State v. Messelt

• Court: Wisconsin Court of Appeals
• Writing for the Court: GARTZKE
• Citation: State v. Messelt, 504 N.W.2d 362, 178 Wis.2d 320 (Wis. App. 1993)
• Decision Date: 15 July 1993
• Docket Number: No. 91-2060-CR,91-2060-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William M. MESSELT, Defendant-Appellant. d

Page 362

504 N.W.2d 362

178 Wis.2d 320

STATE of Wisconsin, Plaintiff-Respondent, v. William M. MESSELT, Defendant-Appellant. ^d

No. 91-2060-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 4, 1993.

Opinion Released July 15, 1993.

Opinion Filed July 15, 1993.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

GARTZKE, Presiding Judge.

Defendant William Messelt appeals from a judgment convicting him of two counts of second-degree sexual assault, one count of burglary while concealing identity, and one count of false imprisonment while concealing identity. ¹ The charges arise out of a June 1988 attack upon an elderly woman in Jackson County. Defendant asserts that he was denied a fair and impartial jury because the trial court refused to change venue or to select a jury from another county, and because some jurors knew or learned from extraneous sources that he had been convicted of two other sexual assaults.

We conclude that the court properly exercised its discretion when it refused to change the venue. We conclude that the juror witnesses who had information about his prior crimes were incompetent to testify to that information, and that the testimony of a nonjuror was competent but insufficient to establish that error had occurred. We therefore affirm.

On April 18, 1989, defendant was charged with first-degree sexual assault, armed burglary, false imprisonment, and battery while armed. On July 20, 1990, an amended information was filed charging defendant with first and second-degree sexual assaults, armed burglary, and false imprisonment while armed, with habitual criminality and concealing identity enhancers. ² Following a trial in July 1990, the jury returned a verdict of guilty on all charges except the dangerous weapons enhancers (thus reducing the first-degree sexual assault to second-degree). Defendant was sentenced to an indeterminate term of fifty-two years. Defendant moved for postconviction relief on the grounds that the trial court should have granted his motion to change venue, and that extraneous, inadmissible prejudicial information concerning him had reached one or more jurors before the verdict. The trial court denied the motion.

I. MOTION TO CHANGE VENUE

To support his motion, defendant asserted that articles published before the trial in The Melrose Chronicle and The Banner Journal, newspapers circulated in Jackson County, had prejudiced his chance of securing a fair and impartial trial in that county. He claimed that the articles publicized in detail the state's evidence and publicized inadmissible evidence that he had two prior convictions for sexual assault. One of those assaults had occurred in Trempealeau County in 1980 and the other in Winnebago County in 1985.

Defendant sought a pretrial ruling to prevent the state from introducing evidence of his convictions for those assaults and to prevent the jury from learning through his parole officer (who was to testify) that defendant had been on parole. The trial court did not formally rule on either request. However, the state offered no evidence regarding the prior crimes, and the court took care to instruct the parole officer simply to refer to himself as a law enforcement officer when he testified.

In April 1990, the trial court heard and denied the motion to change venue. The court said that because the articles were primarily from the Chronicle, printed in Melrose, the jurors would be chosen from other areas of the county. No radio or television coverage had been brought to the court's attention. The court found that the articles had not unfairly reported the pretrial proceedings and were not inflammatory. The court was, however, concerned about two matters published in the articles. The first was opinions concerning the acceptance of DNA testing, and the second was defendant's prior convictions. The court ruled that it would excuse for cause any juror having knowledge of those matters. Because the defendant could individually voir dire any juror, the court believed a fair and impartial jury could be selected from Jackson County.

A defendant may move for a change of place for a criminal trial on grounds that an impartial jury cannot be had in the county. Section 971.22(1), Stats. If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it must order that the trial be held in any county where an impartial trial can be had. Section 971.22(3), Stats. In lieu of changing the place of trial, the court may select a jury from a second county. Section 971.225(2), Stats.

We review a ruling on a motion to change the place of trial for the erroneous exercise of the court's discretion. Hoppe v. State, 74 Wis.2d 107, 110, 246 N.W.2d 122, 125 (1976). Although our review is deferential to the ruling, we must "make an independent evaluation of the circumstances." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966); Tucker v. State, 56 Wis.2d 728, 733, 202 N.W.2d 897, 899 (1973).

