State v. Delgado

• Decision Date: 28 October 1997
• Docket Number: No. 96-2194-CR,96-2194-CR
• Citation: 215 Wis.2d 16,572 N.W.2d 479
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Carlos R. DELGADO, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 479

572 N.W.2d 479

215 Wis.2d 16

STATE of Wisconsin, Plaintiff-Respondent, v. Carlos R. DELGADO, Defendant-Appellant. ^d

No. 96-2194-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 4, 1997.

Opinion Released Oct. 28, 1997.

Opinion Filed Oct. 28, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph E. Schubert of Brennan & Collins of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Sally L. Wellman, Assistant Attorney General.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

FINE, Judge.

Carlos R. Delgado was found guilty by a jury of six counts of first-degree sexual assault of a child. See § 948.02(1), STATS. He appeals from the trial court's order denying him a new trial. He claims that he was denied a fair trial because one of the jurors did not disclose during the voir dire that she had been sexually assaulted. We affirm.

This is the second time this case has come to us on the issue of whether Delgado received the fair trial to which he is entitled. In March of 1995, we recounted the facts and analyzed the applicable standard:

During voir dire, prospective jurors were given a questionnaire, which the trial court described as follows:

The sixth question pertains to whether you have ever been a victim or witness to a crime. The seventh question pertains to whether you have ever had a criminal justice contact.

Now, what I mean by that is. [sic] Perhaps you were a victim of a crime or you were a witness to a crime and you were requested to come down and talk to someone in the district attorney's office. Perhaps charges were issued against someone and you came to court. You received a subpoena. You testified in court or maybe you only sat in the gallery and watched how the trial proceeded.

Panelist Vickie C[.] answered: "I have not been a victim or witness of a crime. I have no criminal justice contacts." The assistant district attorney later asked the panel: "Are there any members of the jury panel who either have a close friend or a close relative or you yourself who have been the victim of a sexual assault, either as a child or as an adult?" C[.] made no response. C[.] was seated as a juror.

After trial, juror Elizabeth R[.] sent a letter to the trial court stating in part: "Prior to the trial, all prospective jurors were asked directly whether they had been a victim of sexual abuse. 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." R[.] later identified that juror as C[.].

At the hearing on Delgado's post-conviction motion, C[.] testified: "I was relating it to a crime being reported. I did not consider it a crime. I was not a victim of a crime. It was never reported." The trial court found: "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 incompletely or incorrectly answered that question." The trial court denied Delgado's motion for relief.

"[T]he trial court's determination on a motion for a new trial or relief from judgment because a juror failed to fully disclose information during voir dire is reversible only for either an [erroneous exercise] of discretion or for a clear error of law in the exercise of its discretion." State v. Wyss, 124 Wis.2d 681, 717-718, 370 N.W.2d 745, 762 (1985), overruled on other grounds, State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990).

Wyss set forth a two-part test in juror bias cases:

[I]n order to be awarded a new trial, a litigant must demonstrate: (1) that the juror incorrectly or incompletely responded to a material question on voir dire; and if so, (2) that it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party.

Id., 124 Wis.2d at 726, 370 N.W.2d at 766.

First, the record is clear that C[.] responded incorrectly to the material questions of whether she had ever been "a victim of a crime" or "a victim of a sexual assault." She denied, during voir dire, having been a victim of a crime or sexual assault, but subsequently told fellow jurors that she had been sexually assaulted. C[.]'s subjective belief that it was not a crime because it had not been reported does not make her answer complete or accurate, nor does the trial court's assessment that her answer was credible. The supreme court in Wyss stated:

An honest answer may nevertheless be objectively incorrect. A technically correct answer may nevertheless be incomplete. We conclude that an honest answer, if it is objectively incorrect or incomplete, should not preclude the moving party from making further inquiry with respect to juror bias.

Id., 124 Wis.2d at 726-727, 370 N.W.2d at 766-767. We conclude that the trial court erroneously exercised its discretion in concluding that C[.] did not answer the questions incompletely or inaccurately.

