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COURT OF APPEALS DECISION DATED AND RELEASED January 10, 1996 |
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(1), Stats. |
This opinion is subject to
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No. 95-2003-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
RANDALL J. GIBAS,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Calumet County:
PETER L. GRIMM, Judge. Affirmed.
NETTESHEIM, J. The
threshold issue in this case is whether the trial court misused its discretion
by granting Randall J. Gibas's motion for a mistrial based upon an ex parte
communication between the court bailiff and the jury during the jury's
deliberations. We conclude that the
court did not misuse its discretion by granting the mistrial.
Because we uphold the
mistrial order, we address a second issue raised by the State since it is
likely to recur in any further trial.[1] The State contends that the trial court
misused its discretion by rejecting proffered “other acts” evidence against
Gibas. We also affirm the trial court's
ruling as to this issue.
The controlling facts
and procedural history of this case are not disputed. The State charged Gibas with endangering the safety of another by
use of a dangerous weapon pursuant to § 941.20(1)(c), Stats.
The complaint was based on the statement of Lori A. Sasse who alleged
that while she and Gibas were on an undercover stakeout as members of the Lake
Winnebago Area Metropolitan Enforcement Group, Gibas picked up his handgun,
placed it up to or into his mouth, commented on how easy it would be to commit
suicide, and then put the gun to Sasse's left temple and ordered her to remove
her clothing.
The matter was
originally assigned to the Honorable John W. Mickiewicz. By a pretrial motion, the State asked Judge
Mickiewicz to allow the use of other acts evidence against Gibas. This evidence would have contended that
about two months prior to the charged incident, Gibas unholstered his service
weapon and pointed it at another officer.
Judge Mickiewicz denied the State's request.
Gibas then sought
dismissal of the complaint based upon his allegation that representatives of
the Department of Justice had engaged in “outrageous governmental conduct”
within the meaning of United States v. Russell, 411 U.S. 423
(1973). Specifically, Gibas contended
that the department had threatened his fellow workers with reprisals if they
assisted in his defense. State v.
Gibas, 184 Wis.2d 355, 358, 516 N.W.2d 785, 786 (Ct. App. 1994), cert.
denied, 513 U.S. ___, 115 S. Ct. 729 (1995). Judge Mickiewicz agreed with Gibas and dismissed the charge. The State took a permissive appeal. We accepted the case for review, reversed
the dismissal order and remanded for further proceedings. Id. at 364, 516 N.W.2d at 788.
On remand, Judge
Mickiewicz recused himself and the matter was assigned to the Honorable Peter
L. Grimm, whose rulings we review on this appeal.
The case proceeded to a
jury trial on March 23, 1995. During
the trial, the State renewed its request to introduce the other acts evidence
against Gibas. Judge Grimm, like Judge
Mickiewicz before him, denied this request.
Following two days of testimony, the case was submitted to the
jury. The critical issue at the trial
was the competing credibility of Sasse, who related the events stated in the
complaint, and Gibas, who denied the allegations.
The jury received the
case at approximately 5:30 p.m. on the second day of trial. At approximately 8:45 p.m., the jury
announced that it had reached a verdict.
Before bringing the jury into the courtroom, Judge Grimm advised the
parties on the record of an event which had been reported to him by the
bailiff, Jerome Koenig. Judge Grimm
stated that at approximately 8:00 p.m., he had entered the courtroom. At that time, he was informed by Koenig that
the jury had previously inquired of Koenig as to what would happen if it could
not reach a verdict. Koenig's response,
according to Judge Grimm's recollection, was, “[‘Y]ou will[’] or words to that
effect.” Judge Grimm also admonished
Koenig to “get it in writing” the next time the jury presented a question.
Gibas immediately moved
for a mistrial. Since the jury had not
yet announced its verdict, Judge Grimm took the motion under advisement and
stated that he would conduct an evidentiary hearing on the matter, if
necessary, after the verdict was announced.
The jury found Gibas guilty, and Judge Grimm immediately undertook an
evidentiary hearing at which Koenig testified.
At this hearing, Koenig
testified that about one hour into its deliberations, the jury had knocked on
the jury room door. Koenig answered the
knock and a juror asked, “What if we can't come to a decision?” Koenig testified, “I thought it was required
that they did. At least arrive[] at a
decision.” At another point, Koenig
testified, “I told them that it's required that they come up with an answer or
that they come with an answer.” In a
written decision, Judge Grimm ruled that Koenig's communication with the jury
was a constitutional violation pursuant to State v. Burton, 112
Wis.2d 560, 334 N.W.2d 263 (1983), and that the violation was not
harmless. Accordingly, Judge Grimm
granted Gibas's mistrial request.
