State v. Ford

Decision Date11 December 2007
Docket NumberNo. 2006AP806-CR.,2006AP806-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. William Troy FORD, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs filed by Ralph J. Sczygelski, and Sczygelski Law Firm, LLC, Manitowoc, and oral argument by Ralph J. Sczygelski.

For the plaintiff-respondent the cause was argued by Rebecca Rapp St. John, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.


The petitioner, William Troy Ford, seeks review of an unpublished court of appeals decision affirming a judgment convicting him of battery, bail jumping, and conspiracy to bribe a witness, all as a repeater.1 Ford maintains the circuit court erroneously exercised its discretion when it denied his motion for a mistrial. He contends that he is entitled to an automatic reversal of his convictions because the bailiff's contact with the victim of the crime made the bailiff a potential witness and tainted the jury deliberations. He further asserts that the circuit court erred in allowing witnesses to testify regarding the contents of a surveillance videotape.

¶ 2 We determine that the bailiff's contact with the crime victim is not structural error and does not require automatic reversal. Further, the circuit court's determination that the alleged error was not sufficiently prejudicial to warrant a mistrial was within its discretion. Therefore, the circuit court's decision to deny Ford's motion for mistrial was not an erroneous exercise of its discretion.

¶ 3 In addition, we determine that because the surveillance tape was unplayable, and the State made reasonable efforts to restore it to playability, the circuit court did not err in concluding that the tape was destroyed within the meaning of Wis. Stat. § 910.04(1). We therefore determine that the circuit court did not erroneously exercise its discretion in admitting testimony regarding the contents of the tape. Accordingly, we affirm the court of appeals.


¶ 4 In August 2004, at about one o'clock in the morning, Ford and a female companion entered an Ashland convenience store. The female came to the counter to pay for some items. As the store clerk was tending to the companion, Ford came up behind the clerk and struck him in the head with a glass bottle. Ford next struck the clerk several times in the face with his hands.

¶ 5 At trial the clerk testified that Ford then picked up a stapler, shook it at him, and demanded that he give Ford his car. When the clerk refused, Ford joined his companion at the counter and suggested that the clerk pay for her merchandise. Again, the clerk refused. The companion paid for her items. Ford then apologized for his conduct and asked the clerk if he was going to call the police. When the clerk responded that he did not intend to call them, Ford and his companion left.

¶ 6 About two hours later a regular customer, Larry Wolfgram, came to the convenience store during his shift as a cab driver. When Wolfgram heard about the incident he recommended that the clerk call the police and the store manager, and the clerk did so.

¶ 7 Wolfgram left the store for a drive, but he returned a while later. When he returned, police officers were present at the store. One officer was looking for the phone number for the store. Wolfgram retrieved the number from a phonebook, wrote it down, and handed it to the officer. Wolfgram left without speaking to the officer.

A. The Bailiff

¶ 8 During direct examination of the clerk on the first day of trial, the prosecuting attorney asked the clerk why he did not call the police immediately after the incident. The clerk stated that he simply kept working because he needed the money and that the blows he received affected his perceptions. He explained that he decided to call the police after it was recommended that he do so. Both the State and the defense were under the impression that the clerk called the police after speaking with his manager. When the prosecuting attorney asked if it was his manager who made the recommendation, the clerk responded by pointing to the bailiff. Wolfgram was serving as a bailiff at the trial. The court interceded, attempting to clarify the situation:

The Court: Just for the record, are you pointing to the bailiff, Mr. Wolfgram?

A: Yes, I am.

¶ 9 At the conclusion of the clerk's direct examination, the court took a recess. It had another person act as bailiff and instructed Wolfgram "not to have any contact with the jurors in the case."

¶ 10 After the break, the court examined Wolfgram's role in the case. It established that Wolfgram had not discussed the matter with the jurors. Wolfgram stated that he did not realize until the morning of the trial that the case for which he was serving as bailiff concerned the incident at the convenience store. He stated that he had not said anything because his contact with the case had been so limited and seemingly irrelevant.

