State v. Messelt, No. 91-2060-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtWILCOX; SHIRLEY S. ABRAHAMSON
Citation185 Wis.2d 254,518 N.W.2d 232
Decision Date23 June 1994
Docket NumberNo. 91-2060-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. William M. MESSELT, Defendant-Appellant-Petitioner.

Page 232

518 N.W.2d 232
185 Wis.2d 254
STATE of Wisconsin, Plaintiff-Respondent,
v.
William M. MESSELT, Defendant-Appellant-Petitioner.
No. 91-2060-CR.
Supreme Court of Wisconsin.
Argued March 31, 1994.
Decided June 23, 1994.

Amicus curiae brief was filed by Mark S. Young and Habush, Habush, Davis & Rottier, S.C., Milwaukee for the Wisconsin Academy of Trial Lawyers.

WILCOX, Justice.

This is a review of a published decision of the court of appeals, State v. Messelt, 178 Wis.2d 320, 504 N.W.2d 362 (Ct.App.1993). The defendant, William Messelt (Messelt) argues that he is entitled to a new trial because extraneous, prejudicial information reached one or more jurors prior to the verdict. The court of appeals affirmed the trial court's dismissal of Messelt's postconviction motion based largely upon its belief that sec. 906.06(2), Stats., 1 prevents[185 Wis.2d 258] jurors from testifying

Page 234

as to whether extraneous prejudicial information reached the jury unless the information in question was communicated to all twelve jurors. While we believe the court of appeals misinterpreted sec. 906.06(2), we nevertheless hold that under the facts of this case, Messelt is not entitled to a new trial.

In April of 1989, Messelt was charged in connection with the 1988 assault of an elderly Jackson County woman. Messelt's arrest triggered a series of articles in the local newspapers. In addition to identifying Messelt as the suspect and describing the evidence which allegedly linked him to the crime, a number of articles also revealed that Messelt had twice before been convicted of sexual assault.

Prior to trial, Messelt moved for a change of venue, or in the alternative, that the jury be selected from outside of Jackson County. Messelt argued that such measures were necessary given the substantial pre-trial publicity his case had received. The Honorable Robert W. Radcliffe, circuit court judge for Jackson County, denied Messelt's motions.

Predictably, the extent to which potential jurors had been exposed to pre-trial publicity was a primary focus of voir dire. In response to questions by the trial court, a number of individuals acknowledged having some information about the case. Several panel members[185 Wis.2d 259] were struck for cause. The rest were individually questioned by defense counsel and/or the court. All those eventually selected to serve as jurors stated under oath that they had not formed an opinion as to Messelt's guilt or innocence, and that they would base their decision solely upon the evidence presented at trial. None of the jurors indicated that they had any knowledge of Messelt's prior criminal record.

On July 25, 1990, Messelt was convicted of two counts of second-degree sexual assault, one count of burglary while concealing identity, and one count of false imprisonment while concealing identity. He was sentenced to 52 years in prison. Evidence of Messelt's other crimes was not admitted during the trial.

Following his conviction, Messelt brought a motion for relief, including a new trial, pursuant to sec. (Rule) 809.30, Stats. Messelt argued that a new trial was necessary because "extraneous, inadmissible prejudicial information" about him reached one or more jurors before the verdict.

A hearing on Messelt's post-conviction motion was conducted on July 26, 1991. All of the jurors, including the two alternates, testified at this hearing. The testimony of several of these jurors stands at the center of the present controversy.

Juror Relyea testified that ten or twelve years before this trial began she had heard "gossip" that Messelt raped a young girl, but she did not know whether he had been convicted of that assault. Relyea did not share this information with the other jurors. When asked why she failed to reveal this knowledge during voir dire, Relyea responded that "Nobody asked me that." Relyea also recalled a conversation she had with juror Young immediately following deliberations in [185 Wis.2d 260] which Young indicated that he knew that Messelt had a "prior."

During his testimony, Young insisted that he did not learn of Messelt's prior convictions until after the trial. Reiterating the responses he gave during voir dire, Young testified that the only information he had pertaining to Messelt's previous troubles related to some disciplinary problems Messelt experienced while in middle and high school.

