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COURT OF APPEALS DECISION DATED AND RELEASED July
25, 1995 |
NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 94-1193-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
L. C.
CLAY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before
Wedemeyer, P.J., Sullivan and Schudson, JJ.
WEDEMEYER,
P.J. L. C. Clay appeals from a
judgment of conviction after a jury found him guilty of nine counts of armed
robbery, contrary to § 943.32(1) and (2), Stats., one count of attempted armed robbery, contrary to
§§ 943.32(1)(b), 943.32(2) and 939.32, Stats.,
and five counts of first-degree sexual assault, contrary to
§ 940.225(1)(b), Stats.
Clay
asserts four instances of trial court error:
(1) the admission into evidence of his custodial statements which were
the fruit of an illegal arrest; (2) improper joinder of four counts of
alleged criminal activity occurring at St. Joseph's Hospital; (3) the erroneous
exercise of discretion in not striking a juror for cause; and (4) an
erroneous exercise of discretion in failing to compel discovery and in denying
a motion for a mistrial.
Because
probable cause for arrest existed; because failure to sever the alleged counts
of criminal activity occurring at St. Joseph's Hospital was harmless error; and
because failure to strike a prospective juror for cause, failure to compel the
production of certain photographs in the prosecution's possession, and failure
to grant a mistrial was not an erroneous exercise of discretion, we affirm.
I. BACKGROUND
This
appeal has its genesis in Clay's arrest for disorderly conduct in the late
evening hours of August 21, 1991, at 2714 North 44th Street in the City of
Milwaukee. When police were in the
process of placing Clay in a police vehicle for conveyance to the city jail
pursuant to a disorderly conduct arrest, a citizen who observed the process,
informed a police officer that he thought Clay might be the person who committed
a sexual assault at St. Joseph's Hospital.
The basis for the citizen's report was a description appearing on a
television program. The next morning a
detective interviewed Clay after advising him of his constitutional
rights. Clay waived his rights, but
refused to sign the waiver form and denied being involved in the St. Joseph's
incident. In the meantime, police were
informed that Clay might be involved in seventeen or eighteen unsolved
robberies. Police compared Clay's
fingerprints with a latent print lifted at the scene of one of the unsolved
robberies. Clay's print matched a print
at the robbery scene which allowed police to arrest him for robbery. A detective then interviewed Clay about the
rest of the robberies. The interview
lasted four and one-half hours. Clay
was advised of his constitutional rights, waived them, and then confessed to
seventeen robberies and five sexual assaults.
As
pertinent to this appeal, Clay faced eleven counts of armed robbery, one count
of attempted armed robbery and five counts of first-degree sexual assault. Three of the sexual assaults occurred at St.
Joseph's Hospital and two occurred at Moods for Moderns beauty salon.
Prior
to trial, Clay moved to suppress statements given to the police as fruits of an
illegal arrest. The trial court denied
this motion, ruling that there was probable cause for an arrest for disorderly
conduct. Clay next moved to sever the
three counts of sexual assault and one count of attempted armed robbery which
occurred on August 8, 1991, at St. Joseph's Hospital from the remaining
counts. The trial court denied the
motion holding that all of the counts were properly joined under
§ 971.12(1), Stats. Clay additionally moved the trial court to
compel the State to produce photographs of a number of people who, prior to
Clay's arrest, had been identified as potential suspects in the unsolved
incidents of robbery. The trial court
denied this motion on the basis that the photographs were not exculpatory.
A
jury was impaneled. During the voir
dire, Clay's counsel asked the trial court to strike a juror for cause on the
grounds that the juror had expressed a bias against Clay. The trial court denied the motion. During trial, it became evident that a
certain police offense report had not been turned over to Clay in spite of a
discovery demand. Clay moved for a
mistrial, but the motion was denied because the contents of the report were not
exculpatory and no manifest injustice had occurred.
The
jury found Clay guilty of nine counts of armed robbery, one count of attempted
armed robbery, and all five counts of first-degree sexual assault. He was absolved of two counts of armed
robbery. He now appeals.
II. DISCUSSION
A. Probable Cause to Arrest.
Clay
first contends that his custodial statements should have been suppressed
because they were the fruit of an illegal arrest. Wong Sun v. United States, 371 U.S. 471 (1963) (a
warrantless arrest made without the requisite probable cause). We are not persuaded.
The
factual content of Clay's arrest is undisputed. Two City of Milwaukee police officers were dispatched to a duplex
located at 2712 North 44th Street at 10:35 p.m. on August 21, 1991, to
investigate a reported burglary in progress.
The officers discovered a broken basement window at the rear of the
residence and saw someone in an upstairs window. One of the building tenants, Dolores Ray, told police that when
she heard the sound of breaking glass, she fled the building with her
child. She told police she believed
that the intruder might be a person who had been arrested earlier that day for
battery to another female resident and after his release, had returned to the
premises. After examining the
circumstances, the officers believed there was a burglar in the building and
radioed for assistance. Ten additional
officers came to the scene to help secure the building. One of the officers knocked on the door
several times, but received no response.
Twenty-five minutes after they arrived on the scene, police gained
entrance to the building by the use of a key provided by Ray. Police found Clay on an unlighted stairwell
leading to the basement. Clay
identified himself and correctly informed police that he lived in the
residence. The officers learned that
Clay had been arrested earlier relating to domestic trouble, but no charges and
no restraining order had been issued as a result of the arrest. Clay told police that he had come to remove
his belongings. Since he did not have a
key, and because of a dispute with his girlfriend, he broke the window to gain
entry. The police arrested Clay for
disorderly conduct. No complaint,
however, was ever issued for such a charge.
Probable
cause to arrest requires that at the moment of arrest, the arresting officer
knew of facts and circumstances which were sufficient to warrant a prudent
person to believe that the person arrested had committed or was committing an
offense. This requirement concerns only
“probabilities” and is fulfilled if the totality of the circumstances leads a
reasonable officer to believe that guilt is more than a possibility. See
State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971).
Whether
historical facts constitute probable cause for arrest is in itself a question
of “constitutional fact” involving the application of federal constitutional
principles which we review independent of the conclusions of the trial
court. State v. Mitchell,
167 Wis.2d 672, 684, 482 N.W.2d 364,
368 (1992). This review process
requires objectively analyzing the facts and circumstances of Clay's arrest
regardless of the officer's intent, motivation or belief. As long as there are objective facts that
would have supported a correct legal theory for the arrest, it is valid
regardless of the police officer's personal opinion of the legal basis for the
arrest. State v. Baudhuin,
141 Wis.2d 642, 648-51, 416 N.W.2d 60, 62-63 (1987). Upon review, we are concerned with whether a trial court is
correct rather than with the process by which it achieved rectitude. Id.
