State v. Behnke, No. 88-2228-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtSHIRLEY S. ABRAHAMSON
Citation155 Wis.2d 796,456 N.W.2d 610
Docket NumberNo. 88-2228-CR
Decision Date25 June 1990
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Joseph D. BEHNKE, Defendant-Appellant.

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.

[155 Wis.2d 797] 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This is a review of an unpublished decision of the court of appeals, filed September 13, 1989, reversing the conviction of Joseph D. Behnke entered by the Circuit Court of Manitowoc county,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.

[155 Wis.2d 798] 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,

Page 611

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?

[155 Wis.2d 799] 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 [155 Wis.2d 800] 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

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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."

[155 Wis.2d 801] 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...

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19 practice notes
  • Com. v. D'AMATO
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 2, 2004
    ...Hunter, 153 F.2d 834, 839 (10th Cir.1946) (explaining the significance and importance of the ability to poll the jury); State v. Behnke, 155 Wis.2d 796, 456 N.W.2d 610, 612 This does not mean, however, that Appellant was deprived of his Sixth Amendment right to counsel: even if Mr. Durst's ......
  • State v. Pare, (SC 15931)
    • United States
    • Supreme Court of Connecticut
    • July 11, 2000
    ...although not of constitutional dimension, is nonetheless "a corollary to the defendant's right to a unanimous verdict." State v. Behnke, 155 Wis. 2d 796, 801, 456 N.W.2d 610 (1990); see also State v. Pockert, 49 Wash. App. 859, 862, 746 P.2d 839 (1987), review denied, 110 Wash. 2d 1018 (198......
  • Commonwealth v. D'Amato, [J-171-2002] (PA 9/2/2004), [J-171-2002]
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 2, 2004
    ...Hunter, 153 F.2d 834, 839 (10th Cir. 1946) (explaining the significance and importance of the ability to poll the jury); State v. Behnke, 456 N.W.2d 610, 612 (Wis. This does not mean, however, that Appellant was deprived of his Sixth Amendment right to counsel: even if Mr. Durst's substitut......
  • State v. Smith, Nos. 94-3364-C
    • United States
    • United States State Supreme Court of Wisconsin
    • February 6, 1997
    ...deprive [the defendant] of a fair trial, a trial whose result is reliable." 133 Wis.2d at 224, 395 N.W.2d 176. Later, in State v. Behnke, 155 Wis.2d 796, 456 N.W.2d 610 (1990), we declined to consider whether the outcome would have been different but for counsel's error. In particular, we d......
  • Request a trial to view additional results
19 cases
  • Com. v. D'AMATO
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 2, 2004
    ...Hunter, 153 F.2d 834, 839 (10th Cir.1946) (explaining the significance and importance of the ability to poll the jury); State v. Behnke, 155 Wis.2d 796, 456 N.W.2d 610, 612 This does not mean, however, that Appellant was deprived of his Sixth Amendment right to counsel: even if Mr. Durst's ......
  • State v. Pare, (SC 15931)
    • United States
    • Supreme Court of Connecticut
    • July 11, 2000
    ...although not of constitutional dimension, is nonetheless "a corollary to the defendant's right to a unanimous verdict." State v. Behnke, 155 Wis. 2d 796, 801, 456 N.W.2d 610 (1990); see also State v. Pockert, 49 Wash. App. 859, 862, 746 P.2d 839 (1987), review denied, 110 Wash. 2d 1018 (198......
  • Commonwealth v. D'Amato, [J-171-2002] (PA 9/2/2004), [J-171-2002]
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 2, 2004
    ...Hunter, 153 F.2d 834, 839 (10th Cir. 1946) (explaining the significance and importance of the ability to poll the jury); State v. Behnke, 456 N.W.2d 610, 612 (Wis. This does not mean, however, that Appellant was deprived of his Sixth Amendment right to counsel: even if Mr. Durst's substitut......
  • State v. Smith, Nos. 94-3364-C
    • United States
    • United States State Supreme Court of Wisconsin
    • February 6, 1997
    ...deprive [the defendant] of a fair trial, a trial whose result is reliable." 133 Wis.2d at 224, 395 N.W.2d 176. Later, in State v. Behnke, 155 Wis.2d 796, 456 N.W.2d 610 (1990), we declined to consider whether the outcome would have been different but for counsel's error. In particular, we d......
  • Request a trial to view additional results

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