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COURT OF APPEALS DECISION DATED AND RELEASED November
8, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0396-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
A. DUQUETTE, JR.,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Ozaukee County: JOSEPH D. MC CORMACK, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
PER
CURIAM. James A. Duquette, Jr. has
appealed from a judgment convicting him of first-degree intentional homicide in
violation of § 940.01(1), Stats.;
second-degree sexual assault in violation of § 940.225(2)(e), Stats., 1985‑86; false
imprisonment in violation of § 940.30, Stats.;
and kidnapping in violation of § 940.31(1)(b), Stats. He challenges
the trial court's denial of his motions to change venue and suppress evidence,
and its admission of other acts evidence.
He also argues that the trial court denied him a fair trial when it
refused the jury's request to examine handwriting evidence during its deliberations
and when it denied his request for discovery of certain documents. We conclude that the issues lack merit and
affirm the judgment of conviction.
These
convictions stem from charges that on June 30, 1987, Duquette abducted
fourteen-year-old Tara K. as she was riding her bicycle along a road, forced
her into his van, had sexual intercourse with her and killed her. Duquette's first argument is that he was
denied his right to a fair trial when the trial court refused to change venue
based on adverse pretrial publicity.
We
review the trial court's denial of a motion for a change of venue under the
erroneous exercise of discretion standard.
State v. Albrecht, 184 Wis.2d 287, 306, 516 N.W.2d 776,
783 (Ct. App. 1994). Although our
review is deferential to the trial court, we must also independently evaluate
the circumstances of the case. State
v. Messelt, 178 Wis.2d 320, 327, 504 N.W.2d 362, 364 (Ct. App. 1993), aff'd,
185 Wis.2d 254, 518 N.W.2d 232 (1994).
Change
of venue is only one method of guaranteeing a fair trial; another is voir
dire. McKissick v. State,
49 Wis.2d 537, 545, 182 N.W.2d 282, 286 (1971). The trial court's responsibility is to make inquiries of the
jurors to determine whether there is prejudice and to take such steps as may be
necessary to ensure a fair trial. Id. Factors to be considered in determining
whether a change of venue is necessary are:
(1) the inflammatory nature of the publicity; (2) the degree to which
the adverse publicity permeated the area from which the jury panel would be
drawn; (3) the timing and specificity of the publicity; (4) the degree of care
exercised and the amount of difficulty encountered in selecting the jury; (5)
the extent to which the jurors were familiar with the publicity; (6) the
defendant's utilization of challenges, both peremptory and for cause, on voir
dire; (7) the State's participation in the adverse publicity; and (8) the
severity of the offenses charged and the nature of the verdict returned. Id. at 545-46, 182 N.W.2d at
286.
While
significant pretrial publicity was shown in this case, that fact alone does not
require a change of venue. See Turner
v. State, 76 Wis.2d 1, 27, 250 N.W.2d 706, 719 (1977). Most of the reporting was primarily
informational and did not create a risk of unfair prejudice. Cf. id. at 27-28, 250
N.W.2d at 719-20; Messelt, 178 Wis.2d at 328-30, 504 N.W.2d at
365-66. While some reported Duquette's
prior convictions, such information did not alone compel a change of venue. See
Hoppe v. State, 74 Wis.2d 107, 113, 246 N.W.2d 122, 127 (1976); Messelt,
178 Wis.2d at 329-31, 504 N.W.2d at 365-66.
In
addition, most of the publicity was remote in time from the jury selection,
which occurred in February 1993. This
was long after most of the pretrial media coverage, which was heaviest in the
summer of 1987 when Tara's body was discovered and an autopsy report was
released, in December 1991 when Duquette was charged, and in August 1992 when
the preliminary hearing was held. While
some statements reported at the time of Duquette's charging could be deemed
inflammatory, including statements made by the police and the prosecutor from
Outagamie County, the significant time lapse between the periods of heavy
coverage and the trial ameliorated concerns about community prejudice, creating
a "cooling off" period which contributed to the ability of the State
to conduct a fair trial. See Turner,
76 Wis.2d at 28, 250 N.W.2d at 720; Hoppe, 74 Wis.2d at 114, 246
N.W.2d at 127. Moreover, while some
publicity occurred again shortly before trial, it was not inflammatory and did
not prevent the trial court from concluding that an impartial jury could be
drawn.
