State v. Nutley
| Citation | 129 N.W.2d 155,24 Wis.2d 527 |
| Parties | STATE of Wisconsin, Respondent, v. Lawrence NUTLEY, Appellant. STATE of Wisconsin, Respondent, v. Richard M. NICKL, Appellant. STATE of Wisconsin, Respondent, v. William WELTER, Appellant. |
| Decision Date | 30 June 1964 |
| Court | United States State Supreme Court of Wisconsin |
Jack McManus, Madison, for appellant Nutley, J. Philip Elliott, Jr., Madison, of counsel.
Aagaard & Wiley, Madison, for appellant Nickl.
Vaughn S. Conway, Baraboo, for appellant Welter.
George Thompson, Atty. Gen., William A. Platz, Betty R. Brown, Asst. Attys. Gen., Madison, for respondent.
Numerous issues are presented on this appeal. We will consider these issues, which are in the main common to all three cases, in the order in which they arose at the trial.
1. Was the jury array for the term of circuit court, in which this action was litigated, constituted in violation of the provisions of secs. 255.04 through 255.07, Stats., thereby entitling the appellants to a new trial before jurors drawn from a properly constituted array?
Sec. 255.04, Stats., sets forth the method for constituting an array from which the ultimate jury of twelve in a criminal case may be drawn. Basically, three jury commissioners have the responsibility of jointly determining the qualifications of not less than 300 nor more than 500 persons who shall be members of the array from which final jurors are chosen. In addition to evaluating individual jurors by the standards set forth in sec. 255.01, Stats., the commissioners are to apportion the array 'as nearly as practicable among towns, villages and wards of cities thereof in proportion to population according to the last national census.'
Just prior to the opening of the trial (on February 8, 1962), counsel for defendant Welter made a motion challenging the legality of the array. The written motion simply stated the ultimate legal conclusion that the array was not properly constituted. Neither of the other defendants or their counsel made any objection to the array before or during the trial. The trial judge allowed counsel for Welter to state his objections more fully and concluded that a motion on behalf of one defendant was deemed made on behalf of all three. Thus it appears that the challenge to the array was timely, and the issue of whether the trial court erred in overruling the challenge is properly before this court. 1
In proceedings held in camera but on the record, the trial court permitted counsel to give his detailed reasons for objecting to the array. The clerk of circuit court for Dane county acknowledged that she maintained no single unified list of the names of members of the array certified by the jury commissioners. She stated that each commissioner submitted names individually. However, it does not follow from these facts that the commissioners did not jointly approve of each person prior to individually communicating the results of such collective action to the clerk of court. Each could have had a list of persons for jury service, submitted such list to the other commissioners for approval, and then, after receiving the approval of his fellow commissioners, relayed the names to the clerk of court. The defendants offered no affirmative proof that the method of joint consultation and collective approval was not utilized as the mode of selection for the array. The mere absence of a jointly certified list is not a material violation of sec. 255.04, Stats. 2 The substantive method of choice which was in fact utilized is the crucial element, rather than the document which stands as a symbol of the approved method. The defendants crucially failed to offer any affirmative proof before the trial judge that a method other than joint consultation and approval was utilized to pick the array from which the ultimate jury was chosen.
The defendants also failed to offer any proof before the trial court that the array was not apportioned among wards, villages, and towns on a per capita equality standard. This provision assures each person in the county of an equal opportunity to serve upon a jury regardless of where he may reside within the county. A defendant is also assured by this provision that the array is as representative of community character as is practicable.
In their motions for a new trial and in their arguments to this court, the defendants offered as proof of the violation of the statute an opinion of the circuit court for Dane county, rendered in an entirely different case, which opinion is dated October 11, 1962, nearly eight months after the verdict in the instant case. (State v. Offerdahl and others.) In that opinion the Dane county circuit court concluded that the method for selecting the jury array utilized in Dane county as of the first Monday in April, 1962, (involving a completely new jury array selected after the trial in the instant case was concluded) failed to comply with the statute (sec. 255.04) in several material respects.
