State v. Oswald
| Decision Date | 08 December 1999 |
| Docket Number | No. 97-1026-CR.,97-1026-CR. |
| Citation | 606 N.W.2d 207,232 Wis.2d 62 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Theodore OSWALD, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Jerome F. Buting and Kathleen B. Stilling of Buting & Williams, S.C. of Brookfield. There was oral argument by Jerome F. Buting.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Paul Lundsten, assistant attorney general and James E. Doyle, attorney general. There was oral argument by Paul Lundsten.
Before Brown, P.J., Nettesheim and Anderson, JJ.
¶ 1.
Theodore Oswald appeals from a nineteen-count judgment of conviction and an order denying his motion for postconviction relief. A new trial is warranted, he argues, because of juror bias, juror misconduct and ineffective assistance of trial counsel. First, he contends that the circuit court erroneously denied his motions to remove three jurors for cause, forcing him to use his peremptory strikes to remove them. Because he used his peremptory strikes to correct a court error, he requests a new trial where he would receive his full statutory entitlement of peremptory strikes.
¶ 2. Additionally, Oswald insists that during voir dire prospective jurors discussed their opinions about his guilt and the case while in the waiting room. Claiming that the court erroneously exercised its discretion by failing to properly investigate the misconduct allegations, he requests a new trial.
¶ 3. Lastly, Oswald contends that he was denied effective assistance of counsel because his trial counsel: (1) erroneously conducted voir dire, (2) failed to request a change of venue, and (3) failed to properly investigate and pursue a mental disease or defect defense. We reject these arguments and affirm.
¶ 4. A detailed discussion of Oswald's criminal activities is not necessary for this appeal. Suffice it to say, Oswald's conviction flows from the armed robbery of three financial institutions, a kidnapping and a running gun battle with law enforcement after the third robbery.2 During the chase and gun battle, a police captain was killed, and a hostage and three police officers were wounded. Oswald participated in the crimes with his father, James Oswald. The Oswald crime spree generated extensive coverage from the print and electronic media. Understandably, the pretrial publicity permeated the jury selection process, requiring the circuit court to call a large panel, to use written questionnaires for screening the panel of prospective jurors and to conduct individual voir dire.
¶ 5. After a three-week jury trial, Oswald was found guilty on all counts and sentenced.3 He then moved the court for a new trial. He argued that a new trial was warranted because of juror bias and misconduct and the ineffectiveness of his trial counsel. His postconviction motion was denied. Oswald reasserts these arguments on appeal.
¶ 6. A few weeks before trial, the court heard arguments regarding jury selection. The court determined that three alternate jurors would be impaneled, resulting in a fifteen-member jury panel selected from a twenty-nine person jury pool. Because alternate jurors would be seated, each party was granted an additional peremptory strike or seven total strikes. Oswald's motions to use juror questionnaires and to conduct individual voir dire of the jurors were both granted.
¶ 7. Voir dire took place over four days. During the course of voir dire, Oswald moved the court to strike twenty-seven jurors for cause. The court granted all but six of Oswald's requests to strike. On appeal, Oswald argues that the trial court erred by not striking three of these jurors for cause, and, because of this, he should be given a new trial. He contends that each of these jurors had exhibited bias by his or her strong and firmly held opinion that he was guilty of the charged crimes. In addition, he argues that because the court failed to dismiss these jurors for cause, he was forced to use his peremptory challenges to remove them and, as a result, was deprived of the full number of peremptory challenges.
¶ 8. We begin by noting that this case was not typical, as was highlighted by the court's willingness to adopt special jury selection procedures. This case was unique not only because of the enormous media coverage of the charged criminal activities, but also because of defense counsel's plan to turn the media coverage into a positive factor for his client. Because the media had consistently portrayed Oswald as an impressionable teenager who was victimized by his abusive and manipulating father, defense counsel desired jurors who had heard or read such media reports. Defense counsel reasoned that a juror with such knowledge would likely support the planned defense strategy—coercion. Oswald's strategy was not to contest his physical participation in the crimes but, instead, to focus on the theory that he participated in the crimes because he was coerced to do so by his father. Counsel believed that the media reports contained information that might not be admissible at trial. As an important circumstances of this case, we will bear in mind Oswald's theory of defense while reviewing the record for jury selection.
¶ 9. Oswald objects that the first juror questioned during voir dire, Jan G., should have been dismissed for cause. During preliminary questioning by the circuit court, Jan G. stated that based on pretrial publicity and his own personal morals, he had reached the opinion that Oswald was guilty. During continued questioning, Jan G. said that "it would probably be very difficult" to put aside what he had learned about the case and reach a verdict on the evidence presented in the courtroom.
¶ 10. When quizzed by the prosecutor about whether he could put aside what he had heard and read, Jan G. responded, He later agreed that he would try to decide the case solely on the evidence he heard during the trial. However, in response to questions from defense counsel, Jan G. admitted it would be very difficult for him to keep an open mind. He admitted during further questioning that he believed he should not be a juror because he felt so strongly about Oswald's guilt.4 The circuit court failed to ask any follow-up questions. Oswald's counsel moved to strike him for cause. After hearing arguments from both counsel regarding the motion to strike, the court denied the motion. It concluded that although Jan G.'s answers gave mixed messages, he clearly responded that he would be able to follow the court's instructions.
¶ 11. Next, Oswald objects that Edward T. should have been dismissed for cause. Edward T. revealed in his juror questionnaire that he had seen the video tape of Oswald's gun battle and capture on television at least ten times. The court questioned Edward T. about what he specifically remembered from the video tape. He replied, "It's obvious that [Oswald] was in the van and was taking part in the—in both the shooting. robbery, kidnapping and whatnot, so I would say that my opinion would be that he would be guilty." Nevertheless, when informed by the prosecutor that the video tape would be shown during the trial, Edward T. agreed that viewing the video tape as evidence would make it easier for him to follow the judge's instructions to consider only the evidence admitted at trial. However, when asked by defense counsel if his opinion about Oswald's guilt was based on both the video tape and the printed media reports, Edward T. replied "yes" and that he would not be able to put those opinions aside. In a follow-up question by the prosecutor, Edward T. again stated that if the evidence included the video tape he would be able to set aside his opinions.5 The circuit court did not pursue any follow-up questioning of Edward T. In denying Oswald's challenge for cause, the court stated that Edward T. was nervous and there were "inconsistent answers to questions." The court reasoned that "he was trying to answer the questions presented to him as forthrightly and as completely as possible."
¶ 12. The final juror that Oswald argues should have been stricken for cause was Marcia W. Marcia W. told the court that Oswald's taking a housewife hostage traumatized her, and, as a result, she "might not be able to be really fair." She admitted that she did consider Oswald guilty based upon a video tape of the incident that she had seen on television. Although she agreed that she would try to put what she knew out of her mind, she remarked that she was not sure if she could totally block it out. Defense counsel asked a series of questions relative to Marcia W.'s openness to the presentation of a coercion defense. In her responses, she revealed that the previous night she had received a phone call from her church's prayer chain and was told that she should not only pray for Oswald, but "for those people who would sit in judgment." She stated that she "felt a lot of pressure."
¶ 13. When further questioned about her opinion of the coercion defense, Marcia W. replied that after the phone call she was up all night and that she believed, When asked directly if she could follow the court's instructions on a coercion defense, Marcia W. replied that she would try but was not sure if she could. After being instructed on the coercion defense by the court, Marcia W. stated, "I guess I probably have a problem with that part of the law, umm, my conservative mind but I would try."6
¶ 14. Defense c...
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