The
trial court, in concluding that there was probable cause for the arrest, was
somewhat ambivalent in stating its reasons for reaching its conclusion. It alluded to three bases for the arrest:
(1) violation of a no contact order; (2) criminal damage to property; and (3)
disorderly conduct. Indeed, the factual
context of Clay's actions might very well have supported an arrest for any one
of the three alternate legal theories.
We, however, shall only examine whether Clay's conduct satisfied a probable
cause finding for disorderly conduct.
Section
947.01, Stats., defines
disorderly conduct. Since the facts
leading up to Clay's arrest are not in dispute, we direct our attention to that
portion of the statute which reads: “or
otherwise disorderly conduct on the circumstances in which the conduct tends to
cause or provoke a disturbance.” This
part of the statute generally denominated as the “catchall clause” proscribes
otherwise disorderly conduct which tends to disrupt good order and to provoke a
disturbance. City of Oak Creek v.
King, 148 Wis.2d 532, 541, 436 N.W.2d 285, 288 (1989). In determining whether conduct is “otherwise
disorderly,” it is crucial to examine the context in which the conduct
occurred.
The
police who were involved in Clay's arrest were dispatched to a reported
burglary in progress at 2712 North 44th Street in the City of Milwaukee at
10:45 p.m. They discovered a
broken basement window at the rear of the two-family duplex. Contemporaneously, one officer observed,
through an upstairs window, the movement of an unidentified person. Several attempts were made to get someone to
come to the door, but no response occurred.
One of the officers heard footsteps on some interior steps. A resident of the duplex informed the officers
that she had fled the building with her child and ran across the street to call
police when she heard the sound of breaking glass. She feared that the breaking glass was caused by a person who was
arrested earlier that day for battery to a female resident. It was the belief of the officer that there
was possibly a burglar inside the building.
The
resident who had fled the building provided the police with a key to open one
of the doors to the residence. In the
meantime, ten additional police officers came to the site of the incident to
help secure the building. Approximately
twenty-five minutes after the police arrived at the scene, they gained entry to
the building and found Clay in an unlighted stairwell leading to the
basement. The episode provoked the
attention of residents from the neighborhood, who congregated to observe the
occurrence. From their investigation,
the police learned that Clay was a resident of the building, that he had been
arrested earlier for a domestic disturbance, and that he had returned to pick
up his belongings, but that he had not opened the door when the police first
arrived because he did not want to go to jail.
When the circumstances of this incident are viewed in toto, we
conclude that there existed that quantum of evidence which would lead a
reasonable police officer to believe that Clay probably committed disorderly
conduct. Our analysis allows no other
conclusion but that probable cause existed for disorderly conduct. Consequently, the trial court did not err in
denying Clay's motion to suppress.
B. Motion to Sever.
Clay's
second claim of error is that the trial court erroneously exercised its
discretion in refusing to sever three counts of first-degree sexual assault and
one count of armed robbery which occurred on August 8, 1991, at St. Joseph's
Hospital in the City of Milwaukee.
Section
971.12(1), Stats., permits
joinder of multiple crimes when those crimes are of a same or similar character
or are based on the same act or transaction.
Whether joinder of crimes is proper is a question of law which we review
de novo. State v. Locke,
177 Wis.2d 590, 596, 502 N.W.2d 891, 894 (Ct. App. 1993).
Section
971.12(3), Stats., provides that
the trial court may order separate trials of properly joined charges if it
appears that a defendant is prejudiced by the joinder of the counts. A trial court's refusal to grant a motion
for severance will not be disturbed on appeal absent a finding that the trial
court erroneously exercised its discretion.
State v. Hall, 103 Wis.2d 125, 140, 307 N.W.2d 289, 296
(1981).
If
offenses do not fulfill the proper condition for joinder, it is presumed that
the accused will be prejudiced by a joint trial. State v. Leach, 124 Wis.2d 648, 671, 370 N.W.2d
240, 253 (1985), cert. denied, 498 U.S. 972 (1990). The state may rebut the presumption on
appeal by demonstrating the accused has not been prejudiced by a joint
trial. Id. It is only when it is determined prior to
trial that joinder is proper but it becomes apparent on appeal the offenses
were misjoined, that the state has any opportunity to demonstrate lack of
prejudice. Id. In limited circumstances when this
phenomenon occurs, the misjoinder of offenses may be harmless. Id. We conclude this case fulfills those limited circumstances when
misjoinder constitutes harmless error.
The
charges confronting Clay consisted of eleven counts of armed robbery, five
counts of first-degree sexual assault and one count of attempted armed
robbery. Ten of the incidents of armed
robbery and the one incident of attempted armed robbery occurred at small
retail establishments. With the
exceptions of the three counts of sexual assault and one count of armed robbery
which occurred at St. Joseph's Hospital, all of these alleged incidents
commenced initially by the forceful obtaining of money.[1] As the evidence at trial developed, although
all of the incidents of criminality occurred within a six-month period from
February 1991, to August 1991, the sexual assaults and subsequent armed
robbery which took place at St. Joseph's were not of the same or similar
character nor because of locale connected together, nor by execution, part of a
common scheme or plan. The common
scheme, if there was one, that ran through all of the alleged criminal acts was
the isolation of the victim for however brief a period of time, and the
subsequent use or threat to use a weapon capable of cutting or stabbing a
victim for the purposes of gaining submission to the perpetrator's
demands. But countless armed robberies
are committed in the same fashion.
Without the presence of some other recognizable associating
characteristics, the general modus operandi acknowledged herein does not
make the St. Joseph incidents fit candidates for proper joinder with the other
counts.
The
overriding evil to be avoided by improper joinder is that the jury may be
incapable of separating the evidence relevant to each offense and the jury may
perceive that a defendant accused of several crimes is predisposed to
committing criminal acts—thus, resulting in prejudice to the accused. State v. Bettinger, 100 Wis.2d
691, 696, 303 N.W.2d 585, 588 (1981).
However, if the joined counts are and can be kept logically, factually,
and legally distinct so that the jury does not become confused about which
evidence relates to which crime, and if the jury considered each count
separately, no prejudice results from misjoinder.
