State v. Heitkemper

• Decision Date: 02 August 1995
• Docket Number: No. 94-2659-CR,94-2659-CR
• Citation: 538 N.W.2d 561,196 Wis.2d 218
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Eugene HEITKEMPER, Sr., Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 561

538 N.W.2d 561

196 Wis.2d 218

STATE of Wisconsin, Plaintiff-Respondent, v. Eugene HEITKEMPER, Sr., Defendant-Appellant. ^d

No. 94-2659-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 1, 1995.

Opinion Released Aug. 2, 1995.

Opinion Filed Aug. 2, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Chandek of William J. Chandek & Associates, Brookfield.

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

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

SNYDER, Judge.

Eugene Heitkemper, Sr. appeals from a judgment of conviction for child abuse and an order denying his motion for postconviction relief. Heitkemper challenges the jury's verdict on two grounds: (1) the verdict should be impeached because of prejudicial statements made by a juror during jury deliberations, and (2) he was denied the right to a unanimous verdict. We are unpersuaded by Heitkemper's arguments and we affirm the judgment of conviction and the order denying postconviction relief.

Heitkemper was charged with intentionally causing bodily harm to his sixteen-year-old son, C.H., contrary to § 948.03(2)(b) and (5), STATS. ¹ The charges arose out of a much disputed incident at the Heitkempers' home on the morning of March 9, 1993. C.H. initially informed police that he was arguing with his brother, A.H., and his mother, Sandra, when Heitkemper struck him on the arms, legs and back with a two-by-four board, and then slapped him on the face with an open hand. Sandra also told police that Heitkemper struck C.H. with a two-by-four held in both hands.

At the preliminary hearing, both C.H. and Sandra told a different account of the incident. C.H. testified that Heitkemper hit him once or twice with a small, thin piece of trim board, not numerous times with a two-by-four, and that he could not remember if Heitkemper struck him with his hands. Sandra testified that Heitkemper slapped C.H. once in the face with an open hand, but did not use a board to hit him. Further, Sandra stated that she did not remember giving a statement to police that morning about the incident. The court found probable cause and bound Heitkemper over for trial.

At trial, C.H. and Sandra again told a different account of the incident. C.H. testified that on the morning in question, Heitkemper slapped him with an open hand, but did not hit him with a stick. C.H. testified that his injuries were sustained by falling on an automobile motor which he was fixing the night before the incident. He further testified that he lied about being struck with a board to get back at Heitkemper.

Sandra testified at trial, as she did at the preliminary hearing, that Heitkemper slapped C.H. once in the face with an open hand. However, she stated that she did not remember any of the events after the incident because she had a reaction from the combination of two medications she took in large doses, one which she identified as Lorazepam. Accordingly, she maintained that she did not recall making any statement to the police that morning and denied ever stating that Heitkemper hit C.H. with anything other than his hand.

Heitkemper testified in his own defense at trial. He admitted that he slapped C.H. in the face for disciplinary reasons because C.H. was yelling, screaming and swearing at other family members. The jury found Heitkemper guilty as charged.

Heitkemper filed a motion for postconviction relief to impeach the jury's verdict due to statements made by a juror during deliberations. The juror, Richard Sams, was a licensed pharmacist. According to Sams's affidavit, he told jurors that in his professional opinion Sandra was untruthful about the drug she took because the quantities she testified she took would have knocked her out. Sams also stated that he believed that his "professional opinions did sway members of the jury in their decision." The trial court denied Heitkemper's postconviction motion.

On appeal, Heitkemper renews his postconviction argument regarding impeachment of the jury verdict. In addition, Heitkemper contends that he was denied his right to a unanimous verdict. We will address each argument in turn and discuss further relevant facts as necessary.

JURY IMPEACHMENT

When a defendant attempts to impeach a jury verdict on the grounds that jurors came into possession of prejudicial extraneous information, we must determine whether the evidence offered in support is (1) competent, (2) shows substantive grounds sufficient to overturn the verdict and (3) shows resulting prejudice. State v. Williquette, 190 Wis.2d 678, 697, 526 N.W.2d 144, 151-52 (1995); After Hour Welding v. Laneil Management Co., 108 Wis.2d 734, 738, 324 N.W.2d 686, 689 (1982). If the proffered juror testimony is not competent, we need not inquire further. State v. Casey, 166 Wis.2d 341, 346, 479 N.W.2d 251, 253 (Ct.App.1991).

