State v. Smith, 83-147-CR

Citation117 Wis.2d 399,344 N.W.2d 711
Decision Date27 December 1983
Docket NumberNo. 83-147-CR,83-147-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Bonnie L. SMITH, Defendant-Appellant. *
CourtCourt of Appeals of Wisconsin

Ralph A. Kalal and Kalal & Habermehl, Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., Michael L. Zaleski, and Steven D. Ebert, Asst. Attys. Gen., for plaintiff-respondent.

Before GARTZKE, P.J., DYKMAN, J. and GORDON MYSE, Reserve Judge.

DYKMAN, Judge.

Bonnie Smith appeals from a judgment of conviction and orders denying post-conviction motions following a trial for first-degree murder and armed robbery. 1 She alleges the trial court erred by refusing to allow in-chambers voir dire of prospective jurors, by granting the state's motion to consolidate her case with her codefendant's, and by admitting certain portions of her codefendant's statement which implicated her. She also claims the bifurcated trial procedure shifted the burden of proof on the element of intent to her in violation of the due process clause of the fourteenth amendment to the United States Constitution. 2 We affirm.

Leona Milfred, aged 76, was stabbed to death in her rural Richland County grocery store shortly after 4:00 p.m. on February 10, 1982. Bonnie Smith and her codefendant, James Willison, had been seen in the area that afternoon, and a car matching the description of defendant's was observed parked in front of the Germantown store between 4:00 and 4:15 p.m. Evening news reports of the crime included descriptions of the pair and their car and indicated an apparent robbery. On February 11, 1982, employees of the North Freedom branch of the Reedsburg Bank became suspicious when a man and a woman matching news When police stopped Willison later that day, he acknowledged being in Germantown the day before and gave the officers a note written by defendant which implicated them in the crime. He was arrested and questioned. He admitted being at Mrs. Milfred's store with defendant the previous day and reported seeing blood on defendant's clothing when she left the store. Later, he stated he entered the store and saw defendant on top of Mrs. Milfred striking her with a knife. An autopsy revealed Mrs. Milfred died from loss of blood caused by many knife wounds to the head and upper body.

descriptions of the murder suspects appeared at the bank with a jar of coins to exchange. An employee took down the license plate number of their car and reported it to police.

Based on information given them by Willison, the police arrested defendant and charged her with first-degree murder and armed robbery. After her arrest, defendant stated to the police she had entered Mrs. Milfred's store to buy paper for her son, gotten into an argument with Mrs. Milfred, began striking her out of anger and then killed her to stop her from making noise and to keep her from calling police. She did not admit to robbing Mrs. Milfred.

Mrs. Milfred's murder and the subsequent arrest of defendant and Willison were reported in the news media throughout the state. Many reports featured earlier statements by Mrs. Milfred about previous robberies and her fear for her safety. In May 1982, defendant moved for a change of venue because of the extensive publicity. The trial court granted a change of venue to adjacent Iowa County.

On August 9, 1982, jury selection procedures began and defendant requested each prospective juror be questioned in chambers about his or her knowledge of the crime and the effects of pretrial publicity. Her request was denied. After a day-long voir dire during which seventy prospective jurors were questioned in the courtroom, defendant again moved for a change of venue on the grounds that an impartial jury could not be selected and that the voir dire questioning was insufficient to reveal prejudice resulting from pretrial publicity. The trial court denied this motion and a jury was sworn.

Neither defendant nor Willison testified at trial. During the first or guilt portion of the trial, however, both of their statements to police were admitted as evidence, and the officers taking the statements testified regarding their contents. Defendant objected to the admission of portions of Willison's statement implicating her in a robbery scheme. The objection was overruled but the court instructed the jury that each codefendant's admission was to be considered only in regard to the person making it. The jury was instructed on the elements of first-degree murder and armed robbery and, in relation to Willison, with being a party to those crimes. Both were convicted of the crimes charged.

