State v. C.B. (In re N.G.B.)

• Decision Date: 29 November 2022
• Docket Number: 2022AP906,2022AP966
• Parties: In re the termination of parental rights to N.G.B., a person under the age of 18: v. C.B., Respondent-Appellant. State of Wisconsin, Petitioner-Respondent,
• Court: Wisconsin Court of Appeals

In re the termination of parental rights to N.G.B., a person under the age of 18:

State of Wisconsin, Petitioner-Respondent, v. C.B., Respondent-Appellant.

Nos. 2022AP906, 2022AP966

Court of Appeals of Wisconsin, District I

November 29, 2022

This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)4.

APPEALS from orders of the circuit court for Milwaukee County No. 2019TP28: ELLEN R. BROSTROM, Judge.

DONALD, P.J. ^[1]

¶1 The primary issue in this consolidated appeal is whether the Milwaukee County Clerk's Office (hereinafter "Clerk's Office") failed to randomly select jurors as required by Wis.Stat. ch. 756, which outlines the procedure for jury selection. As discussed below, I conclude that the Clerk's Office did not violate Chapter 756. Additionally, I conclude that this is not an exceptional case warranting a new trial.

BACKGROUND

¶2 On March 1, 2019, the State petitioned to terminate C.B.'s and N.M.M.'s parental rights to their daughter, N.G.B. The petition alleged that C.B. and N.M.M had failed to assume parental responsibility, and that N.G.B was a child in need of continuing protection or services.

¶3 C.B. and N.M.M. both requested a jury trial. The cases were joined for trial. On February 24, 2020, a jury trial began, but resulted in a mistrial.

¶4 Subsequently, on August 23, 2021, a second trial commenced. Prior to the start of the trial, the Clerk's Office assembled a thirty-four person jury panel for voir dire. The last names of all of the jurors on the panel began with either the letter G or H.

¶5 After a break in voir dire, C.B.'s trial counsel requested that the panel be stricken. Trial counsel stated:

I guess at this point I would like to strike the entire panel. I mean, there's not a single African-American person on the panel. This is not a jury of [C.B.'s] peers. It's problematic. He agrees and is not exactly happy with the panel.

N.M.M.'s trial counsel was silent and did not join the objection.

¶6 The State responded, stating that "I just don't think that's the legal standard as to whether or not there should be a new jury."

¶7 The trial court denied the motion.^[2] The trial court stated:

So [C.B.] is entitled for the jury to be selected at random from eligible jurors without regard to race or any other defining characteristic. I know that the way our jury panels are selected is that they're randomly pulled from the Wisconsin Department of Transportation, and then they are randomly drawn through CCAP to show up here for voir dire.

I know that Milwaukee County generally draws a roughly represented group from DOT in terms of proportion of minority representation and various racial group's representation through the randomized process. And so I think that does satisfy due process.

¶8 After the denial of C.B.'s motion, the jury was selected. The jury ultimately found grounds to terminate C.B.'s and N.M.M.'s parental rights. The trial court found that C.B. and N.M.M. were unfit, and that it was in N.G.B.'s best interests to terminate C.B.'s and N.M.M.'s parental rights.

¶9 C.B. filed a post-disposition motion, which contended that the Clerk's Office failed to randomly select jurors for the jury panel as required by Wis.Stat. ch. 756. The motion argued that selecting jurors whose last names began with "G" and "H" was not random.^[3]

¶10 Attached to C.B.'s post-disposition motion was an affidavit from the Clerk's Office's Jury Services Manager.^[4] In the affidavit, the Jury Services Manager explained that her responsibilities included "generating the makeup of the Milwaukee County jury panels," which included the panel at issue here.

Because the Children's Court facility had an occupancy limit of thirty-six jurors in August 2021, the Clerk's Office used "reserve jurors," who are standby, alternate jurors, to populate the jury panels. When selecting the reserve jurors, the first step was to determine how many reserve jurors were needed on a given date. She would then take the number of needed reserve jurors and "try to match that number to the total number of jurors with last names beginning with one or more sequential letters" until she reached the desired number.

¶11 N.M.M. filed a post-disposition motion, joining C.B.'s motion. However, because N.M.M.'s trial attorney did not join C.B.'s objection during trial, N.M.M. also asserted an ineffective assistance of counsel claim.