RULE 906.06(2), STATS., controls the competency prong of the impeachment analysis and establishes a general prohibition against the use of juror testimony to impeach a verdict. State v. Messelt, 185 Wis.2d 254, 274, 518 N.W.2d 232, 240 (1994). However, RULE 906.06(2) provides two limited exceptions which allow jurors to testify whether "extraneous prejudicial information was improperly brought to the jury's attention" or whether "any outside influence was improperly brought to bear upon any juror." ² Id.

Heitkemper argues that Sams's statements during deliberations concerning the effect of the drugs Sandra testified she took constituted extraneous prejudicial information which was improperly brought to the jury's attention. In order to demonstrate that Sams's testimony is competent under this first exception, Heitkemper bears the burden of proving that Sams's testimony concerns extraneous information, that this information was improperly brought to the jury's attention, and that the extraneous information was potentially prejudicial. Id. at 275, 518 N.W.2d at 240-41.

We first address whether Sams's comments regarding the effect of the drug constitute extraneous information. " 'Extraneous' information is information which a juror obtains from a non-evidentiary source, other than the 'general wisdom' we expect jurors to possess." Id. at 275, 518 N.W.2d at 241 (quoted source omitted). The supreme court has defined extraneous knowledge for purposes of RULE 906.06(2), STATS., as follows:

The meaning of the word "extraneous" ... is "existing or originating outside or beyond: external in origin: coming from the outside." The dictionary defines "information" as ... "knowledge of a particular event or situation." Thus, "extraneous prejudicial information" is knowledge coming from the outside which is prejudicial.

State v. Shillcutt, 119 Wis.2d 788, 794, 350 N.W.2d 686, 690 (1984). The term does not extend to statements which probe a juror's subjective mental processes. Messelt, 185 Wis.2d at 275, 518 N.W.2d at 241.

We cannot agree with Heitkemper that juror Sams's statements about the effect of the drug taken by Sandra constitute outside knowledge. Jurors may rely on their common sense and life experiences during deliberations. This knowledge may include expertise that a juror may have on a certain subject. See State v. Aguilar, 169 Ariz. 180, 818 P.2d 165 (1991) (holding juror-physician's personal knowledge regarding blackouts not extraneous). Sams's use of his own experience and knowledge did not result in the bringing of outside evidence into the jury room. See id. The fact that unforeseen evidence falls within the expertise of a juror does not render it extraneous.

While we are not bound by the trial court's legal conclusions, we recognize the court's comments here as instructive:

Mr. Sams' views and knowledge about the effects of this particular drug and maybe even a combination of other drugs ... [while he obviously] knows more about what he is talking about than a layman, but any layman who was taking those drugs could have come up with the same conclusion....

The effect of a drug is something an average person could have in his or her general knowledge. The fact that Sams happened to be trained in pharmacy does not make his life experiences extraneous.

Accordingly, we conclude that the proffered evidence is not extraneous under § 906.06(2), STATS., and therefore not competent. We need not make further inquiry. See Casey, 166 Wis.2d at 346, 479 N.W.2d at 253.

UNANIMOUS VERDICT

Heitkemper next argues that he is entitled to a new trial because he was denied his constitutional right to a unanimous jury verdict. See Holland v. State, 91 Wis.2d 134, 138, 280 N.W.2d 288, 290 (1979) (holding that the constitutional guarantee of the right to a jury trial includes the right to a unanimous verdict), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). We briefly set forth the facts relevant to Heitkemper's unanimity argument.

During summation, Heitkemper's counsel argued that Heitkemper only slapped C.H. in the face with an open hand and that this could not be considered felonious conduct. The State responded in part as follows:

I'd like to take up first the last point, that [Heitkemper's attorney] made, which is that a slap in the face is not felonious conduct.... You can look at the jury instructions and find that slap alone is felonious conduct.... And the elements of physical abuse of a child are that the defendant caused bodily harm to [C.H.].... You heard his wife testify about how he was angry on that morning; that slap could be bodily pain and that slap could be a felony. There is no question about it.

After summation, the court instructed the jury on the State's burden of proof as to the elements of physical abuse of a child under § 948.03(2)(b), STATS., as follows:

Before the defendant may be found guilty of this offense, the State must prove by evidence which satisfies you...