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November 2, 1983


Appeal from a judgment of the circuit court for Winnebago county: Robert A. Hawley, Judge.

Petition to review granted.

Scott, C.j., Brown, P.j., and Voss, J.

The opinion of the court was delivered by: Scott

James B. Shillcutt appeals from a judgment of conviction, after a trial by jury, of soliciting prostitutes, contrary to sec. 944.32, Stats., and keeping a place of prostitution, contrary to sec. 944.34(2). The trial court sentenced Shillcutt to two consecutive five-year terms of imprisonment.

Shillcutt is a black male. The primary prosecution witness, Melody Plante, is a white female. At the time Shillcutt first met Plante, she was seventeen years old. The trial court permitted, through the testimony of Plante, the introduction of other crimes evidence concerning Shillcutt and Plante during 1979.

Subsequent to trial, an affidavit was filed with the trial court regarding certain remarks made by jurors during deliberations. According to a member of the jury, one of the remarks made fifteen to twenty minutes before the end of deliberations was, "Let's be logical, he's a black, and he sees a seventeen year old white girl -- I know the type." Another juror allegedly agreed with the statement. At a post-trial hearing, the trial court heard testimony about this statement but declined to find by clear and satisfactory evidence that the statement was prejudicial to a hypothetical juror.

The primary issue before us is whether this statement made during jury deliberations provides sufficient evidence of jury misconduct to impeach the verdict.

On appeal, Shillcutt argues that a new trial is warranted in this case both because the juror's statement made during deliberations constitutes extraneous information sufficient to prejudice a hypothetical juror and because the trial court erroneously permitted the introduction of other crimes evidence involving Shillcutt and a key prosecution witness. We disagree with both arguments. Because we conclude that the statement made during deliberations is of the type which a juror is not competent to testify to as provided by sec. 906.06(2), Stats., any additional inquiry into prejudicial effect is foreclosed. Because we conclude that the other crimes evidence was relevant and more probative than prejudicial, no reversible error was made in admitting it. Therefore, we reject Shillcutt's request for a new trial.

When considering an issue of verdict impeachment, based on possible consideration of extraneous prejudicial information, application of a three-part test is required. The evidence brought to the trial court's attention must be examined to determine if it (1) is competent; (2) shows sufficient substantive grounds to overturn the verdict, and (3) shows resulting prejudice. After Hour Welding, Inc. v. Laneil Management Co., 108 Wis. 2d 734, 738, 324 N.W.2d 686, 689 (1982).

The first part of the test, that regarding the competency of the evidence, is governed by sec. 906.06(2), Stats. *fn1 Section 906.06(2) "is virtually identical to Rule 606(b) of the Federal Rules of Evidence, which codifies the common law as it has developed in many jurisdictions." Id. at 739, 324 N.W.2d at 689. When a state statute is modeled after a federal rule, we look to the federal interpretation of the rule for guidance and assistance.

The federal courts have developed two lines of cases as to what constitutes extraneous prejudicial information. The first line of cases deals with extraneous prejudicial information brought into the jury's deliberations through, for example, newspaper articles, Marshall v. United States, 360 U.S. 310 (1959); comments by bailiff to jury, Parker v. Gladden, 385 U.S. 363 (1966); prejudicial information about the defendant known by a juror prior to the trial, United States ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied, 402 U.S. 906 (1971). See generally Government of the Virgin Islands v. Gereau, 523 F.2d 140, 149 nn. 23-25 (3d Cir. 1975), cert. denied, 424 U.S. 917 (1976). A juror is competent to testify about such information under the exception in Federal Rules of Evidence, Rule 606(b).

The second line of cases concludes that jurors are not competent under the Federal Rules of Evidence to testify to statements manifesting the subjective prejudices, improper motives or mental processes of other jurors. United States v. Duzac, 622 F.2d 911, 913 (5th Cir.), cert. denied, 449 U.S. 1012 (1980). See also Martinez v. Food City, Inc., 658 F.2d 369, 373 (5th Cir. 1981) (juror stated that defendant "should be taught a lesson" for hiring Mexican nationals holding green cards). Such statements by a juror do not constitute "extraneous prejudicial information" about which another juror is competent to testify.

Our supreme court has indicated this line of reasoning (that a juror is not competent to testify about the improper motives or subjective prejudices of other jurors) is to be followed in Wisconsin. In After Hour Welding, the court states:

The concern for fairness to the parties and monitoring the integrity of the judicial system leads us to conclude that a trial court may, in appropriate circumstances, consider allegations that extraneous prejudicial remarks were made to jurors which were not a part of the judicially guarded evidence they received. The court must not inquire into the jurors' mental processes, including the effect such remarks had. The matter must be resolved ...

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