The factors we evaluate have been stated many times:

The factors which this court is obliged to consider in determining whether a change of venue ought to have been granted because of community prejudice are outlined in McKissick v. State, [49 Wis.2d 537, 545-46, 182 N.W.2d 282, 286 (1971) ]:

"The inflammatory nature of the publicity; the degree to which the adverse publicity permeated the area from which the jury panel would be drawn; the timing and specificity of the publicity; the degree of care exercised, and the amount of difficulty encountered, in selecting the jury; the extent to which the jurors were familiar with the publicity; and the defendant's utilization of the challenges, both peremptory and for cause, available to him on voir dire. In addition, the courts have also considered the participation of the state in the adverse publicity as relevant, as well as the severity of the offense charged and the nature of the verdict returned."

Hoppe, 74 Wis.2d at 110, 246 N.W.2d at 125.

We evaluate those factors to "determine whether there was a reasonable likelihood of community prejudice prior to, and at the time of, trial and whether the procedures for drawing the jury evidenced any prejudice on the part of the prospective or impaneled jurors." Hoppe, 74 Wis.2d at 111, 246 N.W.2d at 125-26. Consequently, our evaluation requires both an examination of the evidence supporting the motion to change venue and the jury impaneling process.

A. Nature of Pretrial Publicity

On June 22, 1988, the Chronicle reported the June 15 assaults and said they had "caused quite a stir and angered the residents of this area." On the same day, the Journal reported that law enforcement authorities were investigating. On June 29, 1988, the Chronicle reported that no arrest had been made.

On April 17, 1989, while he was in prison following his parole violation, a criminal complaint issued, charging defendant with the June 1988 assaults. Two days later the Chronicle reported the contents of the complaint. Among other things, the article described the victim's statement that a masked man had tied her up, threatened to kill her and assaulted her. It described how her residence had been entered, interviews with persons who had seen a vehicle like defendant's in the area and a search of defendant's workplace which produced twine similar to that used to tie the victim. Additionally, it described reports from a testing laboratory that the DNA banding patterns obtained from body fluids on the victim's nightgown and defendant's blood samples were the same and that "the frequency of this band pattern in the Caucasian population is 1 in 329 million," and that DNA testing generally is accepted as reliable and accurate. It also stated that in 1985 defendant had been convicted of sexual assault in Winnebago County.

A Chronicle article headlined "Rapist Should Be Behind Bars For A Long Time," stated that defendant was still imprisoned for a parole violation and would be returned to Jackson County to stand trial. ³ On May 3, 1989, the Journal reported defendant's arrest, briefly described the 1988 assaults, described his sentence for the prior Winnebago County assault, stated that he had also been convicted for a July 1980 sexual assault in Trempealeau County, and reported that he was incarcerated because his parole had been revoked.

A lull in pretrial publicity followed until late November 1989. On November 22, 1989, the Journal reported that defendant, "presently serving time at the Waupun State Prison for parole violation," had been returned to Jackson County for hearings. The article briefly described the assault and stated that the prosecutor asked that the preliminary examination be rescheduled to accommodate a DNA expert who would testify that sperm samples found at the scene of the sexual assault were from defendant and that the DNA test "is reported to be almost 100% accurate." On November 29, 1989, the Chronicle reported defendant's preliminary hearing held on November 27. The article detailed the testimony of ten persons, including the victim, and stated that defendant had been convicted of two other unrelated sexual offenses. It stated that the hearing had been adjourned to allow an expert to testify on the basis of an "almost one hundred percent accurate" test that defendant's sperm was found at the scene. On November 29, 1989, the Journal briefly reported that the preliminary had been held, and that defendant had served a sentence for a similar charge, had been paroled in 1988, and had been returned to prison for a parole violation.

On December 6, 1989, the Chronicle published excerpts from four letters to the editor complaining that the detailed "lurid" reporting, especially that of the victim's testimony at the preliminary, had been unnecessary. On December 16, the editor of the Chronicle published an apology to the victim and the newspaper's readers...