COURT OF APPEALS
DATED AND FILED
March 15, 2011
A. John Voelker
Acting 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.
Cir. Ct. No. 2008CF59
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
NICOLE M. KLOTTER,
APPEAL from a judgment of the circuit court for Door County:
PETER C. DILTZ, Judge. Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
PER CURIAM. Nicole Klotter appeals a judgment of conviction
for burglary while armed with a dangerous weapon and attempted armed robbery,
both as a party to the crime. Klotter argues the circuit court should have granted a
mistrial after learning a juror failed to disclose pending charges against the juror’s
sons. She also contends the verdict form for the burglary charge was confusing.
We reject Klotter’s arguments and affirm.
During voir dire, Michael Hansen was added to Klotter’s jury panel
after another potential juror was stricken for cause. When asked, Hansen told the
court he heard the questions posed earlier to the panel, and that his only “yes”
answer would have been that he was a prior juror.1 Door County District Attorney
Ray Pelrine then inquired whether Hansen had “any loved ones or friends involved
in recent litigation or involved in litigation right now,” or “any involvement, you
or any family or friends involved in anything involved with my office right now.”
Hansen responded, “No.”
The jury found Klotter guilty. Prior to sentencing, Pelrine informed
the court he had learned Hansen failed to disclose that he had one or two relatives
with pending criminal charges with his office. Pelrine’s letter also stated the
police officer seated with him during Klotter’s trial recognized Hansen’s name
during voir dire and suspected Hansen may be related to two young men recently
arrested on drug charges in Door County. Klotter requested an evidentiary hearing
and moved for a mistrial.
At a hearing on Klotter’s motion, Pelrine and the officer both
acknowledged the officer had shared her suspicions about Hansen with Pelrine
Klotter does not discuss what questions were previously posed to the jury panel. Our
review of the transcript, however, reveals only the following two relevant questions: “Any of you
involved in any kind of lawsuit at the present time, have direct involvement with the legal
system?” “Anybody have any immediate family members that have any kind of litigation going
that you’re, you know, personally involved in?”
during voir dire. Hansen testified that he knew his sons had been arrested, that he
had posted bail for one of them, and that he had not forgotten about posting bail by
the time of Klotter’s trial two weeks later.
However, Hansen also stated he thought he was testifying truthfully
during voir dire, did not purposefully withhold any information or lie, never
thought about his sons’ legal problems during voir dire or the trial, and was not
biased against either party at the time of jury selection.
The circuit court found Hansen’s explanation credible, noting
Hansen also tended to interject and answer questions before they were completely
asked. Further, the court held Klotter did not demonstrate it was more probable
than not that Hansen was biased against Klotter, observing it was equally plausible
that any bias would have been against the State. Klotter now appeals.
A defendant who seeks a new trial on the ground that a juror lacked
candor at the voir dire must demonstrate that the juror responded incorrectly or
incompletely to a material question, and that it is more probable than not that the
juror was biased against the defendant under the facts and circumstances of the
particular case. State v. Faucher, 227 Wis. 2d 700, 726, 596 N.W.2d 770 (1999).
Bias may be statutory, subjective or objective. Id. at 716. On appeal, Klotter
argues only that Hansen was objectively biased.2
Objective bias was previously referred to as either implied or inferred bias. State v.
Faucher, 227 Wis. 2d 700, 716-17, 596 N.W.2d 770 (1999).
“[T]he focus of the inquiry into ‘objective bias’ is not upon the
individual prospective juror’s state of mind, but rather upon whether the
reasonable person in the individual prospective juror’s position could be
Id. at 718.
When assessing objective bias, a circuit court must
consider the facts and circumstances surrounding the voir dire and the facts
involved in the case. Id. However, the emphasis of the assessment remains on the
reasonable person in light of those facts and circumstances. Id. at 718-19. In
determining whether a person is biased, a circuit court should consider the
(1) did the question asked sufficiently inquire into the
subject matter to be disclosed by the juror;
(2) were the responses of other jurors to the same question
sufficient to put a reasonable person on notice that an
answer was required;
(3) did the juror become aware of his or her false or
misleading answers at anytime during the trial and fail to
notify the trial court?
Id. at 727. We give weight to the court’s conclusion that a prospective juror is or
is not objectively biased, and will reverse only if, as a matter of law, a reasonable
judge could not have reached such a conclusion. Id. at 721.
Here, the circuit court found Klotter credible when he testified he
was not thinking of his sons’ legal problems during jury selection or trial. While it
might also have been reasonable to conclude Klotter did recall the matter at some
point during the three-day proceeding, the court’s credibility finding is not clearly
erroneous. See id. at 720.
Further, weighing the facts and circumstances of the case, the court
concluded it was not more probable than not that Hansen was biased against
The court reasoned that, even if Hansen did recall his sons’ legal
problems, it was just as likely that Hansen would be biased against the State. As
Klotter concedes in her brief, it would also be reasonable to assume Hansen held
no bias either way, and was merely embarrassed by the matter.
Regardless, we need not resolve whether a person with pending
charges against family members would likely be biased, because the court
concluded Hansen had no awareness of the issue during Klotter’s trial.
court’s credibility determination forecloses Klotter’s argument.
We next address, and reject, Klotter’s assertion that she is entitled to
a new trial because a special verdict question was confusing. Specifically, Klotter
challenges the question inquiring whether the burglary was committed while
armed with a dangerous weapon.
However, Klotter did not object to that
question’s form during trial. She has thus forfeited her right to raise the issue. See
WIS. STAT. § 805.13(3);3 State v. Lippold, 2008 WI App 130, ¶10 n.9, 313 Wis. 2d
699, 757 N.W.2d 825. In any event, were we to reach the issue, we would agree
with the State’s argument and conclude the jury instructions and verdict question
were, as a whole, not confusing.
By the Court.—Judgment affirmed.
This opinion will not be published.
See WIS. STAT. RULE
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise