on Briefs December 1, 2015.
from an order of the circuit court for Milwaukee County:
LINDSEY CANONIE GRADY, Judge. Cir. Ct. No. 2013CF574.
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.
behalf of the defendant-respondent, the cause was submitted
on the brief of Leon W. Todd, assistant state public defender
Curley, P.J., Kessler and Brennan, JJ.
[¶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.
[¶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. At trial, thirty prospective jurors
[¶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 ...