|
COURT OF APPEALS DECISION DATED AND RELEASED September
28, 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. 94-1818-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMMY
J. REICHLING,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Green County: JOHN CALLAHAN, Judge. Reversed and cause remanded with
directions.[1]
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Timmy Reichling appeals from a judgment convicting him of
three counts of second-degree sexual assault in violation of
§ 940.225(2)(a), Stats.,
while possessing a dangerous weapon contrary to § 939.63(1)(a)2, Stats., and one count of false
imprisonment in violation of § 940.30, Stats.,
while possessing a dangerous weapon contrary to § 939.63(1)(a)4; and from
an order denying his postconviction motion for a new trial. Reichling contends: (1) he is entitled to a new trial
because the trial court failed to properly instruct the jury on the weapons
penalty enhancer under § 939.63 as required by State v. Peete,
185 Wis.2d 4, 517 N.W.2d 149 (1994); (2) the trial court failed to find he
knowingly and voluntarily waived his right to poll the jury; (3) his trial
counsel was ineffective because he failed to inform Reichling of his right to
poll the jury and failed to request jury polling; (4) the trial court
failed to impanel fair and impartial jurors; (5) his trial counsel was
ineffective in failing to ask critical questions of jurors and in failing to
move to strike certain jurors for cause; and (6) his rights under the Fifth and
Fourteenth Amendments of the United States Constitution were violated by the
admission of testimony about a statement he made to a police detective.
We
conclude the trial court failed to properly instruct the jury that the State
must prove a nexus between the predicate crimes and the dangerous weapon beyond
a reasonable doubt under § 939.63, Stats. Therefore, in accordance with Peete,
we must reverse the judgment of conviction and remand to the trial court with
directions to enter a judgment of conviction solely on the predicate crimes and
to conduct a new trial on the issue of whether Reichling committed those
predicate crimes while possessing a dangerous weapon. We reject Reichling's remaining contentions.[2]
BACKGROUND
Timmy Reichling was
charged with three counts of second-degree sexual assault while possessing a
dangerous weapon, one count of false imprisonment while possessing a dangerous
weapon, and one count of intentionally causing bodily harm to a child while possessing
a dangerous weapon. The charges arose
out of three sexual assaults of Reichling's former girlfriend (a minor) in
Reichling's car while he possessed a knife.
The jury found Reichling guilty on the second-degree sexual assault and
false imprisonment charges while possessing a dangerous weapon, but was unable
to agree on the count charging Reichling with intentionally causing bodily harm
to a child while possessing a dangerous weapon. The trial court denied Reichling's postconviction motion and this
appeal followed.
NEXUS--POSSESSION OF A
DANGEROUS WEAPON
Reichling claims that he
is entitled to a new trial because the trial court failed to instruct the jury
that the State must prove the existence of a nexus between each of the
predicate crimes and the dangerous weapon beyond a reasonable doubt.[3] Section 939.63(1)(a), Stats., provides in part:
If a person
commits a crime while possessing, using or threatening to use a dangerous
weapon, the maximum term of imprisonment prescribed by law for that crime may
be increased ....
In
Peete, the defendant was convicted of possession of cocaine with
intent to deliver while armed. On
appeal, he argued that § 939.63, Stats.,
required the State to prove the existence of a nexus between the dangerous
weapon and the commission of the predicate drug offense. Our supreme court held that the "while
possessing" language in § 939.63 requires the State to prove the
existence of a nexus between the predicate crime and the weapon beyond a
reasonable doubt, that is, that the defendant possessed the weapon to
facilitate the commission of the predicate crime. The court stated:
A circuit court must instruct the jury on the definition
of possession; on the nexus requirement, that the defendant possessed the
weapon to facilitate the predicate crime; and on the definition of dangerous
weapon. The enhanced penalty can only
be imposed when the state proves the existence of each of these elements beyond
a reasonable doubt.
Peete, 185 Wis.2d at 21, 517 N.W.2d at 155.
