State v. Jones

960 N.W.2d 633 (Table)

2021 WI App 36

STATE of Wisconsin, Plaintiff-Respondent, v. Shafia M. JONES, ^† Defendant-Appellant.

Appeal No. 2020AP206-CR

Court of Appeals of Wisconsin.

April 14, 2021

PER CURIAM.

¶1 Shafia Jones appeals from a judgment of conviction. She argues that her conviction should be reversed on the basis that the State failed to preserve certain evidence, the court failed to strike for cause a racially biased prospective juror and Jones then had to use one of her own peremptory strikes to keep the prospective juror off of the jury, and/or the court erred in admitting certain other-acts evidence at trial. Jones fails to carry the day on any of these issues. We affirm.

Failure-to-Preserve Evidence

¶2 Jones was charged with assault by a prisoner with a bodily substance, in violation of WIS. STAT. § 946.43(2m)(a), and disorderly conduct, in violation of WIS. STAT. § 947.01, both as a repeater, in connection with a January 20, 2016 incident at the county jail in which she struck a staff member with a feminine pad that had been saturated with bodily fluid. Prior to trial, Jones moved to dismiss the assault-by-a-prisoner count on the basis that the pad had not been preserved so that it could be tested to determine whether or not it actually contained bodily fluid, as required for a conviction under § 946.43(2m)(a). The circuit court denied the motion on the basis that the pad constituted inculpatory, not exculpatory, evidence.

¶3 On appeal, Jones insists her due process rights were violated by the government's failure to preserve the pad and that the circuit court erred in denying her motion. We disagree.

¶4 In order to show that her due process rights were violated due to the failure of the government to preserve the pad, Jones bears the burden of demonstrating that the government (1) "failed to preserve" the pad, and the pad was "apparently exculpatory," or (2) "acted in bad faith by failing to preserve" the pad, and the pad was "potentially exculpatory." See State v. Luedtke , 2015 WI 42, ¶7, 362 Wis. 2d 1, 863 N.W.2d 592. " ‘Whether state action constitutes a violation of due process presents a question of law, which this court decides independently....’ We uphold the circuit court's findings of historical fact unless they are clearly erroneous." Id. , ¶37 (citation omitted).

¶5 In Luedtke , the state laboratory that tested Luedtke's blood sample, which came back positive for restricted controlled substances and cocaine, destroyed the sample pursuant to standard protocol. Id. , ¶¶13, 16. Luedtke, who was unable to test the sample prior to its destruction, sought to suppress the blood sample on that basis. Id. , ¶¶17, 20. Our supreme court held that "[t]he fact that Luedtke's blood tested positive" for these substances "demonstrates that this blood was apparently not exculpatory." Id. , ¶54 (emphasis added).

¶6 The same holds for this case. At the hearing on Jones’ motion, the staff member struck by the feminine pad testified that as she approached Jones’ section, she observed Jones "flooding her cell. There was, like, blood, feces, smell of urine coming out of there." The staff member further testified that the feminine pad Jones threw at her was "very heavy and wet" and "full of it would appear to be blood and feces and smelled of urine ... and it hit me in the upper right shoulder and splattered into my face. " (Emphasis added.) The circuit court determined that the pad was "inculpatory evidence," and with such a determination, it implicitly found the staff member's testimony believable.

¶7 While the staff member's sense of smell may not be as "scientific" as laboratory testing on blood samples, the smell of urine is readily recognized by most anyone. We note that the staff member's testimony indicates that not only did she recognize the smell of urine on the pad itself but also that it struck her on the shoulder and "splattered into [her] face," thus she easily would have been able to observe that this particular urine smell was coming from the pad as opposed to being from the fluids on the floor coming out of Jones’ cell. ¹ We agree that the pad "was apparently not exculpatory," see Luedtke , 362 Wis. 2d 1, ¶54, or as the circuit court stated it, that the pad was "inculpatory" evidence. See also State v. Pankow , 144 Wis. 2d 23, 44, 422 N.W.2d 913 (Ct. App. 1988) ("Pankow's claim that defense examination would have produced exculpatory evidence is speculative. Due process does not require the state to preserve evidence that is merely potentially exculpatory.").

