State v. Lindell

Decision Date11 July 2001
Docket NumberNo. 99-2704-CR.,99-2704-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Nathaniel A. LINDELL, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by Timothy J. Gaskell and Hanson & Gaskel, Westby, and oral argument by Timothy J. Gaskell.

For the plaintiff-respondent the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

An amicus curiae brief was filed by Rhonda L. Lanford and Habush, Habush, Davis & Rottier, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers.


This is a review of a published decision of the court of appeals affirming a judgment of the circuit court for La Crosse County, John J. Perlich, Judge.2 The defendant, Nathaniel A. Lindell, was convicted in a jury trial of first-degree intentional homicide, arson, and burglary.

¶ 2. After his conviction, Lindell moved the circuit court to vacate the judgment and grant him a new trial on grounds that (1) the circuit court failed to strike a prospective juror for cause, forcing him to use one of his peremptory strikes to remove the juror from the venire, and (2) he received ineffective assistance of counsel when his trial attorney failed to present certain impeachment evidence.

¶ 3. The circuit court denied the defendant's motion and Lindell appealed. The court of appeals affirmed. The court of appeals applied the analysis on juror bias recently developed in this court and ruled that the challenged juror was neither objectively nor subjectively biased. The court of appeals also ruled that the defendant was not prejudiced by any alleged ineffective assistance of counsel. We granted the defendant's petition for review.

¶ 4. In this case, we have considered three issues and reach the following conclusions: First, under the juror bias standards promulgated by this court, juror D.F. was objectively biased as a matter of law and should have been removed for cause. The circuit court erred when it failed to remove juror D.F. for cause.

¶ 5. Second, under the facts of this case, the circuit court's error did not affect the substantial rights of the defendant. Lindell used the first of seven peremptory strikes to remove the prospective juror who should have been struck for cause, and the juror did not participate in the trial. Because our decision to affirm Lindell's conviction is at odds with State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), which would have required an automatic reversal in any situation where the defendant used a peremptory strike to remove a prospective juror who should have been excused for cause, we overrule Ramos and announce a new standard to protect defendants.

¶ 6. Third, we conclude that the defendant was not prejudiced by any alleged deficient performance of trial counsel.

¶ 7. Accordingly, the decision of the court of appeals is affirmed.


¶ 8. Donald Harmacek, a La Crosse resident in his mid-60s, was killed in his home on November 25, 1996. Nathaniel Lindell, the defendant in this case, was convicted by a jury of first-degree intentional homicide in violation of Wis. Stat. § 940.01(1) (1997-98)3 for causing Harmacek's death. Lindell was also convicted of burglary in violation of Wis. Stat. § 943.10(1)(a) and (2)(d), and arson in violation of Wis. Stat. § 943.02(1)(a), for burglarizing and torching Harmacek's home as part of the incident that caused Harmacek's death. Lindell was convicted of all these charges as a party to the crime, pursuant to Wis. Stat. § 939.05(1).

¶ 9. In the early morning hours of November 25, 1996, three men went to Harmacek's home with the intention of committing a burglary. The three men were Nathaniel Lindell, 21, his brother Joshua Lindell, 19, and Marcus Mitchell, 26. The men traveled in Joshua Lindell's car with Mitchell as the driver. The Lindells wore dark clothing and all three men carried two-way radios. ¶ 10. Nathaniel Lindell had burglarized Harmacek's home in the past; Harmacek kept a large coin collection in his house.

¶ 11. When the men arrived at a point near Harmacek's residence, Mitchell remained with the vehicle. The Lindells entered the residence by ducttaping a basement window and breaking it with a miniature Louisville Slugger bat. While they were in the basement, the Lindells found a small amount of money, and then Joshua Lindell picked up a wrench at Nathaniel Lindell's direction.