The
Peete court reversed the judgment of conviction because the trial
court had failed to instruct the jury on the nexus requirement and remanded to
the trial court with directions to enter a judgment of conviction against the
defendant solely on the possession of cocaine with intent to deliver
charge. The court also directed the
trial court to conduct a new trial on the issue of whether the defendant was
guilty of committing the predicate offense while possessing a dangerous
weapon. Finally, the court directed the
trial court to vacate the defendant's sentence and resentence him after the new
trial. Id. at 23, 517
N.W.2d at 156.
The
State maintains that although the trial court failed to instruct the jury on
the nexus requirement, neither a new trial nor resentencing are required
because the trial court did not sentence Reichling beyond the maximum term for
the predicate offenses. According to
the State, the error is therefore harmless.
Our
supreme court recently rejected this same argument in State v. Avila,
192 Wis.2d 870, 532 N.W.2d 423 (1995).
We note that the Avila court, on a motion for
reconsideration, corrected a portion of its harmless error analysis as follows:
The state
correctly notes however that, contrary to the statement in the opinion, a
weapons penalty enhancer is an element of the enhanced offense when that
offense is charged, but not the underlying offense itself.
State v. Avila, ___ Wis.2d ___, 535 N.W.2d 440 (1995) (per
curiam). However, the court
nevertheless concluded that resentencing was required because, "As in Peete,
this court cannot ascertain from the record whether a portion of the
sentence--even though the maximum wasn't reached--was nonetheless due to the
invalid enhancer. Thus resentencing is
necessary." Id.
Based
on Peete and Avila, we reverse Reichling's judgment
of conviction on each count and direct the trial court to enter a judgment of
conviction solely on the second-degree sexual assault and false imprisonment
charges. Reichling is entitled to a new
trial on the issue of whether he committed the predicate offenses while
possessing a dangerous weapon. We also
direct the trial court to vacate Reichling's sentence on the charges of
second-degree sexual assault and false imprisonment. After Reichling is retried, the trial court should resentence him
on all the charges of which he is convicted.
JURY POLLING
Reichling
contends the trial court failed to obtain from him a knowing and voluntary
waiver of his right to poll the jury individually. When the jury returned with its verdict, Reichling was present
with his counsel. The trial court
announced the guilty verdicts on the three counts of second-degree sexual
assault while possessing a dangerous weapon and the guilty verdict on the count
of false imprisonment while possessing a dangerous weapon. The trial court then announced that the jury
was unable to agree on the count of battery to a child. The court asked the jury: "Ladies and
Gentlemen of the Jury, was this then, and is this now your verdict in this
case?" The transcript of the trial
states that the jurors responded "Yes." The trial court asked whether anyone wished the jurors polled on
any or all of the counts. The court
then specifically asked if the district attorney wished to, and the district
attorney answered "no." The
court next asked if defense counsel wished to, and he answered "no."
We
recently held in State v. Jackson, 188 Wis.2d 537, 525 N.W.2d 165
(Ct. App. 1994), that when a defendant is represented by counsel at the time
the verdict is entered, the trial court need not find that the defendant
knowingly and voluntarily consented to his trial counsel's waiver of his or her
right to poll the jury. Following Jackson,
we conclude that because Reichling was represented by counsel at the return of
the verdict, the trial court was not required to find that Reichling knowingly
and voluntarily waived his right to poll the jury.
Reichling
next argues that he was denied effective assistance of counsel because his
trial counsel failed to inform him of the right to poll the jury individually
and failed to request an individual polling.
In order to prevail on this claim, Reichling must show that his trial
counsel's performance was deficient and that this deficient performance
prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The performance inquiry determines whether counsel's assistance
was reasonable under prevailing professional norms and considering all the
circumstances. Id. at
688. We are to indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. Id.
at 689.
The
trial court's determinations of what the attorney did and did not do, and the
basis for the challenged conduct, are factual and will be upheld unless clearly
erroneous. State v. Johnson,
153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). Whether the attorney's representation was ineffective presents a
question of law that this court reviews independently. Id. at 128, 449 N.W.2d at 848.
Reichling's
contention is that the jury was confused as demonstrated by questions the jury
asked during deliberations. Defense
counsel was therefore deficient, he contends, in failing to ask for an
individual polling, and this was prejudicial to him.
