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State v. Tobatto

Court of Appeals of Wisconsin

March 8, 2016

STATE OF WISCONSIN, PLAINTIFF-APPELLANT,
v.
TODD BRIAN TOBATTO, DEFENDANT-RESPONDENT

         Submitted on Briefs December 1, 2015.

          APPEAL from an order of the circuit court for Milwaukee County: LINDSEY CANONIE GRADY, Judge. Cir. Ct. No. 2013CF574.

         On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Brad D. Schimel, attorney general, and Daniel J. O'Brien, assistant attorney general.

         On behalf of the defendant-respondent, the cause was submitted on the brief of Leon W. Todd, assistant state public defender of Milwaukee.

         Before Curley, P.J., Kessler and Brennan, JJ.

          OPINION

          KESSLER, J.

          [¶1] The State of Wisconsin appeals an order of the postconviction court granting a new trial to Todd Brian Tobatto. The postconviction court found that Tobatto's trial counsel rendered ineffective assistance with respect to jury selection. Specifically, the postconviction court determined that counsel's failure to remove a particular juror, Juror Number Ten (Juror 10), prejudiced Tobatto's trial. We conclude that Juror 10 was not shown to be biased and therefore trial counsel was not ineffective. Therefore, Tobatto is not entitled to a new trial. We reverse.

         BACKGROUND

          [¶2] Tobatto was convicted, following a jury trial, of one count of stalking with a previous conviction within seven years, and one count of violating a restraining order or injunction.[1] At trial, thirty prospective jurors were examined.

         Voir Dire.

          [¶3] During voir dire, the trial court read the charges against Tobatto to the jury and asked " is there anyone here unwilling to give the defendant the benefit of his presumption of innocence?" No potential juror raised his or her hand.

          [¶4] After all of the individual potential jurors introduced themselves, the State asked a series of questions to gauge the jurors' willingness to follow the trial court's instructions. Each of the thirty potential jurors, including Juror 10, indicated a willingness to follow the court's instructions:

Now, does everyone here, generally-speaking, promise to follow the court's instructions? It appears every single hand has been raised. Now, the court's instructions include instructions about the trial procedure, and they also include instructions about the law of the State of Wisconsin. Let's say when it comes to the law you hear something that you personally disagree with, is everyone in this room, nevertheless, willing to follow the court's instructions? It appears everyone raised their hands. So with these offenses specifically, stalking, for example, I'm sure every person in this room can envision a certain course of conduct when the word stalking is mentioned. But, nevertheless, what you envision might be different than the substantive law in the [S]tate of Wisconsin. So for the stalking component of this case, does everyone promise to follow the court's instructions about the law of stalking? It appears everyone's raised their hands.

          [¶5] The State then asked whether any of the potential jurors " have been through a bad breakup before?" Approximately sixty percent of the jurors raised their hands. The State then asked: " Now, has anyone here post-breakup been harassed by an ex-spouse or significant other?" The State defined " harassed" as " [b]othered, intimidated, annoyed, you name it." Nine potential jurors raised their hands--Jurors eight, nine, ten, eleven, eighteen, twenty-one, twenty-four, twenty-seven, and twenty-eight. As relevant to this appeal, the following exchange took place with Juror 10:

[State]: Juror number 10, did you raise your hand?
[Juror 10]: Yes.
[State]: Ma'am, why did you raise your hand?

[Juror 10]: I had a similar situation where with an ex an[d] he threatened me after we broke up.

[State]: Threatened you?
[Juror 10]: Yeah.
[State]: Do you mind being a little more specific?
[Juror 10]: We -- like whip my ass pretty much.
[State]: Did anything come of it?
[Juror 10]: We went through the court system. The police ...

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