State v. Tobatto, 2015AP254–CR.
| Decision Date | 08 March 2016 |
| Docket Number | No. 2015AP254–CR.,2015AP254–CR. |
| Citation | 2016 WI App 28,368 Wis.2d 300,878 N.W.2d 701 |
| Parties | STATE of Wisconsin, Plaintiff–Appellant, v. Todd Brian TOBATTO, Defendant–Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Brad D. Schimel, attorney general, and Daniel J. O'Brien, assistant attorney general.
On behalf of the defendant-respondent, the cause was submitted on the brief of Leon W. Todd, assistant state public defender of Milwaukee.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.
¶ 1 The State of Wisconsin appeals an order of the postconviction court granting a new trial to Todd Brian Tobatto. The postconviction court found that Tobatto's trial counsel rendered ineffective assistance with respect to jury selection. Specifically, the postconviction court determined that counsel's failure to remove a particular juror, Juror Number Ten (Juror 10), prejudiced Tobatto's trial. We conclude that Juror 10 was not shown to be biased and therefore trial counsel was not ineffective. Therefore, Tobatto is not entitled to a new trial. We reverse.
¶ 2 Tobatto was convicted, following a jury trial, of one count of stalking with a previous conviction within seven years, and one count of violating a restraining order or injunction.1 At trial, thirty prospective jurors were examined.
¶ 3 During voir dire, the trial court read the charges against Tobatto to the jury and asked "is there anyone here unwilling to give the defendant the benefit of his presumption of innocence?" No potential juror raised his or her hand.
¶ 4 After all of the individual potential jurors introduced themselves, the State asked a series of questions to gauge the jurors' willingness to follow the trial court's instructions. Each of the thirty potential jurors, including Juror 10, indicated a willingness to follow the court's instructions:
Now, does everyone here, generally-speaking, promise to follow the court's instructions? It appears every single hand has been raised. Now, the court's instructions include instructions about the trial procedure, and they also include instructions about the law of the State of Wisconsin. Let's say when it comes to the law you hear something that you personally disagree with, is everyone in this room, nevertheless, willing to follow the court's instructions? It appears everyone raised their hands. So with these offenses specifically, stalking, for example, I'm sure every person in this room can envision a certain course of conduct when the word stalking is mentioned. But, nevertheless, what you envision might be different than the substantive law in the [S]tate of Wisconsin. So for the stalking component of this case, does everyone promise to follow the court's instructions about the law of stalking? It appears everyone's raised their hands.
¶ 5 The State then asked whether any of the potential jurors "have been through a bad breakup before?" Approximately sixty percent of the jurors raised their hands. The State then asked: "Now, has anyone here post-breakup been harassed by an ex-spouse or significant other?" The State defined "harassed" as "[b]othered, intimidated, annoyed, you name it." Nine potential jurors raised their hands—Jurors eight, nine, ten, eleven, eighteen, twenty-one, twenty-four, twenty-seven, and twenty-eight. As relevant to this appeal, the following exchange took place with Juror 10:
¶ 6 Trial counsel did not question Juror 10 further. Counsel did not move to strike Juror 10 for cause, nor did counsel exercise a peremptory strike against Juror 10. Ultimately, Juror 10 was impaneled and served on the jury, which found Tobatto guilty.
¶ 7 Tobatto filed a postconviction motion alleging multiple instances of trial counsel ineffectiveness and trial court error as to jury selection. The core of Tobatto's motion was that trial counsel failed to thoroughly question Juror 10 as to her ability to be impartial, failed to move to strike Juror 10 for cause, and failed to exercise a peremptory strike against Juror 10. Tobatto also argued that the trial court failed to strike Juror 10 for cause, and failed to strike another juror, Juror Number Twenty-one (Juror 21), for cause, thus forcing trial counsel to exercise one of his strikes against Juror 21. Counsel's use of a peremptory strike against Juror 21, Tobatto argued, left him unable to use a peremptory strike against Juror 10. According to Tobatto, the impaneling of Juror 10 prejudiced his trial.
¶ 8 The postconviction court, which was assigned the case due to judicial rotation and did not preside over the trial and sentencing, held a Machnerhearing.2 Trial counsel testified at the hearing, explaining his thought process during the voir dire. Specifically, counsel explained why he thought Juror 10 would be "a good juror for our case." Counsel testified that Juror 10, despite having a "prior situation involving harassment," "seemed logical and not ... not emotional about the issues when she answered, rather straightforward and confident." Counsel testified that he remembered Juror 10 well, even remembering where she sat, and that Juror 10 " stood out to me as paying close attention to what I was saying." Counsel was not concerned about Juror 10's relationship history, stating, "from her demeanor, it didn't seem like she was upset by it, and I believe she said that she would follow up, be fair and impartial the best she could." Counsel testified that he did not ask Juror 10 follow-up questions because her answers to previous questions indicated that she would try her best to be impartial.
¶ 9 Trial counsel also explained that he observes a juror's demeanor, body language and confidence prior to making a determination as to who to strike. Counsel testified that he exercised his strikes against jurors who either had experiences similar to the conduct Tobatto was charged with, were "more emotional," did not exude confidence, or indicated difficulty with being impartial.
¶ 10 The postconviction court, in an oral decision, granted Tobatto's motion for a new trial. The postconviction court declined to make a ruling based on trial court error, instead concluding that Juror 10 exhibited a subjective bias and trial counsel was ineffective for failing to remove her. Relying on State v. Carter, 2002 WI App 55, 250 Wis.2d 851, 641 N.W.2d 517, the postconviction court found that trial counsel was ineffective for failing to ask Juror 10 follow-up questions, failing to move to strike Juror 10 for cause, and failing to exercise a peremptory strike against Juror 10. The court stated:
¶ 11 This appeal follows.
¶ 12 A defendant claiming ineffective assistance of counsel must prove both that his or her lawyer's representation was deficient and, as a result, that he or she suffered prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Johnson, 133 Wis.2d 207, 216–17, 395 N.W.2d 176 (1986). To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. We "strongly presume[ ]" counsel has rendered adequate assistance. See id. To show prejudice, a defendant must demonstrate that the result of the proceeding was unreliable. Id. at 687, 104 S.Ct. 2052. If a defendant fails on either aspect—deficient performance or prejudice—the ineffective-assistance-of-counsel claim fails. Id. at 697, 104 S.Ct. 2052.
¶ 13 Whether a lawyer gives a defendant ineffective assistance of counsel is a mixed question of law and fact. Johnson, 133 Wis.2d at 216, 395 N.W.2d 176. Generally, the postconviction court's findings of fact will be upheld unless they are clearly erroneous. See State v. Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711 (1985). Whether proof satisfies either the...
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