The
trial court's conclusions were borne out by the actual jury selection
process. The trial court experienced no
significant difficulty in selecting a jury, an important factor in determining
whether pretrial publicity necessitated a change of venue. See Turner, 76 Wis.2d
at 28, 250 N.W.2d at 720. Of the fifty
prospective jurors questioned about their awareness of this case, only ten were
excused in part based on concerns about their partiality—a number which does
not indicate that adverse publicity had impaired Duquette's ability to obtain
an impartial jury. Cf. id.
at 28-29, 250 N.W.2d at 720; Hoppe, 74 Wis.2d at 115, 246 N.W.2d
at 127-28. Moreover, as pointed out by
the State, Duquette had no objection to nine of the twelve jurors who decided
the case.
While
the three jurors to whom Duquette objected were aware of his prior convictions
and two of them were aware of some evidence in the case, all three indicated
that they could decide the case impartially based on the evidence. A juror need not be ignorant of the facts
and issues involved and may not be challenged because he or she has obtained
information on the case through media coverage unless he or she has become
biased as a result. Holland v.
State, 87 Wis.2d 567, 578, 275 N.W.2d 162, 168 (Ct. App.), rev'd on
other grounds, 91 Wis.2d 134, 280 N.W.2d 288 (1979), cert. denied,
445 U.S. 931 (1980); see also McKissick, 49 Wis.2d at 547,
182 N.W.2d at 287. It is sufficient if
a juror can set aside any preconceived notions about the defendant's guilt or
innocence and decide the case based on the evidence. Holland, 87 Wis.2d at 580, 275 N.W.2d at 169. Because the challenged jurors all indicated
that they could decide the case impartially based on the evidence, the trial
court was not required to strike them for cause or to determine that their
answers during voir dire demonstrated a need to change the trial's venue.
Duquette
also contends that the pretrial publicity deprived him of a fair trial because
it compelled him to use peremptory strikes to remove jurors that he believed
were biased. However, Wisconsin's
long-standing rule is that where a fair and impartial jury is impaneled, no
basis exists to challenge the judgment on the ground that the defendant was
wrongly required to use his peremptory challenges. State v. Traylor, 170 Wis.2d 393, 400, 489 N.W.2d
626, 629 (Ct. App. 1992). There is no
constitutional right to peremptory challenges, only to an impartial jury. Id. Since the record in this case establishes that pretrial publicity
did not prevent the impaneling of a fair and impartial jury, no basis exists to
conclude that the trial court erroneously exercised its discretion by denying a
change of venue.
Duquette's
next argument is that the trial court erroneously denied his request to
suppress evidence derived from a search of his wallet by Massachusetts police
following his arrest there on June 11, 1988.
He contends that the officer who opened his wallet while booking him
exceeded the scope of a proper inventory search by opening up a folded
newspaper article contained in the wallet.
The newspaper article reported Tara's murder. After viewing it, the Massachusetts police contacted Wisconsin
authorities. An affidavit provided by a
Wisconsin detective then formed the basis for a warrant for the search and
seizure of evidence from Duquette's Massachusetts apartment.
An
inventory search is a well-defined exception to the requirement that a search
be conducted pursuant to a warrant. State
v. Weber, 163 Wis.2d 116, 132, 471 N.W.2d 187, 194 (1991). An inventory search has three distinct
objectives: (1) the protection of the
owner's property while in police custody; (2) protection of the police against
disputes over lost or stolen property; and (3) the protection of police from
potential danger. Id.[1] The justification for an inventory search
does not rest upon probable cause because it is administrative, not a search
for evidence. Id. To determine the reasonableness of an
inventory search, courts must balance its promotion of legitimate governmental
interests against its intrusion on a defendant's Fourth Amendment rights. Id. at 132-33, 471 N.W.2d at
194. This process requires an
examination of the reasonableness of the intrusion, followed by an examination
of the reasonableness of the scope of the intrusion. Id. at 133, 471 N.W.2d at 194. Reasonableness must be based on the facts
and circumstances of each case. Id.
