State v. Hernandez, No. 2007AP1187-CR (Wis. App. 6/24/2008), 2007AP1187-CR

• Decision Date: 24 June 2008
• Docket Number: No. 2007AP1187-CR,2007AP1187-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, [VV v. Bernardo Hernandez, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, [VV v Bernardo Hernandez, Defendant-Appellant.

No. 2007AP1187-CR

Court of Appeals of Wisconsin, District I.

Opinion Filed: June 24, 2008.

APPEAL from a judgment and orders of the circuit court for Milwaukee County: MARY M. KUHNMUENCH, Judge. Affirmed.

Before Wedemeyer, Fine and Kessler, JJ.

¶ 1 KESSLER, J

Bernardo Hernandez appeals from a judgment of conviction and orders denying his postconviction motion. We conclude that he raises three issues: (1) denial of his due process rights because the trial court failed to obtain a personal waiver from Hernandez of his right to be present after the trial began at the in-chambers questioning of jurors; (2) denial of his due process rights because the trial court ordered him shackled during trial; and (3) the trial court's denial of his motions for mistrial based on several claims of jury bias. We affirm.

BACKGROUND

¶ 2 Hernandez was charged with two counts of first-degree intentional homicide while armed with a dangerous weapon, contrary to WIS. STAT. §§ 940.01(1)(a) and 939.63(1) (2005-06),¹ as a result of a bloody tavern fight in which Hernandez fatally shot one person, and shot, assaulted and ultimately killed a second individual by repeatedly hitting the victim with the gun, a broken bottle and his fists, as well as kicking and stomping on the victim. Hernandez conceded that he killed both people but claims that he acted in self defense. The jury convicted Hernandez on both charges. Hernandez appealed. Facts relating to each legal issue addressed will be provided in our discussion below.

DISCUSSION

¶ 3 Hernandez raised five points of error in his appeal: (1) the trial court violated his constitutional and statutory right to be present at all aspects of his trial by excluding him from the questioning of the jurors in chambers on the second day of trial; (2) the trial court violated his due process rights when it ordered him to wear a stun belt and ankle shackles during trial; (3) the trial court violated his due process rights by denying his motion for mistrial after it was brought to the court's attention that some of the jury may have believed him to be shackled during the trial; (4) the trial court violated his due process rights and right to an impartial jury by failing to investigate jury comments regarding Hernandez's being shackled during trial and as to his guilt; and (5) the trial court violated his right to an impartial jury by allowing a juror to sit on his panel who had reached his verdict prior to the close of evidence and jury deliberations. We consider that his claims actually fall into three categories and discuss them in that manner. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) ("An appellate court is not a performing bear, required to dance to each and every tune played on an appeal."). Accordingly, Hernandez's claims are: (1) his due process rights were violated because he was not present during the mid-trial jury questioning; (2) his due process rights were violated because he was shackled during the trial; and (3) he was deprived of an impartial jury because the jury was aware that he was shackled, and a juror prematurely determined his guilt.

I. Presence of defendant during mid-trial jury questioning

¶ 4 During Hernandez's opening argument, trial counsel admitted that Hernandez killed both victims, but argued that it was in self-defense, i.e., that what he did was necessary to prevent an actual or imminent lethal attack on himself and that "it was not [Hernandez] who needed to prove this." The only witness to testify on the first day of trial was one of the police officers who was the first to arrive on the scene after the 9-1-1 call.

¶ 5 The MILWAUKEE JOURNAL-SENTINEL newspaper reported the trial, and a copy of the morning newspaper had been left in the jury room. Before continuing testimony on the second day of trial, the trial court and counsel met in chambers to discuss that morning's newspaper article. The jurors were questioned individually, outside the presence of the rest of the jurors, to determine the effect of this article on the jury. Because of the limited space in the court's chambers, and because of Hernandez's ankle shackles (which could not reasonably be concealed in the chambers), Hernandez's counsel waived Hernandez's presence during this questioning.

¶ 6 During questioning, one of the jurors commented on how "scary" Hernandez looked; while others commented on Hernandez's demeanor or stern expression. There was speculation on the part of three jurors as to whether Hernandez was restrained in some manner, and a report by two jurors that another juror stated that she thought she heard chains on one occasion during the trial on the previous day. The trial court instructed all jurors who mentioned hearing or joining in any discussion of shackles or Hernandez's demeanor of the need to follow the court's earlier instructions to not discuss the case before all of the evidence had been presented.

¶ 7 One juror, Karla S.M., acknowledged hearing a brief discussion on the merits of the case. She reported that juror Johnny B. said that "he had made a decision pretty much already but," she added "I assured him jokingly that we weren't supposed to talk about it. That he needed to listen to all of the evidence. And he kind of said `yeah, I know that.'" On being questioned further, Karla S.M. stated that she "took it jokingly that he was formulating an opinion. I didn't really take it seriously." When asked by the court to "relate exactly what ... [Johnny B.] said as best [she] can remember and what the whole conversation was,"

Karla S.M. stated:

It was so short that I guess my concern or my focus was in being told yesterday not to discuss it amongst ourselves. I was more concerned in keeping it short and off. Turning it off, as opposed to really remembering specifically what he said. Because it was in such a low tone as well, I know he was talking to me. But to tell you specifically what he said or remember word for word, I can't do that. I don't remember specifically. I just remember the gist of where he was coming from.

Karla S.M. told the court that Johnny B.'s whole conversation was "one or two sentences. That was it," and estimated the time involved as "seconds, a nanosecond pretty much." The court asked how she responded and Karla S.M. reported saying "Remember we're not supposed to discuss this and you're supposed to listen to all of the evidence before you actually make that decision," to which Johnny B. responded something to the effect of "yeah, I know," which ended the conversation.

¶ 8 The court withheld decision on the immediate motion for a mistrial by Hernandez's counsel. Instead, the court recalled Johnny B. after completing the questioning of all of the jurors. When asked whether he had formulated an opinion on Hernandez's guilt or innocence, Johnny B. replied:

No, I haven't made [my mind] up. The thing is — The thing is the evidence is point[ing] towards him. But the thing is, he have [sic] to prove his innocence. That's the biggest thing. That's the biggest thing right there. You have to prove that it was self-defense. That's the biggest thing. That's [how] I look at it. I'm looking at was it self-defense. I listen to him. I listen to him yesterday, his opening statement, your opening statement about different things that happened, this and that.

Now, yeah. Even the comments you made as far as he was there, the cops saw him do that, you say you even admitted to say yeah, he was there, this and that, that proves that. But the thing is we need to prove this was it self-defense. That's the biggest thing. That's what I'm looking at. Was it self-defense.

....

I'm not assuming he [sic] guilty. I'm going off all your opening statements yesterday. And you all two opening statements yesterday point to him that yeah, he was there. He was the person that was there. You all both brought that up yesterday in your opening statements. So my thing I'm looking for is a self-defense that we looking for, you know. Was it a motive? What is it? That's what I'm looking for.

Johnny B. agreed that he could follow the judge's instructions on who has the burden of proving self-defense.

¶ 9 The trial court noted that Johnny B. was able to "repeat almost verbatim some of the things that were said" by both counsel during opening statements and that Johnny B. "demonstrated a fairly good understanding [of] what concepts the lawyers were talking about in their openings." The trial court specifically stated that it was satisfied by Johnny B.'s responses that he would follow its instruction to not formulate an opinion, or discuss the merits of the case, until instructed to do so and that he would follow the instructions of the court. Finally, the trial court concluded that it was not going to remove Johnny B., or grant the mistrial counsel for Hernandez requested, because the trial court concluded it was not necessary based on this record.

¶ 10 The trial court reconvened in the courtroom without the jury, informed Hernandez what had occurred in chambers, and allowed the parties to make a record of what had occurred. Hernandez informed the court that he would have wanted to be at the juror questioning if he had been asked. Hernandez's counsel renewed his request for a mistrial,² which the trial court again denied.

¶ 11 Hernandez contends that the trial court violated his constitutional and statutory rights under the Sixth and Fourteenth Amendments to the United States Constitution, article I, section 7 of the Wisconsin Constitution,³ and WIS. STAT. § 971.04. The violation of his right to be present for all aspects of his trial occurred because the trial court allowed his counsel to waive Hernandez's presence during in-chambers questioning of jurors. The State argues that if the trial court erred, the error was harmless.

¶ 12 We...