State v. Delgado

FINE, J.

Carlos R. Delgado was found guilty by a jury of six counts of first-degree sexual assault of a child. See § 948.02(1), STATS. He appeals from the trial court's order denying him a new trial. He claims that he was denied a fair trial because one of the jurors did not disclose during the voir dire that she had been sexually assaulted. We affirm.

This is the second time this case has come to us on the issue of whether Delgado received the fair trial to which he is entitled. In March of 1995, we recounted the facts and analyzed the applicable standard:

During voir dire, prospective jurors were given a questionnaire, which the trial court described as follows:
The sixth question pertains to whether you have ever been a victim or witness to a crime. The seventh question pertains to whether you have ever had a criminal justice contact.
Now, what I mean by that is.[sic] Perhaps you were a victim of a crime or you were a witness to a crime and you were requested to come down and talk to someone in the district attorney's office. Perhaps charges were issued against someone and you came to court. You received a subpoena. You testified in court or maybe you only sat in the gallery and watched how the trial proceeded.
Panelist Vickie C[.] answered: "I have not been a victim or witness of a crime. I have no criminal *20justice contacts." The assistant district attorney later asked the panel: "Are there any members of the jury panel who either have a close friend or a close relative or you yourself who have been the victim of a sexual assault, either as a child or as an adult?" C[.] made no response. C[.] was seated as a juror.
After trial, juror Elizabeth R[.] sent a letter to the trial court stating in part: "Prior to the trial, all prospective jurors were asked directly whether they had been a victim of sexual abuse. During deliberations, a juror revealed that she had been a victim of sexual assault or abuse but did not provide this information under questioning prior to the trial." R[.] later identified that juror as C[.].
At the hearing on Delgado's post-conviction motion, C[.] testified: "I was relating it to a crime being reported. I did not consider it a crime. I was not a victim of a crime. It was never reported." The trial court found: "based on the drafting of the question, the way the question was phrased, I do not find based on her testimony here today that she incompletely or incorrectly answered that question." The trial court denied Delgado's motion for relief.
"[T]he trial court's determination on a motion for a new trial or relief from judgment because a juror failed to fully disclose information during voir dire is reversible only for either an [erroneous exercise] of discretion or for a clear error of law in the exercise of its discretion." State v. Wyss, 124 Wis. 2d 681, 717-718, 370 N.W.2d 745, 762 (1985), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990).
Wyss set forth a two-part test in juror bias cases:
[I]n order to be awarded a new trial, a litigant must demonstrate: (1) that the juror incorrectly or incompletely *21responded to a material question on voir dire\ and if so, (2) that it is more probable than not that -under the facts and circumstances surrounding the particular case, the juror was biased against the moving party.
Id., 124 Wis. 2d at 726, 370 N.W.2d at 766.
First, the record is clear that C[.] responded incorrectly to the material questions of whether she had ever been "a victim of a crime" or "a victim of a sexual assault." She denied, during voir dire, having been a victim of a crime or sexual assault, but subsequently told fellow jurors that she had been sexually assaulted. C[.]'s subjective belief that it was not a crime because it had not been reported does not make her answer complete or accurate, nor does the trial court's assessment that her answer was credible. The supreme court in Wyss stated:
An honest answer may nevertheless be objectively incorrect. A technically correct answer may nevertheless be incomplete. We conclude that an honest answer, if it is objectively incorrect or incomplete, should not preclude the moving party from making further inquiry with respect to juror bias.
Id., 124 Wis. 2d at 726-727, 370 N.W.2d at 766-767. We conclude that the trial court erroneously exercised its discretion in concluding that C[.] did not answer the questions incompletely or inaccurately.
We thus reach the second prong of Wyss dealing with bias. The trial court, however, did not reach that issue in the hearing on Delgado's post-conviction motion, and did not make a full factual record on the issue. The court of appeals is without jurisdiction to make factual determinations. Barrera v. State, 99 Wis. 2d 269, 282, 298 N.W.2d 820, 826 *22(1980), cert. denied, 451 U.S. 972. Therefore, we remand this issue to the trial court for a hearing on the second prong of Wyss, the issue of bias.