Since
Duquette does not dispute the reasonableness of examining his wallet as part of
an inventory search, the pertinent inquiry on appeal is whether the scope of
the search was unreasonable. Whether
the facts in this case satisfy the constitutional requirement of reasonableness
is a question of law which we review de novo. State v. Whitrock, 161 Wis.2d
960, 973, 468 N.W.2d 696, 701 (1991).
The underlying findings of fact of the case must be upheld unless they
are contrary to the great weight and clear preponderance of the evidence. Id.
The
scope of an otherwise valid inventory search is limited by the purpose for
which it was undertaken. Weber,
163 Wis.2d at 133, 471 N.W.2d at 194.
Here, the booking officer testified that the purpose of looking through
Duquette's wallet was to protect the officer and the police department from any
false accusations of theft or missing currency and to ensure a complete and
accurate account of the prisoner's property.
The officer testified that he found cash and approximately one-quarter
inch of assorted papers, which he thumbed through looking for hidden money,
checks and "items of that sort."
He testified that one of the items he found was the newspaper
article. He testified that he could not
recall whether he had to unfold the article to see the headline, which
discussed the discovery of a missing teenager's body.[2] However, after seeing the headline, he read
the article and called the Mequon police.
He further testified that he did not individually specify this
particular newspaper article on the property inventory because it was not an
article of value like currency or a credit card. Instead, he included it generally on the inventory card in the
category of "assorted papers."
We
conclude that it was reasonable for the booking officer to separate and unfold
the large number of papers found in Duquette's wallet, including the newspaper
article, to identify them and determine whether they were of value. The Wisconsin Supreme Court has held that
officers conducting an inventory search of a car reasonably listened to a
cassette tape in order to identify it and document it in the property
inventory. Id. at 134,
471 N.W.2d at 195. The court held that
because the tape was one of several found by police, it was reasonable for them
to listen to it to identify it in the same manner the other labeled tapes were
identified. Id.
Here,
the booking officer had a similar legitimate interest in examining the numerous
papers in Duquette's wallet—to identify them, provide an accurate account of
his property and ensure that they were not items of economic value. To adequately identify each item, the
officer was entitled to separate the papers and scrutinize each one
sufficiently to identify it, including unfolding the challenged newspaper
article. The fact that he did not
separately catalogue each piece of paper as the officers did with the tapes
found in Weber did not render his examination of the separate
papers unreasonable, since he was entitled to look at each paper to identify it
and determine that it was not an item warranting separate documentation on the
property card. In addition, while the
booking officer perhaps could have adequately identified the newspaper article
without unfolding it, an inventory search is not rendered invalid merely
because an officer could have identified the property by a less intrusive
means. See id. at
136, 471 N.W.2d at 195.[3]
Duquette
next contends that the trial court committed prejudicial error by admitting
evidence concerning the sexual assault of M.C. in October 1983 and the sexual
assault and kidnapping of N.L. in June 1988 (the other acts evidence). Duquette was criminally convicted based on
both of those incidents.
Duquette
contends that the other acts evidence was not relevant to any statutory
exception under § 904.04(2), Stats.,
and even if relevant was unduly prejudicial.
Section 904.04(2) provides that evidence of other crimes, wrongs or acts
is not admissible to prove the character of a person in order to show that he
or she acted in conformity therewith.
However, it does not exclude such evidence when offered for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Id.
The
trial court's admission of evidence under § 904.04(2), Stats., involves the exercise of
discretion and will not be disturbed where it has acted in accordance with
accepted legal standards and the facts of record. State v. Clark, 179 Wis.2d 484, 490, 507 N.W.2d
172, 174 (Ct. App. 1993). In
determining whether to admit other acts evidence, a trial court must apply a
two-pronged test. State v.
