State v. Edron D. Broomfield

Annotate this Case

Download PDF

SUPREME COURT OF WISCONSIN Case No.: 97-0520-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Edron D. Broomfield, Defendant-Appellant-Petitioner. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 214 Wis. 2d 591, 571 N.W.2d 925 (Ct. App. 1997-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: February 2, 1999 October 8, 1998 Circuit Rock John H. Lussow JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs and oral argument by Charles Bennett Vetzner, assistant state public defender. For the plaintiff-respondent the cause was argued by Paul Lundsten, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. No. 97-0520-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-0520-CR IN SUPREME COURT STATE OF WISCONSIN : FILED State of Wisconsin, FEB 2, 1999 Plaintiff-Respondent, v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Edron D. Broomfield, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Affirmed. The defendant, Edron D. Broomfield, seeks review of an unpublished decision of the court of appeals1 which affirmed his judgment of conviction for burglary and for operating a motor vehicle without the owner s consent, and the order denying his motion for post-conviction relief entered by the Circuit Court for Rock County, John H. Lussow, Judge. Broomfield argues that he was denied his right to a fair and impartial jury because a juror, who prior to trial had overheard information regarding his past alleged misconduct, was biased against him, and this bias infected the jury s deliberations warranting a new trial. determined that The circuit court and court of appeals Broomfield failed 1 to establish that the State v. Broomfield, No. 97-0520-CR, unpublished slip op. (Wis. Ct. App. Oct. 23, 1997). 1 No. 97-0520-CR extraneous information, as defined in Wis. Stat. § 906.06(2) (1995-96),2 had tainted the jury, or had ever been discussed by the jury. Thus, the information did not impeach the verdict. We agree, and therefore, we affirm. I. ¶2 The relevant facts are as follows. companion, Ferdinand Sparger, were charged Broomfield and a with burglary and operating a motor vehicle without the owner s consent after the two entered a home where a friend lived with her grandmother, and without permission, drove off with the grandmother s car.3 Prior to the selection of the jury for Broomfield s August 1995 trial, his counsel informed the court that the jury impaneled for this trial included members of a prior panel as well as several jurors who had served on Broomfield on different charges. a previous trial involving The jury on the previous trial was unable to reach a verdict, resulting in a hung jury and a mistrial. Broomfield s trial counsel expressed concern whether Broomfield could receive an impartial panel. At the State s suggestion, the the circuit court agreed to use voir dire process to determine whether any jurors had any prejudices or 2 All references are to the 1995-96 version of the statutes unless otherwise indicated. 3 Two days earlier, someone had attempted to burglarize the home, and in the process had beaten up the grandmother. Even though she owned the home, and had left most of her things in the home, the grandmother at the time of the auto theft had moved to another daughter s home. The granddaughter s family remained in the home. 2 No. 97-0520-CR not. Trial counsel did not voice any further objection to proceed with trial. ¶3 During the jury selection process, eight jurors from the defendant s previous trial were called; five were removed for cause and the three remaining jurors were dismissed on peremptory challenges, two by the defense and one by the State. In the process, the entire panel learned of Broomfield s prior trial and the resulting hung jury.4 that the trial had an The circuit court explained acrimonious ending with a lot of disagreement among people, but it specifically instructed the panel that this is a new case and whatever else went on in another court has absolutely nothing to do with this. ¶4 police At trial, a neighbor testified that she phoned the when she saw two victim s home. men suspiciously hanging around the The neighbor watched the men check the doors, enter the garage and then drive off in the victim s vehicle. The two men were picked up by police and positively identified by the neighbor as the men who took the vehicle. Both Broomfield s friend and her grandmother, the victim, testified 4 Broomfield s trial counsel specifically asked the three jurors from the prior trial if they would be able to decide the guilt or innocence of Broomfield on the merits of this case and not be affected by the prior case. All three nodded affirmatively. Counsel also asked the three jurors separately, and then the entire panel if there was something about the prior case that might affect their ability to listen to this case impartially and weigh the evidence fairly, to which there was no response. Counsel then wanted to know if the panel s knowledge of Broomfield s prior charges caused them to think he is guilty in this case. Again, no one responded affirmatively. 