¶ 11 Ford moved for a mistrial, arguing that Wolfgram could be an important defense witness if the clerk did not mention anything about an attempted armed robbery. Additionally, he argued that the jury could have been improperly influenced because the jurors "would likely want to know" what the bailiff "might have to say about the case."

¶ 12 The circuit court denied the motion. It stated that there was no indication that Wolfgram had any improper contact with the jury or had said anything to the jury regarding the incident. Further, the court determined that there was not even an appearance of impropriety because Wolfgram was not a witness for the State and only a potential witness for the defense.

¶ 13 The court explained that it did not "consider him a critical witness or even a material witness, [rather] we have somebody who is potentially the hundredth person that [the clerk] talked to that day after the alleged events." Thus, based on Wisconsin case law,2 the court concluded that it had no basis for declaring a mistrial because it did not "have a basis for concluding that the parties can't receive a fair trial in this case."

¶ 14 Nonetheless, the court replaced Wolfgram with a different bailiff. As a precaution in case Ford wished to call Wolfgram as a witness, the court excluded Wolfgram from the trial and instructed him not to discuss the case with witnesses. In addition, it questioned the jury as to whether any members knew Wolfgram and whether they could be fair and impartial. One juror stated that Wolfgram was a cousin of one of her relatives by marriage, but that she could decide the case fairly and impartially. No other jurors responded when asked if they knew Wolfgram, and no jurors indicated that their contact with Wolfgram as bailiff would keep them from acting fairly and impartially in the case.

¶ 15 Cross-examination of the clerk continued with a new bailiff. Although Ford subpoenaed Wolfgram to appear as a witness, he released Wolfgram from the subpoena the following day. He did not call Wolfgram as a witness at any point in the trial.

B. The Videotape

¶ 16 Ford's actions at the convenience store were recorded by the store's surveillance cameras. The store's surveillance system uses a "multiplexor" device, which takes time-lapsed still images from multiple cameras and records them sequentially on a standard videotape. When the tape is played on specialized equipment, multiple images appear on the screen simultaneously. However, when it is played on a standard tape player, multiple images from different cameras appear in rapid succession and the tape is incomprehensible.

¶ 17 The tape on which the actions were recorded became damaged and unplayable. Ford filed a motion to dismiss the case, arguing that the tape was exculpatory evidence and should have been preserved by the State.

¶ 18 At the hearing on Ford's motion to dismiss, the officer in charge of the investigation scene testified that he met with the convenience store manager to review the tape. He described the contents of the tape as follows:

[The store clerk] was behind the counter. A male and female came into the store and the next thing you see is the male and female are at the check-out and the male approaches [the clerk] behind the counter, apparently strikes him with an object and the next thing you see is this male again taking a punch at [the clerk] or [the clerk] puts up his arms in defense to try to block the blow then the two males were—actually [the clerk] and the male were face-to-face and then the male walks back behind— from out behind the till area to check out where the female was still standing and it looked like a money transaction was made for an item and the male and female exited the store.

¶ 19 The officer indicated that Ford was the male who entered the store on the videotape. He did not recall seeing images of Ford picking up a stapler or any object other than the one used for the initial strike to the clerk. The officer testified that he watched the tape with the store manager approximately two times. He testified that the store manager offered to send the tape to the store's district headquarters so that it could clarify the images on the tape and produce still photographs of the incident.

¶ 20 The store manager testified that after reviewing the tape with the police, she played the tape a couple of times each for the store's owner and for the clerk. However, she did not send the tape to district headquarters.

¶ 21 A few weeks later, a detective retrieved the tape from the store's manager so that the state crime lab could reproduce the tape in a format that could be played on a standard tape player and provide copies to both the State and the defense. A member of the Ashland police department placed the tape into a large, unpadded envelope and mailed it to the crime lab via U.S. Postal Service.

¶ 22 When a state...

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