State v. Marhal

• Court: Wisconsin Court of Appeals
• Writing for the Court: FINE; SCHUDSON
• Citation: State v. Marhal, 493 N.W.2d 758, 172 Wis.2d 491 (Wis. App. 1992)
• Decision Date: 24 November 1992
• Docket Number: No. 91-2972-CR,91-2972-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark M. MARHAL, Defendant-Appellant. d

Page 758

493 N.W.2d 758

172 Wis.2d 491

STATE of Wisconsin, Plaintiff-Respondent, v. Mark M. MARHAL, Defendant-Appellant. ^d

No. 91-2972-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 2, 1992.

Opinion Released Nov. 24, 1992.

Opinion Filed Nov. 24, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

FINE, Judge.

Mark M. Marhal appeals his conviction of first-degree reckless homicide by use of a dangerous weapon, sections 940.02(1), 939.63, Stats., his sentence to an indeterminate term of incarceration not to exceed twenty-five years, and the trial court's order denying his motion for postconviction relief. ¹ Marhal claims that his federal and state constitutional rights were violated because: (1) of alleged jury misconduct; and (2) the trial court permitted a juror to speak at the sentencing hearing. Additionally, Marhal seeks either a new trial or a re-sentencing "in the interests of justice." We affirm.

I.

Every defendant in a criminal case has a fundamental right to have his or her guilt decided by "an impartial jury." U.S. CONST. amend. VI; WIS. CONST. art. I, § 7; see Duncan v. Louisiana, 391 U.S. 145, 149-150, 88 S.Ct. 1444, 1447-1448, 20 L.Ed.2d 491 (1968) (Sixth Amendment's guarantee of right to jury trial is applicable to states via Fourteenth Amendment). In his postconviction motion before the trial court, Marhal claimed that he was denied an impartial jury because:

Prior to deliberations, the jury was improperly and prejudicially effected [sic ] by the misconduct of one or more jurors making a noose and stating words to the effect that the defendant "should hang." In addition, a juror or jurors, prior to deliberations, refused to listen to any remarks or questions of trial counsel for the defendant because of his "dialect." In addition, prior to deliberation, a juror or jurors, stated that they should walk out of the trial because the trial was "useless" and the defendant was guilty.

The motion, which sought an "evidentiary hearing to form a factual basis for this allegation," was not supported by affidavits. Nevertheless, the trial court held the requested evidentiary hearing, at which two jurors testified. It denied Marhal's motion. Although the trial court should not have granted the request for an evidentiary hearing because Marhal did not make the requisite preliminary showing under Rule 906.06(2), Stats., that the jurors were competent to testify, we affirm. ²

Rule 906.06(2), Stats., provides:

INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question 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. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

Rule 906.06(2) is " 'a rule of incompetency.' " State v. Thomas, 161 Wis.2d 616, 627, 468 N.W.2d 729, 733 (Ct.App.1991) (quoting 3 J. Weinstein & M. Berger, WEINSTEIN'S EVIDENCE p 606 at 606-28 (1990)). By its terms, the rule renders incompetent not only evidence of what transpired during the actual jury deliberations, but also evidence of "the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict ... or concerning the juror's mental processes in connection therewith." Rule 906.06(2).

Rule 906.06(2), Stats., reconciles two competing interests. On the one hand, it advances the institutional goal that litigation, whether civil or criminal, must ultimately end; it discourages juror harassment by disappointed litigants; it furthers open and unhindered juror discourse; and, of course, it maintains the jury's viability "as a judicial decision-making body." ³ State v. Shillcutt, 119 Wis.2d 788, 794, 350 N.W.2d 686, 689-690 (1984),habeas corpus denied, Shillcutt v. Gagnon, 602 F.Supp. 1280 (E.D.Wis.1985),aff'd, 827 F.2d 1155 (7th Cir.1987). On the other hand, the overriding goal of our system of justice is to ensure that litigants receive fair trials so that truth prevails. Ibid. Rule 906.06(2) accommodates the tension between these interests by permitting jurors to testify only with regard to two areas: (1) "whether extraneous prejudicial information was improperly brought to the jury's attention," or (2) "whether any outside influence was improperly brought to bear upon any juror." See also Shillcutt, 119 Wis.2d at 794, 350 N.W.2d at 689-690. Generally, a juror's bias or prejudice is not the type of "extraneous" information or "outside influence" within the rule's exception to juror testimonial-incompetence, id., 119 Wis.2d at 794-801, 350 N.W.2d at 690-693, because the rule forbids "an inquiry by the court into a juror's subjective motives for voting" on the verdict, id., 119 Wis.2d at 800-801, 350 N.W.2d at 693. ⁴