We
have reviewed the entire record and, more specifically, the organized manner in
which the State's case was presented to the jury. In its opening statement, the State, in painstaking fashion,
methodically set forth the essential elements of each charge it intended to
prove. Each incident was factually
distinct from all the others and was tried in serial fashion. Clay pleaded not guilty to each charge
thereby challenging the sufficiency of the State's evidence for each
charge. The jury only had to consider
three different types of charges: armed
robbery, attempted armed robbery, and first-degree sexual assault. The evidence presented by the State for each
charge was short in form and simple in nature.
Clay offered no evidence in defense of the individual charges. Rather, his defense consisted mainly of impeaching
the direct and circumstantial identification made of him and the weight and
credibility given to the lengthy seven-page incriminating statement he gave to
investigating officers.
The
jury was expressly instructed to consider each count separately and not to
allow the accused's guilt or innocence on any count affect its verdict on any
other count. The jury received verdict
forms individually formulated for each count and each victim. In spite of the overwhelming admission and
identification evidence, the jury found it appropriate to acquit Clay of two
separate counts of armed robbery. This
net result, in our judgment, demonstrates that the jury was able to keep the
charges distinctly in mind, follow the trial court's instructions, properly
evaluate the evidence as it related to each charge, and arrive at a verdict
that was free of any unwarranted substantial prejudice to Clay. We therefore conclude that any error in
joining the charges emanating from St. Joseph's Hospital with the other charges
was harmless.
C. Failure to
Strike Juror.
Clay
next claims the trial court erroneously exercised its discretion in failing to
strike a proposed juror for cause, thereby denying him his constitutional right
to due process. Clay contends that the
trial court, by failing to comply with § 805.08(1), Stats., denied him his right to the
preemptory challenges accorded him by § 972.03, Stats.[2]
To
address Clay's due process claim, we must first ascertain whether the trial
court failed to comply with § 805.08(1), Stats.,
the jury qualification statute. In
essence, the statute sets forth circumstances to determine whether a juror
ought to be excused for cause from judging the case. Among the properly disqualifying circumstances is when a
prospective juror has “expressed or formed any opinion or is aware of any bias
or prejudice in the case.”
Whether
to dismiss a proposed juror for cause lies within the discretion of the trial
court. State v. Zurfluh,
134 Wis.2d 436, 438, 397 N.W.2d 154, 154 (Ct. App. 1986). Where the record shows that the court
considered the facts of the case and reasoned its way to a conclusion, that is,
(1) one a reasonable judge could reach, and (2) consistent with applicable law,
we will affirm the decision even if it is not a conclusion which we ourselves
would make. This court will uphold the
trial court's discretionary decision unless the use of discretion is wholly
unreasonable. State v.
Johnson, 118 Wis.2d 472, 481, 348 N.W.2d 196, 201 (Ct. App. 1984). When the partiality of an individual juror
is placed in issue the question is one of historical fact, Patton v.
Yount, 467 U.S. 1025, 1036, (1984), i.e., did a juror swear that he
could set aside any opinion he might hold and decide the case on the evidence
and should the jurors' protestations of impartiality be believed. Id. The fact determination in this context is essentially one of
credibility influenced highly by demeanor.
As observed by the Patton court:
It is well to remember that the lay persons on the panel
may never have been subjected to the type of leading questions and
cross-examination tactics that frequently are employed .... Prospective jurors represent a cross-section
of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors
have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to
express themselves carefully or even consistently. Every trial judge understands this. The trial judge properly may choose to believe those statements
that were the most fully articulated or that appear to have been least
influenced by leading.
Id. at 1039.
Clay
argues the record reflects clear, explicit and unequivocal evidence of actual
bias on the part of the prospective juror which substantiates the erroneous
exercise of discretion by the trial court in failing to strike the juror for
cause. We are not convinced.
During
the jurors general voir dire, a juror indicated that his daughter had been
sexually assaulted and this experience might influence his ability to sit as an
impartial juror. The trial court
retired to chambers to continue the juror's voir dire. In response to Clay's counsel's questions,
the juror indicated the following: that
Clay had the burden to prove his non-guilt and, hence, was not “starting off on
a level playing field;” that if Clay did not adduce evidence and did not
testify, the juror would consider this as an “indication of guilt”; that if the
judge instructed to the contrary, the juror would not let himself be put in the
“middle”; that if the judge instructed that Clay's guilt could not be assumed
from his failure to testify the juror replied that nevertheless “he would have
to prove to me that he was not involved in it”; and that he, the juror, would not
be a good juror and should not be a juror.
He also indicated that he would expect Clay to prove his innocence if
the State failed in its proof. The
juror further stated “if the State can't prove that he's guilty, you don't have
to do anything. Same thing the judge
said. If he [Clay] can't prove anything
he's guilty. The State doesn't have to
do anything.”
Contrariwise,
in answer to other questions of Clay's counsel, the State and the court, the
juror acknowledged the following: that
the burden of proof is on the State; that the defense does not have to do a
thing because of the burden of proof; that he would follow the instructions of
the court, put aside feelings of prejudice and bias and come to a fair and just
result; that he would weigh everything as the judge told him; that he would
expect the State to prove its case one hundred percent; that he would listen to
the court's instructions with regard to the district attorney's
responsibilities in putting in the evidence regardless of his feelings; that he
would try to separate his feelings; and that he understands that the burden was
completely on the State.
We
also note from the record that during the in-chambers voir dire, the
prospective juror uttered many “aha's”, “ya's”, and “yes's” in response to
leading questions. Some of these
utterances could be interpreted as expressing bias and prejudice, while others
could be interpreted as demonstrating an open-mindedness, an understanding of a
juror's responsibilities and a desire to follow the judge's instructions.
From
this summary, it is obvious that the trial court had to decide to which
responses of the prospective juror it would give more weight based on what it
had heard and observed. Just as a jury
is at liberty to make findings of credibility without reasoned explication, so
may a judge sitting as a finder of fact.
United States v. Harris, 507 F.2d 197, 198 (3d Cir.
1975). A reviewing court cannot
replicate the singularity of the occasion and hence, we must recognize this
special deference given to the discretionary acts of the trial court when in
its fact-finding posture.
Clay
moved to strike the juror for cause.
The trial court, in denying the motion, ruled:
I've heard what he said. I've heard the question.
