State v. Behnke, 88-2228-CR

• Decision Date: 25 June 1990
• Docket Number: No. 88-2228-CR,88-2228-CR
• Citation: 155 Wis.2d 796,456 N.W.2d 610
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Joseph D. BEHNKE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 610

456 N.W.2d 610

155 Wis.2d 796

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Joseph D. BEHNKE, Defendant-Appellant.

No. 88-2228-CR.

Supreme Court of Wisconsin.

Argued April 25, 1990.

Decided June 25, 1990.

Maureen McGlynn, Asst. Atty. Gen. (argued), with whom on the briefs was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Mark G. Sukowaty (argued), Madison, for defendant-appellant.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals, filed September 13, 1989, reversing the conviction of Joseph D. Behnke entered by the Circuit Court of Manitowoc county, Allan Deehr, Circuit Judge. The court of appeals reversed the conviction and remanded the cause for a new trial. We affirm the decision of the court of appeals.

We hold that the absence of defense counsel at the return of the jury verdict, without the defendant's knowing, voluntary, and unequivocal waiver of the right to counsel, coupled with the failure to poll the jury, without the defendant's knowing, voluntary, and unequivocal waiver of the right to poll, is grounds for automatic reversal.

I.

The facts of this case are undisputed. In a one-day trial on April 13, 1988, the defendant was convicted of a single count of bail jumping contrary to sec. 946.49(1)(b), Stats.1988-89. The jury retired to deliberate at approximately 3:30 P.M. and returned to the courtroom at approximately 7:35 P.M. On the jury's return and prior to the announcement of the verdict, the circuit court announced that defense counsel, who had left the courtroom for another appointment had been excused and that the jurors should not view defense counsel's absence as a slight of their time or effort. The circuit court explained defense counsel's absence as follows:

The jury should be informed that I previously excused the appearance of [defense counsel]. He had another commitment this evening, and it's within the Court's discretion to excuse such an appearance. I thought it was a good excuse and so I did. It's not that he is not interested or that he isn't appreciative of the time and effort you have put in this.

The jury returned a guilty verdict.

In response to the circuit court's inquiry, the prosecution waived polling of the jury. The circuit court then informed the defendant of his right to poll the jury and asked whether the defendant wanted to waive his right. The following colloquy took place:

COURT: Mr. Behnke, a defendant or any party has the right to have the jurors individually questioned as to whether the verdict that has been read by the Court is the verdict of that particular juror. Sometimes that is done, other times the party just as the State did waives such polling. Did your attorney discuss that with you?

MR. BEHNKE: No.

COURT: Do you want the jury polled?

MR. BEHNKE: No, just, you know, God forgive them. They don't know what they have done.

COURT: The Court then receives the verdict as returned by the jury. Ladies and Gentlemen, thank you very much for your assistance in this case.

After this colloquy the circuit court dismissed the jury without polling the jury.

At the postconviction motion hearing, both defense counsel and the defendant testified that they had not discussed polling the jury prior to counsel's departure. Defense counsel testified that he remained with the defendant during jury deliberations until approximately 5-5:30 P.M. At that time, he obtained the circuit court's permission to leave the courthouse to pick up his children from a child-care facility nearly thirty miles from the courtroom. After he informed the defendant of his imminent departure, defense counsel wished the defendant luck and left. The defendant had, according to defense counsel's testimony, counsel's home and office telephone numbers. Defense counsel acknowledged that he failed to leave any instructions concerning the return of a jury verdict or polling the jury.

The defendant testified that counsel did not explain the return of the jury's verdict or the defendant's right to poll the jury prior to his departure. According to the defendant, he did not understand his rights when the circuit court informed him that he could poll the jury after the verdict was announced. The defendant further testified that at the return of the verdict two jurors reacted visibly when he made his statement declining polling of the jury. According to the defendant, one of the male jurors was red in the face "like he was mad about something or something was bothering him" and one of the female jurors "was giving me a dead stare."

In a memorandum decision and order dated November 15, 1988, the circuit court denied the defendant's postconviction motions. The circuit court found that the defendant did not waive his right to have counsel present at the return of the verdict: "No waiver ... appears on the record. Waiver cannot be presumed from a silent record."