State v. Delgado, No. 94-1411-CR, unpublished slip op. at 2-5 (Wis. Ct. App. March 28, 1995).

The trial court held the hearing, but did not permit Delgado to be present. Delgado claims that this was error. Under State v. Vennemann, 180 Wis. 2d 81, 508 N.W.2d 404 (1993), it was not. Additionally, although the trial court posed questions to the juror that were pertinent to the inquiry, and permitted Delgado to suggest other questions, see After Hour Welding, Inc. v. Laneil Management Co., 108 Wis. 2d 734, 743, 324 N.W.2d 686, 692 (1982) ("The judge should conduct the examination of jurors called, but the attorneys may submit questions to the judge they wish asked."), the trial court did not ask all of the questions submitted to it by Delgado. Delgado claims that this was error. We agree in part, but conclude that the trial court's failure to ask some of the questions suggested by Delgado was harmless beyond a reasonable doubt. The trial court also declined Delgado's request that other jurors be examined at the hearing. Delgado claims that this was error. We disagree.

1. Delgado's presence at the hearing.

Section 971.04(1), Stats., controls whether Delgado had a right to attend the postconviction evidentiary hearing. This section provides:

(1) Except as provided in subs. (2) and (3), the defendant shall be present:
(a) At the arraignment;
(b) At trial;
*23(c) At all proceedings when the jury is being selected;
(d) At any evidentiary hearing;
(e) At any view by the jury;
(f) When the jury returns its verdict;
(g) At the pronouncement of judgment and the imposition of sentence;
(h) At any other proceeding when ordered by the court.

Section 971.04(1) "applies only to the pretrial, trial, sentencing and judgment phases of criminal procedure," and not to "postconviction evidentiary hearings brought pursuant to sec. 974.02 and sec. (Rule) 809.30(2)(h), Stats." Vennemann, 180 Wis. 2d at 86, 508 N.W.2d at 406.1 The only exception to this rule is when the hearing concerns " 'substantial issues of fact as to events in which'" the defendant participated. Id., 180 Wis. 2d at 87, 508 N.W.2d at 407 (citation omitted). See also United States v. Hayman, 342 U.S. 205, 220 (1952) (defendant must be produced at postconviction hearing when evidentiary matters within the defendant's "own knowledge" are at issue) (relied upon by Vennemann, 180 Wis. 2d at 87, 508 N.W.2d at 407). At other times, whether to permit the defendant to be present at the postconviction hearing is within the trial court's discretion. Vennemann, 180 Wis. 2d at 88, 508 N.W.2d at 407.

The trial court rejected Delgado's request to be present at the postconviction hearing because it believed that Delgado's presence would cause discomfort to the juror whose history as a sexual-assault *24victim was being explored. Delgado has not alleged that he has any personal knowledge of either that history or whether the juror was biased against him. Although Delgado would have undoubtedly preferred to be present at the hearing rather than at the prison where he was then incarcerated, his presence was not required by either § 971.04(1), Stats., or any constitutional principle to which we have been pointed or of which we are aware. The trial court's discretionary decision was reasonable and is affirmed.

Where we and the dissent disagree is whether a trial court's desire to protect a juror from discomfort — to make her postconviction testimony, in the trial court's words, "as easy for her as possible" — is an appropriate factor in deciding whether to permit a defendant who has no personal knowledge relevant to the issues to be decided at a postconviction hearing to be present at that hearing. Given After Hour Welding's concern that a juror not be subjected to questioning by counsel at a postconviction hearing, id., 108 Wis. 2d at 743, 324 N.W.2d at 692, we believe that it is. We also believe that the dissent's reliance on Coy v. Iowa, 487 U.S. 1012 (1988), is misplaced. Unlike Coy, this is not a "confrontation" case and the juror was not "a witness against" Delgado within the meaning of the Sixth Amendment. See Barber v. Page, 390 U.S. 719, 725 (1968) (right to confrontation "is basically a trial right"); Williams v. New York, 337 U.S. 241, 250-251 (1949) (right of confrontation does not apply at sentencing); United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985); cf. Venneman, 180 Wis. 2d at 86-87, 508 N.W.2d at 406-407 (prisoner need not be produced at postconviction evidentiary hearing unless he or she has personal knowledge relevant to issues to be decided at that hearing).

