State v. Oswald

Decision Date08 December 1999
Docket Number No. 97-1219-CR, No. 97-1899-CR.
Citation2000 WI App 3,232 Wis.2d 103,606 N.W.2d 238
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. James H. OSWALD, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of James L. Fullin of Fullin Law Office of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general.

Before Brown, P.J., Nettesheim and Anderson, JJ.

¶ 1. BROWN, P.J.

James H. Oswald was convicted of twenty felony counts on May 30, 1995, after a jury trial. The charges stemmed from a bank robbery, an escape in a stolen car, a shootout with police officers and the resulting death of Captain James Lutz of the City of Waukesha Police Department. The gunfire exchange with the police was captured on videotape by a television reporter and widely broadcast. Oswald raises several arguments on appeal, the most noteworthy being that several jurors should have been struck for cause. In light of the Wisconsin Supreme Court's recent clarification of Wisconsin law on juror bias, we address this issue at length. Ultimately, we conclude that the trial court did not err by refusing to strike the jurors Oswald claims were biased. We additionally reject Oswald's other arguments and affirm.2

¶ 2. We begin with a brief recitation of the facts, which we will supplement later as needed. Oswald, along with his son Theodore, robbed a bank in Wales, Wisconsin, on the morning of April 28, 1994.3 They fled and traveled toward Waukesha. Two Waukesha police officers stopped the Oswald vehicle, at which point the Oswalds, armed with semi-automatic rifles, got out of the vehicle and shot at the officers, killing one. A chase ensued, during which the Oswalds forced their way into a private residence, took a woman who was inside hostage and forced her to drive them away in her vehicle. The chase ended in a shootout between the Oswalds and numerous police officers, in which two officers and the hostage sustained gunshot wounds. By the time of the shootout, local media had gotten wind of the incident and the shootout was filmed live and rebroadcast extensively.

¶ 3. Oswald was charged with a variety of felonies and convicted by a jury of twenty felony counts. On appeal he raises several claims, grouped into the following categories: juror bias, right to self-representation, right to representation by retained counsel of his choice, evidentiary issues and responsibility plea. We address them in that order, adding facts where relevant.

1. Juror Bias

¶ 4. On July 8, 1999, the Wisconsin Supreme Court released four opinions discussing juror bias. See State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999); State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999); State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999),cert. denied, 120 S.Ct. 987 (2000); State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (1999). In those cases, the court clarified the previously turbid state of juror bias jurisprudence in Wisconsin, adopting the terms "statutory," "subjective" and "objective" bias to replace the misused "implied," "actual" and "inferred" bias terminology. See Faucher, 227 Wis. 2d at 705-06,596 N.W.2d at 773. A person is statutorily biased if he or she "is related by blood or marriage to any party or to any attorney appearing in the case" or "has any financial interest in the case." Section 805.08(1), STATS. Subjective bias refers to the prospective juror's state of mind. See Faucher, 227 Wis. 2d at 717,596 N.W.2d at 778. Finally, a prospective juror is objectively biased if his or her relationship to the case is such that no reasonable person in the prospective juror's position could possibly be impartial, despite the desire to set aside any bias. See id. at 718, 596 N.W.2d at 778-79. We discuss these four cases with respect to our standard of review, subjective bias and objective bias.

a. Standard of Review

[1, 2]

¶ 5. In reviewing a trial court's determination of subjective and objective bias, we give two different levels of deference to the trial court's conclusions.4 First, the trial court's determination of subjective bias will be upheld unless clearly erroneous. See Kiernan, 227 Wis. 2d at 745,596 N.W.2d at 764. We employ the clearly erroneous standard because the trial court is in the unique position to assess the prospective juror's demeanor and tone. See id. We will not second-guess these observations when all we see is a cold record. Second, the trial court's determination of objective bias will be reversed only if, as a matter of law, a reasonable judge could not have reached the same conclusion. See id.; Faucher, 227 Wis. 2d at 721,596 N.W.2d at 780. This is a higher standard of review than the clearly erroneous standard but still very deferential to the trial court's conclusions. See Faucher, 227 Wis. 2d at 720,596 N.W.2d at 779. We employ this intermediate standard because the trial court's conclusion on the question of law of whether the facts add up to objective bias is so intertwined with the factual findings supporting that conclusion. See id. Thus, our review of a trial court's determination of both subjective and objective bias is deferential, though less so for objective bias than subjective. Compare id. at 718, 596 N.W.2d at 778, with id. at 718-21, 596 N.W.2d at 778-80.

