State v. Coble, s. 80-505-C

CourtUnited States State Supreme Court of Wisconsin
Citation100 Wis.2d 179,301 N.W.2d 221
Docket NumberNos. 80-505-C,80-517-CR,s. 80-505-C
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Chambeous COBLE, Defendant-Respondent-Petitioner.
Decision Date02 February 1981

Dennis P. Coffey (argued) and Coffey & Coffey, Milwaukee, for defendant-respondent-petitioner.

Mary V. Bowman, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-appellant.

Gerard S. Paradowski, Acting Corp. Counsel, Milwaukee County, Milwaukee, for amicus curiae.


The issues on review are whether the Milwaukee county jury selection procedure for preparing the jury list complies with the statutory requirements of chapter 756, Stats., and, if it does not comply, whether the deviations from the statutes require reversal of the orders of the circuit court and of the defendant's conviction upon a verdict of guilty. We conclude that the Milwaukee county jury selection procedure for preparing the jury list contravenes Chapter 756, Stats., and we direct that it be changed to comport with the statutes. The conviction, however, is not reversed.


Defendant Chambeous Coble was charged with endangering safety by conduct regardless of life in violation of sec. 941.30, Stats. On the day scheduled for trial, March 17, 1980, before a jury was drawn, defense counsel moved for a continuance on the ground that the jury selection process used in Milwaukee county violated the state statutes and the defendant's rights under the state and federal constitutions. 1 The hearing on the motion began immediately and was continued to the next day at which time the Milwaukee county district attorney moved to strike "the entire venire (jury panel)" on the grounds that the jury commissioners had failed to comply with secs. 756.01, 756.02, and 756.04, Stats., and that the state is entitled to a fair trial, a fair and impartial jury and a "legally and statutorily constituted jury panel." The state also moved to impanel new and additional jurors and joined the defendant in moving for a continuance. The testimony of Ronald Witkowiak, district court administrator for the First Judicial District, Roman Witkowiak, a Milwaukee county jury commissioner, and Victor Manian, chief judge of the First Judicial District, was presented at the hearing on the motions. At the conclusion of the hearing, the circuit court denied the defense and prosecution motions to strike the jury array and jury panel, to impanel additional jurors, and to grant a continuance.

The defense and the prosecution immediately filed petitions to the court of appeals for leave to appeal, sec. 808.03(2), Stats., and for temporary relief in the form of a stay of the trial proceedings pending decision on the appeal. On March 20, 1980, the court of appeals granted the petitions for leave to appeal, consolidated the appeals, and denied the stay. Permission to appear as a friend of the court was granted Milwaukee County Chief Judge Victor Manian. The appeal was expedited, and oral argument heard on March 25, 1980.

Trial on the charge of endangering safety commenced on March 18, 1980. On March 20, 1980, the jury returned a verdict finding the defendant guilty.

The court of appeals concluded that the commissioners acted within their statutory powers in exempting, excluding or disqualifying persons from the list of potential jurors on the ground of infirmity because of a physical condition, but that they exceeded their statutory powers in excluding or excusing persons from the list of prospective jurors for reasons related to hardship and unwillingness to serve. See State v. Coble, 95 Wis.2d 717, 291 N.W.2d 652 (Ct.App.1980).

Although the state's brief in this court supports the decision of the court of appeals, at oral argument the state reverted to the position taken earlier by the Milwaukee county district attorney in the circuit court and in the court of appeals and argued that the Milwaukee county jury selection procedure does not conform to statutory requirements. We agree with the position taken by the parties, and conclude that the Milwaukee county jury selection procedures for preparing the jury list transgress the statutes.


We begin by comparing the procedure for preparing the jury list set forth in chapter 756, Stats., with that used in Milwaukee county.