I've heard the argument and the court believes that this juror's answer
to the question -- questions to the extent which would indicate to the court
that he would, regardless of his personal feelings, I think he can separate
those feelings and be fair and impartial based upon the representations that
were made to the court's questions so far as the burden of proof, the
responsibility of following the instructions of the court so the court's not
going to strike this juror for cause ....
Doubtless,
the trial court, with able assistance of counsel, properly examined the
prospective juror as prescribed by § 805.08(1), Stats. It determined
the prospective juror could separate his feelings about the sexual assaults, be
fair and impartial, and would follow the instructions of the court. In succinct terms, the juror's protestations
of impartiality were believed. We
cannot conclude that the trial court's findings of fact in this regard are
clearly erroneous nor that the trial court erroneously exercised its discretion
in refusing to dismiss the prospective juror for cause.
Since
the trial court did not erroneously exercise its discretion, and thus did not
improperly interfere with Clay's right to exercise his peremptory strikes, we
find no need to address Clay's claimed due process violation. See Gross v. Hoffman,
227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be
addressed).
D. Discovery Motion and Mistrial Motion.
Lastly,
Clay claims the trial court erroneously exercised its discretion by denying its
pretrial motion to compel discovery of certain photographs and its motion for a
mistrial for failure to timely provide certain police investigative
reports. Since this claim of error has
two parts, we shall consider each separately.
We first shall examine the pretrial discovery request for photographs.
The
State, pursuant to Clay's discovery demand, turned over to Clay three
photographs of three individuals who were identified by some of the victims as
being their assailants. A remaining
total of nine photographs of persons who had not been identified are the
subject matter of Clay's claim of error.
Section 971.23, Stats.,
sets forth criminal discovery procedure and subsection (7)[3]
details the sanctions available for noncompliance. Prosecutorial misconduct as to discovery is generally remedied by
exclusion or the granting of a continuance or recess—the granting of a mistrial
being regarded as a drastic alternative.
State v. Ruiz, 118 Wis.2d 177, 201-02, 347 N.W.2d 352,
363-64 (1984). Further, “the State is
under no constitutional obligation to provide the defense with discovery of
helpful but non-exculpatory evidence.” State
v. Denny, 120 Wis.2d 614, 628, 357 N.W.2d 12, 19 (Ct. App. 1984).
Because
a trial court's ruling on a discovery motion is generally a proceeding of a
procedural oriented determination, great deference is given to the trial
court. Because, however, such a ruling
may deny an accused of his constitutional due process rights to a fair trial,
review is de novo. In such
context, we shall not reverse a trial court's evidentiary findings unless they
are clearly erroneous. But we shall “independently
review the trial court's finding of the constitutional facts and independently
apply the constitutional principles involved to the fact[s] as found by the
trial court.” State v. Maday,
179 Wis.2d 346, 353, 507 N.W.2d 365,
369 (Ct. App. 1993).
We
conclude the trial court did not erroneously exercise its discretion in
refusing to compel the State to produce the requested photographs and such
refusal did not violate Clay's due process rights.
It
is uncontroverted from a reading of the record that none of the persons in the
photographs shown to the victims were identified as the perpetrators of the
investigated robberies or sexual assaults.
Indeed, Clay desired the photographs to generate misidentification. Additionally, Clay made no showing that the
disclosure of the photographs would be helpful to the defense, not to mention
contribute to his acquittal. In United
States v. Bagley, 473 U.S. 667 (1985), the Supreme Court declared:
The holding in Brady v. Maryland requires
disclosure only of evidence that is both favorable to the accused and “material
either to guilt or to punishment.” ... “A fair analysis of the holding in Brady
indicates that implicit in the requirement of materiality is a concern that the
suppressed evidence might have affected the outcome of the trial.”
Id. at 674-75 (citations omitted).
Clay's motion satisfies neither prong of Brady.
Further,
Clay was not denied his constitutional right to due process by the court's
refusal to compel production of the additional photographs because the trial
court's refusal did not offend objective notions of fundamental fairness. Lisenba v. California,
314 U.S. 219, 236 (1941); Breithaupt v. Abram, 352 U.S. 432, 436
(1957). As reflected by the record,
Clay had available to him the complete panoply of procedural process which
guaranteed him the fair opportunity to defend himself against the allegations
lodged by the State.[4]
We
now consider the effect of the late production of Milwaukee Police Department
offense report relating to the February 22, 1991, Yaeger Bakery robbery as
charged in Count 1 of the Information.
Clay asserts he is entitled to a mistrial because of this delayed
disclosure which occurred during the middle of the trial. To support this claim of error, Clay does
not contend that the State intentionally failed to provide him the offense
report. Rather, he argues that the
trial court improperly applied the Denny standards to material
requiring the investigation of several suspects. He further argues that the trial court failed to take into
account the impossibility of conducting an investigation sufficient to meet the
relevant standards when material necessary to conduct the investigation was in
the exclusive possession of the State.
The record belies Clay's protestations.
When the trial court was alerted to the delayed disclosure of the
offense report, recognizing that the issue of available exculpatory material
was central to its determination, it took the following precautionary steps:
(1) it afforded Clay time to properly examine the report; (2) it ordered that
the State witness who was offering the evidence would be subject to recall; and
(3) the State was to assist Clay in determining whether any information was
exculpatory. At the conclusion of all
of the evidence, again, the trial court considered the effect of the tardily
disclosed report. The documents were
reviewed page by page. Counsels were
permitted to share their views on the nature of the report's contents. The trial court observed that it had granted
Clay two days to review and investigate the contents of the report. Yet, Clay had expressed no intention to call
additional witnesses. That being the
case, the trial court then determined:
So,
the court's had the opportunity to -- to view the record as a whole, and the
entire trial, so to speak, and the court believes based upon the entire record,
and based upon what's been represented by both counsel, and the totality of the
circumstances, that none of the item-by-item State's exhibit -- what's
contained in exhibit 47 is exculpatory in nature. Even if it had some impeachment value, and that's stretching it,
based upon the entire record in this case, the court does not believe that it
lays a sufficient -- sufficient reasonable doubt for the accused that didn't
otherwise exist. I don't believe it was
an intentional act by -- by the State.
I believe to the contrary.
Be that as it may, based upon the record, the court based
upon what I've stated does not and cannot find a manifest injustice that would
warrant a mistrial in this case based upon what I have already stated.
Based on the foregoing, we conclude that the trial court
properly exercised its discretion in denying the motion for mistrial.
In
summary, we reject each of Clay's claims and affirm the judgment.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports.