There are, however, circumstances where juror prejudice is so strong and pervasive that fundamental fairness requires that the rule of testimonial incompetency give way. Id., 119 Wis.2d at 804-805, 350 N.W.2d at 695. This requires a showing that there was " 'such a magnitude of prejudice' as to constitute 'an obvious default of justice,' or ... such a 'substantial likelihood' that the defendant was prejudiced by the influence of racial bias in the jury room as to 'offend fundamental fairness' or 'violat[e] [sic ] the plainest principles of justice.' " Id., 119 Wis.2d at 805, 350 N.W.2d at 695 (citations omitted); see also Shillcutt v. Gagnon, 827 F.2d at 1159 (Rule 906.06(2)'s prohibition against juror testimony gives way to due-process considerations upon a showing that "prejudice pervaded the jury room.").

The right to an evidentiary hearing concerning matters within the exceptions to juror testimonial-incompetency imposed by Rule 906.06(2), Stats., however, is not automatic: a litigant seeking an evidentiary hearing must make a preliminary showing by affidavit or nonjuror evidence that the requested hearing and the resulting intrusion into the sanctity of jury deliberations are warranted. Thus, the subject matter of the proposed inquiry must not only be within Rule 906.06(2)'s exceptions, State v. Poh, 116 Wis.2d 510, 516-517, 343 N.W.2d 108, 113 (1984), but, additionally, the preliminary showing must assert facts that, if true, would require a new trial, After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 743, 324 N.W.2d 686, 691-692 (1982) (juror's affidavit might be insufficient to require further proceedings); see Shillcutt, 119 Wis.2d at 811, 350 N.W.2d at 698 (juror's affidavit insufficient to require evidentiary hearing since it was clear that "any impeachment would have probed the forbidden area of a juror's mental processes") (Heffernan, C.J., concurring); see also Tanner v. United States, 483 U.S. 107, 126-127, 107 S.Ct. 2739, 275-2751, 97 L.Ed.2d 90 (1987) (evidentiary hearing at which jurors would testify not warranted absent a preliminary showing by nonjuror evidence supporting allegations of juror misconduct of the type that could impeach verdict) (alleged juror intoxication). A rule that either permitted or required an evidentiary hearing without a preliminary showing would be a license for dissatisfied litigants to impermissibly rummage through jurors' thoughts, motives, and debates propelled by the hope, rather than the likelihood, of discovering something with which to overturn the jury's verdict. Marhal's request for an evidentiary hearing so as to, in the words of the postconviction motion, "form a factual basis" for the motion's assertions thus put the proverbial cart before the horse. Since Marhal did not make the required preliminary showing, the trial court erred as a matter of law in granting the evidentiary hearing. ⁵

II.

Marhal claims that he was denied his right to due process at sentencing because the trial court permitted a juror to speak during the sentencing hearing. This, Marhal contends, destroyed the trial judge's impartiality, and resulted in a sentence that was influenced by the juror's comments.

The juror told the trial court over the objection of Marhal's trial counsel that "the vast majority of people on the jury felt that Mr. Marhal was guilty of first degree intentional homicide" and that it was "a sad fact that we had to change our verdict because of the persistence of a juror to decide to, to [sic ]--who decided the case on grounds outside the evidence of the case." ⁶ When the trial court indicated that its responsibility was "to determine the appropriate sentence for the crime that [Marhal] has been convicted of," the juror replied that his "own personal feelings are that the maximum penalty should be given." Marhal's trial counsel then requested an adjournment of the sentencing hearing in order "to get the other jurors in here." The trial court denied the request, noting that it was not going to consider the juror's comments about what the verdict should have been. Additionally, during the course of the hearing on Marhal's postconviction motion, the trial court reiterated, and found as a fact, that it "did not consider those comments" at sentencing. ⁷ Marhal argues that this finding is belied by the record. As the State points out,...