State v. Williquette, 92-2910-CR

• Court: Wisconsin Court of Appeals
• Writing for the Court: DYKMAN
• Citation: State v. Williquette, 510 N.W.2d 708, 180 Wis.2d 589 (Wis. App. 1993)
• Decision Date: 02 December 1993
• Docket Number: No. 92-2910-CR,92-2910-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Jerald WILLIQUETTE, Defendant-Appellant. dd

Page 708

510 N.W.2d 708

180 Wis.2d 589

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Jerald WILLIQUETTE, Defendant-Appellant. ^dd

No. 92-2910-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 9, 1993.

Opinion Released Dec. 2, 1993.

Opinion Filed Dec. 2, 1993.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Jerald Williquette appeals from a judgment convicting him of one count of sexual assault of a child, contrary to sec. 948.02(1), Stats. He argues that the trial court erred by permitting the state to impeach the jury's verdict. He also asserts that he should be given a new trial because of trial error and ineffective assistance of counsel, and because the real controversy was not fully tried. We conclude that the trial court erred by permitting an attack on the jury's verdict, but that no other errors occurred. We therefore reverse with instructions to vacate Williquette's judgment of conviction, reinstate the verdict originally found by the jury, sentence Williquette on that verdict, and enter a new judgment of conviction.

VERDICT IMPEACHMENT

Williquette was charged with two counts of sexual assault of a child, one alleging an assault on Kathy L., and the second alleging an assault on Amanda K. The jury was given four verdict forms, and it returned the two forms which found Williquette not guilty of assaulting Kathy L., and guilty of assaulting Amanda K. A poll answered individually by each member of the jury confirmed these verdicts. Five days after the jury returned its verdicts, the trial court asked one juror what his verdict was. The trial court eventually questioned all of the jurors. ¹ Ten replied that they intended to find Williquette guilty of assaulting Kathy L., and not guilty of assaulting Amanda K. One juror said that the jury had intended to convict Williquette of both counts, and one juror could not remember what was done, but thought that the verdicts as returned were correct.

The trial court asked the parties to research the issue, and concluded that it could enter a judgment convicting Williquette of assaulting Kathy L. It did so, and Williquette appeals.

The parties agree on the history of challenges to jury verdicts. In Wolfgram v. Town of Schoepke, 123 Wis. 19, 100 N.W. 1054 (1904), the jury foreman placed the word "yes" after the verdict question of whether the plaintiff was negligent. Affidavits from all jurors showed that the jury had decided that the correct answer was "no," and that the answer in the verdict was a mistake. The court recognized that jurors may not impeach their verdicts. It said, however:

But is it an attempt to impeach their own verdict? That depends on the sense in which that word is used. Is the written paper filed, or the agreement which the jury reach[ed], the verdict? We think the latter is what is intended when we say the jurors cannot impeach it. The former, like most records or writings, is but the expression or evidence of some mental conception. Hence it may well be said that a showing that such writing is not correct is not impeachment of the verdict itself.

Wolfgram, 123 Wis. at 25-26, 100 N.W. at 1056.

But in Ford Motor Credit Co. v. Amodt, 29 Wis.2d 441, 449, 139 N.W.2d 6, 10 (1966), the court said:

We now expressly overrule Wolfgram v. Schoepke and disavow the exception to the general rule which was made in that case. Once the jury has returned its verdict into court and has been discharged, its members may not be permitted to initiate a challenge to such verdict, whether it be based on their own misconduct or a claimed erroneous recordation.

The supreme court adopted secs. 906.01 and 906.06(2), Stats., which took effect on January 1, 1974. Section 906.01 states:

Every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules.

Section 906.06(2), Stats., provides:

Upon an inquiry into the validity of a verdict or indictment, 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 the juror's or any other juror's mind or emotions as influencing the juror to assent to or to dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify 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. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

The state relies upon the committee note to sec. 906.06(2), Stats., which states in relevant part:

Adoption of ss. 906.01 and 906.06(2) ... would withdraw the limits upon verdict attack in ... Ford Motor Credit Co. v. Amodt, 29 Wis.2d 441, 139 N.W.2d 6 (1966), which are: "... (1) that substantial personal awareness of the alleged impropriety is within the direct and independent knowledge of one who did not serve as a member of the jury, (2) that such knowledge was not derived by such person from a juror after the jury's discharge, and (3) that the challenge to the integrity of the verdict originated from such person rather than from a juror."

