State v. Chosa

• Decision Date: 02 July 1982
• Docket Number: No. 80-1903-CR,80-1903-CR
• Citation: 108 Wis.2d 392,321 N.W.2d 280
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ben CHOSA, Jr., Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 280

321 N.W.2d 280

108 Wis.2d 392

STATE of Wisconsin, Plaintiff-Respondent, v. Ben CHOSA, Jr., Defendant-Appellant-Petitioner.

No. 80-1903-CR.

Supreme Court of Wisconsin.

Argued June 2, 1982.

Decided July 2, 1982.

Ben Kempinen, Supervising Atty., Legal Assistance to Institutionalized Persons Program, Madison, argued, for defendant-appellant-petitioner; William Lundstrom, Frank J. Remington, Supervising Attys., Legal Assistance to Institutionalized Persons Program, Madison, on brief.

Michael R. Klos, Asst. Atty. Gen., argued for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Milton Rosenberg, Indian Law Center, Law School, University of Wis., Madison, and Douglas B. L. Endreson, Native American Rights Fund, of Boulder, Colo., for amicus curiae.

STEINMETZ, Justice.

The issues in this case are:

(1) Did the trial court violate defendant-appellant-petitioner's rights to equal protection of the law in excusing for cause all Native Americans from the jury panel without objection by defense counsel?

(2) Was the defendant denied his right to the effective assistance of counsel?

The court of appeals, 104 Wis.2d 743, 314 N.W.2d 362, answered both questions in the negative and affirmed the circuit court for Vilas County, the Honorable Robert H. Gollmar, Reserve Judge, presiding.

In the early morning hours of June 8, 1975, Ben Chosa, Jr. (defendant), a Chippewa Indian, shot and killed his half-brother, Leonard Chosa. The defendant was charged with first-degree murder. The shooting took place on the Lac du Flambeau Indian Reservation in Vilas county.

The jury trial began on May 18, 1976. Although Native Americans constituted approximately 10% of the population of Vilas county, all of the Native Americans that were called during voir dire were subsequently excused from jury service by the court.

Ninety-one potential jurors were called for the array. Nine Native Americans were called but after examining three of those jurors, the judge excused the remaining Native American jurors.

Before the jury selection even began, the judge stated:

"... I suspect that any Indian that might be called in here tomorrow probably would be likely to know rather intimately one or both of the people involved, ... so he probably couldn't serve.... I'd be inclined to excuse them if they ask."

The defendant was ultimately convicted of first-degree murder. In denying the defendant's post-conviction motion, the judge explained his reasons for excluding all Native Americans as follows:

"[A]ll of these Indians were from the Lac du Flambeau reservation where the murder occurred. This is a small reservation, population-wise, and has as I recall it about one thousand people. It was obvious to the Court by the time we tried this case that there was great tension and considerable fear involved in the case. It was obvious to the Court that any of the Indians living on the reservation would have discussed the case and would have heard discussions by other members of this small closely knit community. Several of the proposed jurors indicated their fear of involvement and clearly there was a division of opinion on the Reservation as between the defendant and his half-brother who was killed.

"Again, looking at the matter with hindsight it is possible that the Court would have made a better record if he had spent several hours interrogating each of the Indians on the array as to their feeling and knowledge in the matter. The Court, frankly, is of the opinion that it is very doubtful that these people would have expressed themselves as freely to the Court as might be desirable. In any event, I was satisfied that all of them should be excused for their own sake and partly because of the obvious knowledge they would have...."

There was no objection by the defendant to the judge's excusing of all Native Americans from the jury panel, and the state therefore claims he waived any challenge. The state argues that defendant's trial attorney did not object to excusing all Native Americans from the jury panel, because both he and the defendant perceived the exclusion of Native Americans as working for the benefit of the defendant. That is an improper implication that follows from an assumption that a person does not wish to be judged by members of one's own class or group, since they will be more critical than strangers to the group. That argument has no substance nor proof and has been discarded by the United States Supreme Court. It certainly has no substance in a case of this nature where an incomplete voir dire was conducted.