3 No. 97-0520-CR that they did not give Broomfield or his accomplice permission to enter the home, to enter the garage, or to use the vehicle. ¶5 Broomfield s accomplice also testified as part of a plea agreement with the State. He indicated that Broomfield suggested that they steal the car and then sell it. When they were stopped by the police, he stated that they agreed to say that the victim s granddaughter had given them permission to take the car even though that was not true. ¶6 The jury found Broomfield guilty on both counts. Following the conviction, he filed a motion for post-conviction relief alleging ineffective assistance of counsel. At the August 1996 hearing on the motion, one of the jurors who had served on the jury, Gerald McCann, testified that before court was in session, he had overheard a man and a woman discussing Broomfield. They said he was a gangster and a troublemaker with pending trials, that he beat up a bunch of kids and that he was involved in drive-bys. He understood that one of them had been on a previous jury involving Broomfield, and that neither of them wanted to be on another trial. of shrugged [the information] off He stated that he kind a little bit, but was interrupted by Broomfield s appellate counsel before he could explain why. ¶7 When asked if he had discussed the information he had overheard with anyone, McCann stated that he had no specific recollection of telling the other jurors. He testified that the only information he could remember being discussed during jury deliberations that related to the previous trial was how long it 4 No. 97-0520-CR had lasted; a woman wanted to know if she would be home in time for lunch. McCann also testified that, as he told the court during voir dire, he set aside other information and confined his decision solely on the facts presented. ¶8 Broomfield s motion hearing. trial counsel also testified at the Counsel stated that he was concerned about the jury panel because a number of the potential jurors had served on the previous hung jury, some of whom looked quite frustrated at the end of trial, and that there may be prior jurors who were annoyed that Broomfield was not convicted in the prior case. It also concerned him that these prior jurors were aware of the earlier charges brought against Broomfield. He did believe the voir dire process was an adequate procedure to eliminate the problem. However, there were no questions asked of the jury panel, by the judge or attorneys, whether they knew anything else about, or knew Broomfield in any way.5 ¶9 The circuit court found that prior to the jury selection, juror McCann heard some mention of a hung jury, but could not be specific about what was said. As to his testimony about discussions in the jury room, the court found it to be very indefinite and nebulous. The court also found that juror 5 At the post-conviction hearing, Broomfield s trial counsel indicated that he did not consider the possibility that there could have been some possible discussion among prior jurors and those on the panel who were unfamiliar with Broomfield. Even if he had considered that, he testified that he would not have acted differently. 5 No. 97-0520-CR McCann s testimony that he was fair and impartial and that he and the jury followed the instructions was believable. ¶10 The Broomfield s circuit court trial further counsel s determined history that of based on exceptional representation, including an excellent job in this case, and because the decisions were a performance was not deficient. based on suffered the overwhelming no prejudice. matter of trial strategy, his In addition, the court held that evidence in Accordingly, this the case, court Broomfield rejected Broomfield s contention that the jury was biased by any improper information it heard, or that a new trial was warranted. The court affirmed the verdict and Broomfield appealed. ¶11 The court of appeals affirmed. Addressing the extraneous information,6 the court concluded that even assuming juror McCann was competent to testify, he could not state with specificity one single extraneous fact that had actually been discussed by the jury. Therefore, the evidence presented by Broomfield, at the post-conviction motion, was insufficient to impeach the verdict. Broomfield petitioned this court for review which we granted. II. 6 Broomfield raised two other arguments before the court of appeals: (1) defense counsel was ineffective for failing to object when the venire learned of his prior bad acts and by failing to move to strike the three jurors from the prior panel for cause; and (2) an erroneous jury instruction violated his constitutional right to remain silent. The court of appeals rejected both contentions, and Broomfield appears to have abandoned these arguments on appeal before this court. 6 No. 97-0520-CR ¶12 We will juror bias. briefly discuss the standard analyses for In State v. Messelt, 185 Wis. 2d 254, 518 N.W.2d 232 (1994), this court explained what testimony by jurors was barred under § 906.06(2),7 and Wis. Stat. competent under the statute. what testimony was Section 906.06(2) does not prevent jurors from testifying for purposes of determining whether a juror failed to during voir dire. 906.06(2) also reveal Messelt, provides against juror testimony: prejudicial attention information or potentially whether two 185 prejudicial Wis. limited 2d at information 267. exceptions to Section the rule jurors can testify whether extraneous was any improperly outside brought influence to was the jury s improperly 7 Wisconsin Stat. § 906.06(2), is a codification of the common law rule prohibiting juror testimony on the deliberative process of the jury, testimony that might impeach the verdict. Section 906.06(2) provides as follows: 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. 