The State brought a
petition for leave to appeal Judge Grimm's nonfinal order granting the
mistrial. We previously granted the
petition. Thus, this case is before us
for a second time.
MISTRIAL
The decision whether to
grant a motion for a mistrial lies within the sound discretion of the trial
court. State v. Bunch,
191 Wis.2d 502, 507, 529 N.W.2d 923, 925 (Ct. App. 1994). The trial court must determine, in light of
the whole proceeding, whether the claimed error is sufficiently prejudicial to warrant
a new trial. Id. We will reverse the trial court's mistrial
ruling only on a clear showing of an erroneous exercise of discretion. Id. A trial court properly exercises its discretion when it has
examined the relevant facts, applied the proper standard of law and engaged in
a rational decision-making process. Id.
at 507-08, 529 N.W.2d at 925. Moreover,
when a defendant's motion for a mistrial is prompted by conduct unrelated to
the State's misconduct, we are required to give the court's ruling “great
deference.” Id. at 508,
529 N.W.2d at 925 (quoted source omitted).
The burden for
demonstrating that grounds for a mistrial exist lies with the party seeking the
mistrial. See State v.
Harrell, 85 Wis.2d 331, 337, 270 N.W.2d 428, 432 (Ct. App. 1978). The State contends that Gibas has not met
this burden because the communication was not improper, and, even if it was, it
was not prejudicial.
The leading case
regarding communication with a jury during deliberations is Burton. There, the trial judge entered the jury room
without the knowledge or presence of the parties. The judge made inquiries regarding the jury's deliberations and
provided the jury with information regarding accommodations had the
deliberations continued into the evening.
Burton, 112 Wis.2d at 563-64, 334 N.W.2d at 264-65. The supreme court held that such an ex parte
communication, even though reported, was a per se constitutional violation of
the defendant's right “to be present at his trial and to have counsel at every
stage where he needs aid in dealing with legal problems.” Id. at 564-65, 334 N.W.2d at
265. However, the court went on to hold
that the error was harmless beyond a reasonable doubt. Id. at 571-73, 334 N.W.2d at
268-69.
The State contends that Burton
does not govern this case because here the bailiff, not the judge, participated
in the communication. However, the
bailiff is an extension and representative of the court. As Judge Grimm aptly observed, “The jury
bailiff is a figure of authority and does function under the court's
jurisdiction and authority.” When the
bailiff interacts with the jury, whether properly or improperly, he or she is
acting in an official capacity as a representative of the court.
The State argues that if
we fail to draw a distinction between judge and bailiff communications with the
jury, then all bailiff communications constitute a constitutional
violation. This argument is flawed
because it assumes that the function of the bailiff is to independently
communicate with the jury. This,
however, is not the role of the bailiff.
Section 756.098(2), Stats.,
recites the bailiff's duties during jury deliberations:
You
do swear that you will, to the utmost of your ability, keep all jurors sworn on
this trial together in some private and convenient place, subject to the
direction of the court, until they have agreed on their verdict or are
discharged by the court, and that you will not, before they render their
verdict, communicate to any person the state of their deliberation or the
verdict they have agreed upon, so help you God.
This oath does not
command or permit the bailiff to communicate with the jury. To the contrary, it directs just the
opposite—to keep the jury free from such contacts. Again, we quote Judge Grimm:
“The role of the bailiff is ¼ to keep the jury free from outside influence ¼.” When the bailiff takes it upon himself or
herself to communicate information to the jury, the bailiff steps outside this
oath.
This does not mean that
all communications between a jury and the bailiff are illegal. To the contrary, we recognize that such
routinely occur and are necessary to meaningful deliberations. However, all such exchanges, whether
substantive or procedural, important or mundane, are communications between
the jury and the court, not between the jury and the bailiff. The role of the bailiff in these exchanges
is that of a conduit between the court and the jury and vice versa.
Here, Koenig's answer to
the jury's question exceeded his role as a conduit. Not only did he fail to pass the jury's inquiry on to Judge
Grimm, he also presumed to speak for Judge Grimm.[2]
We therefore uphold
Judge Grimm's ruling that the communication between Koenig and the jury
constituted a constitutional violation as a matter of law.
The State next argues
that even if the communication was a constitutional violation, the error was
harmless. The State's argument,
however, is based on an erroneous premise.
The State contends that the burden to show that no prejudice resulted
from the constitutional violation error rests with Gibas. However, Burton holds that
“[t]he standard for determining whether constitutional error is harmless ¼
requires the state to prove beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.” Burton, 112 Wis.2d at 570, 334 N.W.2d at 268 (quoted
source omitted).
Nonetheless, we will
assess the effect of the constitutional violation. To assess the impact of the error, a court must take into account
the substance of the communication and circumstances under which the communication
took place. See id.
at 571, 334 N.W.2d at 268. Ultimately,
we must answer whether, on the basis of the entire record, there is a
reasonable possibility that the constitutional error might have contributed to
the conviction. Id.
As to the substance of
the communication, we observe that the question posed by the jury was not an
innocuous inquiry dealing with a ministerial matter unrelated to the case. Instead, the question and the answer focused
on the jury deliberation process itself.
Moreover, Koenig's response was an incorrect statement of the law. Although a trial court will make every
reasonable effort to obtain a verdict, the jury is not required to deliberate
until a verdict is reached, and the court does not so instruct the jury.[3] This factor weighs in favor of Judge Grimm's
holding that the error was not harmless.
As to the circumstances
surrounding the communication, we observe, as did Judge Grimm, that this case
involved a credibility battle between Sasse and Gibas. There were no independent witnesses to the
alleged crime. As Judge Grimm also
noted, the question at least raised the reasonable specter that the jury was
deadlocked or at a stalemate. As such,
Judge Grimm reasonably concluded that “[t]he jury may very well have had
dissenters who abandoned their dissent with the belief that they would not or
could not be discharged from a deadlock[ed] jury.” This factor also weighs in favor of Judge Grimm's ruling.
Finally, we return to
the ultimate standard of review which we are required to apply in a mistrial
case. As we have noted, the question is
committed to the sound discretion of the trial court. Bunch, 191 Wis.2d at 507, 529 N.W.2d at 925. Although the historical facts in this case
regarding Koenig's communication with the jury are undisputed, the reasonable
inferences to be drawn from those facts regarding prejudice placed Judge Grimm
in the role of a fact finder. In that
capacity, the judge was in a superior position over us to make not only the
factual call, but the ultimate discretionary call regarding prejudice.
A trial court's better
position depends upon its having experienced or “sensed” the trial itself. Id. at 511, 529 N.W.2d at 926
(quoted source omitted). Our supreme
court has said:
In a variety of decisions involving
review of circuit courts' discretionary actions, ¼ a major reason circuit courts are given discretionary
authority over matters that involve evaluation of the circumstances surrounding
a trial is that the circuit judge is present at trial and is therefore
better able to understand what occurred ¼. In exercising
discretion on whether to grant a mistrial, the circuit court is in a
particularly good “on-the-spot” position to evaluate factors such as a statement's
likely impact or effect upon the jury.
Schultz
v. Darlington Mut. Ins. Co., 181 Wis.2d 646, 657, 511
N.W.2d 879, 883 (1994) (quoted source omitted; emphasis added); see also
Bunch, 191 Wis.2d at 512, 529 N.W.2d at 927.
Having presided over the
entire trial and personally experienced the chemistry of the case, Judge Grimm
was in a far better position than us to assess the degree of prejudice
occasioned by Koenig's improper and incorrect communication to the jury. The judge's written decision carefully
balanced the competing interests at stake:
Gibas's constitutional right to a fair trial against the burden placed
on the criminal justice system by granting a mistrial and necessitating a
further trial. Moreover, the judge's
decision represents a thorough and rational decision-making process. As such, it constitutes a classic example of
the correct exercise of judicial discretion.
We affirm the ruling.
OTHER ACTS
Next, we address the
State's challenge to Judge Grimm's further order which barred the State from
using other acts evidence against Gibas.
This evidence would have demonstrated that about two months prior to the
alleged incident involving Sasse, Gibas unholstered his service weapon and
pointed it at another officer.
Judge Grimm concluded
that even if probative under any of the recognized exceptions to the general
rule excluding such evidence under § 904.04(2), Stats., the prejudicial effect of the evidence substantially
outweighed its probative value. Judge
Grimm specifically expressed his concern that “if this act is admitted into
evidence, the jury is going to conclude that because he did it on a prior
occasion, he must have done it on this time.