No. 94-1193-CR
(D)
SCHUDSON,
J. (dissenting). “A
determination by the circuit court that a prospective juror can be impartial
should be overturned only where bias is ‘manifest.’” State v. Louis, 156 Wis.2d 470, 478-479, 457 N.W.2d
484, 488 (1990), cert. denied, 498 U.S. 1122 (1991). In this case, bias is manifest, the State
does not argue otherwise and, under State v. Gesch, 167 Wis.2d
660, 482 N.W.2d 99 (1992), the State's harmless error theory is unsupportable.
To
appraise the bias in this case, a review of the entire voir dire of the juror
is essential. When asked by the
assistant district attorney if any of the jurors had any experiences that would
“impact in any way” their ability “to be fair and impartial,” the following
exchange occurred:
JUROR [ ][5]: The assault was on my daughter. And I think I will be.
THE COURT:
Let's -- why don't we do the rest of Mr. [ ] in chambers for a second,
okay.
[The assistant district attorney]: Okay.
(The following was had in chambers with Juror
[ ] present:)
THE COURT:
Okay. The record should reflect we're
in chambers with Mr. [ ]. And what was
the ‑- what was the circumstances with the sexual assault?
JUROR [ ]:
My daughter's freshman [sic] at [ ] in college and some boys broke
into her dorm and assaulted her.
THE COURT:
Was she sexually assaulted?
JUROR [ ]:
Yes.
THE COURT:
I assume that she was sexually assaulted based on what you said.
JUROR [ ]:
And it breathes [sic] a lot of trouble for her and the family in terms
of [costing] thousands of dollars for psychiatric treatment and stuff. And in fact still effects her. So anything I hear of [a] person being
assaulted, my feelings go toward that person.
Whoever did it should be punished.
THE COURT:
Do you understand that these are allegations that are --
JUROR [ ]:
I understand.
THE COURT:
-- in the information. And, and
right now there's no evidence against the defendant in that way. They're allegations that are contained in
the Information, doesn't constitute evidence against the defendant in any
way. And right now as he stands before
you -- and if you are on this jury what would your verdict be?
JUROR [ ]:
Well -- well when the incident first happened I read about it in the
paper. And my feeling went for the
victim. If I -- you know, you know,
it's -- it's just really hit a real tender spot in my heart for the victim.
THE COURT:
I know.
JUROR [ ]:
And I would say -- I would say I would rule that he would have to do the
time.
THE COURT:
But you haven't heard any of the evidence though?
JUROR [ ]:
Well, Your Honor, I can't help what I feel.
THE COURT:
I understand that. I
understand. Does anybody else have any
other questions?
[Clay's attorney]: Are you inclined to do something with Mr. [ ] or do you want me
to ask questions?
THE COURT:
Unless there's a stipulation.
[Clay's attorney]: I'll ask Mr. [ ] some questions.
Mr. [ ], I'm representing L. C. Clay.
JUROR [ ]:
Okay.
[Clay's attorney]: And the purpose -- you haven't heard from me all morning, but the
purpose of this jury selection is to make sure that both the State and the
defense get a fair shake. And basically
what's happening here is we want to make sure that each juror comes in and
doesn't have feelings that are so deep-rooted that they're really not going to
objectively and independently review the evidence when you hear -- when you
hear witnesses testify, you aren't so overwhelmed by things which happened in
their own personal experience that you wouldn't be fair to the defendant. That's what we're concerned about. And what I'm asking you is -- I understand
that you had a terrible tragedy in your family specifically and your daughter
and I understand it impacted on the whole family very terribly. My question is irrespective of what happens
in this courtroom, is it your position that your feelings are so deep-seated
that you just don't think you can be fair to my client?
JUROR [ ]:
I would say you would have to change my mind. The evidence that you would have to present would have to be
concrete that he didn't do it.
THE COURT:
See, in a criminal case the burden of proof is on the State.
JUROR [ ]:
Yeah.
THE COURT:
They got to prove beyond a reasonable doubt as every single element of
all those offenses that are alleged in the Information?
JUROR [ ]:
Uh-huh.
THE COURT:
The defense in a criminal case, they don't have to do a thing because of
the burden of proof on the State.
JUROR [ ]:
Okay.
THE COURT:
So evidence in a case may come in various forms and that's usually by
witnesses who take the witness stand and testify under oath on the witness
stand.
JUROR [ ]:
Uh-huh.
THE COURT:
Exhibits that are marked and received in the Court's record, that's
physical type of evidence if there is any in this case. I don't know if there is. But defense doesn't have to prove a thing.
JUROR [ ]:
Okay.
THE COURT:
It's completely up to the State.
Those are instructions that the Court's going to give you.
JUROR [ ]:
All right.
THE COURT:
Question I guess would be would you follow those instructions by the
Court? And then after listening to
everything, putting -- of course the Court's going to tell you to put aside
your feelings of prejudice and bias and whatever. That's an instruction.
Would you be able to do that and listen and come to a fair and just
result in this matter?
JUROR [ ]:
I believe so.
THE COURT:
Okay.
JUROR [ ]:
I never had my feelings that way but I think I would be able to.
THE COURT:
Okay. Any additional questions?
[Clay's attorney]: Yeah. Mr. [ ], there
are situations which you're involved in.
We're all supposed to start off -- both sides in this case are sort of a
level playing field. And you correct me
if I'm wrong. You're telling me that at
this juncture based on your experience and your own family that my client is
not starting off on the level playing, is that right?
JUROR [ ]:
I would say yes, you're right.
[Clay's attorney]: All right. Are you
telling me that -- Judge is going to tell you that my client doesn't have to
prove anything. I don't have to prove a
thing, whether he was there, whether he was not there, whether he did
something, whether he didn't do something.
Irrespective of that do you still expect that he would have to prove his
innocence? I mean based on your
mind-set right now?
JUROR [ ]: I would say he would have to prove his innocence. I mean that's the way I feel.
[Clay's attorney]: All right. And even if
the Judge tells you he doesn't have to prove his innocence?
JUROR [ ]: Well the Judge told me to weigh everything and that's what I
would do. But my feeling is still I
hate -- I would like to be in the middle.
But I can't -- I can't be in the middle right now.
[Clay's attorney]: Let me ask you this, Mr. [ ]. If you had a loved one who was sitting in judgment and was
sitting in the dock as Mr. Clay is and someone in the jury was composed of
people with your mind-set, do you thing that person would be getting a fair
shake?
JUROR [ ]: Well knowing me I think he would get a fair shake.
