COURT OF APPEALS
DATED AND FILED
April 22, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Mark H. Tody, Jr.,
from a judgment and an order of the circuit court for
¶1 BRUNNER, J. Mark Tody, Jr., appeals a judgment of conviction for taking and driving a vehicle without consent, as party to the crime, contrary to Wis. Stat. §§ 943.23(2) and 939.05. He also appeals an order denying his motion for postconviction relief. Tody asserts multiple claims based upon the court’s decision to allow the judge’s mother to serve on the jury. Tody also alleges ineffective assistance of counsel. We reject Tody’s arguments and affirm.
¶2 Tody’s jury trial occurred on June 7, 2006, before Judge Robert Eaton. During the voir dire, the following exchange occurred between the court and a prospective juror:
[Court]: Any of you have relatives employed in a law enforcement related capacity?
Ms. Eaton do you have a relative employed in the law enforcement related capacity?
[Juror] Eaton: The judge.
[Court]: I like – I like to consider myself part of law enforcement or I may be disowned. You are related to me how?
[Juror] Eaton: Your mother.
When the attorneys were permitted to address the prospective jurors, the district attorney had the following exchange with Eaton:
[District Attorney]: Mrs. Eaton, I know you’re the judge’s mother, do you feel comfortable sitting on a trial where he’s the judge but he’s not party in the case?
[Juror] Eaton: I don’t think it makes any difference.
[District Attorney]: Doesn’t make any difference one way or the other to you? You have no opinion about the defendant’s guilt or innocence?
[Juror] Eaton: I know nothing about it.
Tody’s attorney also addressed Eaton:
[Tody’s Attorney]: Do you feel you could be a fair and impartial juror? Would you have to explain to His Honor Judge Eaton, let’s say you voted for a verdict of not guilty, would you feel you would have to explain or justify why you voted that way?
[Juror] Eaton: No.
¶3 At the end of the voir dire, Tody’s attorney moved to strike Eaton for cause, contending she might unduly influence other jurors because of her relationship to the judge. The court denied the motion, concluding there was no authority for disqualifying a juror because of her relationship to a neutral party and that Eaton’s answers during the voir dire indicated she would be impartial. The trial proceeded with Eaton on the jury.
¶4 The underlying facts in this case involved stealing a Jeep
¶5 On their third trip, they brought a replacement battery, and Laptonte started the Jeep. Tody testified that he only opened the trunk of LaPointe’s car so Newago could get the battery out. LaPointe testified that Tody actually carried the battery from LaPointe’s car to the Jeep. LaPointe and Newago drove the Jeep from the airport, while Tody drove Laptonte’s car. LaPointe and Tody later discussed changing the vehicle identification number and attempting to sell the Jeep.
¶6 The jury found Tody guilty, and the court entered judgment accordingly. Afterward, Tody brought a motion for postconviction relief, asserting ineffective assistance of counsel. The court denied Tody’s motion.
¶7 Tody claims he was denied his right to a fair and impartial jury because of comments during the voir dire and the court’s decision not to strike Eaton. Tody also contends the judge should have recused himself from deciding whether to strike Eaton. Further, Tody claims his counsel was ineffective for failing to adequately prepare Tody for his testimony and for failing to attempt to rehabilitate adequately rehabilitate him after his testimony. Finally, Tody requests that we exercise our discretionary power of reversal.
¶8 A defendant’s right to a panel of impartial jurors is
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution and Art. I, § 7 of the
¶9 Statutory bias applies to any juror who is “related by blood,
marriage or adoption to any party or to any attorney appearing in the case, or
has any financial interest in the case….” Wis. Stat. § 805.08(1);
¶10 Subjective bias is based on a juror’s state of mind, as
revealed through the juror’s words and demeanor during the voir dire.
¶11 Objective bias does not turn upon a juror’s state of mind, but instead
on whether a reasonable person in the juror’s position could be impartial.
¶12 For the most part, Tody attempts to avoid the framework for analyzing juror bias set out in Faucher. He argues that a per se rule should be adopted precluding members of a judge’s immediate family from serving on a jury. Tody does, however, alternatively argue Eaton was objectively biased.
¶13 In support of his argument for a per se rule, Tody contends
that a judge’s immediate family members will more likely want to please the
judge and may unduly influence other jurors.
He relies on our supreme court’s decision in State v. Gesch, 167 Wis.
2d 660, 482 N.W.2d 99 (1992), where the court determined that a juror related
to a State’s witness by blood or marriage to the third degree must be excused
because of “implied bias.”
¶14 However, a juror’s relationship to the judge is not, by itself,
a jury bias issue. Unlike a State’s
witness, a judge is not associated with either party. No bias is implicit from a relationship to a
neutral party. We also note that Gesch was decided before Faucher,
which redefined the categories of jury bias.
In Faucher, our supreme court noted that the issue in Gesch
would now be analyzed as objective bias.