After
the jury had been deliberating for about three hours, it sent the court a note
asking: "What do we do if we can't
agree on two counts?" The trial
court advised the jury to again read the instruction provided them that stated
that the verdict must be unanimous as to each count, and the court stated that
each count is separate. The court also
instructed the jury that they were not going to be made to agree but it was
their duty to make an honest and sincere effort to arrive at a verdict.[4] After deliberating approximately two and
one-half hours more, the jury sent another note asking: "If we find the
defendant guilty on three counts and are hung on two, do they only have to
retry on the two hung counts?"
After consulting with the district attorney and defense counsel, the
court advised the jury that it was not to worry about what would happen as a
result of its verdict, that its duty was to act on each of the five counts
separately and to bring back a verdict on each if it could; if it could not,
the jury was to advise the court on which counts it was unable to reach a
verdict.
At
the postconviction hearing, Reichling's trial counsel testified that he had a
recollection of discussing polling the jury with Reichling at some point, but
he did not recall if it was before the final verdict came back or after; in
either case it would have been the same day as the jury deliberations. He did recall discussing the jury's questions
with Reichling and the fact that the questions indicated the jury was unanimous
on some counts and not others. He
testified that he decided not to request individual polling because he thought
it was clear from the jury's questions that the jury understood that each count
was separate and they had to be unanimous on those counts on which they
returned a verdict.
When
asked whether he had concerns that the second question suggested the jury was
hung on two of the five counts but the jury then returned a guilty verdict on
four of the five counts, trial counsel answered:
I didn't because
they had already basically announced that they had reached a verdict on some of
the counts. Had they simply come back
and said that they were hung period, my view might have been different. I might have been concerned that they had
reached some sort of compromise verdict, but when they had come back twice
previously and basically said, "We've got decisions on some but not on the
others," I took that to be a pretty clear indication that they understood
that, that whatever they came back with had to be the verdict of all 12.
He did not view the court's instructions in response to
the second question to be coercive in the sense of emphasizing that the jury
should return a verdict swiftly.
Reichling
testified that his trial counsel had never discussed with him polling the jury
individually.
The
court concluded that trial counsel's assistance with regard to jury polling was
not deficient and not prejudicial to Reichling. The court did not make a finding on whether trial counsel did or
did not discuss individual polling with Reichling. For purposes of our discussion we will assume trial counsel did
not discuss jury polling with Reichling.
As
stated above, in Jackson we decided that where defense counsel is
present at the return of the jury verdict, the trial court need not find that
the defendant knowingly and voluntarily waived his or her right to individually
poll the jury. Jackson,
188 Wis.2d at 542, 525 N.W.2d at 167.
We also concluded: "Jackson
was represented by counsel when the verdict was entered, and the decision to
assert or waive certain rights, including whether to poll the jury, was
delegated to that counsel." Id.
at 542-43, 525 N.W.2d at 168. We read Jackson
as holding that the decision whether to request an individual polling is one
delegated to counsel.[5]
Because
the decision whether to request an individual polling is one delegated to
counsel, we decline to hold that counsel's failure to inform a defendant of the
right to an individual polling is, in itself, deficient performance. The right to an individual polling of the
jury is a significant right because it is a means to test the uncoerced
unanimity of the verdict. State
v. Behnke, 155 Wis.2d 796, 801, 456 N.W.2d 610, 612 (1990).[6] But it is not the only method for assuring a
unanimous verdict. The standard jury
instruction tells the jury that the verdict must be unanimous, and that all
twelve jurors must agree to arrive at a verdict.[7] When jurors have questions, as they did in
this case, there is further opportunity to instruct. And when the trial court reads the verdict, it may ask the jurors
as a group, as it did in this case, if it is their verdict.
We
conclude the better rule is that when defense counsel is present at the return
of the jury verdict and does not request an individual polling, whether
counsel's performance is deficient depends on all the circumstances, not simply
on whether counsel explained to the defendant the right to an individual
polling.
