State v. Britt

• Decision Date: 12 June 1996
• Docket Number: No. 95-0891-CR,95-0891-CR
• Citation: 203 Wis.2d 25,553 N.W.2d 528
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Johnathan BRITT, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 528

553 N.W.2d 528

203 Wis.2d 25

STATE of Wisconsin, Plaintiff-Respondent, v. Johnathan BRITT, Defendant-Appellant. ^d

No. 95-0891-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 16, 1996.

Opinion Released June 12, 1996.

Opinion Filed June 12, 1996.

On behalf of the defendant-appellant, the cause was submitted on the brief of John P. Casey of Foley & Casey of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and David J. Becker, Assistant Attorney General.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

NETTESHEIM, Judge.

Johnathan Britt, who stands convicted of attempted first-degree intentional homicide and aggravated battery with a dangerous weapon, appeals the trial court's order permitting the impanelment of an anonymous jury. Because the record supports the court's determination that the jury needed the protection of anonymity and because the court took reasonable precautions to otherwise protect Britt's right to a fair and impartial jury, we affirm the court's ruling.

Britt also appeals the trial court's evidentiary ruling permitting the victim to testify that in a telephone conversation with an unidentified caller, he was offered cocaine worth approximately $5000 in exchange for refusing to testify against Britt. Although we agree with Britt that the victim's testimony was inadmissible hearsay, we conclude that its admission was harmless.

We therefore affirm the judgment of conviction and the order denying postconviction relief.

BACKGROUND

The State filed a complaint alleging that on September 15, 1993, Britt and his fellow gang members assaulted the victim in the main hallway of a community center in Racine. The complaint alleged that Britt fired the shot that severed the victim's spinal cord, resulting in his permanent paralysis. The episode emanated from a previous incident in which the victim was accused of shooting Britt. Britt pleaded not guilty and the case proceeded to a jury trial.

Prior to jury selection, the State requested the trial court "to allow an anonymous jury panel." Specifically, the State requested that the names of the potential jurors, or other information which might identify a potential juror, not be revealed during voir dire. In support, the State noted that the charges against Britt stemmed from gang-related activity and that prospective witnesses had been intimidated. The State presented police reports in support of these statements.

Over Britt's objection, the trial court granted the State's request. The court ruled that during voir dire, the names, addresses and places of employment of the potential jurors could not be publicly revealed in open court and on the record. However, in order to assure Britt's right to a fair and impartial jury, the court permitted the parties to review the written questionnaires which the potential jurors had previously supplied. The court directed that at the conclusion of the jury selection, the parties were to surrender the questionnaires to the court clerk, who would then retain them under seal.

During the trial, the trial court allowed the State to present testimony by the victim that he had received a telephone call from an unidentified female offering him cocaine worth approximately $5000 in exchange for his refusal to testify against Britt. The trial court admitted the testimony, rejecting Britt's hearsay objection.

The jury convicted Britt of attempted first-degree intentional homicide, contrary to §§ 939.32, 939.63 and 940.01(1), STATS., and aggravated battery with a dangerous weapon, contrary to §§ 939.63 and 940.19(2), STATS. The court sentenced Britt to consecutive terms of twenty-five years in prison for attempted homicide and fifteen years for aggravated battery. Britt appeals from the judgment and the order denying postconviction relief.

DISCUSSION

Anonymous Jury

No reported Wisconsin case has addressed the issue of an anonymous jury. Thus, an examination of case law in other forums is necessary. A jury is "anonymous" when the trial court withholds, or bars the revelation of, information which would identify the jurors. United States v. Crockett, 979 F.2d 1204, 1215 n. 10 (7th Cir.1992) (collecting cases), cert. denied, 507 U.S. 998, 113 S.Ct. 1617, 123 L.Ed.2d 176 (1993). ¹ Such information may include the jurors' names, addresses, places of employment, ethnic backgrounds and religions. Id.

