State v. White

• Decision Date: 03 June 1975
• Docket Number: No. S,S
• Citation: 229 N.W.2d 676,68 Wis.2d 628
• Parties: STATE of Wisconsin, Respondent, v. Odell WHITE, Appellant. tate 7.
• Court: Wisconsin Supreme Court

Page 676

229 N.W.2d 676

68 Wis.2d 628

STATE of Wisconsin, Respondent, v. Odell WHITE, Appellant.

No. State 7.

Supreme Court of Wisconsin.

June 3, 1975.

On June 29, 1970, the defendant, Odell White, was charged in a criminal complaint with the crime of murder in the first degree, contrary to sec. 940.01, Stats. Defendant entered a plea of not guilty. On November 9, 1970, jury trial was commenced, resulting in a jury verdict of guilty on the charge of first-degree murder. On November 12, 1970, judgment of conviction was entered and the defendant was sentenced to life imprisonment.

The killing involved in the charge took place at the intersection of Packers and Commercial Avenues in the city of Madison on June 27, 1970. On that date the defendant, a Ferris Jewell, and a female friend left Milwaukee about noon and drove to Madison in Jewell's 1968 Lincoln. During their afternoon in Madison they visited friends and did some shopping. A little after 6:00 p.m., the defendant and Jewell left the downtown shopping area to return to the apartment of a friend. As they were traveling east toward the intersection they became engaged in an exchange of insults with the decedent, Robert Borchardt, who was driving home from a wedding reception in his green Pontiac. The exchange escalated into traffic horseplay with the two drivers making passes at the other car and causing sudden stops.

When the two cars stopped next to each other for a traffic light, the defendant took a loaded .32 caliber semi-automatic pistol from the glove compartment, got out of the Lincoln and walked over to the driver's side of the Pontiac. An argument ensued, culminating in the semi-automatic pistol being discharged, killing Robert Borchardt. Defendant got back into the Jewell car and he and Jewell returned to the friend's apartment where the defendant was arrested about an hour later.

Three eyewitnesses to the killing testified on behalf of the state. The first, a nurse's aide, was a passenger in a car traveling in the same direction as the Lincoln and Pontiac and stopped about three or four car lengths behind the Lincoln at the time of the fatal incident. She testified that she observed the defendant walk over to the Pontiac and, with his left arm, wrestle with decedent's left arm. She then heard the gun go off and saw a flash of silver that looked like a gun in defendant's right hand. The second eyewitness, a state employee, was driving his car in the opposite direction, coming to a stop approximately 45 feet from the Lincoln at the intersection. He heard the defendant arguing with or yelling at the decedent, saw the defendant waive or poke the gun around decedent's head and saw defendant fire the weapon. The third eyewitness, an off-duty policeman, also driving in the opposite direction, had stopped for the stoplight about 70 feet from the two automobiles. He testified that the defendant '. . . had a shiny gun in his hand, and he was standing right up next to the driver's door of the Pontiac, poking the gun in at the driver of the Pontiac and shouting something at the occupant of the Pontiac.' He testified that the defendant was holding the gun in his right hand at chest level, pointing it at the head of the decedent, and poking it at him three or four times.

Testifying under immunity, Ferris Jewell, who was in the Lincoln car with the defendant, testified that their attention was drawn to the Pontiac when it pulled up close behind them and the decedent blew the horn. He described comments and gestures exchanged, and told of the Pontiac stopping suddenly in front of the Lincoln, requiring the Lincoln to stop suddenly. Jewell testified that when the two cars stopped for the traffic light defendant took the pistol from the glove compartment and that, after the shooting, defendant stated that he did not know the gun was loaded. Jewell testified that the gun was his and that it 'fired fast,' stating that before he got used to it the pistol would discharge two or three times when he intended a single shot.

Defendant took the stand in his own behalf, testifying that the decedent initiated the horseplay. As to what happened when both cars stopped for the traffic light, defendant testified that he told Jewell, 'Well, I am going to get out and talk to this guy and see what's wrong.' He stated Jewell opened the glove compartment and handed him the gun, saying, 'Take this with you.' He testified that the decedent grabbed his left arm, and that '. . . I brought up my fist to hit him. I didn't realize I had the revolver in my hand.' He testified that '. . . the revolver in my hand went up and hit the top of the window there and discharged.' He testified that he did not put his hand on the trigger nor pull the trigger, claiming that the gun discharged accidentally when it hit the top of the car window.

