State v. Duquette

• Court: Wisconsin Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: State v. Duquette, 542 N.W.2d 237, 198 Wis.2d 386 (Wis. App. 1995)
• Decision Date: 08 November 1995
• Docket Number: No. 94-0396-CR,94-0396-CR
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. James A. DUQUETTE, Jr., Defendant-Appellant.

Page 237

542 N.W.2d 237

198 Wis.2d 386

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. James A. DUQUETTE, Jr., Defendant-Appellant.

No. 94-0396-CR.

Court of Appeals of Wisconsin.

Nov. 8, 1995.

Before ANDERSON, P.J., BROWN and NETTESHEIM, JJ.

PER CURIAM.

James A. Duquette, Jr. has appealed from a judgment convicting him of first-degree intentional homicide in violation of § 940.01(1), Stats.; second-degree sexual assault in violation of § 940.225(2)(e), Stats., 1985-86; false imprisonment in violation of § 940.30, Stats.; and kidnapping in violation of § 940.31(1)(b), Stats. He challenges the trial court's denial of his motions to change venue and suppress evidence, and its admission of other acts evidence. He also argues that the trial court denied him a fair trial when it refused the jury's request to examine handwriting evidence during its deliberations and when it denied his request for discovery of certain documents. We conclude that the issues lack merit and affirm the judgment of conviction.

These convictions stem from charges that on June 30, 1987, Duquette abducted fourteen-year-old Tara K. as she was riding her bicycle along a road, forced her into his van, had sexual intercourse with her and killed her. Duquette's first argument is that he was denied his right to a fair trial when the trial court refused to change venue based on adverse pretrial publicity.

We review the trial court's denial of a motion for a change of venue under the erroneous exercise of discretion standard. State v. Albrecht, 184 Wis.2d 287, 306, 516 N.W.2d 776, 783 (Ct.App.1994). Although our review is deferential to the trial court, we must also independently evaluate the circumstances of the case. State v. Messelt, 178 Wis.2d 320, 327, 504 N.W.2d 362, 364 (Ct.App.1993), aff'd, 185 Wis.2d 254, 518 N.W.2d 232 (1994).

Change of venue is only one method of guaranteeing a fair trial; another is voir dire. McKissick v. State, 49 Wis.2d 537, 545, 182 N.W.2d 282, 286 (1971). The trial court's responsibility is to make inquiries of the jurors to determine whether there is prejudice and to take such steps as may be necessary to ensure a fair trial. Id. Factors to be considered in determining whether a change of venue is necessary are: (1) the inflammatory nature of the publicity; (2) the degree to which the adverse publicity permeated the area from which the jury panel would be drawn; (3) the timing and specificity of the publicity; (4) the degree of care exercised and the amount of difficulty encountered in selecting the jury; (5) the extent to which the jurors were familiar with the publicity; (6) the defendant's utilization of challenges, both peremptory and for cause, on voir dire; (7) the State's participation in the adverse publicity; and (8) the severity of the offenses charged and the nature of the verdict returned. Id. at 545-46, 182 N.W.2d at 286.

While significant pretrial publicity was shown in this case, that fact alone does not require a change of venue. See Turner v. State, 76 Wis.2d 1, 27, 250 N.W.2d 706, 719 (1977). Most of the reporting was primarily informational and did not create a risk of unfair prejudice. Cf. id. at 27-28, 76 Wis.2d 1, 250 N.W.2d at 719-20; Messelt, 178 Wis.2d at 328-30, 504 N.W.2d at 365-66. While some reported Duquette's prior convictions, such information did not alone compel a change of venue. See Hoppe v. State, 74 Wis.2d 107, 113, 246 N.W.2d 122, 127 (1976); Messelt, 178 Wis.2d at 329-31, 504 N.W.2d at 365-66.

In addition, most of the publicity was remote in time from the jury selection, which occurred in February 1993. This was long after most of the pretrial media coverage, which was heaviest in the summer of 1987 when Tara's body was discovered and an autopsy report was released, in December 1991 when Duquette was charged, and in August 1992 when the preliminary hearing was held. While some statements reported at the time of Duquette's charging could be deemed inflammatory, including statements made by the police and the prosecutor from Outagamie County, the significant time lapse between the periods of heavy coverage and the trial ameliorated concerns about community prejudice, creating a "cooling off" period which contributed to the ability of the State to conduct a fair trial. See Turner, 76 Wis.2d at 28, 250 N.W.2d at 720; Hoppe, 74 Wis.2d at 114, 246 N.W.2d at 127. Moreover, while some publicity occurred again shortly before trial, it was not inflammatory and did not prevent the trial court from concluding that an impartial jury could be drawn.