Although rare, anonymous juries have been used in criminal trials, most often in cases involving organized crime, drug-related activity or gang activity. The use of an anonymous jury has been approved if it is necessary to protect potential jurors and their families from harassment, intimidation, bribery, publicity and other potential interferences that might make an individual fearful or otherwise apprehensive about participating in such trials. ² See id.; State v. Flournoy, 535 N.W.2d 354, 361 (Minn.1995) (court concerned about potential publicity and need to preserve jury impartiality during gang-related murder trial), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996).

Although the right to exercise peremptory challenges is not constitutionally guaranteed, those challenges have been the traditional means of assuring the selection of an unbiased jury. Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69 (1986). The range of information provided by voir dire impacts on a party's ability to exercise peremptory strikes. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 623-24, 111 S.Ct. 2077, 2084-85, 114 L.Ed.2d 660 (1991). The trial court is accorded ample discretion in determining the best method for conducting voir dire. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). This includes broad discretion over the form and number of questions to be asked. State v. Koch, 144 Wis.2d 838, 847, 426 N.W.2d 586, 590 (1988). We examine the trial court's decision regarding voir dire for a misuse of discretion, keeping in mind that the court's broad discretion "is subject to the essential demands of fairness." See id.

On a threshold basis, the State contends that the jury in this case was not anonymous. The State bases this argument on the fact that although the parties were prohibited from publicly inquiring about certain juror information during voir dire, the parties nonetheless had access to the restricted information via the juror questionnaires. While this is so, we conclude that the jury in this case was an anonymous jury. We so hold because, despite access to the jurors' questionnaires, the public process of jury selection in this case was nonetheless restricted. The trial court's ruling prevented the parties from revealing in open court the kind of juror information which otherwise is routinely probed during jury selection.

Pursuant to § 757.14, STATS., subject to certain limited exceptions, "The sittings of every court shall be public and every citizen may freely attend the same...." ³ In State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis.2d 220, 340 N.W.2d 460 (1983), the supreme court held that an in camera voir dire proceeding constituted a "sitting of the court" under this statute. ⁴ Id. at 233, 340 N.W.2d at 466. While the trial court in this case did not close the courtroom, it nonetheless restricted the flow of pertinent information about the potential jurors. We see little difference between a voir dire process conducted in camera which bars the public from hearing relevant information concerning potential jurors and a voir dire process conducted in open court but which bars the parties from revealing such information. We therefore conclude the jury in this case was anonymous. ⁵

We thus move to the substantive issues: whether Wisconsin law should recognize an anonymous jury, and, if so, whether the trial court in this case properly exercised its discretion in allowing an anonymous jury to be impaneled.

Citizen jurors are an integral part of the criminal justice system. Without appropriate protections regarding their identities, jurors may be reluctant to serve in a given case. And even if they do serve, their decisions may be influenced by the lack of such protections rather than by the evidence. We conclude that a trial court should have the power to take necessary steps to assure the protection of the jurors so that they may perform their role without distraction, interference or concern. We therefore hold that, in the appropriate case and in the proper exercise of discretion, a trial court may take reasonable steps to protect the identity of potential jurors in a criminal case.

Next, we consider whether the trial court properly exercised its discretion in this case by impaneling an anonymous jury. The jurisdictions recognizing restrictions on jurors' identities have held that a court should not impanel an anonymous jury without first "concluding that there is strong reason to believe the jury needs protection." Crockett, 979 F.2d at 1215 (quoted source omitted); see Flournoy, 535 N.W.2d at 362.

The trial court concluded that the jury in this case required the protection of anonymity. In support of its ruling, the court cited a number of pretrial events. First, as the victim was walking near a restaurant with another person, the driver of a car pulled up alongside them on the street and pointed a gun. Second, as the victim was entering a public office building, someone drove past and pointed a gun at him. The victim later identified the people involved in both occurrences as the same individuals who had attacked him at the community center. Third, two witnesses at the preliminary hearing admitted that they did not want to give statements because they feared for their safety and that of their families. Fourth, yet another witness stated that while he was in court on an unrelated traffic matter, someone...