Juror Walsted testified he learned of Messelt's prior convictions through a newspaper article he had read well in advance of the trial. Upon further questioning, though, Walsted backed away from that statement, explaining that he "never really read the article as far as reading it," and that he could not recall what Messelt's prior convictions were for. Like Relyea, Walsted indicated that he did not discuss this information with any of the other jurors.

In contrast to Walsted, the testimony of alternate juror Szymanski was unequivocal. Szymanski revealed that during the course of

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the trial, a person with whom he worked told him of Messelt's prior convictions. Szymanski did not communicate this information to the other jurors, nor as an alternate did he participate in the jury's deliberations.

In addition, at least four jurors testified that during deliberations, one juror theorized that the police may have suspected Messelt because he had been in "trouble" before. The person recalling this statement best was juror Gebhardt. Gebhardt, who also served as jury foreperson, testified that the rest of the jurors considered the remark to be "just speculation" and agreed that it should not effect their deliberations. Gebhardt emphasized that the remark was not [185 Wis.2d 261] presented as a factual assertion, nor did it include any reference to Messelt's prior crimes. 2

One final incident came to light at the postconviction hearing. On a Friday evening during the trial, Walsted and his father visited the home of a Mrs. Hanson. During that visit, the elder Walsted and Mrs. Hanson discussed the Messelt trial. Walsted testified that although he was present during this conversation, he did not participate, nor did he hear what was discussed.

Walsted's testimony was somewhat at odds with a statement Mrs. Hanson provided to Messelt's investigators. 3 In this statement, Mrs. Hanson indicated that she and Walsted's father probably discussed Messelt's prior convictions during that Friday evening conversation. She also stated that Walsted's father suggested that Messelt be "castrated." Although she confirmed that Walsted did not participate in the conversation, Mrs. Hansen thought Walsted "probably" heard what was discussed.

Based on this testimony, the trial court drew the following conclusions. First, the court held that Gebhardt's testimony simply provided evidence of one juror's subjective mental processes, i.e., his or her speculation that Messelt may have been in trouble before. The court believed that such testimony was incompetent under sec. 906.06(2), Stats.

[185 Wis.2d 262] With respect to Szymanski, the trial court found that he did not share his knowledge of Messelt's prior convictions with any other juror. That, in addition to the fact that he did not participate in the jury's deliberations, led the trial court to conclude that the information Szymanski possessed could not have prejudiced Messelt.

As to Relyea, the court found that she knew about one of Messelt's prior assaults before the trial began. The court concluded, however, that Relyea regarded this information as unsubstantiated "gossip." As such, he did not believe the information prevented Relyea from being an impartial juror.

The court also found credible Young's testimony that he did not learn of Messelt's other crimes until after the trial was over, and that all Young knew about Messelt's earlier troubles related to school disciplinary problems. The court held that such knowledge could not reasonably have contributed to Messelt's conviction.

Finally, the court found it difficult to believe that Walsted had not heard any of the conversation that took place between his father and Mrs. Hanson. Nevertheless, the court concluded that in light of Walsted's denials and Mrs. Hanson's poor memory, it could never be known with certainty what was discussed that evening. The court also made note of the fact that Walsted did not share any extraneous information with the other jurors. As a result, the court held that any such information Walsted might have possessed could not in and of itself be the basis for a new trial.

The court of appeals affirmed. Relying upon the trial court's finding that Relyea, Walsted, Young and Szymanski did not communicate the extraneous information in their possession, the court of appeals held [185 Wis.2d 263] that sec. 906.06(2), Stats., rendered all their testimony incompetent. The court based this conclusion

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on its belief that sec. 906.06(2) prevents jurors from testifying on the question of whether extraneous prejudicial information was improperly brought to their attention unless that information was communicated to all twelve jurors.

Finally, the court of appeals held that the trial court's failure to make a clear finding as to what information Walsted may have overheard in Mrs. Hanson's kitchen prevented Messelt from relying upon the events of that evening to impeach the jury's verdict.

The court of appeals did not address either the competency or the prejudicial effect of Gebhardt's testimony.

