State v. Amy M. Van Wagner

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 21, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP763-CR Cir. Ct. No. 2016CF235

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

AMY M. VAN WAGNER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: RALPH M. RAMIREZ, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP763-CR

¶1 PER CURIAM. Amy M. Van Wagner appeals from her judgment
of conviction for first-degree intentional homicide, pursuant to WIS. STAT.
§ 940.01(a) (2021-22)1, and hiding a corpse, pursuant to WIS. STAT. § 940.11(2),
and from the trial court’s order denying her postconviction motion for a new trial
based on her allegation that a juror at her trial was biased. Because Van Wagner
has not met her burden to show that the juror in question was objectively biased,
we affirm.

¶2 The State charged Van Wagner with first-degree intentional
homicide and hiding a corpse in connection with the death of her husband, Stanley
Van Wagner. According to evidence presented in Van Wagner’s ten-day trial,
Stanley’s body was found with multiple gunshot wounds and covered by a tarp in
the basement of the Van Wagners’ home. The jury found Van Wagner guilty as
charged. She was later sentenced to life in prison without the possibility of
extended supervision.

¶3 The facts giving rise to the instant appeal occurred on the seventh
day of Van Wagner’s jury trial. During the lunch break on that day, a woman who
had been in the courtroom throughout the trial approached one of the jurors. The
juror, identified by the parties as “Juror 523,” had been wearing a tag that clearly
identified her as a juror. Although Juror 523 could not remember exactly what the
woman said, she recalled that the woman “spoke … about the wind and [the
juror’s] hair and [the woman’s] hair.” The woman also indicated to Juror 523 that
“she knew the Van Wagners.” The State asked Juror 523 whether anything about

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP763-CR

that interaction would lead her to believe that she “couldn’t be fair and impartial
and still decid[e] this case[,]” to which Juror 523 answered, “Yes or no? Is that a
yes or no? No. Nothing.”

¶4 Outside the presence of the jury, upon questioning by the trial court,
Van Wagner indicated that the woman was “[a] very good family friend.”
Communicating some anger over the situation, the trial court ejected the woman
from the courtroom.

¶5 When the jurors returned to the courtroom, the trial court
acknowledged that Juror 523 had been “frightened” in having to be addressed
privately by the judge in open court, made clear that the woman who spoke to
Juror 523 was one of the people supporting Mrs. Van Wagner, and emphasized
that the woman’s behavior should not be deemed a reflection on the prosecution or
defense or on Van Wagner herself. The trial proceeded. At the end of the day, the
court explained that Juror 523 had requested, and was provided with, an escort to
her car:

Just so everybody is cognizant, one of our bailiffs is
going to walk [Juror 523] to her car. She has a little
concern about family members from what occurred earlier,
and I understand her concern. It doesn’t cause me to think
she can’t be fair and impartial but obviously she is a citizen
who doesn’t have any usual knowledge or connection with
court proceedings. So, I have been advised that the request
was made and I’m going to honor that request.

After some discussion unrelated to this issue, the court stated:

I have been advised that [Juror 523] is fairly fearful of the
circumstances believing that she has a concern for her
safety. And as I said, I will note one of my bailiffs walked
her out to the car. I think I will make inquiry of her
tomorrow to see if anything is affecting her ability to be a
fair and impartial juror.

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No. 2023AP763-CR

¶6 The next morning, at the behest of both parties, the trial court spoke
with Juror 523 again and reiterated that the woman’s contact with her was not the
fault of Van Wagner or her counsel “in any way, shape, or form.” In response to
the court’s questions about whether her fear or concern might be held against
Van Wagner or might “affect [her] ability to be a fair and impartial juror,” Juror
523 said, “I would say no. Yesterday was just bizarre to me and I had some
anxiety from that whole ordeal but I was fine. I’m fine now.” She continued, “I
don’t feel that anyone put anyone up to anything or there was any sort of anything
to that.” In response to a question from defense counsel about whether her
“thoughts about who Mrs. Van Wagner is and what kind of person she is” were
colored by the incident, Juror 523 responded that they were not. She also
indicated that the other jurors had not expressed negative thoughts about
Van Wagner or the people supporting her, although they were present to see Juror
523 being escorted to her car and she thought they understood why she might feel
anxious.