Such an opinion of a circuit court rendered in an independent action, subsequent to the completion of earlier litigation, cannot be deemed evidence of propositions in issue in the original litigation. We must conclude that since the record in the case at bar is barren of any substantive evidence of violation of secs. 255.04 through 255.07, Stats., in any material respect, the trial court committed no error in overruling the challenge to the jury array.
Although we have found no error in overruling the instant challenge to this particular jury array, we take this opportunity to stress the importance of the proper selection of the jury array. Substantial compliance with the provisions of ch. 255, Stats., will insure that jurors will be selected only after careful deliberation as to their qualifications, and only after every effort has been made to pick a truly representative group from the community in which legal controversies are to be tried.
2. Did the trial court abuse its discretion in transferring venue of the action from Sauk county to Dane county?
On motions of the defendants, and upon a finding of community prejudice, the trial court transferred venue of the action from Sauk county, where the episode in issue occurred, to Dane county, pursuant to the provisions of sec. 956.03, Stats. 3
At the initial hearing on defendants' motion conducted in Sauk county, evidence was offered to demonstrate that a primary cause of community prejudice in Sauk county was the reports and activities of mass media institutions in Madison. Therefore, the defendants argue that persons in Dane county (being exposed to the same influences) were as likely to have predetermined the issues as persons residing in Sauk county, and the action should have been transferred to any county adjoining Sauk other than Dane.
Whether or not all defendants objected to a transfer of venue from Sauk to Dane at the original hearing in Sauk county, we need not decide. At least one defendant urged that venue be transferred to an adjoining county other than Dane, and the trial court had before it evidence of the fact that persons in both communities were exposed to the same mass media reports and hence were equally likely to have predetermined the defendants' guilt. The merits of this claim are properly preserved for this apeal.
Nevertheless, the trial court's decision to transfer venue from Sauk to Dane was a proper exercise of its discretionary power under sec. 956.03, Stats. 4
While persons in Sauk county and in Dane county were exposed to the same mass media influences, this exposure alone was not the sole cause of community prejudice in Sauk county. Persons residing in Sauk knew Jentz and Kohl personally. A strong desire on the part of jurors to 'do justice' for victims of a crime whom they may know personally, could well color the jurors perceptions of the events in issue to the prejudice of any defendant. Persons residing in Dane county, although appraised of certain elements of the episode by mass media in advance of the trial, were less likely to approach the issues in this case with strong discoloring feelings of remorse for the victims predicated upon personal relationships with either Kohl or Jantz. Further, the trial court could reasonably conclude that mere exposure to the reports of mass media alone did not create a deep pattern of community prejudice in Dane county. The effect of mass media reports upon community attitudes is a matter which cannot be determined with precision in any given case.
Therefore, the trial court could within its discretion properly conclude that the atmosphere in Sauk county and in Dane county was not identical, and that Dane, as an adjoining county, was a reasonably nonprejudicial site for the trial.
3. Were each of the three defendants improperly joined with the others for a consolidated trial of the matters in issue?
Whether a joint trial of co-defendants for their respective conduct in relation to a single episode is unduly prejudicial to each defendant is a matter within the discretion of the trial judge. 5
The prosecution of these defendants was predicated upon their respective conduct in relation to a single episode. As will be detailed later in this opinion, the theory of the prosecution was that each defendant was liable as a principal for the substantive crimes of first degree murder and attempted murder, because each was a member of a conspiracy to commit the crime of resisting an officer, 6 and the substantive crimes of first degree murder and attempted murder are the natural and probable consequence of a conspiracy to violate sec. 946.41, Stats. 7 Alternatively, the prosecution theory sought to demonstrate that defendant Welter directly committed each crime, while defendants Nutley and Nickl were liable for the substantive crimes because they aided and abetted Welter in his direct commission of the offense. Under these circumstances, where the liability of each defenda...
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