Additionally, for the state, a crime laboratory firearms identification specialist testified that he was unable to discharge the pistol involved without pulling the trigger. He testified that the magazine safety device on the pistol was not functioning, and that the weapon had a 'light trigger pull.' He testified that this meant that, cocked and empty, the pistol involved required a backward pull of approximately two and one-half pounds on the trigger in order to cause the hammer to come forward to discharge a cartridge in the chamber of the gun, whereas a firearm of that particular type ordinarily requires four to six pounds of pull.

The jury was instructed as to first-degree murder, second-degree murder and homicide by reckless conduct. The jury returned a verdict finding defendant guilty of murder in the first degree. Following judgment of conviction and imposition of sentence, defendant moved for a new trial on the three grounds raised on this appeal. The motion was denied and defendant appeals.

Howard B. Eisenberg, State Public Defender, Alvin E. Whitaker, Asst. State Public Defender, Madison, for appellant.

Bronson C. La Follette, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

The three issues raised on this appeal relate to: (1) Change of venue; (2) sufficiency of the evidence; and (3) permitting the weapon to be taken into the jury room. Each is discussed separately.

CHANGE OF VENUE.

Defendant claims trial court error in the denial of his motion for change of venue or a continuance because of pretrial publicity.

Prior to the impaneling of the jury, defense counsel inquired as to the procedure to be followed by the trial court on voir dire examination as to pretrial publicity. The trial court responded that prospective jurors would be asked if they had read anything about the case and, if they had, whether they had formed an opinion. If so the juror would be excused. This test or procedure, which was followed in this case, gave this defendant a more complete safeguard against possible prejudice than is required under decisions of this court ¹ or of the United States Supreme Court. ² In this state it is sufficient ". . . if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. . . ." ³ Using this excused-if-opinion-formed procedure, the trial court excused 14 jurors of the 53 called, 3 for cause and 11 because they had formed an opinion or had a feeling about the case from reading or hearing about it.

Upon completion of the jury selection process, defendant's counsel moved for a change of venue or continuance on the basis of pretrial publicity noting that very few of those who had been chosen as jurors had read nothing about the case. That is not a ground requiring change of venue. If it were, the murder of a public figure anywhere in these United States, with accompanying syndicated press and network radio-TV coverage, might render it impossible to draw a jury in any of the fifty states except from among those who cannot read or those who elected not to read or listen to the news of the day. To have obtained information of the matters at issue through newspapers, radio or television is not a cause of challenge to a prospective juror in this state. ⁴ As the United States Supreme Court has put the matter, 'It is not required, however, that the jurors be totally ignorant of the facts and issues involved. . . .' ⁵

Juror exposure to news coverage of events involved in a trial is not, of itself, a proper basis for challenge of motion for change of venue, so there was here no abuse of discretion in the trial court's denial of defendant's initial motion for change of venue. ⁶ Additionally, it is to be noted that the defendant here apparently failed to accompany the motion for change of venue with copies for the record of the publicity alleged to be prejudicial. Such motion was renewed on post-trial motions, and again denied. Only then, for the first time, did defendant offer news articles from Madison newspapers into evidence. The trial court granted leave for defendant to have the clippings certified for authenticity, submitted into evidence, marked and made part of the record. Whether or not this was done, no clippings of news articles are contained in this record on appeal. Upon a claim that a trial court abused its discretion in denying a motion for change of venue, this court '. . . must look to the evidence presented at the hearing on the motion and examine the original documents to determine whether, in the view of such evidence, the trial court abused its discretion. . . .' ⁷ Without the nature of the publicity concerning the crime demonstrated by evidence in the record, there is no way for this court to determine its 'inflammatory nature,' the first of the factors to be considered before holding that trial court discretion has been abused. ⁸ Even difficulties encountered in selecting an unbiased jury, not here evident, are no substitute for placing in the record the media accounts complained of. Such...