Johnson, 184 Wis.2d 324, 336, 516 N.W.2d 463, 466 (Ct. App. 1994). First, the court must determine whether the
other acts evidence fits within one of the exceptions in § 904.04(2). Johnson, 184 Wis.2d at 336,
516 N.W.2d at 466. It must then determine
under § 904.03, Stats.,
whether any prejudice resulting from the admission of such evidence
substantially outweighs its probative value.
Johnson, 184 Wis.2d at 337, 516 N.W.2d at 466. A threshold question implicit within the
two-pronged analysis is whether the other acts evidence is relevant to an issue
in the case. Id. at 337,
516 N.W.2d at 466-67. The probative
value of other acts evidence is partially dependent on its nearness in time,
place and circumstance to the alleged act sought to be proved. Id. at 339, 516 N.W.2d at
467.
The
trial court admitted the other acts evidence in this case on the grounds that
it was relevant to issues of opportunity, preparation, plan and identity, and
was not unduly prejudicial. We agree
with the trial court that the evidence was relevant to plan, preparation and
identity, and that its probative value was not outweighed by the danger of
unfair prejudice. In fact, because this
evidence is directly relevant to modus operandi, we believe it offers a
classic example of when other acts evidence is properly admitted.
"Plan"
within the meaning of § 904.04(2), Stats.,
has been defined to include a "system of criminal activity" comprised
of multiple acts of a similar nature, not all aimed at culminating in the
charged crime or crimes. State v.
Friedrich, 135 Wis.2d 1, 24, 398 N.W.2d 763, 773 (1987).[4] This modus operandi concept of
"plan" closely resembles the use of other acts evidence to prove
identity, which is warranted when the similarities between the charged crimes
and the other acts reflect an "imprint" of the defendant. State v. Speer, 176 Wis.2d
1101, 1118, 501 N.W.2d 429, 434 (1993).
In
this case, the circumstances underlying the other acts evidence and the charged
crimes were very similar and were relevant to both plan and identity. All three incidents involved girls in early
adolescence.[5] In each case, the victim was walking or
biking alone in a relatively private area when she was accosted and sexually
assaulted by a man in a vehicle.[6] In the cases of N.L. and Tara, the assailant
also abducted them and took them to secluded spots where he employed violence
against them.
Based
on the similarities between the other acts and the charged crimes, the trial
court reasonably concluded that they bore the imprint of Duquette and thus were
relevant to establish his identity as the assailant in this case. Cf. id. at 1117-18, 501
N.W.2d at 434. Based on the
similarities, the other acts evidence was also relevant to show Duquette's plan
to obtain sexual gratification from adolescent girls by abducting them in his
vehicle. Cf. Friedrich,
135 Wis.2d at 24, 398 N.W.2d at 773. In
addition, since the assault of M.C. occurred only four years before the assault
and murder of Tara, it was not so remote in time as to be irrelevant,
particularly in light of Duquette's incarceration during a portion of the
intervening years. See Clark,
179 Wis.2d at 494-95, 507 N.W.2d at 176.
Moreover, the assault and kidnapping of N.L. occurred only one year
after the assault and kidnapping of Tara, and therefore clearly was not so
remote as to be irrelevant. See
id.[7]
While
the other acts evidence was clearly prejudicial to Duquette's defense, the test
for admission of relevant other acts evidence is whether it causes unfair
prejudice. Johnson, 184
Wis.2d at 340, 516 N.W.2d at 468.
Evidence is unfairly prejudicial when it tends to influence the outcome
of the case by improper means. Id. In the context of other crimes evidence,
prejudice refers to the potential harm in a jury concluding that because a
defendant committed other bad acts, he or she necessarily committed the crime
charged. Clark, 179
Wis.2d at 496, 507 N.W.2d at 177.
Here,
the trial court instructed the jury that it could use the other acts evidence
in considering plan, preparation and identity, but could not use it to conclude
that Duquette was of bad character and acted in conformity therewith to commit
the crimes charged. When an admonitory
instruction of this nature is given, prejudice to a defendant is presumably
erased from the jury's mind. State
v. Shillcutt, 116 Wis.2d 227, 238, 341 N.W.2d 716, 721 (Ct. App. 1983),
aff'd, 119 Wis.2d 788, 350 N.W.2d 686 (1984). Based on this instruction and the obvious probative value of the
evidence, the trial court properly exercised its discretion in admitting the
evidence. See id.