The circuit court expressly found that the jurors' actions or reactions at the return of the verdict were not irregular, stating:

The Defendant's recollection that two jurors exhibited signs of anxiety over their decision is at best sworn balderdash.... All actions and responses of the jury were normal and consistent with its sworn responsibility. The record provides no basis for any inferences to the contrary.

The circuit court concluded that defense counsel's absence on the return of the verdict constituted either ineffective assistance of counsel or denial of counsel, but that any error caused by the absence of counsel was harmless error beyond a reasonable doubt.

Had counsel been present, counsel could have waived the right to poll. The circuit court made no finding regarding whether the defendant validly waived his right to poll the jury. No knowing, voluntary, or unequivocal waiver appears of record. The circuit court's comment on the defendant's response to the question of waiving polling was that although the defendant had an opportunity to poll the jury, he "was more intent on commenting about the jury verdict than exercising any right to poll the jury."

II.

On review in this court, both the defendant and the state agree that the defendant's right to counsel at the return of a verdict is guaranteed by the state and federal constitutions. Amend. VI, U.S. Const.; Art. I, sec. 7, Wis.Const. The return of the verdict is a critical stage of the proceeding. Smith v. State, 51 Wis. 615, 620-21, 8 N.W. 410 (1881); Spencer v. State, 85 Wis.2d 565, 571, 271 N.W.2d 25 (1978); Siverson v. O'Leary, 764 F.2d 1208, 1214 (7th Cir.1985).

Both the state and the defendant also agree that polling the jury is a significant right. The right to poll the jury at the return of the verdict is a corollary to the defendant's right to a unanimous verdict. Polling is a means by which the uncoerced unanimity of the verdict can be tested. Each juror must take individual responsibility and state publicly that he or she agrees with the announced verdict. State v. Cartagena, 140 Wis.2d 59, 61-62, 409 N.W.2d 386 (Ct.App.1987).

Both parties acknowledge that the circuit court may excuse counsel only with the knowing and voluntary waiver unequivocally expressed by the defendant on the record. Spencer, supra, 85 Wis.2d at 572, 574, 271 N.W.2d 25. In this case, the circuit court properly concluded that no such waiver of counsel was made. The state does not dispute this finding.

The state asserts, however, that the defendant validly waived his right to poll the jury. We do not agree with the state. The defendant had not waived his right to counsel and did not make a knowing, voluntary, and unequivocal waiver of his right to poll on the trial record. At the postconviction motions hearing, the defendant, a 30-year-old individual with a tenth grade education, testified that he did not understand the significance of polling the jury at the return of the jury verdict of his trial. He further testified that he never discussed his right to poll the jury with defense counsel prior to the unwaived absence of counsel at the return of the jury verdict. We conclude that the state's contention that the defendant validly waived his right to poll the jury must fall. The circuit court did not find, nor does the record show, that the defendant made a knowing, voluntary, and unequivocal waiver of the right to poll the jury. See Smith, supra, 51 Wis. at 620, 8 N.W. 410.

III.

The right to poll the jury is intertwined with the defendant's constitutional right to counsel at the return of the jury verdict. In Smith v. State, 51 Wis. 615, 8 N.W. 410 (1881), this court recognized that the absence of counsel at the time the jury returns its verdict may result in the forfeiture of rights by the defendant, one of which is the "very important right" to poll the jury. The Smith court said that when defense counsel's absence causes the defendant to lose his right to poll the jury, the judgment of conviction must be reversed. The Smith court stated:

If, by the absence of the defendant's counsel at the time of receiving the verdict, the defendant lost any right which might have been beneficial to him, then we think it was error not to grant a new trial for that reason. It is insisted that he lost the right to poll the jury. If he did, then he lost a right which was very important to him. That a defendant, in either a civil or criminal action, has the right to poll the jury, is well settled; and a refusal to permit him to do so is error for which the verdict will be set aside. 51 Wis. at 620, 8 N.W. 410.

Smith remains good law today. ¹

The state submits that reversal depends on the characterization of the violation of the defendant's constitutional right to counsel and the existence of either (1) harmless error, if the error is characterized as denial of counsel, or (2) prejudice, if the error is characterized as ineffective assistance of counsel. The state argues that regardless of how ...