State v. Cartagena

Decision Date07 May 1987
Docket NumberNo. 86-1384-CR,86-1384-CR
Citation409 N.W.2d 386,140 Wis.2d 59
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Oscar C. CARTAGENA, Defendant-Appellant.
CourtWisconsin Court of Appeals

Jack E. Schairer, Asst. State Public Defender, for defendant-appellant.

Bronson C. LaFollette, Atty. Gen. and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

SULLIVAN, Judge.

Oscar C. Cartagena appeals from a judgment of conviction on two counts of delivery of a controlled substance contrary to secs. 161.41(1)(b) and 161.16(2)(b)(1), Stats. During a voir dire following a sealed verdict and a poll of the jury, one juror changed his mind. We reverse and remand for a new trial because the jury's verdict was not unanimous.

The case against Cartagena was submitted to the jury on November 7. Because the court reporter was unavailable when the jury advised that it had a verdict, the court instructed the jury to seal the verdict. The jury separated for the night and reassembled on November 8 to deliver its verdict. After the verdict was read, the jurors were individually polled. All answered "yes" to the question: "Was this and is this now your verdict." The court then allowed the attorneys to voir dire the jury. During further questioning, one juror's answers seriously undermined his previous affirmative answer. Cartagena's attorney stated, for the record, that the juror shook his head after answering the poll and appeared to have tears in his eyes.

Cartagena moved for a mistrial claiming that the verdict was not unanimous. In denying the motion, the trial court concluded that the relevant time at which jurors must finally assent to the verdict is when it is sealed. The court then accepted the verdict and discharged the jury. Cartagena's postjudgment motion for a mistrial was also denied.

Wisconsin Supreme Court decisions have assumed that the right to trial by jury guaranteed in the state constitution includes the right to a unanimous verdict in criminal trials. Holland v. State, 91 Wis.2d 134, 138, 280 N.W.2d 288, 290 (1979) cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). If the integrity of the jury trial is to be preserved, a juror with reasonable doubts about a defendant's guilt cannot agree to a guilty verdict in violation of his conscience and sense of right. State v. Austin, 6 Wis. 203 (205), 205-06 (207-08) (1858). Consequently, at any time before a verdict is received and properly recorded, a juror may dissent although previously agreeing. Id.

As a corollary to the unanimous verdict, a defendant has the right to have jurors polled individually. State v. Wojtalewicz, 127 Wis.2d 344, 350, 379 N.W.2d 338, 341 (Ct.App.1985). He does not, however, have the right to cross-examine the jurors on their verdict. State v. Ritchie, 46 Wis.2d 47, 56, 174 N.W.2d 504, 509 cert. denied, 400 U.S. 917, 91 S.Ct. 176, 27 L.Ed.2d 156 (1970). Consequently, the trial court need not allow voir dire as a matter of course. We agree with the cases from other jurisdictions which hold that the court should interrogate a juror who, during the poll, creates some doubt as to his vote. See e.g., State v. Brown, 110 Ohio App. 57, 168 N.E.2d 419, 422 (1953); People v. Kellogg, 77 Ill.2d 524, 34 Ill.Dec. 163, 165-66, 397 N.E.2d 835, 837-38 (1979). Doubt may result from the juror's demeanor or tone of voice as well as the language he uses. Prior to further questioning, however, the court should make a determination that the juror's answer was ambiguous or ambivalent. Because demeanor and tone of voice play a large role in understanding the proper meaning of a response, we will accept the trial court's finding on the issue of assent unless the record shows that the trial court foreclosed dissent.

We conclude that the use of a sealed verdict does not require a different rule. We are persuaded by the analysis in Weatherhead v. Burau, 238 Minn. 134, 55 N.W.2d...

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15 cases
  • State v. Behnke, 88-2228-CR
    • United States
    • Wisconsin Supreme Court
    • 25 Junio 1990
    ...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 uneq......
  • State v. Yang
    • United States
    • Wisconsin Court of Appeals
    • 18 Abril 1996
    ...the jury is not merely one of those abstract constitutional rights which is of little or no practical value. In State v. Cartagena, 140 Wis.2d 59, 409 N.W.2d 386 (Ct.App.1987), a juror changed his mind overnight after the verdict had been sealed and dissented before the verdict was accepted......
  • State v. Kircher
    • United States
    • Wisconsin Court of Appeals
    • 23 Noviembre 1994
    ...469 N.W.2d at 912. A juror may dissent at any time before a verdict is received and properly recorded. State v. Cartagena, 140 Wis.2d 59, 61, 409 N.W.2d 386, 387 (Ct.App.1987) (citing State v. Austin, 6 Wis. 203 [*205], 205-06, [*207-08] (1858)). A failure to honor a timely request to poll ......
  • State v. Burks
    • United States
    • Wisconsin Court of Appeals
    • 16 Mayo 2023
    ...court determines whether the juror's answer was an unambiguous dissent to the verdict or an ambivalent or ambiguous statement. Cartagena, 140 Wis.2d at 62. the case of an ambiguous answer, the court may seek clarification from the juror, either in the courtroom, or outside of the presence o......
  • Request a trial to view additional results

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