b. Subjective Bias

¶ 6. Faucher, Kiernan, Mendoza and Erickson nail down the proposition that "questions as to a prospective juror's sincere willingness to set aside bias should be largely left to the circuit court's discretion." State v. Ferron, 219 Wis. 2d 481, 501, 579 N.W.2d 654, 662 (1998). In Ferron, a prospective juror "continued to express his belief that criminal defendants who elect not to testify on their own behalf are guilty." Id. at 500, 579 N.W.2d at 662. The record reflected that this juror refused to recognize a fundamental constitutional right despite the trial court's repeated instructions. After much dialogue with the trial court, the best the juror could muster was that he "probably" could set aside his bias. See id. at 501, 579 N.W.2d at 662. The result of that case may have inadvertently encouraged the criminal defense bar to base claims of bias on particular words. However, the Ferron court made it clear that "[t]here are no magical words that need be spoken by the prospective juror, and the juror need not affirmatively state that he or she can `definitely' set the bias aside." Id. The recent juror bias cases confirm this holding. Now, it is clear that "a prospective juror need not respond to voir dire questions with unequivocal declarations of impartiality." Erickson, 227 Wis. 2d at 776,596 N.W.2d at 759; see also Faucher, 227 Wis. 2d at 731 n.8,596 N.W.2d at 784 ("[A] prospective juror need not unambiguously state his or her ability to set aside a bias."). It is not just the juror's words that are important. The manner in which the juror says the words and the body language he or she exhibits while answering speak volumes—volumes that are not transmitted to a reviewing court via the cold record. Our inability to review demeanor and thus assess sincerity is precisely why we leave the determination of subjective bias to the circuit court. See Erickson, 227 Wis. 2d at 776,596 N.W.2d at 759 (noting appellate court's inability to assess whether the juror's "I think so" was stated with earnestness or timidity). Thus, when reviewing a circuit court's decision on subjective bias, we do not focus on particular, isolated words the juror used. Rather, we look at the record as a whole, using a very deferential lens, to determine if it supports the circuit court's conclusion.

¶ 7. We understand that there are those who will read this opinion and say, "But in Ferron, the supreme court did not pay deference to the trial court. If Ferron is to have any continuing vitality at all, then it must stand for the proposition that when a juror expresses a strongly held bias and then makes an equivocal commitment to set that bias aside, the trial court's finding of impartiality deserves a low level of deference or no deference at all and the reviewing court must find subjective bias as a matter of law." We disagree with that interpretation. Ferron was a special case with unique facts. It was those unique facts—a juror who expressed an intractable bias against a defendant's constitutional right to a presumption of innocence in the face of the defendant's possible election not to testify on his own behalf—which led the supreme court to reach the result it did. Ferron does not demand that prospective jurors give unequivocal assertions of impartiality on voir dire.

c. Objective Bias

¶ 8. Study of Faucher, Kiernan, Erickson and Mendoza reveals that exclusion of a juror for objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case to be tried or the juror's intractable negative attitude toward the justice system in general.

¶ 9. One situation when a juror must be dismissed for cause because of objective bias is when the juror has a direct connection to crucial evidence to be presented at trial. For example, in Faucher, the juror was acquainted with the State's key witness and told the trial court that he believed her to be a "person of integrity . . . [who] wouldn't lie." See Faucher, 227 Wis. 2d at 708, 596 N.W.2d at 774. The case boiled down to a credibility contest between a sole eyewitness—the woman with whom the juror was acquainted—and the defendant. See id. at 707, 596 N.W.2d at 773. Together, the juror's firmly held belief that the witness, with whom he was personally acquainted, was incapable of lying and the fact that her testimony was the cornerstone of the State's case established the juror's...

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