The trial court's conclusions were borne out by the actual jury selection process. The trial court experienced no significant difficulty in selecting a jury, an important factor in determining whether pretrial publicity necessitated a change of venue. See Turner, 76 Wis.2d at 28, 250 N.W.2d at 720. Of the fifty prospective jurors questioned about their awareness of this case, only ten were excused in part based on concerns about their partiality--a number which does not indicate that adverse publicity had impaired Duquette's ability to obtain an impartial jury. Cf. id. at 28-29, 76 Wis.2d 1, 250 N.W.2d at 720; Hoppe, 74 Wis.2d at 115, 246 N.W.2d at 127-28. Moreover, as pointed out by the State, Duquette had no objection to nine of the twelve jurors who decided the case.

While the three jurors to whom Duquette objected were aware of his prior convictions and two of them were aware of some evidence in the case, all three indicated that they could decide the case impartially based on the evidence. A juror need not be ignorant of the facts and issues involved and may not be challenged because he or she has obtained information on the case through media coverage unless he or she has become biased as a result. Holland v. State, 87 Wis.2d 567, 578, 275 N.W.2d 162, 168 (Ct.App.), rev'd on other grounds, 91 Wis.2d 134, 280 N.W.2d 288 (1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); see also McKissick, 49 Wis.2d at 547, 182 N.W.2d at 287. It is sufficient if a juror can set aside any preconceived notions about the defendant's guilt or innocence and decide the case based on the evidence. Holland, 87 Wis.2d at 580, 275 N.W.2d at 169. Because the challenged jurors all indicated that they could decide the case impartially based on the evidence, the trial court was not required to strike them for cause or to determine that their answers during voir dire demonstrated a need to change the trial's venue.

Duquette also contends that the pretrial publicity deprived him of a fair trial because it compelled him to use peremptory strikes to remove jurors that he believed were biased. However, Wisconsin's long-standing rule is that where a fair and impartial jury is impaneled, no basis exists to challenge the judgment on the ground that the defendant was wrongly required to use his peremptory challenges. State v. Traylor, 170 Wis.2d 393, 400, 489 N.W.2d 626, 629 (Ct.App.1992). There is no constitutional right to peremptory challenges, only to an impartial jury. Id. Since the record in this case establishes that pretrial publicity did not prevent the impaneling of a fair and impartial jury, no basis exists to conclude that the trial court erroneously exercised its discretion by denying a change of venue.

Duquette's next argument is that the trial court erroneously denied his request to suppress evidence derived from a search of his wallet by Massachusetts police following his arrest there on June 11, 1988. He contends that the officer who opened his wallet while booking him exceeded the scope of a proper inventory search by opening up a folded newspaper article contained in the wallet. The newspaper article reported Tara's murder. After viewing it, the Massachusetts police contacted Wisconsin authorities. An affidavit provided by a Wisconsin detective then formed the basis for a warrant for the search and seizure of evidence from Duquette's Massachusetts apartment.

An inventory search is a well-defined exception to the requirement that a search be conducted pursuant to a warrant. State v. Weber, 163 Wis.2d 116, 132, 471 N.W.2d 187, 194 (1991). An inventory search has three distinct objectives: (1) the protection of the owner's property while in police custody; (2) protection of the police against disputes over lost or stolen property; and (3) the protection of police from potential danger. Id. ¹ The justification for an inventory search does not rest upon probable cause because it is administrative, not a search for evidence. Id. To determine the reasonableness of an inventory search, courts must balance its promotion of legitimate governmental interests against its intrusion on a defendant's Fourth Amendment rights. Id. at 132-33, 471 N.W.2d at 194. This process requires an examination of the reasonableness of the intrusion, followed by an examination of the reasonableness of the scope of the intrusion. Id. at 133, 471 N.W.2d at 194. Reasonableness must be based on the facts and circumstances of each case. Id.

Since Duquette does not dispute the reasonableness of examining his wallet as part of an inventory search, the pertinent inquiry on appeal is whether the scope of the search was unreasonable. Whether the facts in this case satisfy the constitutional requirement of reasonableness is a question of law which we review de novo. State v. Whitrock, 161 Wis.2d 960, 973, 468 N.W.2d 696, 701 (1991). The underlying findings of fact of the case must be upheld unless they are contrary to the great weight and clear preponderance of the evidence. Id.

The scope of an otherwise valid inventory search is limited by the purpose for which it was undertaken. Weber, 163 Wis.2d at 133, 471 N.W.2d at 194. Here, the booking officer testified that the purpose of...