7 No. 97-0520-CR brought to bear upon any juror. See also, Messelt, 185 Wis. 2d at 274. III. ¶13 We first consider whether juror McCann failed to reveal potentially prejudicial information during the voir dire. The question is whether juror McCann should have revealed, in response to voir dire questioning, the information or discussion he overheard about the defendant before the court whether a was in juror is session. ¶14 The proper time to determine Messelt, 185 Wis. 2d at impartial is on voir dire examination. 267. The voir dire, with its peremptory strikes and strikes for cause, is the prime instrument of the common law designed to assure an impartial jury and a fair trial. State v. Shillcutt, 119 Wis. 2d 788, 812, 350 N.W.2d 686 (1984) (Heffernan, C.J., concurring). The effectiveness of voir dire, however, is dependent upon the responses provided by prospective jurors and there are no guarantees accurately or completely. ¶15 that a juror will respond honestly, Messelt, 185 Wis. 2d at 268. In State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985),8 this court set forth a two-step test to follow when bias is alleged to have resulted from a juror s failure to reveal information on voir dire. In Wyss, we held that in order to be 8 State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 504-05, 451 N.W.2d 752 (1990). 8 No. 97-0520-CR awarded a new trial in such instances, a litigant must demonstrate: (1) that the juror incorrectly or incompletely responded 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. Wyss, 124 Wis. 2d at 726. ¶16 there The State argues that Wyss is not applicable because is no evidence that juror McCann improperly withheld information or that he provided incomplete or incorrect answers to the questions asked during voir dire. The defendant admits that the absence of any accusations that juror McCann improperly withheld information eliminates one possible indication of bias, and renders defendant the Wyss maintains test that inapplicable. other, Nevertheless, countervailing the considerations present a strong case for finding implied if not actual juror bias. The defendant points to the inflammatory nature of the information juror McCann overheard and the possibility that the negative information was discussed by the jury and/or considered by McCann himself. Thus, he maintains juror McCann s presumed bias ripened into actual bias. ¶17 The record reveals that neither the circuit judge nor the attorneys asked the jury panel if they knew the defendant or if they knew anything, other than what was explained during voir dire, about the defendant. Because juror McCann was never specifically asked, his responses could not have been incorrect or incomplete. We find that the defendant has failed to satisfy 9 No. 97-0520-CR the first prong of the test in Wyss; accordingly, we will not address the second prong. IV. ¶18 We next address whether any extraneous prejudicial information was improperly brought to the jury s attention or whether any outside influence was improperly brought to bear upon any juror such that the verdict may be impeached. Stat. § 906.06(2). testimony of Wis. Specifically, we must determine whether the juror McCann falls within the first of these exceptions. ¶19 Under Wis. Stat. § 906.06(2), the party seeking to impeach the verdict must demonstrate that a juror s testimony is admissible under § 906.06(2) by establishing (1) that the juror s testimony concerns extraneous information (rather than the deliberative process of the jurors), (2) that the extraneous information was improperly brought to the jury s attention, and (3) that the extraneous information was potentially prejudicial. State v. Eison, 194 Wis. 2d 160, 172, 533 N.W.2d 738 (1995). After the circuit court determines whether the party has satisfied § 906.06(2), it determines whether one or more jurors engaged in prejudicial. ¶20 the alleged conduct and whether the error was Eison, 194 Wis. 2d at 172-73. In this case, the circuit court did not explain its rationale for permitting juror McCann to testify or its finding that his testimony relating to any discussions in the jury room was very indefinite and nebulous. We independently review the record to determine whether it provides a basis for the circuit 10 No. 97-0520-CR court s implicit determination that juror McCann was competent to testify about potentially prejudicial information improperly brought to the jury, but that the defendant failed to prove that the jury was biased by any improper information, or that a new trial was warranted. ¶21 Id. at 173. Extraneous information is information which a juror obtains from a non-evidentiary source, other than the general wisdom we expect jurors to possess. 275. Messelt, 185 Wis. 2d at Extraneous information does not extend to statements which simply evince a juror s subjective mental process; rather, it refers to information coming from the outside. Id. (quoting Shillcutt, 119 Wis. 2d at 798). ¶22 Juror McCann evidentiary source. overheard information from a non- He testified that he overheard two other people talking about a prior hung jury involving the defendant, and other bad acts allegedly committed by the defendant, prior to the jury selection process. The information juror McCann possessed was extraneous. ¶23 the The extraneous information, in order to fall within exception of Wis. potentially prejudicial. purposes of determining Stat. § 906.06(2), must also be The level of prejudice required for competency under § 906.06(2) is necessarily lower than prejudice needed to successfully impeach a verdict. Messelt, 185 Wis. 2d at 276. Information may be potentially prejudicial if it conceivably relates to a central issue of the trial. Eison, 194 Wis. 2d at 176. 