State v. Howard
| Decision Date | 25 February 1997 |
| Docket Number | No. 96-0707-CR,96-0707-CR |
| Citation | 562 N.W.2d 927,209 Wis.2d 83 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Oscar HOWARD, Defendant-Appellant, Patricia Lee FENSKE, Defendant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and orders of the circuit court for Milwaukee County: ELSA C. LAMELAS, Judge. Affirmed.
Before WEDEMEYER, P.J., SCHUDSON and CURLEY, JJ.
Oscar Howard appeals from the judgment of conviction, following a jury trial, for physical abuse of a child--recklessly causing great bodily harm, party to a crime, and from the trial court orders denying his postconviction motions. We affirm.
On November 12, 1994, Oscar Howard and Patricia Fenske brought their 1 one-and-one-half-year-old daughter, Janeena, to Milwaukee Children's Hospital where she was diagnosed as having suffered a broken left femur as a result of physical contact. The evidence consisted primarily of police accounts of the parents' statements on the morning after the incident, and testimony of the doctors who examined Janeena. The evidence established that the parents, during the course of an argument, struggled over Janeena and, while Howard held the child, Fenske pulled her at an angle causing the broken leg. Dr. Stephen Lazoritz, a pediatrician and the Medical Director of the Child Protection Center of Children's Hospital, used a doll to demonstrate the child's position and explain his opinion that the combined actions of both parents were necessary to cause the injury.
Jury deliberations lasted two days. According to the statements of four jurors filed in support of Howard's postconviction motions, on the second day a juror brought a Cabbage Patch doll with which various jurors performed demonstrations of Fenske's and Howard's conduct. Howard contends that he is entitled to a new trial because of this jury conduct.
Denying Howard's motion for a new trial, the trial court's very detailed and well-reasoned written decision explained, "Although there is a possibility that some jurors may have not reenacted Dr. Lazoritz's demonstration precisely, ... in light of the totality of what has been presented ... any distinction is not critical." Accordingly, despite concluding that the evidence of jury misconduct was competent under § 906.06(2), STATS., 2 and that the jury's experiments with the doll involved extraneous information that was potentially prejudicial under State v. Eison, 194 Wis.2d 160, 533 N.W.2d 738 (1995), the trial court concluded:
... that the evidence against Howard was so strong that there is not a reasonable possibility a hypothetical average jury could have been prejudiced by the use of the Cabbage Patch doll in the jury room, particularly where the jurors had heard detailed testimony relating to the physical positions of both parents, their actions, and the general movement in which they were engaged while pushing and pulling on the baby; and particularly where an actual demonstration was performed by the doctor with another doll as to how the baby was held and what movements had occurred.
Howard argues that the jury's experimentation with the doll was prejudicial. The State counters by arguing not only that the jury conduct was nonprejudicial, but also that the evidence of the jury conduct was incompetent and inadmissible. We need not address the State's intriguing theories regarding the competency of the evidence of juror misconduct because we conclude beyond a reasonable doubt that, assuming the Cabbage Patch doll demonstrations were extraneous and potentially prejudicial, there still is "no reasonable possibility" that a hypothetical average jury could have been prejudiced.
Under § 906.06(2), STATS., when a trial court concludes that evidence of juror misconduct is competent and admissible and that the extraneous information is potentially prejudicial, the trial court "must then determine, as a matter of law, whether the extraneous information constituted prejudicial error requiring reversal of the verdict." Eison, 194 Wis.2d at 177, 533 N.W.2d at 744. In making that determination, the trial court "must assess, as a matter of law, whether the conviction must be reversed because there is a reasonable possibility that the [jury misconduct] would have had a prejudicial effect upon a hypothetical average jury." Id. at 177, 533 N.W.2d at 745. In measuring whether such a reasonable possibility exists, we adhere to "the constitutional error test for criminal cases ... namely, that the state 'must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Id. at 178, 533 N.W.2d at 745 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
We independently review the trial court's determination of prejudice. See id. As our supreme court has explained, we consider the "totality" of factors including:
the nature of the extraneous information, the circumstances under which it was brought to the jury's attention, the nature and character of the state's case and the defense presented at trial, and the connection between the extraneous information and a material issue in the case.
Id. at 179, 533 N.W.2d at 745. We conclude that the totality of factors establishes beyond a reasonable doubt that the jury demonstrations with the doll did not contribute to the verdict.
As Howard explains, The jury demonstrations with the Cabbage Patch doll, however, would have had little if any bearing on that issue; they were merely cumulative to the trial testimony and doll demonstrations of Dr. Lazoritz. Moreover, Howard's exculpatory versions of the cause of Janeena's injury were inconsistent with the medical evidence. Finally, in his trial testimony, Howard acknowledged that during his argument with Fenske he held Janeena while Fenske pulled her legs. Thus Howard's admitted conduct, though not the sole cause of injury, was sufficient to constitute a substantial causal factor for one convicted as a party to the crime. 3
On a related issue, Howard argues that the trial court erred in denying an evidentiary hearing on his motion regarding juror misconduct. Howard sought a hearing to require testimony from the eight jurors who had not provided statements prior to his postconviction motion. As the State responds, however:
The circuit court accepted the facts asserted in these [four written juror] statements as verities. And Howard has never alleged that any of these jurors could testify to any facts in addition to those recounted in their statements. Thus, there was no need for an evidentiary hearing to prove any of the facts within their knowledge.
Nor had Howard ever suggested what additional facts, if any, any of the other jurors could have recited at any evidentiary hearing.
The State is correct. The supreme court has explained:
[I]f the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.
Nelson v. State, 54 Wis.2d 489, 497-98, 195 N.W.2d 629, 633 (1972). Further, specifically in the context of a motion for an evidentiary hearing to establish alleged jury misconduct, we explained that a defendant's "preliminary showing must assert facts that, if true, would require a new trial." State v. Marhal, 172 Wis.2d 491, 497, 493 N.W.2d 758, 761-62 (Ct.App.1992). Here, the trial court accepted Howard's factual premise of jury misconduct. Therefore, even assuming that evidence from additional jurors would have further substantiated Howard's factual allegations, additional evidence would not have advanced his unsuccessful legal theory.
Howard also argues that the trial court erred in denying his motion to suppress his statements to the police. After interviewing Fenske at the hospital, the police went to Howard's home and interviewed him there. Viewing this simply as an investigative interview, the officers did not read Howard his Miranda warnings. 4 Following an evidentiary hearing, the trial court denied Howard's motion concluding that "[t]here is simply nothing here that leads me to believe that a reasonable person would have believed that he was in custody" and, therefore, that Miranda warnings were not required. Howard argues that the trial court erred in concluding that he was not in custody.
For Miranda warnings to be required, a person must be in "custody" and under "interrogation" by the police. State v. Mitchell, 167 Wis.2d 672, 686, 482 N.W.2d 364, 369 (1992). This court's review of a trial court's conclusions about whether certain undisputed facts establish "custody" and "interrogation" is de novo. See State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987) ().
A person need not be under formal arrest to be in a custodial status requiring Miranda warnings. See State v. Pounds, 176 Wis.2d 315, 322, 500 N.W.2d 373, 377 (Ct.App.1993). To evaluate whether a person is in custody for Fifth Amendment Miranda purposes, courts must consider the totality of the circumstances and determine whether a "reasonable...
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