¶12 A post-disposition hearing took place on September 6, 2022. The circuit court denied the post-disposition motions. At the start of the hearing, the circuit court found that C.B.'s trial attorney's objection preserved the issue.

¶13 After hearing argument on the merits, the circuit court found that "looking at how many people [are] need[ed], and let's say it's 50, and then sort of eyeballing the list of potential reserve jurors and saying 'well, the letters J and K pretty much get me there," is a random selection. The circuit court explained that "the fact that the number of people [the Jury Services Manager] needs changes every time she needs to select, that shows a randomness in and of itself of the number she needs, and therefore, the choices she has when she goes to the alphabet." The circuit court further stated that "the way that the [C]lerk's [O]ffice does it is just as random as putting 500 names in a lottery ball, like we use here when we pick who the alternate juror is going to be." Lastly, the circuit court found that N.M.M.'s ineffective assistance of counsel challenge failed.

DISCUSSION

¶14 On appeal, C.B. and N.M.M. renew their post-disposition argument that the Clerk's Office violated Wis.Stat. ch 756's requirement that jurors comprising a jury panel must be randomly selected.

¶15 Wisconsin Stat. § 756.001(4) provides that: "[a]ll persons selected for jury service shall be selected at random from the population of the area served by the circuit court" and that "[a]ll qualified persons shall have an equal opportunity to be considered for jury service in this state[.]" The statute further provides that: "[a]ny manual or automated method of selection that provides each qualified person with an equal probability of selection for jury service or that provides each prospective juror with an equal opportunity for assignment to a particular trial may be used." Id.

¶16 Whether a litigant's constitutional rights were violated, and statutory construction issues are questions of law that this court reviews independently. State v. Thompson, 2012 WI 90, ¶¶14-15, 342 Wis.2d 674, 818 N.W.2d 904.

¶17 Here, C.B. and N.M.M. contend that the selection of the jury panel was not random because the Jury Services Manager: (1) "chose to select groups of jurors according to the alphabetic sequence of their surnames;" and (2) "chose where in the alphabet to start her selection of groups of jurors according to the alphabetic sequence of their surnames." C.B. and N.M.M. admit that there is nothing in the record to suggest that the Clerk's Office engaged in any willful misconduct, but suggest that the choice of the starting letter could affect the racial composition of the jury panel. For example, they note that for non-Hispanic white Americans, the letter S began four of the top ten surnames; whereas none of the top ten surnames with the closest relationship to a person being African American began with the letter S.^[5]

¶18 The State and Guardian ad Litem ("GAL") agree that if the Clerk's Office always started with one specific letter for the compilation of the jury panel, then the process would have the potential not to be random. However, they contend that here, the jurors were selected at random because the Jury Services Manager looked over the entire list and tried "to match [the number of jurors] to the total number of jurors with last names beginning with one or more sequential letters, until [she] reached the desired number."

¶19 I agree with the State and GAL that the compilation of the jury panel was random. It is clear from the Jury Services Manager's description that she did not select jurors based on any specific characteristics, such as race, sex, or age. Rather, the Jury Services Manager would select jurors based on the number of jurors needed and then "try to match that number to the total number of jurors with last names beginning with one or more sequential letters" until she reached the desired number. As the circuit court explained, the fact that the number of jurors needed could change based on the particular date, demonstrates "a randomness in and of itself … and therefore, the choices she has when she goes to the alphabet."

¶20 Moreover, there is no indication that the Jury Services Manager was selecting jurors based on a specific letter. For example, it is undisputed here, that at the February 2020 trial, which ended in a mistrial, the jurors on the panel had last names starting with A, B, C, D, and E. Conversely, in the August 2021 trial, which resulted in verdicts, the jurors on the panel had last names starting with G and H. Thus, I conclude that the Clerk's Office complied with Wis.Stat. ch. 756, and C.B. and N.M.M. are not entitled to a new trial.^[6]

¶21 Alternatively, C.B. and N.M.M. contend that this court should exercise its discretionary authority under Wis.Stat. § 752.35 to order a new trial. Wisconsin Stat. § 752.35 provides that this court may order a new trial "if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried[.]" This discretionary power of reversal, however, "is formidable, and should be exercised sparingly and with great caution." State v. Williams, 2006 WI.App. 212, ¶36, 296 Wis.2d 834, 723 N.W.2d 719.

¶22 In support of their request for a new trial, C.B....