[Clay's attorney]: Knowing how -- let's say -- let me give you this example. Let's assume that you have a loved one who's
on trial. Okay?
JUROR [ ]: Yeah.
[Clay's attorney]: For sexual assault. And
you got twelve people with the way you feel right now, okay, the way you feel
about sexual assaults. Do you think
that that person would get a fair shake?
JUROR [ ]: Well[,] be hard to say.
[Clay's attorney]: Well what I'm asking you -- you told me that you feel very
strongly about sexual assaults, right?
JUROR [ ]: Right.
[Clay's attorney]: And you feel that nobody likes sexual assaults. There's no question about that. But you had a personal tragedy in your
family. What I'm asking you is do you
believe it is fair to my client, who's supposed to be given the benefit of the
doubt, to have a person with your mind-set sitting in judgment? Do you think that's fair?
JUROR [ ]: I don't think it would be fair to him. But I don't know how other people would feel.
[Clay's attorney]: Let me ask you this.
Knowing how you feel about sexual assaults and knowing how you feel
about what happened to your family, are you asking to be excused and not sit in
judgment of somebody who's charged for that type of offense?
JUROR [ ]: No, I won't ask to be excused.
If you feel that I'm not fit, fine, but I won't ask to be excused.
[Clay's attorney]: Let me ask you this. Do
you -- you told me that you don't think
it's fair that somebody with your mind-set is sitting on a jury where a person
is charged with sexual assault, is that right?
That would not be fair to him, is that correct?
JUROR [ ]: It might not be fair to him.
[Clay's attorney]: All right. If we're
trying to -- if we're trying to have fairness in this particular trial, would
you agree with me that somebody with your mind-set shouldn't be standing in
judgment of a person charged with sexual assault if we're trying to be fair?
JUROR [ ]: Well I would say yes. I
don't think I would make a good juror for him.
[Clay's attorney]: All right. Knowing how
you feel, is what I'm saying, knowing that you feel that in effect you can't be
fair, do you think it's right that you should be standing -- that you should be
passing judgment on him?
JUROR [ ]: No, not at this point.
[The assistant district attorney]: All right.
Knowing how you feel, would you then -- based on those reasons alone
would you ask to be excused for no other reason other than the way you feel?
JUROR [ ]: No, I won't ask to be excused.
I let the Judge and the attorneys decide if my feelings would affect
outcome of the trial.
[Clay's attorney]: All right.
[The assistant district attorney]: I have a few questions, if I may. Are you --
[Clay's attorney]: No. Let me just --
[The assistant district attorney]: Okay.
[Clay's attorney]: Mr. [ ], the Judge is also going to tell you that my client
doesn't have to testify in this case, okay.
He's going to say the law says he doesn't have to testify.
JUROR [ ]: Okay.
[Clay's attorney]: Not only the law says he doesn't have to testify but the law says
if we chose to do this we could literally sit on our hands and not do
anything. I'm talking about the defense.
JUROR [ ]: Uh-huh.
[Clay's attorney]: If we chose not to do that and in other words we chose not to
have my client testify and we chose not to put on evidence, do you think that
you would hold that against him? Do you
think that that would be indication of guilt to you?
JUROR [ ]: I would think so.
[Clay's attorney]: Even though the Judge would instruct you that you can't assume
guilt from defendant not testifying?
JUROR [ ]: Well I say like I said before, he had to prove to me that he
wasn't involved in it. That's -- that's
my feelings.
[Clay's attorney]: Okay. I have no further
questions of this witness.
[The assistant district attorney]: Mr. [ ], if this Court were to instruct
you and tell you that the State has to prove to whatever evidence and what
witnesses we produce to -- if we have to prove this case beyond a reasonable
doubt?
JUROR [ ]: Right.
[The assistant district attorney]: All right.
And that means that we have to go forward with evidence and we have to
produce witnesses and testimony that convince you that this particular person
is guilty?
JUROR [ ]: Uh-huh.
[The assistant district attorney]: Do you understand -- would you follow the
instructions that this Court gave you in that regard, making me prove the case?
JUROR [ ]: Yeah.
[The assistant district attorney]: Yeah.
And would you expect me to prove the case?
JUROR [ ]: I would expect you to prove it 100 percent.
[The assistant district attorney]: All right.
And you would listen to this Court's instructions with regard to what my
responsibilities are as a prosecutor and putting on the evidence in this case?
JUROR [ ]: Yes.
[The assistant district attorney]: All right.
THE COURT:
Is that regardless of your feelings?
JUROR [ ]: That's regardless of my feelings. Above all things else I'm a Christian. And above all things I believe in fair play but there are certain
things in my life that touches a sore spot.
THE COURT:
I understand that, and, and the question is would you be able to
separate that from this case?
JUROR [ ]: It would be hard, Your Honor, but I would try.
[The assistant district attorney]: To be fair and impartial?
JUROR [ ]: Right. It's up to
you. Whatever.
[Clay's attorney]: Mr. [ ]?
JUROR [ ]: Yes.
[Clay's attorney]: I understand that it would be -- that you would try and
separate them but I guess the question is -- and this is an almost impossible
task for on my part I'm asking you to do is look into the future. You told me that you expect the defendant to
prove his innocence, right?
JUROR [ ]: Yeah.
[Clay's attorney]: You told me how you feel about your daughter and what went
on. And the Judge is going to say that
you are supposed to separate your -- basically your life's experiences in this
regard away. The question becomes do
you honestly believe that when you hear this case that you can forget about
what happened to your daughter and that you wouldn't be swayed by what happened
in your family?
JUROR [ ]: I never can forget what happened to my daughter.
[Clay's attorney]: Do you think -- do you think that you would take that experience
into the jury room and that would affect your decision making? See, that's really the question.
THE COURT:
As to the case that's before the Court?
JUROR [ ]: Yeah, well, I don't know.
I never had to really sit down decide that. I don't know, Your Honor.
If you feel that I might do it wrong, dismiss me from the jury. But I, I mean never have been -- that's a
lot to ask of a father to set aside what happened to your personal family.
THE COURT:
No, I understand that. And as a
father also I wouldn't, you know, that's something that that experience and
that emotional trauma is going to live with you for the rest of your life, is
going to live with your daughter, and I don't think there's anybody in this
room that would disagree with that.
The question is though is that you understand
the State's role. They got to prove
this case beyond a reasonable doubt.
Defense doesn't have to do a thing pursuant to the law. That's our law in this country. And they have to -- the burden is completely
on them.