It is not necessary for this court to indulge in a lengthy tribute to the American jury system. Commentators of far greater eloquence have already dedicated themselves to that task. Let it suffice to observe that the criminal defendant's right to be tried by an impartial jury of his or her fellow citizens is the cornerstone of our system of justice. That right is enshrined in our state and federal constitutions. 4

Along with the right to an impartial jury, our...

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53 practice notes
  • State v. Flynn, Nos. 93-2532-C
    • United States
    • Court of Appeals of Wisconsin
    • March 20, 1995
    ...possibility that the extraneous information would prejudice a hypothetical average jury. State v. Messelt, 185 Wis.2d 255, 282-83, 518 N.W.2d 232, 243 State v. Eison, 188 Wis.2d 298, 304-305, 525 N.W.2d 91, 93 (Ct.App.1994). In light of the ambiguous nature of the juror's recollection, Flyn......
  • State v. Ferron, No. 96-3425-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • August 25, 1998
    ...juror can be impartial should be overturned only where the prospective juror's bias is "manifest." See, e.g., State v. Messelt, 185 Wis.2d 254, 269, 518 N.W.2d 232 (1994); Louis, 156 Wis.2d at 478-79, 457 N.W.2d 484; Hammill v. State, 89 Wis.2d 404, 416, 278 N.W.2d 821 (1979); State v. Delg......
  • People v. Olinger, No. 79217
    • United States
    • Supreme Court of Illinois
    • April 17, 1997
    ...question on voir dire " and that "a correct response would have provided a valid basis for a challenge for cause"); State v. Messelt, 185 Wis.2d 254, 269, 518 N.W.2d 232, 238 (1994). This test is an exception to the general rule that jurors may not impeach their own verdict. Department of P......
  • State v. Jacobus, No. 95-2160-CR
    • United States
    • Court of Appeals of Wisconsin
    • September 12, 1996
    ...320, 327-28, 504 N.W.2d 362, 364-65 (Ct.App.1993) (quoting Hoppe v. State, 74 Wis.2d 107, 111, 246 N.W.2d 122, 125-26 (1976)), aff'd, 185 Wis.2d 254, 518 N.W.2d 232 Jacobus, emphasizing the publicity and describing it as "permeat[ing] Richland County," acknowledges that each of the jurors w......
  • Request a trial to view additional results
53 cases
  • State v. Flynn, Nos. 93-2532-C
    • United States
    • Court of Appeals of Wisconsin
    • March 20, 1995
    ...possibility that the extraneous information would prejudice a hypothetical average jury. State v. Messelt, 185 Wis.2d 255, 282-83, 518 N.W.2d 232, 243 State v. Eison, 188 Wis.2d 298, 304-305, 525 N.W.2d 91, 93 (Ct.App.1994). In light of the ambiguous nature of the juror's recollection, Flyn......
  • State v. Ferron, No. 96-3425-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • August 25, 1998
    ...juror can be impartial should be overturned only where the prospective juror's bias is "manifest." See, e.g., State v. Messelt, 185 Wis.2d 254, 269, 518 N.W.2d 232 (1994); Louis, 156 Wis.2d at 478-79, 457 N.W.2d 484; Hammill v. State, 89 Wis.2d 404, 416, 278 N.W.2d 821 (1979); State v. Delg......
  • People v. Olinger, No. 79217
    • United States
    • Supreme Court of Illinois
    • April 17, 1997
    ...question on voir dire " and that "a correct response would have provided a valid basis for a challenge for cause"); State v. Messelt, 185 Wis.2d 254, 269, 518 N.W.2d 232, 238 (1994). This test is an exception to the general rule that jurors may not impeach their own verdict. Department of P......
  • State v. Jacobus, No. 95-2160-CR
    • United States
    • Court of Appeals of Wisconsin
    • September 12, 1996
    ...320, 327-28, 504 N.W.2d 362, 364-65 (Ct.App.1993) (quoting Hoppe v. State, 74 Wis.2d 107, 111, 246 N.W.2d 122, 125-26 (1976)), aff'd, 185 Wis.2d 254, 518 N.W.2d 232 Jacobus, emphasizing the publicity and describing it as "permeat[ing] Richland County," acknowledges that each of the jurors w......
  • Request a trial to view additional results

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