¶15 When considering objective bias, the question is whether a reasonable juror in Eaton’s position could act impartially. See id. at 718. Eaton’s position here, according to Tody, was having a favorable view of law enforcement, which Tody characterizes as a pro-law-enforcement, pro-prosecution bias. We conclude that Tody’s objective bias argument fails because the premise of his argument, Eaton’s favorable view of law enforcement, is not established in the record.
¶16 In Faucher, the court referenced previous cases that would be
analyzed under objective bias. See id.
at 721. In those cases, the juror’s
“membership” in a class of jurors that were arguably biased was established by
the voir dire. See id. at 721-23. For
example, in Gesch, the juror indicated he was related to a State’s
witness. Gesch, 167
Judicial Bias & Recusal
¶17 Tody also claims the judge erroneously failed to recuse himself from deciding the motion to strike Eaton from the jury. He argues that recusal was constitutionally required because the court’s denial of the motion created the appearance of bias and was statutorily required because the judge made a subjective determination that he could not act impartially.
¶18 “A fair trial [before] a fair tribunal is a basic requirement
of due process.” State v. Carprue, 2004 WI
111, ¶59, 274
¶19 The Wisconsin legislature has addressed judicial disqualification
in Wis. Stat. § 757.19. As relevant here, § 757.19(2)(g)
requires disqualification when “a judge determines that, for any reason, he or
she cannot, or it appears he or she cannot, act in an impartial manner.” This provision only requires disqualification
when the judge actually makes a subjective determination that he or she, in
fact or appearance, cannot act impartially.
State v. American TV & Appliance, 151
¶20 First, this was not an extreme case where disqualification was
constitutionally required. See id., ¶¶59-60; see also State v. Gudgeon, 2006 WI App 143,
¶21 We next address whether the judge was required to disqualify himself under Wis. Stat. § 757.19(2)(g). Even though there was no recusal motion, Tody contends the judge actually made a subjective determination that he could not act impartially when stating the following:
I’m trying to go through potential problems in my mind. Are there potential problems with juror misconduct? Might I be called into a position where I would have to rule on some type of juror misconduct involving my mother? Even if that came up I think the thing to do at that point is get a substitute judge. I don’t think I have any legal basis for excusing her.
¶22 We reject Tody’s assertion that this statement constituted a
determination that the judge could not act impartially when deciding the motion
before him. The judge was contemplating hypothetical
situations, none of which actually occurred.
Because no motion for recusal was made, the judge’s decision to preside
over the issue indicated he believed that he could do so impartially. See Carprue,
Ineffective Assistance of Counsel
¶23 Tody’s ineffective assistance claims are based on his response to the following question on cross-examination, “[I]s it fair to say that you were helping in stealing this vehicle?” Tody replied, “In a way, ya, I guess.” Tody contends his attorney failed to adequately prepare him to testify at trial and deficiently failed to rehabilitate Tody on redirect examination. According to Tody, had he properly been prepared to testify, he would have answered the State’s question by stating that he did not have the purpose to help steal the Jeep.
¶24 A defendant claiming ineffective assistance of counsel must establish
that a defense attorney’s performance was deficient, and that the deficient
performance prejudiced the defense. State v. Allen, 2004 WI
106, ¶26, 274
¶25 Here, we begin and end our ineffective assistance analysis with the prejudice inquiry. In the context of the evidence presented, we cannot accept Tody’s assertion that the jury’s determination of intent hinged upon his answer to the State’s question. Tody’s intent was established by his actions. Tody’s own testimony established that he was involved in the crime from the planning stage through its commission. He did not arrive at the crime scene by accident, and he was not merely a bystander while he was there. Further, LaPointe’s testimony indicated that Tody’s overall role was greater than Tody admitted, even while LaPointe was obviously attempting to protect Tody by minimizing Tody’s role. We reject Tody’s characterization of the case against him, and even absent the alleged deficiencies of counsel, we are confident the result would have been the same.
¶26 Tody’s final argument is that we should exercise our discretionary power of reversal. We may grant a new trial in the interest of justice “if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried.” Wis. Stat. § 752.35. Tody does not address the standards for determining whether a controversy has been fully tried or whether justice has been miscarried. Instead, Tody’s arguments for discretionary reversal merely restate his other arguments. We have already rejected those arguments.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 In this opinion, we refer to Judge Eaton as “the judge,” while referring to juror Eaton as “Eaton.”
Tody asserts a broader jury bias argument, claiming he was denied his right to
an impartial jury independent of the judge.
The argument ignores the Faucher framework for analyzing
juror bias, and Tody provides no authority for analyzing juror bias outside
 In his reply brief, Tody acknowledges that “not all immediate family members of judges will be unfair, non-independent jurors.”
 Tody never moved for the judge’s recusal. Tody’s judicial bias arguments are limited to the judge’s failure to unilaterally recuse himself from deciding the motion to strike Eaton.
 LaPointe acknowledged that his testimony was inconsistent with a prior written statement given to police. Further, his memory conveniently lapsed multiple times and had to be refreshed by his written statement and preliminary hearing testimony.