That's exactly the inference that the statute is designed to
prohibit.” A few lines later in the
transcript, the judge additionally observed, “[T]he jury will conclude the
defendant is a bad person and acted in conformity with this character of a
prior occasion.” This ruling was
consistent with the pretrial ruling previously made by Judge Mickiewicz.
Although there is an
abundance of other acts case law in Wisconsin, this case is unique because it
presents the rare situation in which the State is appealing an adverse other
acts trial court evidentiary ruling.
The State contends that
the other acts evidence was admissible under various of the exceptions recited
in § 904.04(2), Stats. However, the State never squarely addresses
the principal basis upon which Judge Grimm excluded the evidence: that the prejudicial effect of the evidence
outweighed its probative value. We
will.
As with all evidentiary
rulings, the admissibility of other acts evidence is committed to the sound
discretion of the trial court. See
State v. Tabor, 191 Wis.2d 483, 489, 529 N.W.2d 915, 918 (Ct.
App. 1995). The prejudice prong of an
other acts analysis addresses the “potential harm of a jury reaching the
conclusion that because the defendant committed a bad act in the past, the
defendant necessarily committed the current crime.” Id. at 496, 529 N.W.2d at 920-21 (quoted source
omitted). This, of course, was the very
concern expressed by Judge Grimm.[4] And, as the judge correctly noted, this is
the very purpose of the other acts statute.
“The general policy of § 904.02(2), Stats.,
is one of exclusion; the rule precludes proof of other crimes, acts or wrongs
for purposes of showing that a person acted in conformity with a particular
disposition on the occasion in question.”
State v. Johnson, 184 Wis.2d 324, 336, 516 N.W.2d 463, 466
(Ct. App. 1994).
In the seminal other
acts decision of Whitty v. State, 34 Wis.2d 278, 297, 149 N.W.2d
557, 565-66 (1967), cert. denied, 390 U.S. 959 (1968), our supreme court
cautioned that other acts evidence should be used sparingly, only when
reasonably necessary and that such evidence normally carried a calculated
risk. Judge Grimm's ruling in this case
was in solid keeping with this strong message of Whitty.
We must acknowledge,
however, that the post-Whitty case law has, with rare exception,
approved the use of other acts evidence at the behest of the State. Thus, we cannot fault the State for
believing that it has a strong argument for admission of the other acts
evidence in this case. This court has
previously expressed its concern about this gradual, but steady, dismantling of
Whitty. See Johnson,
184 Wis.2d at 341, 516 N.W.2d at 468; see also id. at
351-52, 516 N.W.2d at 472-73 (Anderson, P.J., concurring); State v.
Rushing, No. 95-0663 (Wis. Ct. App. Oct. 10, 1995, ordered published
Nov. 28, 1995) (Myse, J., concurring).
However, the supreme court has never overruled Whitty. It would be beyond our primary
error-correcting function, see State v. Fawcett, 145
Wis.2d 244, 253, 426 N.W.2d 91, 95 (Ct. App. 1988), to reverse a trial court
ruling which squarely follows existing supreme court precedent.
Nonetheless, we are
compelled to state that the current state of other acts law is in
disarray. On one hand, Whitty
clearly augurs against the admission of such evidence in most cases. On the other hand, most of the post-Whitty
law has routinely approved the use of such evidence. Thus, there are no longer any meaningful guidelines in this area
of the law, leaving both the trial courts and criminal law practioners at sea
on this question. We again express our
belief that it is time for the supreme court to step into this discussion and
to restate the current law of other acts.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] The State indicates that if we uphold the trial court's mistrial order, it intends to retry Gibas. The trial court's order granting a mistrial is silent as to whether the court will allow a retrial.
[2] Although it is not dispositive of this case, we note that Koenig's handling of the jury's question violated various provisions of the written instructions which the clerk of court provides to bailiffs in Calumet County. These instructions include provisions that all questions from the jury are to be relayed to the judge in written form and that the bailiff is to make no comments to the jury regarding the case unless directed by the judge.
[3] In fact, when a jury reports that it is deadlocked and the trial court chooses to order the jury to continue its deliberations, the jury is advised it will not be required to deliberate until a verdict is reached—just the opposite of Koenig's instruction. See Wis J I—Criminal 520. We recognize that here the jury did not expressly advise that it was deadlocked. The question, however, suggested that such a condition might have existed and Judge Grimm so noted.