JUROR [ ]: Uh-huh.
THE COURT:
If they can't satisfy the burden of proof beyond a reasonable doubt as
to each and every single one of those elements of the offenses, could you come
back with a not guilty verdict?
JUROR [ ]: I don't know, Your Honor.
I'd have to hear everything.
THE COURT:
Well you are going to have to hear everything in order to make that
decision.
JUROR [ ]: Right.
THE COURT:
But if you don't think that they proved their case because they're
missing elements or what have you, which the Court's going to instruct you as
to what they've got to do, but after hearing all this, hearing all the
testimony and what have you, if you don't think they can prove their case
beyond a reasonable doubt, what would your verdict be?
JUROR [ ]: Well I would -- I would rule the way I see it. If he can't prove his case, I would say not
guilty. If he prove it, he's guilty.
THE COURT:
Okay.
[Clay's attorney]: Mr. [ ], are you -- let me ask you this. As you sit here right now do you feel that
you're sort of in the prosecution's camp as opposed to the defense camp since
the defendant's charged with sexual assault?
In other words do you feel you are more on the side -- you are siding
with the prosecution?
JUROR [ ]: That's a hard question to answer.
[Clay's attorney]: Well let me ask it a different way. There's two sides to this case obviously, prosecution and the
defense?
JUROR [ ]: Oh, yeah.
[The assistant district attorney]: And right now based on your experience with
your daughter do you think that you are more prone to pull for the prosecution?
JUROR [ ]: Still asking -- that's a lot to ask.
THE COURT:
Or is it because that you don't know anything about the case?
JUROR [ ]: Well I read something about it in the paper when it first
happened but whether this is the guy or whoever, I don't know. I don't ask.
THE COURT:
And you won't know until after the testimony.
JUROR [ ]: Until I hear the testimony.
[Clay's attorney]: Let me ask you this. You
read about the fact that he was arrested?
JUROR [ ]: No, I read about the assault case at Saint Joe's Hospital.
[Clay's attorney]: All right.
JUROR [ ]: And the robberies but they didn't name any person.
[Clay's attorney]: Okay. Let me focus in on
the Saint Joe's just for a minute. L.
C. Clay, my client, is sitting here and obviously he's been charged with all
these offenses. Do you think that
because he's been charged that that's an indication to you that he's probably
guilty?
JUROR [ ]: Not necessarily so.
[Clay's attorney]: What do you think comes out of the fact that he was arrested?
JUROR [ ]: Well they have to have some evidence that he was somewhere in the
vicinity or someplace to arrest him. I
don't think Milwaukee Police Department would just do things out of the clear
blue sky.
[Clay's attorney]: Well based on the fact that he's arrested by the Milwaukee Police
Department, based on the fact that he's sitting here and charged, and you or
other people maybe sitting on part of the jury, do you think that that's an
indication that he probably did it?
JUROR [ ]: Could be.
[Clay's attorney]: Do you think that that -- does that also add to your statement
that I would have to prove him innocent?
JUROR [ ]: Yeah.
[Clay's attorney]: And knowing that you feel that I have to prove him innocent and
even though the Judge says that I don't have to prove anything, the State has
to prove him guilty if he can, do you think that -- do you think that I still
have to prove that he's guilty -- or innocent?
Excuse me. That was a long
question. Let me --
[The assistant district attorney]: You know, Judge, we've gone over that issue
over and over now.
JUROR [ ]: Let me say it this way.
If the State can't prove him guilty, you don't have to prove him
anything. But you know what I'm
saying. Had to be some evidence against
him to arrest him in the first place.
So if you feel that I'm not fit for this jury, just tell the Judge you
reject me.
[Clay's attorney]: All right. Are you saying
that I still have to come forward with some evidence in your mind to show that
he did do it?
THE COURT:
With the understanding that the State has to prove the case beyond a
reasonable doubt.
JUROR [ ]: Yeah.
[Clay's attorney]: Even though -- I guess what we're saying is even though the State
has this obligation to put forth, okay?
JUROR [ ]: Yeah.
[Clay's attorney]: Do you still -- would you still require the defense to come
forward and prove that he's innocent?
JUROR [ ]: No. If the State can't
prove that he's guilty, you don't have to do anything. Same thing the Judge said. If he can't prove anything, he's
guilty. State doesn't have to do
anything.
THE COURT:
Okay.
JUROR [ ]: But I'm saying you know, I miss -- I'm just speaking my personal
feelings toward sexual assaults.
THE COURT:
I understand that.
JUROR [ ]: And that's the way I am.
THE COURT:
Okay. Thanks very much. You can just have a seat back where you
were.
JUROR [ ]: Okay.
(Juror [ ]
returned to the courtroom.)
Thus,
understandably, this juror emphasized that because of the sexual assault of his
daughter, he could not assure his impartiality. He acknowledged that he would consider Clay's failure to testify
an “indication of guilt” and he repeatedly declared that he would not acquit
Clay unless Clay proved his innocence.
Nevertheless, the trial court concluded:
I've heard what he
said.... I've heard the argument and
Court believes that this juror's answer to the question -- questions to the
extent which would indicate to the Court that he would, regardless of his
personal feelings, I think he can separate those feelings and be fair and
impartial based upon the representations that were made to the Court's questions
as far as the burden of proof, the responsibility of following the instructions
of the Court. So the Court's not going
to strike this juror for cause and obviously you got your peremptory strikes.
Denying the defense motion to strike this juror, the trial
court failed to apply or even refer to any legal standard under the statute or
case law. Under these clear standards,
the trial court erred.
What
the majority terms the juror's “protestations of impartiality” in no way
eclipsed his understandable and candid acknowledgement of partiality. Once before under somewhat similar
circumstances, we concluded in State v. Zurfluh, 134 Wis.2d 436,
397 N.W.2d 154 (Ct. App. 1986), that the trial court erred in failing to remove
a juror for cause. Indeed, we reached
that conclusion even though the juror's partiality was far less obvious than it
is in the instant case.
Section
805.08(1), Stats., requires the trial court to determine whether a juror “is
aware of any bias or prejudice in the case,” and to excuse a juror who “is not
indifferent in the case.” A juror who
believes he or she cannot decide the case fairly on the evidence should be
excused.
On voir dire, Hollander said she felt she
“might not be able to be fair.” When
the court explained to her the duties of a juror, Hollander said she
understood. The court then asked
Hollander whether she would have a problem in making a fair and impartial
determination of the evidence. She
replied: “I don't know. I might.
