COURT OF APPEALS

DECISION

DATED AND FILED

January 20, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP216-CR Cir. Ct. No. 2012CF147

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MASTELLA L. JACKSON,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Outagamie County: MARK J. McGINNIS, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, 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). 

¶1 PER CURIAM. Mastella Jackson appeals a judgment, entered upon 

a jury’s verdict, convicting her of first-degree intentional homicide, as an act of 
No. 2019AP216-CR

2

domestic abuse, contrary to WIS. STAT. §§ 940.01(1)(a) and 968.075(1)(a)

(2017-18).

1

 Jackson also appeals the order denying her postconviction motion for 

a new trial. Jackson argues the circuit court erred by denying her motion for a 

change of venue, thus depriving her of her due process right to an impartial jury. 

We reject Jackson’s arguments and affirm the judgment and order. 

BACKGROUND

¶2 In February 2012, the State charged Jackson with misdemeanor bail 

jumping and first-degree intentional homicide, as an act of domestic abuse—both 

charges arising from the stabbing death of Jackson’s ex-husband, Derrick 

Whitlow. The circuit court granted Jackson’s pretrial motion to suppress her 

inculpatory statements to police, as well as the physical evidence obtained during 

a search of her home. Jackson’s pretrial motion to change venue remained 

pending when the State appealed the suppression order. On appeal, it was 

undisputed that Jackson’s statements were properly suppressed; however, this 

court reversed that portion of the circuit court’s order suppressing the physical 

evidence obtained during the search of her home. See State v. Jackson, 2015 WI 

App 49, ¶2, 363 Wis. 2d 554, 866 N.W.2d 768, aff’d, 2016 WI 56, 369 Wis. 2d 

673, 882 N.W2d 422. 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2019AP216-CR

3

¶3 The matter returned to the circuit court to proceed to trial on the 

homicide charge.2 Jackson’s pending motion to change venue was denied. Before 

the start of voir dire, on the first day of the November 2016 trial, defense counsel 

again moved for a change of venue based on recent publicity. Specifically, the 

headline in that morning’s local newspaper read: “Murder Trial Opens Without 

Defendant’s Confession.” According to defense counsel, as of that morning, the 

same article had seven online comments and had been shared twenty-nine times on 

Facebook. Defense counsel also heard a story “along the same lines” on the radio 

that morning. 

¶4 The circuit court decided to proceed with voir dire, opting to address

the question of exposure to pretrial publicity and its potential impact through

individual voir dire. The court also decided it would strike for cause any 

prospective juror who was exposed to that morning’s publicity. During voir dire, 

the court struck for cause seven prospective jurors who said they had been 

exposed to pretrial publicity, including three who were exposed to that morning’s 

publicity.3 The voir dire process ultimately culminated in the selection of twentyeight people from a pool of seventy-nine prospective jurors. 

¶5 Jackson renewed her motion for a change of venue, arguing there 

was a risk jurors would be exposed to publicity about the case when they returned 

 

2

 With respect to the bail jumping charge, Jackson entered a no-contest plea, stipulating 

that if she was found guilty of the homicide charge, she would also be guilty of misdemeanor bail 

jumping, and if she was found not guilty of the homicide charge, the bail jumping charge would 

be dismissed. The court therefore withheld an adjudication of guilt on the bail jumping charge 

until the jury returned its verdict on the homicide charge. 

3

 The court also struck for cause six other prospective jurors for reasons unrelated to 

pretrial publicity. 
No. 2019AP216-CR

4

home during the trial. Jackson also asserted that those who denied exposure to 

pretrial publicity and remained on the panel were either too afraid to admit 

exposure or would recall exposure during the trial. The circuit court denied the 

motion and again asked the twenty-eight prospective jurors, by a show of hands, if 

they had “some contact or some information from any media account or any other 

information about this case at any time prior to walking in through the courtroom 

doors this morning,” and there were “no hands.” 

¶6 Jackson and the State then each exercised their allotted seven 

peremptory strikes, leaving a final panel of fourteen jurors (with two alternates) 

for trial. The circuit court reminded the jurors to avoid the media and to not do 

any research about the case until deliberations were complete. The jury found 

Jackson guilty of the crime charged, and the court imposed a life sentence with 

eligibility for extended supervision after thirty-five years. The court also accepted 

Jackson’s earlier plea and imposed a concurrent nine-month sentence for the 

misdemeanor bail jumping conviction. Jackson filed a postconviction motion for a 

new trial, claiming that prejudicial pretrial publicity necessitated a change of 

venue to preserve her right to an impartial jury. The court denied the motion after 

a hearing. This appeal follows.4 

DISCUSSION

¶7 A criminal defendant has a constitutional right to a fair trial by an 

impartial jury. Murphy v. Florida, 421 U.S. 794, 799 (1975). Prospective jurors 

are presumed to be impartial. State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 

 

4

 Jackson raises no specific challenge to the denial of her initial motion for a change of 

venue. 
No. 2019AP216-CR

5

484 (1990). Therefore, the defendant bears the burden of overcoming that 

presumption by proving bias on the part of a prospective juror. Id.; Wainwright v. 