*25 2. Questions to the juror.

As noted, a defendant who claims that a juror was biased or prejudiced against the defendant is entitled to a hearing where that alleged bias or prejudice can be explored. Neither the defendant nor his or her lawyer is permitted to question the juror directly. After Hour Welding, 108 Wis. 2d at 743, 324 N.W.2d at 692. Rather, the trial court conducts the inquiry, and the defendant may suggest appropriate questions. Ibid. A verdict may not be overturned because of a juror's bias unless the defendant can show that the bias was "manifest" — a mere "suggestion of partiality" does not suffice. State v. Messelt, 185 Wis. 2d 254, 269, 518 N.W.2d 232, 238 (1994) (citation and internal quotation marks omitted). Although Delgado insists that he should have been able to question the juror, he also claims that the trial court erred in not asking some of the questions Delgado suggested.

In light of the supreme court's direction in After Hour Welding, Delgado's claim that the trial court erred in not permitting him to question the juror directly is without merit. Delgado is partially correct, however, when he asserts that the trial court erroneously limited the scope of its inquiry.

When a defendant claims that a juror's incorrect responses to voir dire questions reveal that the juror was biased against the defendant, Rule 906.06(2), Stats., does not prevent inquiry into what was said during jury deliberations "for purposes of determining whether a juror failed to reveal potentially prejudicial information" during the voir dire. Messelt, 185 Wis. 2d *26at 267, 518 N.W.2d at 237.2 Inquiry into the jury's deliberations, however, is otherwise forbidden, "except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror," Rule 906.06(2); see After Hour Welding, 108 Wis. 2d at 743, 324 N.W.2d at 691 (trial court to determine whether statements that reveal juror's prejudice were made, but trial court "should not inquire what their effect was" on the other jurors or on the deliberations). A juror's life experiences, even if they reflect predilections and inclinations that may stem from feelings of bias or prejudice, do not constitute either "extraneous prejudicial information" or "outside influence" as those terms are used in Rule 906.06(2), and may be shared with the jury unless "juror prejudice is so strong and pervasive that fundamental fairness requires that the rule of testimonial incompetency give way," State v. Marhal, 172 Wis. 2d 491, 495-497, 493 N.W.2d 758, *27761 (Ct. App. 1992); see also Messelt, 185 Wis. 2d at 264, 518 N.W.2d at 236; State v. Casey, 166 Wis. 2d 341, 347, 479 N.W.2d 251, 253 (Ct. App. 1991) (juror's "own experience as a victim of a sexual assault and her opinion regarding the reason a victim of sexual assault may not come forward" not "extraneous" prejudicial information within meaning of RULE 906.06(2)).3

The law permits inquiry into what was said during deliberations in order to determine whether a juror gave false or incomplete responses on voir dire because that concerns the person's qualifications to be a juror — information that both the trial court and the parties needed to exercise their respective roles in the jury-selection process. Messelt, 185 Wis. 2d at 267-268, 518 N.W.2d at 237-238. On the other hand, inquiry as to how what was said during deliberations may have affected the verdict is forbidden because that would intrude upon the core values protected by Rule 906.06(2). See After Hour Welding, 108 Wis. 2d at 743, 324 N.W.2d at 691. We examine against this background the questions that Delgado sought unsuccessfully to have the trial court ask juror Vickie C., and whether questions not asked would have had any tendency to prove that the juror had a" 'manifest'" bias against Delgado. See Messelt, 185 Wis. 2d at 269, 518 N.W.2d at 238 (citation and internal quotation marks omitted).