11 No. 97-0520-CR ¶24 Here, the extraneous information overheard was potentially prejudicial. that juror McCann The information related to the defendant s character and consisted of other, unrelated acts committed by the defendant, evidence which likely would not have been admissible during the trial.9 ¶25 We potentially further conclude prejudicial the jury s attention. that information the was extraneous improperly brought and to Information not on the record is not properly before the jury even if only one juror is exposed to it. Messelt, 185 Wis. 2d at 279, 280 n.17. ¶26 Because extraneous and the information potentially juror prejudicial McCann possessed information that was was improperly brought before the jury, we conclude, as the circuit court implicitly did, that he was competent to testify under Wis. Stat. § 906.06(2). ¶27 After determining whether testimony is competent under Wis. Stat. § 906.06(2), courts must conduct two additional analyses before deciding whether a new trial is warranted. First, the circuit court must determine by clear, satisfactory, and convincing evidence that the juror made statements or engaged in the conduct alleged. 2d at 281. or heard the Messelt, 185 Wis. Only if the evidence is clear, satisfactory, and 9 Other acts evidence may be admitted for limited reasons under Wis. Stat. § 904.04(2), such as proof of motive or intent, if it is relevant, and more probative than prejudicial. Wis. Stat. §§ 904.04(2), 904.01 and 904.03. Such evidence is not admissible to prove conformity with character. Section § 904.04(2). 12 No. 97-0520-CR convincing must the court then make the legal determination of whether the extraneous information constitutes prejudicial error requiring reversal of the verdict. ¶28 McCann s inquiries. The testimony circuit Id. satisfies court the found first that of prior these to jury selection, juror McCann heard some mention of a hung jury, but could not be specific about what was said. We disagree. McCann individuals testified that he overheard two Juror calling Broomfield a gangster, a troublemaker, that he beat up a bunch of kids and that he was involved with drive-bys. On this point, court s juror McCann was unequivocal. The circuit finding to the contrary is clearly erroneous. See Wis. Stat. § 805.17(2). ¶29 As a result, we must determine whether as a matter of law, the information in juror McCann s possession constitutes prejudicial error requiring reversal of the verdict. 185 Wis. 2d at 281. Messelt, This is a question of law which we review without deference to the circuit court. Id. at 281-82. As we stated in Messelt, this analysis will focus on whether there is a reasonable possibility that the information in juror McCann s possession would have a prejudicial effect upon a hypothetical average juror. ¶30 overheard We Id. at 282. conclude would not that have had hypothetical average juror. of the information the juror a information prejudicial juror effect McCann upon a We first point to the reliability McCann overheard between two individuals who were possibly on a prior hung jury involving the 13 No. 97-0520-CR defendant. As the circuit court explained, there was a lot of disagreement among those jurors who served on the hung jury. Overhearing quite comments unlike a between potential two juror displeased reading newspaper or hearing it on the news. indication of trustworthiness. panel members information in is the The information has little Cf. Messelt, 185 Wis. 2d at 259, 271 (unconfirmed gossip told to a juror years earlier about the defendant was not reliable). Juror McCann indicated as much when he testified that he shrugged it off a little bit. ¶31 Moreover, as the circuit court stated, the evidence in support of the jury s verdict was overwhelming. The jury heard eyewitness testimony describing the burglary and the taking of the victim s picked up vehicle. by identified police by The while the jury learned driving eyewitness as the that vehicle one of Broomfield and the was was then burglars. Broomfield s accomplice testified to the plan to steal and then sell the car, as well as the their agreement to claim they had permission to take the car. The victim and her granddaughter refuted the claim that Broomfield had permission to take the vehicle from the garage. ¶32 In addition, at the post-conviction hearing, juror McCann testified that he had no specific recollection of telling the other jurors any of the information that he had heard prior to jury selection. He also stated that the information did not affect him he kind of shrugged it off a little bit. The circuit court found that the evidence, juror McCann s testimony, was indefinite and nebulous as to whether the jury discussed 14 No. 97-0520-CR Broomfield s alleged past behavior while deliberating. The circuit court s finding in this regard will be affirmed unless clearly erroneous. record supports Wis. Stat. § 805.17(2). the circuit court s Our review of the determination that the evidence relating to any conversations during deliberations is too indefinite and equivocal to justify a new trial. Because we conclude that the information juror McCann overheard would not have had a prejudicial effect upon a hypothetical average juror, we affirm both the judgment and the order. By the Court. The decision affirmed. 15 of the court of appeals is 1

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.