State v. Herrington

• Decision Date: 04 March 1969
• Docket Number: No. 114,114
• Citation: 165 N.W.2d 120,41 Wis.2d 757
• Parties: STATE of Wisconsin, Respondent, v. Michael Lee HERRINGTON, Appellant.
• Court: Wisconsin Supreme Court

Page 120

165 N.W.2d 120

41 Wis.2d 757

STATE of Wisconsin, Respondent, v. Michael Lee HERRINGTON, Appellant.

No. 114.

Supreme Court of Wisconsin.

March 4, 1969.

David E. Leichtfuss, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

The defendant was convicted of first degree murder of one Julie Beckwith, ten years of age, on September 3, 1966, by stabbing her with a knife in an empty lot in the city of Milwaukee.

The second conviction of first degree murder was the result of the death of Sherryl Thompson, eighteen years of age, on October 16, 1966, by stabbing her with a knife behind a building in the city of Milwa kee.

The conviction of attempted first degree murde was the result of an attempt to cause he death of one Kathleen Audrey Dreyed, eleven years of age, on November 11, 1966, by stabbing her with a knife in an alley in the city of Milwaukee.

The cases were consolidated for trial and the defendant did not testify. After examining the record, we commend both the prosecutor and the defense attorney for the manner in which the cases were tried.

On appeal, five issues were presented:

I.

Whether defendant did not have a fair trial by an impartial jury such as to deny him due process of law?

II.

Whether defendant's confessions were properly admitted in evidence against him at the trial?

III.

Whether the trial court's failure to examine the state's entire file in camera to discover if the state had any exculpatory evidence denied defendant due process of law?

IV.

Whether the failure of the state to disclose the general nature of the defendant's confession to defense counsel before trial denied the defendant due process of law?

V.

Whether defendant is entitled to a new trail in the interest of justice?

I.

Before trial, the defendant filed a motion requesting a change of venue because of community prejudice, pursuant to sec. 956.03(3), Stats. The motion was accompanied by appellant's affidavit plus a sampling of local newspaper articles. The motion was renewed during and after the voir dire examination. The motion was denied each time.

The defendant asks whether a determination by this court that the trial court did not abuse its discretion in denying the change of venue on the ground of community prejudice due to pretrial publicity will, in effect, make the discretion of trial courts an absolute and the change of venue statute a nullity? We think not. The trial judge is charged with the responsibility of making such inquiry of the jurors and taking such steps as may be necessary to insure that the accused receives a fair trial free from outside influences. In the process of making such a determination, should any doubt arise in the mind of the trial judge, the exercise of sound judicial discretion requires that the motion for change of venue be granted.

In Krueger v. State (1920), 171 Wis. 566, 575, 177 N.W. 917, 921, this court indicated the problems inherent in reviewing a change of venue motion:

'The difficulty of impressing upon the record a true concept of the public sentiment in the county is manifest. Just as the trial judge is in a better position to weigh the testimony of witnesses who appear before him, so is he in a better position to judge of the public sentiment of the county. He is on the ground and in a position to sense, in a way that this court cannot, the true sentiment of the community and to judge much more correctly whether it is such as to prevent a fair trial on the part of the defendants.'

While the difficulty of securing a jury should never be conclusive in reviewing a refusal to change venue in a criminal case, precedent has said that it may be taken into consideration.

"The apparent difficulty or ease of securing a jury can be taken into account in passing upon the alleged abuse of discretion in refusing a change of venue. * * *" Miller v. State (1967), 35 Wis.2d 777, 785--786, 151 N.W.2d 688, 692, quoting from Bianchi v. State (1919), 169 Wis. 75, 93, 171 N.W. 639.

In Miller, where no abuse of discretion was found, the voir dire examination was completed in less than one-half day and a jury of twelve and one alternate was selected from 42 prospective jurors. Bianchi found no abuse of discretion partly because the jury was selected in less than a day and required the examination of only 37 prospective jurors.

In this case the record indicates 100 jurors were available for duty. Serven of the panel of 100 were excused because they indicated that they could not render a just and true jury verdict because they had read or heard too much about the case. One other panel member was later excused by the court because she stated she had formed an opinion. The 92 members left on the panel indicated they could render a just and true verdict.

The record does not indicate the length of time it took to select a jury, but only 38 members of the panel were examined in order to produce the necessary jurors. On review of an alleged abuse of the trial court's discretion in failing to grant a motion for change of venue because of community prejudice and pretrial publicity, the ease of selecting a jury is not a criterion but an indicium.

As indicated in Miller, the more difficult question is whether there was a probability that the defendant was denied due process of law because he failed to receive a fair trial by an impartial jury even though the trial court did not abuse its discretion in refusing to order a change of venue.

In Sheppard v. Maxwell (1966), 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600, the United States Supreme Court determined that it would view the totality of the circumstances to determine whether or not there was a probability of prejudice.

The defendant argues that he should have been permitted to examine individual prospective jurors outside the presence of other prospective jurors on the voir dire.

In State v. Nutley (1964), 24 Wis.2d 527, 546, 129 N.W.2d 155, 163, this court stated:

'A determination as to the subjective sincerity of this man (a juror) in expressing his final view of fairness is a matter within the discretion of the trial court.'

To accept defendant's argument is to assume that jurors would not admit in front of other jurors that they have prejudged the case. That defendant's premise is doubtful is demonstrated by the fact that eight jurors in fact did state that they could not render a just and true jury verdict. The court excused all eight.

Nutley, supra, at 546, 129 N.W.2d 155, recognized the following statement from Irvin v. Dowd (1961), 366 U.S. 717, 722--23, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756:

'It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. * * *'

The record indicates that every juror who was not stricken for cause stated that he or she would be able to arrive at a fair and impartial verdict based on the evidence that was given in court. Defendant's contention that this final conclusion should be subject to private interrogation in order to determine its validity is unsubstantiated.

The defendant also asserts that a fair trial was prejudiced by the trial court's refusal to allow the defense counsel to ask jurors whether they had read particular newspaper articles. We consider the trial court's refusal to be entirely proper. If the juror did not know about a particular article before such an examination, he would know about it after the examination.

A juror is not required to be ignorant of the existence of a case. The defense counsel was permitted to ask the individual jurors general questions as to whether mass media coverage had influenced the juror and in each instance the juror stated it had not and that he could arrive at a fair and impartial verdict. The trial court's manner of conducting the voir dire did not prejudice a fair trial.

On the day before trial, the state moved, pursuant to sec. 957.08, Stats., to have the jury view the scenes of the three crimes. The defense objected to the granting of the motion. Since one of the offenses was committed during the daytime hours, the scene was visited during daytime hours, and since two of the offenses were committed during nighttime hours, these scenes were visited during nightime hours. Prior to viewing the scenes, the judge carefully and thoroughly instructed the jury as to the purpose of the views and the manner in which they were to be conducted. The jury was under the control of the sheriff and transportation was provided by buys.

At the scenes of the crimes the trial judge requested counsel for both sides to indicate anything that they would like to have the judge point out to the jury. The judge then proceeded to tour the scene of each individual crime with the jury. His statements were reduced to writing and are a part of the record. As the trial court informed the jury, '(a) view is not taken to obtain evidence in addition to or in contradiction of the evidence that will be given here in court. Its sole purpose is to enable the jurors better to understand the evidence which is introduced in this courtroom and to assist them in...