "No, I have not." She did not take this opportunity to disclose that she had been sexually assaulted as a child or that she herself was an adult survivor of sexual assault.
¶10 The assistant district attorney asked the entire jury panel whether there were "any members of the jury panel who have any experience working with children." In response, several prospective jurors raised their hands, including juror C., who stated, "I coached 7 and 8 year olds in soccer and I also coach within the ... school system forensics and I also taught in boy scouts and girl scouts." The assistant district attorney then asked juror C. whether "in any of those context[s], have you ever become aware of or has it been reported to you anything about any of those kids being victims of sexual abuse?" The juror responded with a simple "No," and again did not take the opportunity to disclose her own experience of childhood sexual assault.
¶11 The assistant district attorney's next question to the entire jury panel was the following: "Are there any members of the jury panel who either have a close friend or close relative or you yourself who have been the victim of a sexual assault, either as a child or as an adult?" In response, several people on the panel raised their hands. One woman stated that her 5-year-old nephew was sexually assaulted by a distant relative, that the incident was reported to the police and that the matter was now going to trial. One man said that his girlfriend's child was sexually abused at the age of 2 or 3 by a former boyfriend and that the abuse had been reported to child protective services. A third juror stated that a good friend of hers was sexually abused from the age of 6 or 7 to the age of sixteen by her father, but that the incidents had not been reported to the police.
¶12 After these three prospective jurors finished answering, the assistant district attorney then asked, "Is there anybody else who I missed?" In response, a fourth panelist raised his hand. He explained that his wife was abused by her older brother for a year when she was 8 and that when she was older she was the victim of a date rape. He stated that neither incident had been reported to the police.
¶13 After the fourth prospective juror finished answering, the assistant district attorney again asked the entire panel, "Is there anybody on the jury panel who I missed on this question?" No additional panel members responded, and juror C. sat silent.
¶14 Later in voir dire, defense counsel asked juror C. about her duties at work and the ages of the children with whom she worked. In answering, juror C. again failed to raise the issue of her childhood sexual assault.
¶15 Two of the four prospective jurors who reported incidents in which people close to them had been victims of sexual assault sat on the jury.
¶16 After trial, on February 18, 1993, the circuit court received a letter from another juror. The letter stated: "During deliberations, a juror revealed that she had been a victim of sexual assault or abuse but did not provide this information under questioning prior to the trial." This juror later identified juror C. as the person who failed to disclose the sexual assault. The circuit court transmitted the letter to counsel and discussed the matter with counsel a number of times over the next few months as the sentencing phase proceeded. After a judgment of conviction was entered on July 14, 1993, defense counsel filed a motion for a new trial based upon the substance of the juror's letter to the circuit court.
¶17 On September 9, 1993, the circuit court (Circuit Judge John J. DiMotto) held a hearing on the defendant's motion for a new trial, with juror C. as the only witness. Defense counsel asked juror C.: In response, juror C. stated, Juror C., however, said she did recall other members of the panel describing on the record various incidents in which people close to them had been victims of sexual assaults that were never reported. In response to questions posed by the assistant district attorney, juror C. testified that she answered all questions on voir dire honestly as she understood them at the time and that she did not harbor any bias or prejudice against the defendant because he was charged with a sexual assault.
¶18 The circuit court (Circuit Judge John J. DiMotto) found juror C.'s testimony to be credible and concluded that the voir dire question whether the jurors themselves, their friends or relatives were victims of sexual assault was vague. The circuit court explained that "based on the drafting of the question, the way the question was phrased, I do not find based on her testimony here today that she incorrectly or incompletely answered that question." The circuit court therefore held that the first part of the test for juror bias set forth by this court in State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985), 3 was not satisfied and denied the motion for a new trial. The first part of the Wyss test is that the defendant must demonstrate that the juror incorrectly or incompletely responded to a material question on voir dire. Wyss, 124 Wis.2d at 726, 370 N.W.2d 745.
¶19 The defendant appealed. On March 28, 1995, in an unpublished opinion, the court of appeals held that the defendant had satisfied the first part of the Wyss test. The court of appeals held that the record clearly established that juror C. incorrectly or incompletely responded to the material questions of whether she had been "a victim to a crime," or "a victim of a sexual assault" by not answering these questions during voir dire. The court of appeals further concluded that despite the juror's belief that she had answered the questions correctly and completely and despite the circuit court's assessment that her testimony was credible, the juror's responses were neither complete nor correct.
¶20 The court of appeals remanded the cause to the circuit court to determine the second part of the Wyss test, that is, whether the defendant in this case demonstrated under the facts and circumstances surrounding the particular case it was more probable than not that juror C. was biased against the...
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