¶7 Several years after her conviction, Van Wagner filed a motion
seeking a new trial on the grounds that Juror 523 was objectively biased and that
her counsel was ineffective for failing to object to this juror’s presence on the jury.
After a hearing, the trial court made an oral ruling denying the motion. The court
explained that it had reviewed the transcripts from trial and considered the
positions of the parties. After reviewing “the facts and circumstances in their
totality,” including both “what happened” and “what [Juror 523] said[,]” the court
concluded that there was not “a sufficient record … to demonstrate that that juror
was objectively biased against Ms. Van Wagner.” The court stated that “the
question is not just about [Juror 523],” but “about a person who is contacted by a
member in the gallery, who expressed some concern, who was told that the person

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No. 2023AP763-CR

from the gallery had no direct relationship to the defense team or Ms. Van Wagner
and certainly was no reflection on Ms. Van Wagner [or] the defense [team].”
Given its determination that Juror 523 was not biased, the court suggested there
was no need for a hearing on the ineffective assistance claim, and Van Wagner’s
counsel agreed because “a prejudice argument gets a little harder.”

¶8 Van Wagner appeals, asserting that Juror 523 was objectively biased
and that the trial court erred by focusing only on whether the juror was
subjectively biased. The State argues that Van Wagner forfeited her objective bias
claim during trial, but that even if she did not, she is not entitled to a new trial
because she has not shown that the juror in question was biased.

¶9 “The United States and Wisconsin Constitutions guarantee a
criminal defendant the right to a trial by an impartial jury.” State v. Oswald, 2000
WI App 2, ¶16, 232 Wis. 2d 62, 606 N.W.2d 207 (1999) (citing U.S. CONST.
amend. VI; WIS. CONST. art. I, § 7); see also WIS. STAT. § 805.08(1) (“If a juror is
not indifferent in the case, the juror shall be excused.”). Our supreme court has
identified three categories of juror bias that prevent a juror from serving. State v.
Faucher, 227 Wis. 2d 700, 706, 596 N.W.2d 770 (1999). The first is “statutory
bias,” which is defined in § 805.08(1) and includes, for example, jurors related by
blood or marriage to a party and those having a financial interest in the case.
Faucher, 227 Wis. 2d at 717. The second category is “subjective bias,” which is
an inability or unwillingness to be impartial revealed through a juror’s words and
demeanor. Id. at 717-18; Oswald, 232 Wis. 2d 62, ¶19. Finally, “objective
bias”—the type of bias alleged here—is based “not upon the individual … juror’s
state of mind, but rather upon whether the reasonable person in the individual …
juror’s position could be impartial.” Faucher, 227 Wis. 2d at 718; see also State
v. Funk, 2011 WI 62, ¶49, 335 Wis. 2d 369, 799 N.W.2d 421.

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No. 2023AP763-CR

¶10 “Whether a juror is objectively biased is a mixed question of fact
and law.” Faucher, 227 Wis. 2d at 720. As usual, we uphold a trial court’s
factual findings surrounding the juror unless they are clearly erroneous. Id.
However, although we do not normally defer to a lower court’s legal
determination, the trial court’s “determination on the question of objective bias
should be reviewed under a deferential standard.” Id. at 719; see also State v.
Lepsch, 2017 WI 27, ¶24, 374 Wis. 2d 98, 892 N.W.2d 682 (quoting Funk, 335
Wis. 2d 369, ¶30) (stating that our supreme court will “give weight to the [trial]
court’s legal conclusion” with regard to objective bias). This is because factual
and legal determinations are “intertwined” in an objective bias analysis and the
trial court is “particularly well-positioned” to conduct this analysis given its
familiarity with the jurors and ability to “reflect upon the … juror’s subjective
state of mind which is relevant … to the determination of objective bias.”
Faucher, 227 Wis. 2d at 720. We also note that jurors are presumed to be
impartial, and Van Wagner “bears the burden of rebutting this presumption and
proving bias.” See Lepsch, 374 Wis. 2d 98, ¶22 (citation omitted). We reverse
the trial court’s determination regarding objective bias “only if as a matter of law a
reasonable judge could not have reached [its] conclusion.” Funk, 335 Wis. 2d
369, ¶30 (quoting Faucher, 227 Wis. 2d at 720-21).