The
relevant circumstances in this case are that the standard jury instruction on a
unanimous verdict was read to the jury when they began their
deliberations. The two questions they
asked each indicated that they understood their verdict was to be unanimous on
each count. The questions were directed
not to this point, but to the effect of reaching verdicts on some but not all
counts. The court's responses, after
conferring with counsel, reinforced the concept that a verdict must be
unanimous, while advising the jurors that they were not required to reach a
verdict. The jurors answered
affirmatively when the court read the verdict and asked if it was their
verdict. Trial counsel's explanation
for not requesting an individual polling took into account the jury's questions
and the instructions in response. We
conclude the decision not to request an individual polling was a reasonable one
in these circumstances and was not deficient performance.
VOIR DIRE
EXAMINATION OF JURORS
Reichling
contends that he was denied his constitutional right to a fair and impartial
jury because the trial court failed to conduct an adequate voir dire
examination of certain jurors and failed to strike these jurors for cause. We disagree and conclude the trial court did
not erroneously exercise its discretion in impaneling the jury.
A
criminal defendant is guaranteed the right to a trial by an impartial jury by
article I, section 7 of the Wisconsin Constitution and the Sixth Amendment of
the United States Constitution, as well as by principles of due process. State v. Louis, 156 Wis.2d
470, 478, 457 N.W.2d 484, 487 (1990), cert. denied, 498 U.S. 1122
(1991).
In
impaneling a jury, the trial court has primary responsibility for voir dire
examination of prospective jurors. Hammill
v. State, 89 Wis.2d 404, 408, 278 N.W.2d 821, 822 (1979). It is the trial court's duty to examine on
oath each person called as a juror to determine, among other things, whether
the juror has expressed or formed any opinion, or is aware of any bias or
prejudice in the case.
Section 805.08(1), Stats.[8] If a juror is not indifferent in the case,
the juror shall be excused. Id. The trial court has broad discretion in
impaneling the jury and in the form and number of questions to be asked. Hammill, 89 Wis.2d at 408, 278
N.W.2d at 822.
The
determination of whether a prospective juror should be dismissed from the jury
panel is a matter within the trial court's discretion. State v. Gesch, 167 Wis.2d
660, 666, 482 N.W.2d 99, 102 (1992).
Absent an abuse of discretion, a trial court's decision concerning voir
dire should not be disturbed on appeal.
State v. Koch, 144 Wis.2d 838, 847, 426 N.W.2d 586, 590
(1988). This broad discretion, however,
is subject to the essential elements of fairness. Id.
Only
two of the prospective jurors discussed by Reichling, jurors Ferguson and Moon,
actually sat on Reichling's case. Any
claim that a jury is not impartial must focus on the jury that actually sat in
the case. State v. Traylor,
170 Wis.2d 393, 400, 489 N.W.2d 626, 629 (Ct. App. 1992). After examination of Ferguson and Moon, the
trial court concluded that neither would be excused for cause.
A. Juror
Ferguson
In response to the trial
court's question about whether anyone on the jury panel was acquainted with
another member of the jury panel, Ferguson stated that another jury panel
member was a personal friend. The juror
referred to had been acquitted of a sexual assault charge. The trial court asked Ferguson whether her
relationship with that juror would affect her ability to make a fair and
impartial decision. Ferguson responded,
"I would hope not."
In
response to the trial court's question about whether anyone on the panel would
not care to listen to sexually explicit testimony, Ferguson replied "yes"
and indicated that she did not know whether she could listen to the testimony
and make a fair and impartial decision.
In addition, when asked whether any member of the jury panel had an
immediate family member who had been involved in a sexual assault, Ferguson
replied that her sister had been assaulted by several boys over fifty years ago
when her sister was approximately six years old. The assault "wasn't really sexual," and was resolved
when her father spoke with the assailants.
In response to the trial court's question about whether she could accord
the defendant the presumption of innocence, Ferguson replied:
MS.
FERGUSON: Well, I sure would try.
THE
COURT: I think you would.
MS. FERGUSON:
Yeah.
We
conclude the trial court extracted a sufficient guarantee from Ferguson that
she would be a fair and impartial juror.