Duquette's
next argument is that the trial court erroneously exercised its discretion and
deprived him of due process when it denied the jury's request to examine
handwriting exhibits during deliberations.
The jury requested several exhibits, including a letter purportedly
written by Duquette admitting to the murder of Tara, and handwriting samples
used at trial to make comparisons. When
the State objected that the exhibits of Duquette's known handwriting contained
admissions of unrelated criminal activity, Duquette suggested that such parts
could be redacted. When the trial court
indicated that redaction would distort the evidence on which the handwriting
analyses were made, Duquette waived any objection to submitting the exhibits in
unredacted form. The trial court
ultimately denied the jury's request based on its concern that extraneous and
prejudicial information would come to the jury's attention if it were permitted
to examine the exhibits in the jury room, and its concern that the jury would
conduct its own experiments with the exhibits.
Submission
of exhibits to a jury during deliberations rests in the discretion of the trial
court. State v. Jensen,
147 Wis.2d 240, 259, 432 N.W.2d 913, 921 (1988). While Duquette argues that § 909.015(3), Stats., authorizes jurors to make
comparisons of authenticated handwriting specimens, nothing in that statute,
standing alone, confers a right to have the jury inspect handwriting specimens
during deliberations.
In
exercising its discretion to determine whether exhibits should be sent to the
jury room, the trial court is required to consider whether the exhibits will
aid the jury in proper consideration of the case, whether a party will be
unduly prejudiced by submission of the exhibits and whether the exhibits could
be subjected to improper use by the jury.
Jensen, 147 Wis.2d at 260, 432 N.W.2d at 921-22. We will not disturb the trial court's
decision if the record shows that discretion was in fact exercised and we can
perceive a reasonable basis for the decision.
State v. Hines, 173 Wis.2d 850, 858, 496 N.W.2d 720, 723
(Ct. App. 1993).
Based
on these standards, we conclude that the trial court acted within the scope of
its discretion in refusing to send the handwriting exhibits to the jury
room. As noted by the trial court,
redacting would have materially altered the exhibits, and, absent redacting,
the exhibits would have revealed extraneous and prejudicial information
regarding other criminal activity by Duquette.
While Duquette's trial counsel indicated that he would waive any
objection to the prejudice arising from submission of the unredacted exhibits,
the trial court reasonably rejected this offer, expressing an additional
concern that the jurors would experiment with the exhibits. This was a legitimate concern because even
if § 909.015(3), Stats.,
permitted the jurors to compare the handwriting samples, doing so during
deliberations after the closing of the evidence and outside the presence of the
trial judge and the attorneys raised the specter that the jurors would use the
evidence improperly. In addition, the
trial court could reasonably conclude that the exhibits had been adequately
presented to the jurors for their consideration during the trial, particularly
since key exhibits were presented in enlarged form, permitting the jurors to
make comparisons during the course of the testimony. Because the trial court therefore properly exercised its
discretion and Duquette has failed to demonstrate that he had a due process
right to submission of the exhibits, this issue provides no basis for relief.
Duquette's
final argument is that he is entitled to a new trial because the trial court
erroneously refused to release documents in the prosecutor's file to him prior
to trial. Duquette may prevail on this
claim only if the documents sought by him contain information material to the
defense which probably would have changed the outcome of his trial. State v. Mainiero, 189 Wis.2d
80, 87, 525 N.W.2d 304, 307 (Ct. App. 1994).
Evidence is material only if there is a reasonable probability that had
it been disclosed to the defense, the result of the proceeding would have been
different. Id. at 88, 525
N.W.2d at 307. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id.
We
conclude that this standard is not satisfied here. Duquette contends that the documents were material because they
would have led him to investigate the possibility that third persons
perpetrated the crimes. However, before
evidence is admissible to prove that a third person committed a crime of which
the defendant is accused, the defendant must show that the third person had the
motive and opportunity to commit the crime and some evidence directly
connecting the third person to the crime charged which is not remote in time,
place or circumstances. State v.