¶11 Van Wagner cannot meet her burden to show that the trial court’s
determination was unreasonable as a matter of law. First, her complaint that the
trial court “only focused on whether Juror 523 was subjectively biased” and not
objectively biased is belied by the Record; the court explicitly considered not only
Juror 523’s possible subjective bias but that of a hypothetical reasonable “person
who is contacted by a member in the gallery, who expressed some concern[.]” See
Faucher, 227 Wis. 2d at 718, 720 (explaining that objective bias turns on

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No. 2023AP763-CR

“whether the reasonable person in the individual … juror’s position could be
impartial” and that the “juror’s subjective state of mind … is relevant … to the
determination of objective bias”). And contrary to Van Wagner’s argument, the
court did consider the juror’s concerns—her “subjective state of mind”—in the
totality of the circumstances and whether a reasonable person with such concerns
would be able to be impartial. See id. at 720.

¶12 Next, Van Wagner mischaracterizes the evidence by asserting that
“[w]hen asked by the prosecutor … if she could be impartial, her answer
suggested that if forced to answer yes or no, she would answer no.” In fact, the
question to which Juror 523 was responding was whether there was “anything
about that [interaction with the woman over the lunch break] that in [her] mind
would lead [her] to believe [she] couldn’t be fair and impartial and still decid[e]
this case?” After clarifying whether she was being asked a “yes or no” question,
Juror 523 responded, “No. Nothing.” In other words, immediately after the
incident, Juror 523 responded that there was nothing that would lead her to believe
she could not be impartial, and there are no statements from Juror 523 in the
Record to the contrary, despite her acknowledgement that the incident with the
woman was “bizarre” and caused her “some anxiety” on the day that it occurred.
Again, the trial court considered this testimony in determining whether a
reasonable person with the level of concern that Juror 523 had could be impartial,
and with the benefit of also being familiar with Juror 523 and being able to
observe her demeanor, see Faucher, 227 Wis. 2d at 720, it made a conclusion that
we cannot overturn as unreasonable.

¶13 Finally, and perhaps most importantly, the nature of the interaction
between the woman in the gallery and Juror 523 was not such that it would compel
a conclusion of objective bias as a matter of law. The juror’s complete

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No. 2023AP763-CR

recollection about her conversation with the woman who approached her was that
the woman said something about the windy weather and hair and that she knew the
Van Wagners. There was no evidence that the woman was trying to influence or
intimidate Juror 523. While Juror 523 was temporarily “frazzled” by the situation
(as both she and the trial court acknowledged), we conclude that a reasonable
person would be able to disregard the relatively innocuous interaction2 and be an
impartial juror, especially after the trial court addressed Juror 523’s concerns,
removed the woman from the courtroom for the remainder of the trial, and
reminded the jury multiple times that the interaction should have no bearing on
how the jurors thought about any of the parties or the case.

¶14 For the foregoing reasons, regardless of whether Van Wagner
forfeited her objective bias claim, we conclude that it lacks merit.

¶15 Accordingly, we affirm the judgment of conviction and the order
denying the postconviction motion for a new trial.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

2
Indeed, as Van Wagner’s counsel stated to Juror 523 on the Record on the day after the
incident, “[i]f my client were Al Capone, the connection between somebody contacting you and
him would be something obvious and, obviously, that isn’t what we have here.”

8