¶ 12. The men proceeded upstairs to the main level of the home where they observed Harmacek apparently sleeping on the floor. When Harmacek moved, Joshua Lindell, who was walking ahead of his brother, "freaked and knocked him on the head with the wrench." After this blow, Joshua Lindell asked his brother what they should do. Nathaniel Lindell responded by hitting Harmacek with a small hammer, causing significant injury and gruesome results. According to testimony by an expert in bloodstain-pattern analysis, Harmacek received at least three blows to the head. Joshua Lindell testified that "blood squirted up" when his brother hit the victim. Later Nathaniel Lindell took Harmacek's wallet from a nearby table and the men took $90 from it. Both Lindells proceeded to search the house for valuables.

¶ 13. The Lindells found alcohol in the house and they spread it about the main level and the basement. Nathaniel Lindell then lit fires in the house. The two men crawled back out the window through which they entered and returned to Mitchell who was at the waiting car. Harmacek died as a result of the trauma to his head and the fire. ¶ 14. Joshua Lindell pleaded guilty to first-degree intentional homicide as a party to the crime. He did so in exchange for (1) the State recommending that the judge give him parole eligibility after 25 years imprisonment, and (2) the State dismissing the arson and burglary charges against him. Joshua Lindell testified in his brother's trial. Mitchell, meanwhile, was granted complete immunity in exchange for his testimony in the trial of Nathaniel Lindell.


¶ 15. Nathaniel Lindell was charged with homicide and other crimes on March 5, 1997. The circuit court conducted numerous motion hearings in the case throughout the latter half of 1997 and January 1998.

¶ 16. Harmacek's murder received significant news media attention in the La Crosse area. In fact, months before trial, the parties and the circuit court were concerned with issues relating to media publicity and the future venire, particularly when Joshua Lindell pleaded guilty, and the parties had a dispute over the extent of media coverage about the case and Joshua Lindell's guilty plea. Nathaniel Lindell moved the circuit court to issue a protective order to prevent discussion of the case with members of the news media, but the circuit court denied the motion.

¶ 17. In addition, when a mental examination was done to assess Nathaniel Lindell's competency, the media requested access to the report and it became the subject of two motions by the defendant. In both instances, the circuit court declined to keep the report under seal.

¶ 18. Nathaniel Lindell also moved the circuit court to allow individual voir dire of prospective jurors and to mail prospective jurors a lengthy questionnaire before they arrived for jury service. Both of these motions related to the defendant's concerns over pretrial publicity. The circuit court allowed individual voir dire, but it apparently did not approve any of the questionnaires that the defendant proffered to the court.

¶ 19. The motions noted above were made in the last half of 1997. In January 1998, just weeks before trial, the defendant moved the circuit court for change of venue "because an impartial trial [could] not be had in La Crosse County." Counsel for Lindell argued that a fair trial could not take place in the county "because of the nature and the amount, the overwhelming amount, of pretrial publicity." The circuit court denied this motion.

¶ 20. On the morning of January 26, 1998, jury selection began in the State's case against Nathaniel Lindell. District Attorney Scott Horne represented the State and Assistant State Public Defenders Christine Clair and Keith Belzer represented the defendant. The circuit court noted that it would begin with a venire of 50 prospective jurors but that initially only 28 would be brought into the courtroom.

¶ 21. The clerk called the first 28 prospective jurors. Prospective juror D.F. was not among these 28. She became, however, the 30th prospective juror called when the circuit court excused several of the first 28 candidates for lack of availability and called in 4 additional prospective jurors.

¶ 22. The circuit court asked whether anyone in the venire had heard of the facts of the case. So many people raised their hand in response to this inquiry that the circuit court decided to ask who had not heard about the case. The court then asked the venire whether anyone had decided about the guilt or innocence of those accused in the case. The circuit court excused one juror who had already made a decision as to the guilt of those accused. The court also engaged in colloquies with a number of other prospective jurors who indicated they might have an opinion about the guilt or innocence of Nathaniel Lindell, but the court did not excuse any more prospective jurors once the court made a determination that each person could be impartial. D.F. did not indicate that she had already made up her mind about the guilt or innocence of the accused.

¶ 23. The circuit court then allowed the parties to read their witness lists to the venire to examine the extent of any relationships between the venire and witnesses, attorneys, and the defendant. When the State read the name of Shirley Otto, a long-time companion of Harmacek, D.F....

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