State v. Shillcutt
| Citation | 350 N.W.2d 686,119 Wis.2d 788 |
| Decision Date | 29 June 1984 |
| Docket Number | No. 83-528-CR,83-528-CR |
| Court | United States State Supreme Court of Wisconsin |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James B. SHILLCUTT, Defendant-Appellant-Petitioner. |
Mark Lukoff, First Asst. State Public Defender, for defendant-appellant-petitioner.
David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.
This is a review of a decision of the court of appeals 1 affirming an order of the circuit court for Winnebago county, Honorable Robert A. Hawley, Circuit Judge, denying the defendant's motion for a new trial. Three issues are presented on this review: (1) Is a juror's statement during jury deliberations that the trial court found "could be characterized as a racial slur" competent evidence under section 906.06(2), Stats., 1981- 1982; 2 (2) does the juror's comment made in this case require reversal of the conviction as a matter of fundamental fairness; and (3) does a denial by this court of a court of appeals' request for certification have any authoritative value on the merits of the case.
We conclude: (1) The juror's statement during jury deliberations in this case is not competent evidence under section 906.06(2), Stats.1981-1982; (2) the comment made in this case does not require reversal of the conviction as a matter of fundamental fairness; and (3) denial by this court of certification has no precedential value on the merits of the case.
This case involves allegations that racial prejudice so affected the jury's guilty verdict that it must be overturned. Presumptions of criminal activity because of race have no place in our jurisprudence. Races do not commit crimes, individuals commit crimes and must be judged as individuals according to the evidence. The problem is how best to approach this ideal and at the same time preserve that great guarantor of our civil liberties and civil rights, the American jury system.
James B. Shillcutt (defendant) was convicted by a jury of soliciting prostitutes 3 and keeping a place of prostitution. 4 4 He was sentenced to two consecutive five year prison terms.
Subsequent to trial, the defense made a motion for a new trial. The motion was supported by an affidavit from one of the jurors stating that during the deliberation one of the jurors had commented: "Let's be logical, he's a black, and he sees a seventeen year old white girl--I know the type." The affidavit also stated that after this comment was made, "one of the female members of the jury agreed with the statement."
The juror's comment apparently has reference to Melody Plante, the chief witness for the prosecution, who testified at trial that she first met the defendant in 1979 when she was seventeen years old. At that first meeting, the defendant asked Ms. Plante if she wished to become an "exotic" dancer. Ms. Plante agreed and began dancing at engagements in bars arranged by the defendant. Money paid to Ms. Plante for these dancing engagements was turned over to the defendant.
Shortly after she began dancing, the defendant told her: "I want you to talk to guys in the bar and see if any of them want to go to bed." When Ms. Plante refused, the defendant "slapped [her] around a little bit." Thereafter she began "dating." She testified that during the time she was "working for the defendant," she engaged in approximately ninety to one-hundred acts of prostitution. Money paid to her was turned over to the defendant. The defendant paid rent and utility bills for the Oshkosh apartment where Melody Plante lived and provided her with food, clothing and drugs.
Ms. Plante testified to a number of instances of physical abuse by the defendant. She testified that the defendant had burned her when he, in her words, "stuck my curling iron up inside of me," that on one occasion she had to be hospitalized when she fell and hit her head on a desk after the defendant had hit her, and that the defendant once threatened her with a gun.
The testimony also showed that the defendant acted as booking agent for a number of other dancers, one of whom was black.
A hearing was held in which the trial court questioned the affiant juror about the contents of the affidavit. The juror testified that the comment was made in the presence of all the other jurors approximately fifteen to twenty minutes before the jury came back. She testified that after the quoted statement was made, a second juror responded: "A man like that isn't capable of loving anybody." This is the statement referred to in the affidavit as showing that "one of the female members of the jury agreed with the [first juror's] statement." Defense counsel conceded at oral argument that this statement does not evince racial prejudice. She also testified that she had no recollection of any other references to race made during the deliberation.
After taking the testimony of the juror and listening to the arguments of counsel, the trial court denied the motion for a new trial stating: "[A]lthough [the statement] could be categorized as a racial slur, the court does not find by clear, satisfying evidence convincing proof that this information would be prejudicial to a hypothetical jury..."
The defendant appealed to the court of appeals which certified the case to this court under section (Rule) 809.61, Stats.1981-1982. The request for certification was denied. The court of appeals then affirmed the trial court's denial of the motion for a new trial basing its decision in part on the fact that this court had earlier denied certification. This court accepted defendant's petition for review.
In two prior cases involving impeachment of jury verdicts by testimony from jurors, this court has prescribed a three step procedure for determining when a verdict should be overturned. The first two steps involve evidentiary questions: (1) Is the proffered evidence competent under section 906.06(2), Stats.1981-1982; and (2) does the evidence show error, that is, substantial grounds sufficient to overturn the verdict. (3) The third question is whether the party seeking to impeach the verdict was prejudiced requiring that the verdict be upset. State v. Poh, 116 Wis.2d 510, 515-516, 343 N.W.2d 108 (1984); After Hour Welding v. Laneil Management Co., 108 Wis.2d 734, 738, 324 N.W.2d 686 (1982). Because we conclude that the proffered evidence is not competent under section 906.06(2), we do not reach the second and third steps of the analysis under the statute of whether there was error or the defendant was prejudiced.
When the affidavit of a juror as to the misconduct of himself or other members of the jury is used as the basis of a motion for a new trial, "the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what happened in the jury room." McDonald v. Pless, 238 U.S. 264, 265, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915). Section 906.06(2), Stats., seeks to reach an accommodation between these sometimes competing policies. The statute lays down as a general rule that "a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith." This general rule of juror secrecy fosters a number of valued public policies including: (1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; and (5) maintaining the viability of the jury as a judicial decision-making body. Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3rd Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976).
Important as the policies underlying jury secrecy are, there are situations where these interests must give way to the competing interest in ensuring a fair trial and a just resolution of the issues in the individual case. The statute accommodates the two opposing policies by making an exception to the general rule of incompetence for juror testimony "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." The question in this case is whether the statement made by one of the jurors during jury deliberations falls under the rule or the exception. The two matters as to which a juror is competent to testify under the statute are "extraneous prejudicial information" and "outside influence." In order for the juror's remark in this case to be competent it must fall under one of those two categories.
The meaning of the word "extraneous" as defined in Webster's Third New International Dictionary is "existing or originating outside or beyond: external in origin: coming from the outside." The dictionary defines "information" as "knowledge communicated by others or obtained from investigation, study, or instruction" or "knowledge of a particular event or situation." Thus, "extraneous prejudicial information" is knowledge coming from the outside which is prejudicial. The juror in this case stated: "Let's be logical, he's a black, and he sees a seventeen year old white girl--I know the type." The juror did not explain what "type" he had in mind. Whatever factual content the other jurors gave to this statement had to be supplied from their own catalogue of "types" rather than from the statement itself. The juror's statement here does not fall under the category of extraneous prejudicial information. 5
Likewise this statement does not fall under the category of "outside influence."...
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