Ziegler v. State

• Citation: 223 N.W.2d 442,65 Wis.2d 703
• Decision Date: 26 November 1974
• Docket Number: No. S,S
• Parties: Russell ZIEGLER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 119.
• Court: United States State Supreme Court of Wisconsin

Page 442

223 N.W.2d 442

65 Wis.2d 703

Russell ZIEGLER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 119.

Supreme Court of Wisconsin.

Nov. 26, 1974.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., and Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The defendant raises three issues on appeal. They are: (1) Was the evidence sufficient to sustain the conviction? (2) Was the supplemental instruction given the jury after it deliberated for seven hours coercive? (3) Was the trial court required to conduct a post-trial evidentiary hearing to determine whether the jury in fact was coerced by the supplemental instruction?

The statute under which the defendant was convicted is sec. 943.20(1)(d), Stats. It provides in part:

'Obtains title to property of another by intentionally deceiving him with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. . . .'

The standard of appellate review as to the sufficiency of the evidence, often repeated, is:

'. . . The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. A criminal conviction can stand based in whole or in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. . . .' Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725, 727. See also: Bailey v. State (1974), Wis., 222 N.W.2d 871; McAdoo v. State (1974), Wis., 223 N.W.2d 521 (handed down November 26, 1974).

The record in this case is quite extensive and much of the evidence is in dispute. We have reviewed this record thoroughly and believe no useful purpose will be served by setting forth the evidence. We conclude there is ample credible evidence which the jury could accept to convince it beyond reasonable doubt that all the elements of the statute quoted above were sufficiently proven and that the defendant was guilty as charged.

At about 10:15 p.m., on January 25, 1973, after it had been deliberating for several hours, the jury returned to the courtroom and was given the following instruction by the trial judge:

'THE COURT: Ladies and gentlemen of the jury, it is my understanding that you people are working very conscientiously toward what you believe is a proper verdict in this case. And I think that you are all to be commended for the time, regardless of the time that's being taken to do it. In the event that you are in a--somewhat of a stalemate where you arrived at a point where somebody--and I assume that this is what seems to be the problem--that someone or some people on the jury are holding out one way and someone is holding out another way, I would like to at least for your benefit read you one more instruction. Members of the jury, the trial of a criminal action is quite an expensive undertaking to the county. It requires considerable hard work or labor to get ready and try an action so it is important that you should not give up too easily. You should endeavor to reconcile your differences if you can do so reasonably and come to a unanimous conclusion. That is very important. We must try to accomplish that if we can. Of course, I want you to know that the Court does not ask anybody to give up conscientious convictions based on sound reason. No one should do that.

But everyone should be willing to give his or her reasons and talk it over and see if you can--cannot all come to the same conclusion. I think you should try a little longer and you will please retire again to the jury room to give this case further consideration. Now, the reason that I give you this instruction is that in the event this is seemingly the stalemate that has come to this jury, I would assume that you should try at least long enough to see if you can work it out yet for possibly another half hour or hour; and if not, I will have to make arrangements for a hotel and for you to come back from the hotel tomorrow morning and to proceed anew in your deliberations. All right. The jury will be excused to return to the jury room.'

The jury returned to the jury room at 10:17 p.m., and came back with its verdict at 10:56 p.m.

The defendant contends on this appeal that the above instruction, while in substantial compliance with Wis JI--Criminal, Part I, 520, ¹ recently approved by this court in Kelley v. State (1971), 51 Wis.2d 641, 187 N.W.2d 810, was nonetheless coercive in that it embellished the uniform instruction in two significant respects: (1) Because it made reference to the cost and hard work involved in a jury trial; and (2) because it informed the jurors that they would be sequestered in a hotel for the night and obliged to continue their deliberations in the morning if they failed to arrive at a verdict.

In regard to the portion of the instruction dealing with the expense and hard work involved in the trial, the defendant cites two federal cases in support of his argument that such remarks are coercive and prejudicial and constitute reversible error: United States v. Smith (4th Cir. 1962), 303 F.2d 341, and United States v. Burley (3d Cir. 1972), 460 F.2d 998, 999. These cases do not represent a unanimous view among the federal courts. The contrary position was taken, for example, in United States v. Tolbert (7th Cir. 1969), 406 F.2d 81, and Thaggard v. United States (5th Cir. 1965), 354 F.2d 735, certiorari denied (1966), 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301.

Secor v. State (1903), 118 Wis. 621, 95 N.W. 942, represents the current state of the law on this point in Wisconsin. The trial court's supplementary instruction in that case included the following language at page 637, at page 947 of 95 N.W.:

"I desire to instruct you a little farther as to the duties in the matter of an agreement in this case, as it has taken considerable time; it has cost, of course, considerable money; and it is important and desirable that, if you can come to an agreement, that you should do so; . . ."

In response to a contention that such language was coercive and reversible error, this court held, 'It would have been better, had the question of expense . . . been omitted, but we are not ready to say that prejudicial error results therefrom. . . .' Secor, supra, page 638, at page 948 of 95 N.W.

Likewise in this case, it would have been preferable not to mention the expense and hard work involved in the trial, but the trial court did not over-emphasize the fact or coerce the jury. The instruction only informed it of facts of which the jury was undoubtedly already aware. In accord with this view is Madison v. State (1973), 61 Wis.2d 333, 212 N.W.2d 150. In that case the trial court in its instruction at page 339, at page 154 of 212 N.W.2d stated:

". . . This is what is known as a hung jury. I think that I should advise you that in the event this is your final conclusion, that it would be necessary to try this case over again, . . ."

On appeal on the subsequent conviction, this court stated at page 340, at page 154 of 212 N.W.2d:

'. . . These . . . sentences are claimed to be so 'coercive' that they denied the defendant a fair trial. We do not find them so. Even excerpted and standing alone, the reference did no more than inform the jury that, if they failed to agree upon a verdict, a new trial would be required. This any jury of ordinary men and women would...