State v. Traylor

• Decision Date: 15 July 1992
• Docket Number: No. 91-2702-CR,91-2702-CR
• Citation: 489 N.W.2d 626,170 Wis.2d 393
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Freddie B. TRAYLOR, Defendent-Appellant. d
• Court: Wisconsin Court of Appeals

Page 626

489 N.W.2d 626

170 Wis.2d 393

STATE of Wisconsin, Plaintiff-Respondent, v. Freddie B. TRAYLOR, Defendent-Appellant. ^d

No. 91-2702-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 22, 1992.

Opinion Released July 15, 1992.

Opinion Filed July 15, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on brief of James E. Doyle, Atty. Gen., and William C. Wolford, Asst. Atty. Gen.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

Freddie B. Traylor appeals his conviction of first-degree sexual assault for allowing a six-year-old girl to have oral contact with his penis. He argues that his counsel was ineffective at voir dire for failing to ask follow-up questions of jurors who admitted possible bias and for using peremptory challenges rather than moving the court to strike these jurors for cause. He also argues that counsel failed to object to the introduction of other wrongs evidence in the form of reports of his minor infractions of jail rules. Finally, he argues that counsel's failure to object to the state's insertion of the word "allowed" in the jury instructions on sexual contact resulted in changing the intent element of the crime. He claims that this permitted the jury to reach a guilty verdict if it found that he passively allowed the sexual contact rather than requiring it to find that he affirmatively caused the contact.

Traylor made no showing that the final jury panel was biased or forced upon him. Therefore, he has not demonstrated prejudice by counsel's actions during jury selection. We also conclude that he was not prejudiced by the state's introduction of other wrongs evidence because the jail infractions were so trivial that it is unlikely they influenced the jury. Finally, we conclude, as a matter of law, that an adult who permits a child's sexual contact shows the requisite purpose of sexual arousal or gratification and thereby fulfills the intent element of the crime. For these reasons we affirm the judgment of conviction.

In January 1990, Traylor (age 20) spent the night at the home of his cousin, Dorothy M. In the house were Dorothy's daughters, Precious (age 15) and Christina (age 10), and Dorothy's son, Hilton (age 5). Dorothy was also babysitting three other children--two girls, Twanika (age 10) and Javasha (age 6), and a boy, Keith (age 2). While Dorothy was studying in her bedroom, the children and Traylor were in another bedroom where Javasha put her mouth on Hilton's and Keith's penises and then on Traylor's penis. Other facts relating to the charge will be stated as necessary.

The ultimate question in ineffective assistance of counsel claims is one of law, which this court reviews de novo without deference to the trial court's conclusion at the Machner hearing. See State v. Johnson, 133 Wis.2d 207, 216, 395 N.W.2d 176, 181 (1986); State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908-09 (Ct.App.1979).

The test of ineffective assistance of counsel on each of the three issues Traylor raises is the familiar two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Traylor must show both deficient performance of counsel and prejudice to his defense resulting from the deficient performance. See State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985). A showing of deficient performance is not enough to obtain a reversal because, to rise to the level of a constitutional violation, the deficient performance must undermine our confidence in the fairness of the trial and the reliability of the result. See id. at 642, 369 N.W.2d at 718.

However, the defendant is not required to show prejudice beyond a reasonable doubt or even by a preponderance of the evidence. Id. If the defendant can show there is a reasonable probability that the proceeding would have been different but for counsel's errors, the conviction will be reversed because such a reasonable probability is sufficient to undermine our confidence in the reliability of the proceedings. Id. at 642, 369 N.W.2d at 719.

We initially discuss the juror selection issue. Defense counsel asked members of the panel whether they had discussed criminal cases with any relatives or friends who are police officers. A potential juror named Schoenecker answered that she had had such discussions and thus did not think she could be impartial or fair to a defendant because she considered a defendant guilty "right away." The trial court intervened, telling her that jurors would be instructed to follow the law regardless of their beliefs and to presume the defendant innocent unless the state proved guilt beyond a reasonable doubt. The court asked her if she would be able to follow those instructions. She answered that she "would try."