The legislature requires the three jury commissioners appointed in each county, sec. 756.03, Stats., to provide a county-wide list of names of persons to serve as petit jurors. Sec. 756.04(2)(a), Stats. 2 The statutes direct the jury commissioners to "determine eligibility for jury service by mailing to every prospective juror on the list a jury qualification form ... which elicit(s) the information specified under sec. 756.01, Stats." Sec. 756.04(2) (b)(1), Stats. 3 In addition, the jury commissioners are authorized to subpoena any person for examination as to qualifications for jury service and may investigate by inquiries or by other means any person's fitness for jury service. Sec. 756.03(4), Stats. 4

The jury commissioners are required to revise the list by striking the names of those persons whom the commissioners find "ineligible for jury service, as provided in s. 756.01," (which is set forth below), and by adding names of additional persons. Sec. 756.04(2)(a), Stats. The jury commissioners must certify that the list has been prepared "in strict conformity with statutory requirements" and the list must include a "verified statement describing the manner in which the list was compiled or modified, including an enumeration of all public or private sources from which the names of the prospective jurors on the list were derived." Sec. 756.04(2)(a), Stats. The jury commissioners must write the name of each person on the list on separate cards which are placed in a master tumbler. Sec. 756.04(2)(c), Stats. It is from these cards in the tumbler that the jury which sits on a particular case is ultimately selected. 5 It is the procedure used in Milwaukee county in the compilation of the jury list which is being challenged in the case at bar.

Sec. 756.01(1), Stats., sets forth the qualifications of jurors as follows:

"756.01 Qualifications of jurors. (1) Persons who are U. S. citizens, who are electors of the state, who are possessed of their natural faculties, who are not infirm, who are able to read and understand the English language, and who have not been summoned to attend for prospective service as a petit juror for the time period applicable under s. 756.04(5m) within 2 years, shall be liable to be drawn as grand or petit jurors."

Exemptions, exclusions, disqualifications and excuses from jury service are dealt with in secs. 756.01(2) and 756.02, Stats. Sec. 756.01(2) provides as follows:

"Sec. 756.01(2). Subsection (1) (of 756.01 quoted above) shall not exempt, exclude or disqualify a person from jury service on the ground of infirmity because of a physical condition unless the judge finds that the person clearly cannot fulfill the responsibilities of a juror. The judge shall not consider the structural, physical or architectural limitations or barriers of a building, courtroom, jury box or other facility in making such a finding."

Sec. 756.02, entitled "Exemptions and excuses from jury service," states:

"(1) Judges and attorneys who claim an exemption pursuant to this section shall be exempt from jury service. No other qualified juror is exempt from jury service.

"(2)(a) Any person or group of persons may be excluded from the jury panel or excused from service as jurors by order of the judge based on a finding that jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice. The exclusion or excuse shall continue for a period deemed necessary by the judge, at the conclusion of which the person or group of persons shall reappear for jury service in accordance with the order of the judge.

"(b) A state legislator or full-time elected official shall be excused from service as a juror if the official states to the court that jury service would interfere with the performance of his or her official duties.

"(c) No citizen may be excluded from service as grand or petit juror in any court of this state on account of race or color or because of a physical condition, except as provided in s. 756.01(2)."

The procedure employed in Milwaukee county to select prospective jurors was described by the witnesses at the hearing in the circuit court and again by counsel for Milwaukee county at the oral argument.

In Milwaukee county, where the process is computer assisted, sec. 756.27, Stats., the poll list provides the names from which the jury list will be prepared. State v. Bond, 41 Wis.2d 219, 226, 163 N.W.2d 601 (1969). At regular intervals a Milwaukee county "Juror Qualification Questionnaire" is sent to those persons whose names are drawn from the computer-stored poll list.

The "Juror Qualification Questionnaire" is a simple, single page form. The first part of the questionnaire requests basic information relating to occupation; employer's name and address; age; spouse's name and occupation; spouse's employer's name and address; age of children; sex (F, M); woman's maiden name; marital status (married, single, divorced, widowed); and current mailing address. The second part of the questionaire consists of the following six questions:

"1. Are you a citizen of the United States? ____YES ____NO

2. Are you at least 18 years of age? ____YES ____NO

3. Can you read and write the English language? ____YES ____NO

4. Have you been summoned for jury service in Milwaukee County in the past 2 years? ____NO ____YES Sworn on a jury? ____YES ____NO

5. Have you been convicted of a felony? ____NO ____YES; Civil rights restored? ____YES ____NO

6. Do you have any disabilities that would prevent you from serving as a juror? ____NO ____YES;...

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    • United States
    • Wisconsin Supreme Court
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    ...namely, deliberation by twelve persons to reach a unanimous verdict. The relevant inquiry in this case, as in State v. Coble, 100 Wis.2d 179, 211-12, 301 N.W.2d 221 (1981), which also involved an alleged error in the composition of the jury, is whether the jury comports with the essential s......
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