Delgado's brief on appeal reproduces the questions that he contends the trial court erroneously did not ask the juror. Many of those questions were asked, however, either literally or in substance, or were covered by *28the juror's responses to the trial court's questions.4 Moreover, many of the questions that Delgado argues *29should have been asked were improper because they intruded impermissibly into the jurors' deliberations.5 There were four questions that the trial court did not ask and that were not covered by the juror's responses to the questions that were asked:

What occurred?
What effect did it have on you?
What sort of treatment/counseling, if any, did you receive after your victimization?
*30Since your victimization, have you been involved with any support groups and/or organizations dealing with aid to victims? Have you had any contact with other victims since your victimization?

(Paragraph numbers and subparagraph letters omitted.) Although these questions should have been asked, their omission in light of this record was de minimis — they were only marginally relevant to proof of "manifest bias," which, as noted earlier, is what the defendant must show in order to receive a new trial.

The juror was forty-nine at the time of the hearing, and testified that she was sexually assaulted when she was "six or seven years old" by a person she knew but who was not related to her by either blood or marriage. She told the trial court that until Delgado's trial, she had never discussed the assault "in general or specific terms" with anyone. Thus, it is a fair inference from this record that if asked, the juror would have responded that she had never received counseling or treatment in connection with the assault, and did not get involved with any victims or victim-support groups as a result of the assault.6 Moreover, the "What *31occurred?" and "What effect did it have on you?" questions were only marginally relevant, given that the juror was assaulted when she was six or seven and that she had never discussed it with anyone for more than forty years. Thus, although the trial court should have asked these questions as Delgado requested, its failure to do so was harmless beyond a reasonable doubt. See State v. Dyess, 124 Wis. 2d 525, 540-543, 370 N.W.2d 222, 230-231 (1985); State v. Stark, 162 Wis. 2d 537, 547, 470 N.W.2d 317, 321 (Ct. App. 1991) (A "defendant is entitled to reversal only if the error affected his substantial rights.").

3. Testimony of other jurors.

Delgado claims that the trial court erred in preventing him from calling as a witness either the juror who wrote the letter, Elizabeth R., or the other jurors. We disagree.

As noted, breaching the wall of jury-deliberations secrecy is only permitted to determine either "whether a juror failed to reveal potentially prejudicial information during voir dire," Messelt, 185 Wis. 2d at 267, 518 N.W.2d at 237, or "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was. improperly brought to bear upon any juror," Rule 906.06(2), STATS. Neither the testimony of juror R. nor of the other jurors would have added anything to the *32record as to whether juror C. responded accurately on voir dire. Indeed, our prior decision in this case recognized that she did not. Delgado, unpublished slip op. at 5. Delgado wanted to impeach the jury's verdict by analyzing their deliberations. This is prohibited by Rule 906.06(2) ("[A] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith.").

4. Juror C. 's bias.

As we have seen, a verdict may not be overturned unless defendant can show that a juror was biased and that that bias was "manifest." Messelt, 185 Wis. 2d at 269, 518 N.W.2d at 238 (citation and internal quotation marks omitted). A determination on juror bias is vested in the trial court's discretion, ibid., and will not be overturned unless "clearly erroneous," State v. Wyss, 124 Wis. 2d 681, 732, 370 N.W.2d 745, 769 (1985), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990). In its oral decision, the trial court opined with "unequivocal and resounding" certainty that the juror was not biased against Delgado. Supported by the juror's testimony that she was not biased against Delgado, which the trial court found to be credible, this finding is not "clearly erroneous." Additionally, the trial court applied the appropriate legal standards in reaching its decision. Thus, its decision was well within its reasoned exercise of discretion. See Lievrouw v. Roth, 157 Wis. 2d 332, 358-359, 459 N.W.2d 850, 859-860 (Ct. *33App. 1990) (trial court's discretionary determination will be upheld on appeal if it is "consistent with the facts of record and established legal principles."). As in Wyss: "There is no showing in this record that [juror C.] was actually biased against the defendant. Nor are there any facts and circumstances demonstrated from which bias may be inferred. There is simply no evidence in this record which demonstrates that juror [C.]'s incorrect or incomplete answers were the result of bias. Nor is there any indication that juror [C.] intentionally tried to conceal information or purposefully gave an incorrect answer." Wyss, 124 Wis. 2d at 732, 370 N.W.2d at 769.