Defense counsel then asked the panel if anyone felt that a person who was arrested had probably done something wrong. A Ms. Swoboda raised her hand. Defense counsel asked her two follow-up questions. The court did not intervene to question this juror.

Next, counsel addressed the defendant's right to remain silent and asked how many jurors thought the defendant should take the stand to give his version of what occurred. A Mr. Perkins said, "If he's trying to prove that he's not guilty of anything I think it would be in his benefit to try to help himself." Counsel asked him whether he would keep the defendant's failure to testify in his mind during jury deliberations. Perkins answered that it would depend on the rest of the evidence he heard.

Similarly, a Mr. Battisti said that if there is a lot of evidence against the defendant, he should tell his version. And a Mr. Held said, "I'm thinking myself if I were ever charged with something like this and I felt I was charged falsely I'd want to scream and holler at the top of my lungs to anyone that would hear me that I wasn't guilty." Schoenecker also indicated a problem on this score, saying she would feel that the defendant was probably hiding something if he did not want to speak out. Defense counsel asked no follow-up question of Battisti or Held and did not ask Schoenecker whether she could set aside her desire to hear from the defendant if the court instructed her to do so. Counsel used peremptory challenges to strike all the jurors except Perkins.

Traylor argues that his counsel was ineffective for failing to ask follow-up questions of the jurors who admitted bias and for failing to move the court to strike these jurors for cause. The implicit argument Traylor seems to be making is that he would have had an entirely different jury panel if counsel had moved to strike these five jurors for cause because counsel could then have used his four peremptory challenges on other jurors.

We agree that trial counsel's performance relating to Schoenecker was deficient. We make this determination based upon State v. Zurfluh, 134 Wis.2d 436, 397 N.W.2d 154 (Ct.App.1986). In that case, a prospective juror said she "might not be able to be fair." Even after the trial court explained the duties of a juror, that person was asked whether she would have a problem making a fair and impartial determination of the evidence. The prospective juror answered: "I don't know.... I'm afraid I might." Counsel in that case moved to strike for cause. The motion was denied. The court of appeals held that the trial court exceeded its discretion and reversed. Id. at 439, 397 N.W.2d at 155.

We hold that Schoenecker's answers were similar to those of the juror in Zurfluh. Counsel was ineffective for failing to move to strike for cause. We make the same decision regarding the other jurors. In each case, there was a failure to conclusively determine whether the juror would follow the law as instructed by the trial court instead of following his or her own concept of justice. Counsel should have asked the appropriate follow-up questions to assess whether the juror would follow the instructions of the court and, if counsel failed to receive a satisfactory answer, should have moved to reject the juror for cause.

Nonetheless, in Zurfluh, no contention was made that the trial court's mistake was harmless error. Id. Here, the state argues that even if counsel was ineffective, this performance did not prejudice the defendant. The addition of this issue sets this case apart from the result in Zurfluh. The reason for this is that, under old and never overruled Wisconsin law, Traylor cannot prove prejudice unless he can show that the exhaustion of peremptory challenges left him with a jury that included an objectionable or incompetent member. Pool v. Milwaukee Mechanics' Ins. Co., 94 Wis. 447, 453, 69 N.W. 65, 67 (1896). Wisconsin's longstanding rule is that where a fair and impartial jury is impaneled, there is no basis for concluding that a defendant was wrongly required to use peremptory challenges. See Carthaus v. State, 78 Wis. 560, 568, 47 N.W. 629, 631 (1891).

There is no constitutional right to peremptory challenges; there is only a constitutional right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 85, 88, 108 S.Ct. 2273, 2276, 2278, 101 L.Ed.2d 80 (1988). Any claim that a jury is not impartial must focus not on the jurors who were removed by peremptory challenges but on the jury that actually sat in the case. See id. at 85-86, 108 S.Ct. at 2276-77. Where there is no showing that any of the actual jurors were biased, it would be speculative for a court to conclude that the jury would have been fairer if counsel had been allowed to preserve peremptory challenges on other, unspecified members of the jury venire. Moreover, there would be no stopping point if the deprivation of such speculative...