We thus reach the second prong of Wyss dealing with bias. The trial court, however, did not reach that issue in the hearing on Delgado's post-conviction motion, and did not make a full factual record on the issue. The court of appeals is without jurisdiction to make factual determinations. Barrera v. State, 99 Wis.2d 269, 282, 298 N.W.2d 820, 826 (1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352. Therefore, we remand this issue to the trial court for a hearing on the second prong ofWyss, the issue of bias.

State v. Delgado, No. 94-1411-CR, unpublished slip op. at 2-5, 1995 WL 128501 (Wis.Ct.App. March 28, 1995).

The trial court held the hearing, but did not permit Delgado to be present. Delgado claims that this was error. Under State v. Vennemann, 180 Wis.2d 81, 508 N.W.2d 404 (1993), it was not. Additionally, although the trial court posed questions to the juror that were pertinent to the inquiry, and permitted Delgado to suggest other questions, see After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 743, 324 N.W.2d 686, 692 (1982) ("The judge should conduct the examination of jurors called, but the attorneys may submit questions to the judge they wish asked."), the trial court did not ask all of the questions submitted to it by Delgado. Delgado claims that this was error. We agree in part, but conclude that the trial court's failure to ask some of the questions suggested by Delgado was harmless beyond a reasonable doubt. The trial court also declined Delgado's request that other jurors be examined at the hearing. Delgado claims that this was error. We disagree.

1. Delgado's presence at the hearing.

Section 971.04(1), STATS., controls whether Delgado had a right to attend the postconviction evidentiary hearing. This section provides:

(1) Except as provided in subs. (2) and (3), the defendant shall be present:

(a) At the arraignment;

(b) At trial;

(c) At all proceedings when the jury is being selected;

(d) At any evidentiary hearing;

(e) At any view by the jury;

(f) When the jury returns its verdict;

(g) At the pronouncement of judgment and the imposition of sentence;

(h) At any other proceeding when ordered by the court.

Section 971.04(1) "applies only to the pretrial, trial, sentencing and judgment phases of criminal procedure," and not to "postconviction evidentiary hearings brought pursuant to sec. 974.02 and sec. (Rule) 809.30(2)(h), Stats." Vennemann, 180 Wis.2d at 86, 508 N.W.2d at 406. ¹ The only exception to this rule is when the hearing concerns " 'substantial issues of fact as to events in which' " the defendant participated. Id., 180 Wis.2d at 87, 508 N.W.2d at 407 (citation omitted). See also United States v. Hayman, 342 U.S. 205, 220, 72 S.Ct. 263, 273, 96 L.Ed. 232 (1952) (defendant must be produced at postconviction hearing when evidentiary matters within the defendant's "own knowledge" are at issue) (relied upon by Vennemann, 180 Wis.2d at 87, 508 N.W.2d at 407). At other times whether to permit the defendant to be present at the postconviction hearing is with the trial court's discretion. Vennemann, 180 Wis.2d at 88, 508 N.W.2d at 407.

The trial court rejected Delgado's request to be present at the postconviction hearing because it believed that Delgado's presence would cause discomfort to the juror whose history as a sexual-assault victim was being explored. Delgado has not alleged that he has any personal knowledge of either that history or whether the juror was biased against him. Although Delgado would have undoubtedly preferred to be present at the hearing rather than at the prison where he was then incarcerated, his presence was not required by either § 971.04(1), STATS., or any constitutional principle to which we have been pointed or of which we are aware. The trial court's discretionary decision was reasonable and is affirmed.

Where we and the dissent disagree is whether a trial court's desire to protect a juror from discomfort--to make her postconviction testimony, in the trial court's words, "as easy for her as possible"--is an appropriate factor in deciding whether to permit a defendant who has no personal knowledge relevant to the issues to be decided at a postconviction hearing to be present at that hearing. Given After Hour Welding 's concern that a juror not be subjected to questioning by counsel at a postconviction hearing, id., 108 Wis.2d at 743, 324 N.W.2d at 692, we believe that it is. We also believe that the dissent's reliance on Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), is misplaced. Unlike Coy, this is not a "confrontation" case and the juror was not "a witness against" Delgado within the meaning of the Sixth Amendment. See Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) (right to confrontation "is basically a trial right"); Williams v. New York, 337 U.S. 241, 250-251, 69 S.Ct....