Denny, 120 Wis.2d 614, 624, 357 N.W.2d 12, 17 (Ct. App. 1984).
Nothing
in the documents relied on by Duquette provides a basis for concluding that any
third person had a motive or opportunity to commit these crimes or that any
evidence directly connected a third person to the crimes. Since Duquette has also failed to
demonstrate that disclosure of the documents prior to trial would have led to
the discovery of admissible evidence which would have affected the trial's
outcome, no basis exists to conclude that the documents were material to
Duquette's defense.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] While the
parties stipulated at trial that the legality of the search of the wallet was governed by
Massachusetts law, they do not dispute on appeal that the permissible
objectives of an inventory search are the same under Massachusetts, Wisconsin
and federal law.
[2] The trial court
found that the article was folded in Duquette's wallet and was unfolded during
the inventory search.
[3] Commonwealth
v. Sullo, 532 N.E.2d 1219 (Mass. Ct. App. 1989), does not compel a
different result. As pointed out by
Duquette, the Massachusetts court suppressed evidence obtained when police
opened a plastic business card holder, took out thirty business cards and a
piece of paper, and closely inspected writings and markings on the backs of the
cards for evidence of gambling offenses.
See id. at 1220, 1222-23. The Massachusetts court indicated that although the police are
entitled to inventory the contents of an arrestee's wallet and scrutinize
particular items sufficiently to identify them for an inventory list, they
could not hunt for information by sifting and reading materials taken from the
arrestee which did not declare their nature at sight. Id. at 1221-22.
Here, a separation and limited examination of the mass of papers in
Duquette's wallet was appropriate to identify them. In conducting the limited examination appropriate to identify the
papers, the newspaper article headline became apparent and properly led to
further investigation.
[4] Prior to State
v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763 (1987), this court defined
"plan" as a "scheme to accomplish a particular purpose that
includes doing the act charged." State
v. Harris, 123 Wis.2d 231, 238, 365 N.W.2d 922, 927 (Ct. App.
1985). Because Friedrich
is the later pronouncement of the law and because it is a decision of our
supreme court, we follow Friedrich and reject Duquette's attempts
to limit "plan" to the definition in Harris.
[6] M.C. testified
that she was walking home from school and noticed a man in a van watching her
as he drove past her twice. She
testified that after she turned down a street which was bordered on one side by
back lots and bushes, the man from the van rushed up behind her, grabbed her in
a "bear hug" and "fondled" her breasts. She testified that when she screamed loudly,
he fled. She identified Duquette as her
assailant and testified that he was convicted of a crime arising from this
incident.
N.L. testified that she was riding her bike
in an area with no houses when a man in a car, who was later identified as
Duquette, drove past her and then turned around and came back. She testified that Duquette pulled her into
his car and took her to a wooded area where he threatened to tie her up if she
did not cooperate, struck her in the face and forced her to have sexual
intercourse with him. She testified
that Duquette told her that "this is not the first time this has
happened" and that he intended to keep her for awhile to make sure that
she did not tell anyone. She testified
that he was arrested when a police car drove up and she reported the assault.
In the present case, the
evidence indicated that Tara was abducted off her bicycle at one location and
driven to a farm field hidden from roadside view where her body was found. A van resembling one owned by Duquette was
seen parked along a road on which Tara was thought to have traveled, away from
residences. Tara's body was found nude,
with sperm in the vagina, indicating that she had been sexually assaulted. In addition, she had multiple wounds.
[7] While other acts
evidence generally involves acts committed before the charged crimes, prior
commission of the other acts is not a prerequisite to their admission. See State v. Roberson, 157
Wis.2d 447, 455, 459 N.W.2d 611, 613 (Ct. App. 1990). In this case, it is immaterial that the kidnapping and assault of
N.L. occurred after the crimes against Tara, since Duquette was free and had
not been arrested for the crimes against Tara at the time of the assault on
N.L.