By the Court. — Order affirmed.

There is no dispute but that Delgado's motion for postcon-viction relief was filed under § 974.02, Stats., and Rule 809.30, Stats.

We agree with Delgado that Messelt overruled, sub silen-tio, our contrary holding in Johnson v. Agoncillo, 183 Wis. 2d 143, 160-161, 515 N.W.2d 508, 515 (Ct. App. 1994). Rule 906.06 (2), STATS., provides:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

Thus, Delgado's claim that juror C.'s comments to the jury about her own assault was "extraneous prejudicial information," see Rule 906.06(2), Stats., is without merit.

The questions that were asked, either literally or in substance, or were covered by the juror's responses to questions that the trial court did ask are:

Were you ever the victim of sexual assault/abuse?
When did it occur?
What relationship, if any, did the perpetrator have to you?
Why didn't you report this to an authority figure? Why wasn't the perpetrator charged?
Do you harbor ill will toward or feel uncomfortable when dealing with an individual charged with committing a sexual assault? At the time of trial, did you?
Do you feel that you harbored feelings of ill will toward or felt uncomfortable with the defendant in this case?
During the trial of this matter, were you thinking about your experiences?
During your participation in the trial, did you feel that you didn't want the defendant to get away with anything as the perpetrator in your case did?
During the trial, did you still harbor an animosity toward the perpetrator of the acts against you? Did any of this transfer to the defendant in this case?
Why did you bring up this information during deliberations (when you didn't bring it up during voir dire)?
What provoked you into bringing up these experiences?
Why did you bring up these experiences?
How did you feel it was relevant and what effect did you want it to have? Did you bring it up to support the guilty verdict?
How did you take into account your victimization during your participation in the trial? What sort of effect did your victimization have on your participation in the trial?
Did your prior experiences cause you some problems during deliberations and/or the trial?

(Paragraph numbers and subparagraph letters omitted.) Additionally, the trial court asked the following questions and received the following responses:

*29Is there anything in your background, your experiences in life, anything about this prior event that we just talked about, anything about your view of the criminal justice system, anything about your view of police officers, anything at all that makes you feel that you'd go ahead and vote to find this defendant guilty anyway even though the State hadn't proved the case beyond a reasonable doubt—
A Absolutely not.
So with that in mind, and putting yourself back in time to the period of voir dire, is there anything at all about that prior event, your experiences, your view of it, your recollection of it as it existed at the time of the voir dire, that makes you feel or makes you — I'm sorry — that makes you feel at that time that you could not be a fair and impartial juror?
A No.

The proposed questions that intruded impermissibly into the jurors' deliberations are:

What did you say during deliberations concerning your victimization?
How did the jury respond to your statements?
How did you respond during deliberations when confronted by Juror R[.] about your failure to bring up this information during voir dire? Did you cry? Did you say that you were ashamed and/or embarrassed? Did this make other jurors uncomfortable?

(Paragraph numbers omitted.)

Although the trial court did not articulate this as a reason for not asking the questions about treatment and victim-support groups or activities, its decision not to ask the questions is consistent with the juror's response that she had never discussed her victimization with anyone prior to Delgado's trial. See Schneller v. St. Mary's Hospital Medical Center, 162 Wis. 2d 296, 311, 470 N.W.2d 873, 879 (1991) (trial court's findings may be implicit in its decision); Sohns v. Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818, 820 (1960) (Appellate court assumes "when a finding is not made on an issue which appears from the record to exist, that it was determined in favor of or in support of the judgment."); Marshall v. Lonberger, 459 U.S. 422, 433 (1983) *31(Although trial court failed to make express findings on credibility, failure to grant relief reflects implicit adverse finding.); see also State v. Friday, 147 Wis. 2d 359, 370-371, 434 N.W.2d 85, 89 (1989) (appellate court must accept reasonable inferences that the trial court draws from the evidence).