Following her conviction, the issue of defendant's mental responsibility was tried in accordance with sec. 971.175, Stats. 3 The jury found her guilty a second time, rejecting a plea of not guilty by reason of mental disease or defect. Defendant moved for a new trial on the grounds that the trial court erred in not granting her motions for sequestered voir dire, in granting the state's motion to consolidate her case with Willison's, in admitting Willison's full statement which implicated her in a robbery scheme, and in requiring her to prove her lack of mental responsibility in

the second portion of the trial. The trial court denied the motions.

IN CHAMBERS VOIR DIRE

Defendant asserts she was unable to exercise her peremptory challenges intelligently because the trial court refused to permit private, individual examination of prospective jurors to detect hidden prejudices resulting from pretrial publicity. She urges us to follow United States v. Blanton, 700 F.2d 298 (6th Cir.1983), and decide that failure to permit sequestered voir dire was an abuse of discretion.

An appellate court independently evaluates the voir dire procedure followed by a trial court to determine whether discretion was abused. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961). Neither federal nor state law in Wisconsin require sequestered voir dire. See United States v. Dellinger, 472 F.2d 340, 376-77 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973) (individual questioning not the only method of conducting voir dire examination probing impact of pretrial publicity); State v. Herrington, 41 Wis.2d 757, 765-66, 165 N.W.2d 120, 123-24 (1969) (sequestered voir dire not necessary to protect defendant's right to impartial jury). Instead, in State v. Dean, 67 Wis.2d 513, 528, 227 N.W.2d 712, 719 (1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976), the Wisconsin Supreme Court identified four factors indicative of satisfactory voir dire procedures: (1) whether the trial court conducted a thorough initial questioning; (2) whether the jurors showed reluctance in candidly stating their biases in front of others; (3) whether restrictions were placed on defense counsel's questioning of the panel; and (4) whether adverse publicity reached the jury during trial. We conclude the Dean standards were met here.

The trial court gave extensive background statements acknowledging the substantial pretrial publicity, stating he presumed everyone had heard of the case, stating the presumption of defendant's innocence, and stressing the importance of providing her with an impartial jury. The court questioned individually all prospective jurors who indicated they had formed opinions on defendant's guilt. Topics covered in the court's voir dire questioning included whether anyone knew the victim, defendant, her codefendant, any of the forty-eight potential witnesses, law enforcement officials or members of their families, or counsel; whether the jurors believed the defendant might be guilty because she was arrested; whether the jurors believed in the concept of presumption of innocence; and whether anyone had formed an opinion based on pretrial publicity. 4

Eleven prospective jurors stated they had formed opinions about defendant's guilt. Those eleven were subject to individual questioning by prosecution and defense counsel as well as by the court. 5 That eleven were willing to expose themselves to repeated questioning in the presence of the panel reflected little reluctance to speak candidly.

Defendant's questioning of prospective jurors was limited only by requirements that it be before the panel and that no questions as to the source and nature of the publicity received be asked. The ultimate question--whether the juror could disregard the publicity, Irvin, 366 U.S. at 723, 81 S.Ct. at 1642-1643--was asked by the court. Defendant was allowed to challenge a juror's answer, subject only to the risk of offending the prospective juror. The jury was sequestered during the trial. The voir dire procedure followed meets Wisconsin standards for impanelling an impartial jury.

United States v. Blanton, supra, does not govern this case. Blanton involved the trial of a former Tennessee governor who was prosecuted for selling state liquor licenses while in office. Not only are Wisconsin and federal law well developed on voir dire procedures, but the facts of Blanton are substantially different. The Blanton case was one of several which dealt with the ex-governor's misconduct and which received local, regional and national publicity over a prolonged period of time. Under those facts, it may have been appropriate to conduct a sequestered voir dire. It was not necessary here.

CONFRONTATION

Defendant alleges the trial court violated her right, under the sixth amendment to the United States Constitution, to confront a witness testifying against her. Willison gave law enforcement officers a lengthy statement confessing his own participation in the robbery plans and implicating defendant in both the robbery and the murder. Defendant confessed to having killed Leona Milfred but refused to answer questions about a robbery attempt. Since neither Willison nor defendant...

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