Witt, 469 U.S. 412, 423 (1985). 

¶8 A defendant who is concerned about potentially prejudicial pretrial 

publicity may seek a change of venue to another county, WIS. STAT. § 971.22(3);

or selection of a jury from another county, WIS. STAT. § 971.225(2). Due process 

requires a change of venue “where adverse community prejudice will make a fair 

trial impossible.” McKissick v. State, 49 Wis. 2d 537, 544, 182 N.W.2d 282 

(1971). However, prospective jurors who have been exposed to pretrial publicity 

and even those who may have formed preliminary opinions as to guilt or 

innocence, may nonetheless serve on a jury if the circuit court concludes they are 

able to set aside that information and those opinions. See Irvin v. Dowd, 366 U.S. 

717, 722-23 (1961), superseded by statute on other grounds, as stated by Moffat 

v. Gilmore, 113 F.3d 698, 701 (7th Cir. 1997). 

¶9 We review a circuit court’s denial of a change of venue motion 

under the erroneous exercise of discretion standard. State v. Albrecht, 184 

Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). However, we “independently 

evaluate the circumstances ‘to determine whether there was a reasonable 

likelihood of community prejudice prior to, and at the time of, trial and whether 

the procedures for drawing the jury evidenced any prejudice on the part of the 

prospective or empaneled jurors.’” Id. (citation omitted). In making our 

evaluation, we consider: 

(1) the inflammatory nature of the publicity; (2) the timing 

and specificity of the publicity; (3) the degree of care 

exercised, and the amount of difficulty encountered, in 

selecting the jury; (4) the extent to which the jurors were 

familiar with the publicity; (5) the defendant’s utilization of 

peremptory and for cause challenges of jurors; (6) the 
No. 2019AP216-CR

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State’s participation in the adverse publicity; (7) the 

severity of the offense charged; and (8) the nature of the 

verdict returned.

Id.

¶10 With respect to the inflammatory nature of the publicity, we note 

that an “informed jury is not necessarily a prejudicial one,” Thomas v. State, 53 

Wis. 2d 483, 492, 192 N.W.2d 864 (1972), and therefore “objective, factual, 

non-editorial reporting is not prejudicial,” State v. Fonte, 2005 WI 77, ¶32, 281 

Wis. 2d 654, 698 N.W.2d 594, opinion clarified on denial of reconsideration, 

2005 WI 145, ¶12, 286 Wis. 2d 77, 704 N.W.2d 912. However, when news 

reports “editorialize, amount to ‘rabble rousing’ or attempt to influence public 

opinion against a defendant,” the publicity is inflammatory and presents a danger 

of prejudice. See Briggs v. State, 76 Wis. 2d 313, 327, 251 N.W.2d 12 (1977). 

¶11 Jackson argues that media reports of her confession are 

inflammatory. See Skilling v. United States, 561 U.S. 358, 382 (2010) 

(recognizing that a confession is the type of “blatantly prejudicial information ... 

readers or viewers could not reasonably be expected to shut from sight”). 

Although the State acknowledges that the publicity was “not helpful” and was 

potentially prejudicial, the information provided was nevertheless truthful. 

Further, as the State argues, Jackson failed to show that the challenged publicity 

amounted to rabble rousing or was intended to bias the public against her.

¶12 Turning to the timing and specificity of the publicity, the newspaper 

article and radio account on the eve and day of trial were as close in time as one 

could get, and the accounts focused on the absence of Jackson’s confession. The 

record shows, however, that most of the prospective jurors had not seen or heard 
No. 2019AP216-CR

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this publicity. Furthermore, jurors were individually questioned about the 

publicity in order to avoid tainting the jury. 

¶13 That brings us to the third factor—the degree of care exercised and 

the amount of difficulty encountered in selecting the jury. Jackson intimates that 

because voir dire lasted almost an entire day, it must have been difficult, thus 

showing that the jury was prejudiced. We disagree. As our supreme court 

recognized, a thorough voir dire can “solve the problems” raised by pretrial 

publicity and “ensure[ ] an impartial jury.” Fonte, 281 Wis. 2d 654, ¶¶36-37. 