While Ferguson did express some doubt about her ability to listen to
sexually explicit testimony, she agreed that she would accord the defendant the
presumption of innocence. A juror can
qualify as an impartial trier of fact if the juror can lay aside his or her
impressions or opinions and can render a verdict on evidence presented. Hammill, 89 Wis.2d at 414, 278
N.W.2d at 825.
B. Juror Moon
We
also conclude the trial court extracted a sufficient guarantee of impartiality
from Moon. In response to the trial
court's question about whether any prospective juror had been the victim of a
sexual assault, Moon stated that she had been sexually assaulted by several
acquaintances in high school about twenty-three years ago. However, Moon stated that she could be
impartial according to the facts in the case and would "just go by the
facts."
INEFFECTIVE ASSISTANCE OF
COUNSEL ON VOIR DIRE
Reichling contends that
he was denied effective assistance of counsel when his trial counsel failed to
ask follow-up questions of several jurors to test their impartiality, and
failed to move to strike these jurors for cause. Again, we address only those jurors that actually served on the
jury--Ferguson and Moon. See Traylor,
170 Wis.2d at 400, 489 N.W.2d at 629.
We conclude, as did the trial court, that trial counsel's performance
was not deficient for failing to pose follow-up questions and to move to strike
these jurors.
Trial
counsel testified that he did not feel that he could have been successful in
striking any of these jurors for cause.
He stated that he was impressed with Moon's forthrightness; that it
appeared Moon's experiences differed substantially from the facts of the
defendant's case; and that Moon indicated that her prior experience would not
play a role in her ability to evaluate the evidence. Trial counsel also testified that he had noted the difference
between Ferguson's experience with sexual assault and the defendant's case, and
took into account the manner in which Ferguson answered his questions. He felt she would be a favorable juror due
to her friendship with the prospective juror who had been acquitted of the
sexual assault charge. After inquiry by
both the trial court and trial counsel, both Moon and Ferguson indicated that
they felt they could be fair and impartial.[9]
DETECTIVE PEPPER
Reichling argues that
the State violated his due process right to a fair trial and his Fifth Amendment
right against self-incrimination when it allowed Detective John Pepper to
testify as to Reichling's post-Miranda silence and request for
counsel. We disagree.
At
trial, Pepper testified about his interview with Reichling at the sheriff's
department. Pepper testified that
although Reichling was not under arrest, he was informed of his Miranda
rights and he stated that he wanted to make a statement without consulting with
his attorney. Pepper then related what
Reichling had told him about the incident:
Q Now,
after you obtained this information from Mr. Reichling, what did you advise him
of?
A Then
I advised him it's my procedure and my practice is that after we've obtained
pretty much everything we can from the statement is I turn around, and I have
the use of a computer where I actually type up the statement off of my notes,
and I told Tim that's what I would be doing, at which time then I would read the
statement to him. He would read the
statement. We'd both sign it, and that
would be part of the investigation. Tim
then made the comment that, "Well, it looks like I'll probably be serving
time, so I think maybe this is something my lawyer should look at," and as
soon as he said the word lawyer --
[Defense
Counsel]: Judge, I'm going to object to
this. I think this is wholly improper.
....
THE
COURT: Well, I'm going to leave what's
been said. Mr. Luhman, proceed.
Q After
Mr. Reichling mentioned something about an attorney, did you question him any
further?
A No.
Q Did
you type up a written statement for him?
A No. I told him at that time I would stop the
questioning since he had made mention of a lawyer, and I told him that he could
use my phone to call a lawyer of his choice, or I gave him the name and
telephone number of Roger Sturdevant, who is the Public Defender of Green
County, that he could call.
Q And
after that did you have any further contacts with Mr. Reichling?
A Yes.
Q I
mean on January 4th did you have any further contacts with Mr. Reichling?
A No.
In
Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme
Court held that a defendant is denied his or her due process rights if, after Miranda
warnings, the state uses the defendant's refusal to talk or the defendant's
request for an attorney in evidence against the defendant, even if just to
impeach his or her testimony. However, Doyle
does not impose a per se bar against any mention whatsoever of a
defendant's right to request counsel. Lindgren
v. Lane, 925 F.2d 198, 202 (7th Cir.), cert. denied, 502 U.S.