I'm afraid I might. I wouldn't
want to have; but I'm afraid I might.
I'm just being honest.”
The trial court nevertheless refused to excuse
Hollander for cause, saying she had expressed only her distaste for the
crime. In the court's opinion,
Hollander's difficulties were simply a reflection of her awareness of the
crime's seriousness and would not interfere with her ability to decide the case
on the evidence.
Whatever the trial
court's opinion, apparently Hollander did not share the court's confidence in
her ability to decide the case fairly and impartially.... Because the trial court failed to follow the
statutory direction, it committed an error of law ....
Id. at 438-439, 397 N.W.2d at 155 (citation omitted).
Thus,
in the instant case, although the trial court attempted to salvage Juror
[ ] by tugging him toward an impartial harbor with leading questions, and
although Juror [ ] intermittently acquiesced to the obvious directions
that those questions implied, the full record establishes Juror [ ]'s
partiality as a matter of law. As the United
States Supreme Court explained in Patton v. Yount, 467 U.S. 1025
(1984), “[t]he trial judge properly may choose to believe those statements
that were the most fully articulated or that appeared to have been least
influenced by leading.” Id.
at 1039 (emphasis added). The Supreme
Court, however, did not offer the opposite proposition—the proposition
that the majority adopts in this case:
that the trial judge may choose to believe the statements most
influenced by leading questions to the exclusion of statements that were
clearly candid and spontaneous.
On
appeal, the State confronts this extraordinary record and does not
reach the majority's remarkable conclusion that the trial court did not
err. Rather, the State argues only
“harmless error” because Juror [ ] was removed from the jury by a
peremptory challenge. Under Gesch,
however, such harmless error analysis is inapplicable.
In
Gesch, where the defense did not use a peremptory challenge to
remove the objectionable juror, the Wisconsin Supreme Court explained:
Lastly, the State argues that Gesch's defense
counsel's failure to exercise a peremptory challenge to juror Wineke results in
a waiver of his right to raise on appeal any issue regarding the circuit
court's failure to strike juror Wineke for cause. We disagree. The State's
position would leave the defendant in an unavoidable and extremely unfair
“catch 22.”
The State conceded
at oral argument that had the defendant struck juror Wineke and subsequently
been convicted, the circuit court's refusal to strike for cause would have been
harmless error. Thus, according to the
State, if the defendant peremptorily strikes the contested juror, the defendant
loses on appeal based on harmless error.
If the defendant does not strike the juror, the defendant loses based on
waiver. We will not force a defendant
into such a “lose-lose” position. The
peremptory challenge is one of the most important of the rights secured to the
accused.
Id. at 671, 482 N.W.2d at 104.
Thus, the trial court's final reassurance to Clay's counsel that he
still could use a peremptory strike to remove Juror [ ], and the fact that
defense counsel did so, provide no basis for invocation of harmless error
doctrine. Under Gesch, it
simply cannot apply.
In
Zurfluh, we concluded that the trial court's failure to exclude
the juror was an error of law in violation of the “statutory direction.” Zurfluh, 134 Wis.2d at 439,
397 N.W.2d at 155. That “statutory
direction” is clear: “If a juror is
not indifferent in the case, the juror shall be excused.” Section 805.08(1), Stats. (emphasis added).
This record is astounding. Juror
[ ] was “not indifferent.” He knew
it and, on appeal, the State does not argue otherwise. The majority, however, joins the trial court
in attempting a salvage operation that the law does not permit. Accordingly, I respectfully dissent.
[1] In denying Clay's motion to sever the counts
emanating from the St. Joseph's incident, the trial court reflected that the
“common thread” in all the counts is “the armed robbery. And the armed robberies, that thread goes to
the sexual assaults too based on the facts as alleged, the facts as represented
by both counsel because armed robbery in fact, took place.”
Crimes, however, are not
of the same character simply because they constitute violations of the same
statute. “Crimes are of the same or
similar character if they are ‘the same type of offenses occurring over a
relatively short period of time, and the evidence as to each count overlaps.’” State v. Hoffman, 106 Wis.2d
185, 208, 316 N.W.2d 143, 156 (Ct. App. 1982) (citation omitted).
[2] Section 805.08(1), Stats., provides:
Qualifications,
examination. The court shall examine on oath each person
who is called as a juror to discover whether the juror is related by blood or
marriage to any party or to any attorney appearing in the case, or has any
financial interest in the case, or has expressed or formed any opinion, or is
aware of any bias or prejudice in the case.
If a juror is not indifferent in the case, the juror shall be
excused. Any party objecting for cause
to a juror may introduce evidence in support of the objection. This section shall not be construed as
abridging in any manner the right of either party to supplement the court's
examination of any person as to qualifications, but such examination shall not
be repetitious or based upon hypothetical questions.
Section
972.03, Stats., provides:
Peremptory
challenges. Each side is entitled to only 4 peremptory
challenges except as otherwise provided in this section. When the crime charged is punishable by life
imprisonment the state is entitled to 6 peremptory challenges and the defendant
is entitled to 6 peremptory challenges.
If there is more than one defendant, the court shall divide the
challenges as equally as practicable among them; and if their defenses are
adverse and the court is satisfied that the protection of their rights so
requires, the court may allow the defendants additional challenges. If the crime is punishable by life
imprisonment, the total peremptory challenges allowed the defense shall not
exceed 12 if there are only 2 defendants and 18 if there are more than 2
defendants; in other cases 6 challenges if there are only 2 defendants and 9
challenges if there are more than 2.
Each side shall be allowed one additional peremptory challenge if
additional jurors are to be impaneled under s. 972.04(1).
[3] Section 971.23(7), Stats., provides:
Continuing
duty to disclose; failure to comply. If, subsequent to compliance with a
requirement of this section, and prior to or during trial, a party discovers
additional material or the names of additional witnesses requested which are
subject to discovery, inspection or production hereunder, the party shall
promptly notify the other party of the existence of the additional material or
names. The court shall exclude any
witness not listed or evidence not presented for inspection or copying required
by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the
opposing party a recess or a continuance.
[4] The State in its brief directs our attention
to State v. Kuntsman, 643 So.2d 1172, 1174 (Fla. App. 1994), to
additionally support its argument that Clay has no right to discovery for the
purposes of creating evidence. Although
not precedential for us, the Florida court does supply added persuasive
rationale to deny Clay's motion.