¶8 Jones then can only prevail on her failure-to-preserve-evidence issue if she has shown that the pad was "potentially exculpatory" and the government "acted in bad faith by failing to preserve" it. Luedtke , 362 Wis. 2d 1, ¶7. She has not shown this.

¶9 Since Jones chose not to testify, either at the evidentiary hearing on her motion or at trial, the staff member was the person singularly best positioned to testify to the nature of the substance with which the pad was soaked. Again, the staff member's testimony was that the pad "smelled of urine," which testimony was completely consistent with the report she filled out the day after the incident, in which she stated that she took off her uniform shirt after the incident "as it was wet and smelled of urine." To demonstrate bad faith by the government, Jones must show that "(1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and (2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence." See id. , ¶46 (emphasis added; citation omitted). We need not address the second of these prongs as Jones has failed to satisfy the first—that "the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve." See id. (citation omitted). The only awareness related to the evidentiary value or usefulness of the pad that the officers would have had would have been an awareness that it had inculpatory, not exculpatory, value, as the circuit court noted.

Denial of Motion to Strike Prospective Juror for Cause

¶10 Jones next asserts she is entitled to a new trial because the circuit court declined to strike for cause a prospective juror who indicated she harbored some racial bias. Jones is not entitled to a new trial.

¶11 The relevant voir dire discussion related to the prospective juror is as follows:

[Defense counsel:] Does anyone, you know, being completely candid, does the fact that my client is black cause anyone to have a negative attitude towards her? It's no fault of your own, no fault of prejudice, but do you think it would impact your judgment of her, the fact that she's black? Ms. S.B[.]

[Prospective Juror S.B.:] About ten years ago, we had a burglar in our house, and as fate would have it, he was the gentleman who just died in police custody a couple weeks ago, same man. And I have to say that it kind of gives you a little bit of a start to begin to wonder.

[Defense counsel:] Okay. So do you think you would have a hard time to be impartial and fair to my client?

[Prospective Juror S.B.:] I would certainly try. Like the lady said, I would try to do my best, but I'm kind of old school, you know, definitely the oldest one here and—

[Defense counsel:] And I appreciate your candor on this issue. This is an important issue. So I guess, Your Honor, at this point, I would move for cause.

The Court: So Ms. S.B[.], just like I told the other juror, you know, the goal here—we all have prejudice to a certain degree against people, professions, foods. I mean, we all have some prejudices or biases. And our goal here is to get jurors that will keep it out as best as they can and make their decision of guilt or innocence only—or guilty or not guilty, only based upon the facts that you learn them here today and tomorrow. So the only evidence you are to consider, I will tell you later in the jury instructions, is the sworn testimony or physical evidence that is presented today and judge them and the credibility of witnesses based upon what you see. So the question is can you keep out your bias or prejudice and just judge the facts as you learn them here today and tomorrow?

[Prospective Juror S.B.:] I would try. I definitely would try and do my best.

The Court: Mr. Edelstein.

[Prosecutor:] I share defense concern, but I don't think the answer merits recusal for cause.

The Court: So at this point, she will remain.

Out of the presence of jurors, the court subsequently explained its reasoning in declining to strike this, and another, prospective juror for cause.

The Court: She did express some race issues or concerns that she may have. You know, the bottom line, though, is this is the same for both the jurors, the standard is whether they give an affirmative response notwithstanding the juror could decide the case fairly and impartially with the evidence presented. Each of them gave an affirmative response they would try their best, and that's really what everyone here is trying to do is try their best because as I indicated, I think we all bring with us some baggage of one degree or another. I found nothing in the record of each of those jurors or their statements made that on the face of it or even through their statements would show there was a reason for cause. Each of them met the standard which is that they would try their best to be fair and impartial jurors which is what we ask of them.

Jones subsequently used one of her five peremptory strikes to keep S.B. off the jury.

¶12 We presume that prospective jurors are impartial. State v. Funk , 2011 WI 62, ¶31, 335 Wis. 2d 369, 799 N.W.2d 421. "The party challenging a juror's impartiality bears the burden of rebutting this presumption and proving bias." Id. In assessing bias, we will "defer to the trial court's better position to assess the prospective juror's credibility and honesty."...