831 (1991). Rather, it guards against
the exploitation of that constitutional right by the prosecutor. Id. In Wainwright v. Greenfield, 474 U.S. 284 (1986),
the Court stated:
What is impermissible is the evidentiary use of an
individual's exercise of his constitutional rights [to consult counsel] after
the State's assurance that the invocation of those rights will not be
penalized.
Id. at 295. In order to determine
whether there has been a violation, a court must look to the circumstances in
which the exchange took place. Lindgren,
925 F.2d at 203.
In
his testimony, Pepper did not refer to Reichling's silence. He simply testified that Reichling decided
to speak with an attorney before he signed the statement Pepper was preparing,
and that he (Pepper) ended the interview at this point. Regarding Pepper's reference to Reichling's
request for counsel, the point of the district attorney's inquiry was to
explain how the interview with Reichling ended and why a written statement was
not prepared and signed. Reichling's
request for an attorney was not argued to the jury or used for impeachment. The purpose was not to suggest "a tacit
admission of guilt on the part of the defendant." See State v. Fencl, 109
Wis.2d 224, 235, 325 N.W.2d 703, 710 (1982).
Although
Reichling contends that repeated references were made to his post-Miranda
silence and request for counsel in closing argument, those references were to
Reichling's statements to Detective Pepper before Reichling said that
"maybe this is something my lawyer should look at." When the jury requested the testimony of
Detective Pepper during deliberations, the portion read to the jury did not
include the part about which Reichling complains.
By
the Court.—Judgment and order
reversed and cause remanded with directions.
Not recommended for
publication in the official reports.
[1] We released an opinion in this case on July
6, 1995. We withdrew it on August 29,
1995. See Rule 809.24, Stats.
[2] Our disposition of the weapons penalty
enhancer issue makes it unnecessary for us to reach Reichling's challenge to
his sentence. We also do not address
Reichling's objection to the reinstruction the trial court provided the jury
when the jury came back with a second question on the subject of hung
verdicts. Reichling failed to object to
this reinstruction. Failure to timely
object to an error at trial generally precludes a defendant from raising the
issue on appeal as a matter of right. State
v. Marshall, 113 Wis.2d 643, 653, 335 N.W.2d 612, 617 (1983).
[3] Reichling did
not object to the weapons penalty enhancer jury instruction provided by the
trial court. Section 805.13(3), Stats., provides that failure to object
to a jury instruction constitutes waiver of error. However, in State v. Peete, 185 Wis.2d 4, 517
N.W.2d 149 (1994), a case decided after Reichling's trial, the supreme court
addressed the same issue and stated that it was not a question of an erroneous
jury instruction, but rather a question of statutory construction, what the
jury was required to find under the instruction as given, and the sufficiency
of the evidence. Id. at
14, 517 N.W.2d at 152.
[5] In our opinion released on July 6, 1995, we
held that the decision whether to poll the jury was a decision for the
defendant to make personally. Upon
reconsideration we conclude that our initial decision was inconsistent with Jackson.
[6] In State v. Behnke, 155 Wis.2d
796, 456 N.W.2d 610 (1990), defense counsel was not present when the jury
returned, and the defendant said "no" when asked if he wanted to poll
the jurors individually. The court held
that whether the constitutional violation was viewed as a denial of counsel or
ineffective assistance of counsel, automatic reversal was required because the
defendant did not knowingly, voluntarily and unequivocally waive the right to
counsel or the right to poll the jury. Id.
at 806, 456 N.W.2d at 614. The
deficient performance in Behnke was counsel's failure to be
present when the jury returned.
[9] Reichling's reliance on State v.
Traylor, 170 Wis.2d 393, 489 N.W.2d 626 (Ct. App. 1992), is misplaced. In Traylor, one juror stated
during voir dire that she did not think she could be fair and impartial because
she considered a defendant guilty "right away." Several other jurors indicated they might
consider a defendant's failure to testify during their deliberations. Nevertheless, trial counsel in Traylor
failed to ask follow-up questions and/or to move to strike these jurors for
cause.