State v. Funk

• Decision Date: 08 July 2011
• Docket Number: No. 2008AP2765–CR.,2008AP2765–CR.
• Citation: 335 Wis.2d 369,799 N.W.2d 421,2011 WI 62
• Parties: STATE of Wisconsin, Plaintiff–Appellant–Petitioner,v.David D. FUNK, Defendant–Respondent.
• Court: Wisconsin Supreme Court

335 Wis.2d 369

799 N.W.2d 421

2011 WI 62

STATE of Wisconsin, Plaintiff–Appellant–Petitioner,

v.David D. FUNK, Defendant–Respondent.

No. 2008AP2765–CR.

Supreme Court of Wisconsin.

Argued Feb. 1, 2011.Decided July 8, 2011.

For the plaintiff-appellant-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent there were briefs and oral argument by Michele Anne Tjader, Tjader Law, Inc., Madison.PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review an order of the court of appeals ¹ affirming the circuit court's ² order vacating a jury verdict finding David Funk (Funk) guilty of two counts of sexual assault of a child and granting him a new trial. The circuit court ordered a new trial based on its post-trial discovery that a juror, Tanya G., had not revealed during voir dire that she had been a victim of two prior incidents of sexual assault and its findings that these experiences made her biased against Funk. The issue presented in this case is whether Tanya G. was biased against Funk, thereby depriving Funk of his constitutional right to an impartial jury. This issue requires us to address three sub-issues: (1) whether Tanya G. failed to respond to a material question during voir dire, (2) whether the circuit court's finding that Tanya G. was subjectively biased against Funk was clearly erroneous, and (3) whether, as a matter of law, a reasonable judge could have concluded that a reasonable person in Tanya G.'s position could not be impartial, and therefore, Tanya G. was objectively biased against Funk.

¶ 2 We conclude that Tanya G. failed to respond to a material question during voir dire when Funk's attorney asked if anyone on the jury panel had previously testified in a criminal case. We also conclude that the circuit court's finding that Tanya G. was subjectively biased against Funk is unsupported by facts of record and is clearly erroneous. Finally, we conclude that the facts necessary to ground a circuit court's reasonable legal conclusion that a reasonable person in Tanya G.'s position could not be impartial were not developed in this case, and therefore the circuit court's conclusion that Tanya G. was objectively biased was erroneous. Accordingly, we reverse the court of appeals order and reinstate the guilty verdict and judgment of conviction.

I. BACKGROUND

¶ 3 Funk was charged with two counts of sexual assault of a child under 13 years of age, contrary to Wis. Stat. § 948.02(1) (2005–06).³ The charges were based on two encounters with C.M.F., who at the time was ten years of age. Specifically, Funk was alleged to have performed oral sex on C.M.F. and also to have anally penetrated the young girl. The alleged incidents occurred at C.M.F.'s home when her mother was at work. At the time, Funk was the boyfriend of C.M.F.'s mother.

¶ 4 In late April of 2008, Funk was tried to a jury for the assaults of C.M.F. Relevant to the issue in this case is what occurred during voir dire. First, toward the beginning of voir dire, the court highlighted the nature of the case and noted that the jurors would be asked whether they, themselves, or someone they knew, had ever been a victim of sexual assault. The court emphasized that the jurors could discuss any sensitive issues in chambers:

Now, one of the questions is going to be, I believe is, have anyone of you been a victim of sexual assault, or a brother or sister who's been sexually assaulted; possibly a neighbor of sexual assault?

With respect to that question, to be quite frank with you, if somebody asked me, have you ever been a victim of sexual assault, I wouldn't answer it, but you are under oath; maybe it's a brother or a sister, maybe it's a neighbor, or maybe it's yourself.

We could go into chambers, if you wish to; we certainly don't have to. You need to be honest. You need to answer the question, and what we will do is to avoid any embarrassment, we can go into chambers.

Despite the court's proclamation that these questions would be asked, neither the court nor the attorneys asked whether any juror had been a victim of sexual assault or whether any juror knew someone who had been a victim of sexual assault.

¶ 5 Other questions asked by the parties, however, did lead to the disclosure by some jurors that they personally, or someone they knew, had been a victim of sexual assault. For example, the State asked: “Have you, or any of your family members, or close friends ever been accused of a crime by law enforcement?” In response to this question, Juror E.⁴ disclosed that he had a friend who had been accused of a crime in a “situation like this.” The State asked to question Juror E. in chambers. In chambers, Juror E. disclosed that a close friend of his had recently been caught trying to entice underage girls into having sexual relations, but assured the court he could still be fair and impartial to Funk. The court did not excuse Juror E.

