COURT OF APPEALS DECISION DATED AND RELEASED October 26, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1806-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN WARNER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Monroe County:
JAMES W. RICE, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Steven Warner appeals from a judgment convicting him
on four felony counts, following a jury trial. The issues are: (1) whether the trial court improperly limited
Warner's access to his victim's medical records; (2) whether the presiding
judge should have recused himself; and (3) whether the trial court should have
selected an out-of-county jury because of prejudicial pretrial publicity.
On August 18, 1993,
Warner was tried on ten felony charges that included four counts of
first-degree sexual assault of a child, two counts of intentional physical
abuse of a child, one count of exposing a child to harmful materials, one count
forced viewing of sexual activity, one count sexual exploitation of a child,
and one count child enticement. All of
the charges involved the same victim.
One month before trial, the court allowed Warner's counsel to review and
take notes on, but not copy, the victim's medical and counseling records. The trial court subsequently allowed
Warner's psychologist expert to review them.
Six days before the
trial, the presiding judge, James W. Rice, published a letter in the Monroe County Democrat concerning a
prosecution of an unrelated sexual assault of a child. In his letter, the judge expressed outrage
and criticized defense counsel, the prosecutor and this court for delaying the
proceeding. Judge Rice noted,
It
is embarrassing and difficult for little girls to appear before a judge, jurors
and the public to speak of the unspeakable invasions of their little
bodies.
....
I
wanted to get [the trial] behind them before school started.
....
The trial will be held later. In the meantime, the girls will worry and
fret, cry in the night and wonder if anyone cares.
The La Crosse Tribune also published the
letter, and several area newspapers printed follow-up articles noting the
judge's concerns. As a result, Warner
brought motions for Judge Rice to recuse himself and for jury selection in a
different county. The trial court
denied both motions.
Warner contends that the
court erred by its "piecemeal granting of discovery" of the victim's
records. However, he offers no
explanation how the discovery procedure prejudiced him other than the conclusory
statement that it was unfair. We will
not search the record to discover the alleged prejudice for him. Warner must develop his own argument. State v. West, 179 Wis.2d 182,
195-96, 507 N.W.2d 343, 349 (Ct. App. 1993), aff'd, 185 Wis.2d 68, 517
N.W.2d 482, cert. denied, 115 S. Ct. 375 (1994).
The trial judge should
have recused himself and it was error not to.
The judge's published letter gave the unmistakable appearance that he
was predisposed to believe children who are alleged victims of sexual assault. "Due process requires a neutral and
detached judge. If the judge evidences
a lack of impartiality, whatever its origin or justification, the judge cannot
sit in judgment." State v.
Washington, 83 Wis.2d 808, 833, 266 N.W.2d 597, 609 (1978).
Any such error is
harmless, however, unless the judge, in fact, treats the defendant
unfairly. State v. Rochelt,
165 Wis.2d 373, 381, 477 N.W.2d 659, 662 (Ct. App. 1991). Here, Warner does not claim that the trial
judge conducted the trial unfairly.
The trial court properly
denied Warner's motion for an out-of-county jury. Warner asserts that the judge's letter and the publicity
surrounding it tainted the Monroe County jury pool. We review the trial court's decision on the question under the
erroneous exercise of discretion standard.
State v. Albrecht, 184 Wis.2d 287, 306, 516 N.W.2d 776,
783 (Ct. App. 1994). On review we
independently review the circumstances to determine if the trial court properly
exercised its discretion. Id.
at 306, 516 N.W.2d at 783-84. Here,
although many potential jurors knew about the judge's comments, the trial court
fully developed the issue on voir dire, and received no indication that the
letter had provoked wholesale prejudice.
Significantly, Warner's counsel did not request any strikes for cause on
those grounds. Additionally, the fact
that the defendant was acquitted on six of ten counts creates a persuasive
after-the-fact demonstration of a nonbiased jury. Therefore, although the timing and inflammatory nature of the
letter were unfortunate, the trial court reasonably determined that it did not
irrevocably taint the jury pool.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.