Here, Jackson acknowledges the circuit court was careful when conducting 

voir dire. That the court took special care in ensuring an impartial jury weighs 

against a venue change. 

¶14 Jackson nevertheless argues the circuit court erred by failing to 

strike a potential juror who actually brought the newspaper to court on the date 

voir dire was conducted and had admitted to reading part of the article. The 

record, however, does not support this claim. The potential juror never made it 

into the pool of twenty-eight jurors, and the court individually questioned the

prospective juror to determine whether other prospective jurors could have seen 

her newspaper. As a result, we perceive no error in this regard. 

¶15 As the circuit court recognized when denying Jackson’s 

postconviction motion, it had been “careful to err on the side of caution in 

dismissing jurors for cause to avoid any risk of prejudice based on pretrial 

publicity.” Only two of the final twelve jurors—Nos. 3955 and 4225—had been 

exposed to pretrial publicity, but those exposures occurred in the distant past. 

Juror No. 3955 said that her exposure could have been “years ago” and she 

recalled “nothing” about the case. Juror No. 4225 said that his exposure to 
No. 2019AP216-CR

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publicity occurred close to the time of the 2012 murder. Neither of these jurors 

said they had been exposed to the recent pretrial publicity, although Juror 

No. 3955 stated that she received the newspaper at her house that morning. That 

juror recounted that she went directly to the sports section to cut out “Wonder 

Word” and did not have time to look at any other section of the newspaper. 

¶16 Jackson moved to strike Juror No. 3955 for cause, asserting there 

was nothing preventing the juror from looking at the newspaper when she returned 

home and there was a danger that any memory of earlier publicity could be jogged 

at trial. The circuit court denied the motion, concluding, based on its assessment 

of the juror, that she was a “top candidate” to follow the court’s directive to avoid 

media exposure about the case. Further, a juror’s limited exposure to publicity 

months or years before trial does not, without more, render the juror unfit to serve. 

See Fonte, 281 Wis. 2d 654, ¶¶36-37 (change of venue not required although five 

of twelve jurors had been exposed to pretrial publicity).

¶17 With respect to the fourth factor—the extent to which the jurors 

were familiar with the publicity—as discussed above, two of the final twelve 

jurors had been exposed to pretrial publicity years earlier, but neither could recall 

much of anything about the case. None of the impaneled jurors recalled exposure

to the recent publicity that formed the basis of the underlying venue change 

motion. Jackson nevertheless argues that even if the jurors were not exposed to 

pretrial publicity, “normal human curiosity” would lead them to look for publicity 

as the trial progressed. The circuit court, however, instructed the jurors to avoid 

the media and to not do any research about the case until deliberations were 

complete. We presume that jurors followed the court’s instructions. See State v. 

Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989).
No. 2019AP216-CR

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¶18 For the two jurors that admitted distant exposure to pretrial publicity, 

Jackson contends they would likely recall more as the trial progressed. Citing 

cases from other jurisdictions, Jackson also asserts that jurors cannot assess their 

own bias accurately. These arguments are speculative, at best. Moreover, the 

circuit court acknowledged it did not make decisions on striking individual jurors

for cause simply based on their self-assessments but, rather, on their answers in 

combination with their body language. Thus, the court assessed the ability of the 

jurors to remain fair and impartial based on all of the information before it, not just 

their assurances. As mentioned, Jackson also asserted that those who denied 

exposure to pretrial publicity and remained on the panel were either too afraid to 

admit exposure or would recall exposure during the trial. Again, that argument is 

not supported by the record and is pure speculation.

¶19 Regarding the fifth factor—the defendant’s utilization of peremptory 

and for cause challenges of jurors—Jackson claims she did not have enough 

peremptory strikes to remove Juror No. 3955 after the circuit court denied her 

motion to remove that juror for cause. Her conclusory assertion lacks any legal 

reasoning or legal citation. We need not address undeveloped arguments. See

State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). In any 

event, as noted above, the court properly denied the motion to strike that juror for 

cause. If Jackson nevertheless believed that juror to be biased, she has failed to 

explain why she could not have used one of her seven peremptory strikes to 

remove the juror. 

¶20 The remaining three factors are undisputed. The State did not 

participate in creating the publicity; the offense of first-degree intentional 

homicide is the most serious in Wisconsin; and a guilty verdict was returned. 
No. 2019AP216-CR

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¶21 After considering all of the relevant factors under Albrecht, we 

conclude that the circuit court did not erroneously exercise its discretion by 

denying Jackson’s motion for a change of venue. We also conclude that Jackson 

failed to overcome the presumption that the jurors acted impartially. See Louis, 

156 Wis. 2d at 478.

By the Court.—Judgment and order affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.