Judicial Council Committee's Note, 1974, sec. 906.06(2), Stats., 59 Wis.2d at R166 (citations omitted).

The state's reliance on this note is misplaced for several reasons. First, the commentary of the Wisconsin Judicial Council Committee was printed for informational purposes but was not adopted when the Wisconsin Rules of Evidence were adopted. 59 Wis.2d at R2. Second, the committee comment was referring to a part of Ford Motor Credit Co. which permitted juror interrogation, subject to the three conditions we have quoted from the committee's note. Those three conditions limited the exception the court noted in Ford Motor Credit Co. We agree that those three conditions were withdrawn by the adoption of sec. 906.06(2), Stats. But the effect of withdrawing those limits is the opposite of what the state contends. By removing the conditions, the exception has become less limited. Therefore, we are left with Ford Motor Credit Co.'s statement that:

We recognize, however, that in some situations (such as [State v.] Sawyer [, 263 Wis. 218, 56 N.W.2d 811 (1953), cert. dismissed, 346 U.S. 801[, 74 S.Ct. 66, 98 L.Ed. 333] (1953),] and Cullen [v. State, 26 Wis.2d 652, 133 N.W.2d 284 (1965), cert. denied, 382 U.S. 863[, 86 S.Ct. 126, 15 L.Ed.2d 101] (1965) ] ) jurors may properly be subject to interrogation by the court to determine if an irregularity occurred....

29 Wis.2d at 450, 139 N.W.2d at 11.

Sawyer and Cullen involved extraneous matter coming before a jury. The court permitted inquiry into the facts underlying the exposure of the jury to the extraneous matter. Sawyer, 263 Wis. at 225-26, 229, 56 N.W.2d at 814, 816; Cullen, 26 Wis.2d at 660-62, 133 N.W.2d at 288-89. More recently, in After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 739-40, 324 N.W.2d 686, 690 (1982), the court permitted inquiry into an allegation that several jurors had discussed an officer of the defendant and had called him a "cheap Jew." And, in State v. Wachsmuth, 166 Wis.2d 1014, 1022, 480 N.W.2d 842, 846 (Ct.App.1992) , we concluded that the jury had received prejudicial, extraneous information. We reversed the defendant's conviction.

We conclude that entering the jury's decision on the wrong verdict form is not prejudicial, extraneous information brought to a jury's attention. We further conclude that sec. 906.01, Stats., pertains to competency of witnesses, not to a rule prohibiting impeachment of juries' verdicts. And we conclude that the adoption of sec. 906.06(2), Stats., did not overrule Ford Motor Credit Co. insofar as that case prohibits the impeachment of a written verdict which does not reflect the oral decision reached by the jury.

We recognize that this may lead to injustice in some cases, but the supreme court considered that possibility and other policy factors in Ford Motor Credit Co. when it overruled Wolfgram. If the state seeks a second reversal of those policy considerations and a return to Wolfgram, it should seek that reversal from the supreme court. See State v. Lossman, 118 Wis.2d 526, 533, 348 N.W.2d 159, 163 (1984).

The result of our decision is that the trial court must vacate the judgment convicting Williquette of the sexual assault of Kathy L., and enter a judgment convicting him of the sexual assault of Amanda K. Though both charges were Class B felonies, sentencing factors and collateral consequences could be different. Therefore, Williquette must be resentenced.

MISUSE OF VIDEOTAPE EVIDENCE

As part of the state's investigation of this case, a social worker interviewed Kathy L., Amanda K. and another girl. The interview was videotaped. The third girl denied that Williquette had assaulted her, but believed that he had assaulted her sister, Kathy L. Kathy L. told the social worker that Williquette had put two fingers in her vagina, that he was drunk when he did so, and that Williquette drank "a very, very lot." She also told the social worker that her mother swore in her sleep because of the assault on Kathy. The social worker said that she did not blame Kathy's mother for being angry with Williquette.

Amanda K. also told the social worker about Williquette's excessive use of alcohol, and that she had discovered that he used marijuana. The social worker commented that it seemed to her that Williquette had a couple of problems, and that he did a lot of drinking. Amanda K. said that she hated Williquette's guts, and the social worker said that what he did to Amanda was not very nice.

The state produced a variety of witnesses at trial, including Kathy L. and Amanda K. At the end of Williquette's cross-examination of the final state's witness, his...