The judge questioned three Native American jurors who each stated he or she knew the parties and each had some personal fear. Then the judge stated that because of local conditions, he would excuse any of the remaining six Native American jurors who wished to be excused. Those six then stated they did not want to serve on the jury, and they were in fact excused.

The court did not conduct individual questioning of any of the six jurors either in private with counsel and defendant present or in the presence of the other jurors. There is, therefore, no record showing the fears of the six, whether real or imagined, or that they were individually in any manner unqualified as jurors. It would not have impeded the selection to any great extent in conducting the voir dire of the remaining six jurors so the record would show whether there was a basis for the judge excusing them for cause or whether they just preferred not to make a decision in the case. Their reasons should have been examined and recorded. All the record shows is that when the judge offered to excuse them because they were Native Americans, they accepted his proposal.

"An individual's personal predilection not to serve as a juror, standing alone, is not contemplated by the statutes as a basis for exclusion, exemption, excuse or disqualification, ..." State v. Coble, 100 Wis.2d 179, 213-14, 301 N.W.2d 221, 237 (1981).

The judge's purposeful and intentional, although well-meant, exclusion of the Native Americans as potential jurors in this case by excusing them as a class from service without a proper examination and an individual determination of cause violates the equal protection clause of the United States Constitution. ¹ As the United States Supreme Court stated in Swain v. Alabama, 380 U.S. 202, 203-05, 85 S.Ct. 824, 826-28, 13 L.Ed.2d 759 (1965):

"[A] State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause. Ex parte Virginia, 100 U.S. 339 [25 L.Ed. 676]; Gibson v. Mississippi, 162 U.S. 565 [16 S.Ct. 904, 40 L.Ed. 1075]. This principle was further elaborated in Carter v. Texas, 177 U.S. 442, 447 [20 S.Ct. 687, 689, 44 L.Ed. 839], where, in respect to exclusion from grand juries, the Court said:

" 'Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied ....'

"And it has been consistently and repeatedly applied in many cases coming before this Court. The principle of these cases is broadly based.

" 'For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.' Smith v. Texas, 311 U.S. 128, 130 [61 S.Ct. 164, 165, 85 L.Ed. 84].

"Further, '[j]urymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.' Cassell v. Texas, 339 U.S. 282, 286 [70 S.Ct. 629, 631, 94 L.Ed. 839] (opinion of Mr. Justice Reed, announcing judgment). Nor is the constitutional command forbidding intentional exclusion limited to Negroes. It applies to any identifiable group in the community which may be the subject of prejudice. Hernandez v. Texas, 347 U.S. 475 [74 S.Ct. 667, 98 L.Ed. 866]."

As the U.S. Supreme Court stated in Smith v. Texas, 311 U.S. 128, 132 [61 S.Ct. 164, 166, 85 L.Ed. 84] (1940): "If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand."

The error in the exclusion of Native Americans as potential jurors in this case is that it was done as a result of the judge's presumption that all members of the class would be incompetent to serve due either to prior knowledge they might have of the parties or the crime or a fear to act. This judgment was not permissible absent individual examination to determine the specific knowledge or attitude each juror possessed. The state has failed to rebut the defendant's prima facie showing of discrimination and thus the defendant's conviction must be reversed and a new trial ordered. Patton v. Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 186, 92 L.Ed. 76 (1947); Avery v. Georgia, 345 U.S. 559, 563-64, 73 S.Ct. 891, 893-94, 97 L.Ed. 1244 (1953); Whitus v. Georgia, 385 U.S. 545, 552, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967); Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25 (1967); Alexander v. Louisiana, 405 U.S. 625, 632-33, 92 S.Ct. 1221, 1226-27, 31 L.Ed.2d 536 (1972).

The judge's fear that Native American jurors would not express themselves freely or fully participate in deliberations was disproven by the trial itself. At the trial, 25 witnesses, including the defendant, testified. Of the eight witnesses who were identifiable as Native Americans, three testified for the prosecution and five for the defense.

In Wisconsin by statute, the power to exclude a group from jury service is specifically limited to sec. 255.02(3)(b), Stats.1973, ² to exclusion based on a finding of ...