¶ 6 The State also asked: “Now, this case, as Judge Roemer noted, involves allegations of sexual assault of a child. Based upon those allegations, those charges, does anyone here believe they would have a difficult time being fair and impartial both to the State and to the Defendant?” In response to this question, two jurors asked to speak privately in chambers. Juror G. disclosed in chambers that when she was nine or ten, she was sexually molested by a family member. She stated that it would be very difficult for her to put this experience aside if she were picked to sit on the jury. The court excused Juror G. The other juror, Juror J., disclosed that her granddaughter had been sexually assaulted and that there was currently a trial going on in Florida related to the assault. She said she did not know if she could be fair and impartial to Funk. The court excused Juror J.

¶ 7 The court replaced the two excused jurors.⁵ The State asked the two new jurors if they would have answered any of the previous questions affirmatively. Both jurors responded by requesting to go into chambers. Of the two new jurors, one disclosed that he had heard about the case. The court did not excuse the juror based on this information. The other new juror, Juror D.,⁶ disclosed that her ex-husband was raped when he was 14. She stated that she would rather not sit on the jury. Consequently, Juror D. was excused from service.

¶ 8 Juror S. replaced Juror D. Juror S. was similarly questioned about whether he would have answered affirmatively to any of the previous questions. Juror S. asserted that he would have, but that he did not need to go into chambers to discuss the answer privately. He then stated, in open court, “It has to do with knowing someone about a sexual assault case. My uncle went to prison for it, and I don't think I could be fair to the party.” The court excused Juror S.

¶ 9 In addition to the above questions asked by the State, the panel was asked several other times if any juror believed he or she could not be fair to Funk or the State.⁷ These questions did not lead to any further assertions of partiality.

¶ 10 Of particular importance, Funk's attorney asked if any juror had ever testified as a witness before: “Anyone ever go to court to testify in a criminal case as a witness? Anyone ever go to court to testify in a civil case as a witness?” While numerous jurors answered “yes” to this question and explained the circumstances under which they had testified, Tanya G. did not respond. The State also asked if anyone had ever had contact with the Juneau County District Attorney's Office. Several jurors responded in the affirmative to this question. Similarly, Tanya G. remained silent when this question was asked. A review of the voir dire transcript shows that Tanya G. did not respond individually ⁸ to any question posed during voir dire.

¶ 11 Tanya G. was selected to sit on the jury. During the two-day trial, C.M.F. testified about the assaults. Moreover, both N.M.F., Funk's 13–year–old daughter, and A.M.F., Funk's 14–year–old daughter, testified, corroborating much of C.M.F.'s story.⁹ The jury convicted Funk of both counts of sexual assault of a child under 13 years of age.

¶ 12 Sometime after the trial, Funk learned that Tanya G. had been a victim of sexual assault. Consequently, several days before his scheduled sentencing, Funk moved to vacate the judgment of conviction and for a new trial on the grounds that Tanya G. was biased against him, and therefore, he had been deprived of his constitutional right to an impartial jury. According to Funk's motion, Tanya G. was the victim in an 18–count sexual assault case that occurred in 1998.

¶ 13 The 1998 sexual assaults occurred when Tanya G. was ten years old and involved Tanya G.'s school-bus driver touching her private areas when she would get on and off the bus. The abuse happened on numerous occasions and Tanya G.'s two younger sisters were also victims. Tanya G. reported the abuse to the authorities and was questioned by a Juneau County detective about the assaults.

¶ 14 Subsequent to Funk's motion to vacate the judgment, it was also learned that Tanya G. had been the victim of a sexual assault that occurred in January of 2005. According to the criminal complaint issued for the 2005 incident, Tanya G. was at a party when the perpetrator, Julian C., locked Tanya G. in a bedroom and forced her to have sexual intercourse with him. Tanya G. testified during the preliminary hearing in the case against Julian C. Following the preliminary hearing, Julian C. pled no contest and was sentenced. Tanya G. was 17 years old at the time of the assault by Julian C.

¶ 15 In response to this newly discovered information about Tanya G., the circuit court held a post-conviction evidentiary hearing at which Tanya G. testified. At the hearing, Tanya G. confirmed that her elementary-school bus driver had sexually molested her. She explained that the abuse started when she was...