State v. Czarnecki
| Decision Date | 01 September 1999 |
| Docket Number | No. 98-2406-CR.,98-2406-CR. |
| Citation | 604 N.W.2d 891,231 Wis.2d 1 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Scot A. CZARNECKI, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick M. Donnelly, assistant state public defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sharon Ruhly, assistant attorney general.
Before Nettesheim, Anderson and Snyder, JJ.
The issue presented in this case is whether a prospective juror who is the brother-in-law of a state witness must be struck for cause as a "relative by blood or marriage to the third degree of a state witness." State v. Gesch, 167 Wis. 2d 660, 669, 482 N.W.2d 99, 103 (1992). Because we conclude that a brother-in-law relationship constitutes "statutory bias," we reverse the judgments and the order of the trial court and remand for a new trial.
The pertinent facts are undisputed. Scot A. Czarnecki was arrested and charged with burglary while armed with a dangerous weapon with intent to commit a felony contrary to § 943.10(1)(a) and (2)(a), STATS.; attempted first-degree homicide while armed with a dangerous weapon contrary to §§ 940.01(1), 939.32(1)(a) and 939.63(1)(a)2, STATS.; and attempted first-degree sexual assault by use or threat of use of a dangerous weapon contrary to §§ 940.225(1)(b) and 939.32(1), STATS. These charges were amended to include additional counts of burglary while armed with a dangerous weapon with intent to commit homicide contrary to § 943.10(1)(a) and (2)(a); disorderly conduct while armed with a dangerous weapon contrary to §§ 947.01 and 939.63(1)(a)1, STATS.; and criminal trespass to dwelling while armed with a dangerous weapon contrary to §§ 943.14 and 939.63(1)(a)1, STATS.1
During jury selection on August 11, 1997, prospective juror Robert Schneider indicated that he was related to state witness Larry Meyer, the city of Whitewater police detective who investigated Czarnecki's case. Schneider explained that he was Meyer's brother-in-law because he was married to Meyer's sister. The prosecuting attorney then inquired whether this relationship would influence Schneider's decision making:
At the end of voir dire, Czarnecki's counsel moved the court to strike Schneider for cause:
After the court's ruling, Czarnecki used a peremptory strike to remove Schneider from the jury pool.
Czarnecki was subsequently convicted of burglary while armed with a dangerous weapon with intent to commit sexual assault and to commit homicide, attempted first-degree sexual assault by use or threat of use of a dangerous weapon, disorderly conduct while armed with a dangerous weapon, and criminal trespass to a dwelling while armed with a dangerous weapon.2 Following his conviction, Czarnecki filed a postconviction motion asking the trial court to set aside his conviction based on the court's error in refusing to strike Schneider from the jury panel. The court denied his motion and he now appeals from the judgments and the order denying postconviction relief.
Czarnecki argues that the trial court erred during jury selection when it failed to strike for cause a prospective juror who was the brother-in-law of a state witness. He relies on Gesch for the proposition that a relative by marriage to the third degree should be struck on the basis of implied bias. The State responds that the language in Gesch pertaining to juror bias on the basis of a relationship created by marriage is dicta. Because we conclude that Gesch is controlling, we reject the State's position.
In Gesch, our supreme court held that an "implied bias" existed where a potential juror was the brother of the state's police witness. The court established the following per se rule:
[P]rospective jurors who are related to a state witness by blood or marriage to the third degree as shown in Figure 852.03(2), STATS.,3 must be struck from the jury panel on the basis of implied bias.
Gesch, 167 Wis. 2d at 671, 482 N.W.2d at 104 (emphasis added). Failure to strike on this ground is "a violation of the defendant's rights under the Sixth Amendment of the United States Constitution, the Wisconsin Constitution Article I, Section 7, and is violative of the principles of due process." Id. Where a fair and impartial jury is impaneled, a trial court's failure to properly remove a juror for cause violates the defendant's right to exercise all of his or her statutorily granted peremptory challenges. See State v. Ramos, 211 Wis. 2d 12, 24, 564 N.W.2d 328, 334 (1997)
.
While we agree with the State that the facts in Gesch only involved the issue of bias between brothers related by blood, we are no less convinced that the court's per se rule applies with equal force to persons related by marriage. As the Gesch court recognized:
[W]here a prospective juror is related to a state witness by blood or marriage to the third degree, special problems exist that render a circuit court's search for actual bias an inadequate protection of a defendant's right to an impartial jury. One such problem is the potential for unconscious bias. It is virtually impossible for a prospective juror to consciously estimate how the family relationship with a witness will affect his or her judgment. Although no intentional actual bias may exist, the risk of unconscious bias in these situations is manifest.
Gesch, 167 Wis. 2d at 667, 482 N.W.2d at 102 (emphasis added).
In the present matter, although Schneider testified that he perceived no problem with being a juror on a case in which his brother-in-law was directly involved, the familial relationship here carries the potential for unconscious prejudice. Where a family relationship exists, "the mere probability of bias is so high that in order to assure a defendant the fundamental fairness to which the defendant is entitled, we must imply bias and exclude the juror as a matter of law." Id. at 668, 482 N.W.2d at 102. While the Gesch court's pronouncement may technically be dicta, the State concedes that it is "nevertheless [an] administrative or supervisory direction[] that [is] intended for the guidance of the court system and [is] to be followed." State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804, 811 (1988). We are persuaded that the Gesch court's per se rule concerning implied juror bias is intended to offer guidance to the courts and we choose to follow it here.
Pursuant to Gesch, we apply the chart depicted in Figure 852.03(2), STATS., to both blood relations and relations created by marriage. Based on Figure 852.03(2), we determine that both a brother and a brother-in-law are two degrees removed for purposes of determining juror bias. In the instant case, because Schneider was the brother-in-law of a state witness, we conclude that he was related within three degrees of the witness. Thus, we agree with Czarnecki that the trial court erred because Schneider should have been struck as a matter of law on the basis of his potential bias.
While a brother-in-law relationship constitutes an "implied bias" under Gesch, our supreme court has recently reexamined the designations used in juror bias jurisprudence. In State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), the court sought to eliminate the confusion surrounding the use of the terms "implied bias," "actual bias" and "inferred bias" by creating three new designations: "statutory bias," "subjective bias" and "objective bias." See id. at 706, 596 N.W.2d at 773. "Statutory bias," as defined in § 805.08(1), STATS.,4 exists where a prospective juror is related by "blood or marriage to any party or to any attorney appearing in [the] case" and where a prospective juror has "any financial interest in the case." Faucher, 227 Wis. 2d at 717,596 N.W.2d at 778 (quoting § 805.08(1); alteration in original). Statutory bias is a "conclusion of law premised on the belief that certain relationships are so inherently prone to partiality that an individual case-by-case inquiry is not worth the time or effort." State v. Kiernan, 227 Wis. 2d 736, 744, 596 N.W.2d 760, 764 (1999). "Subjective bias" is also addressed by § 805.08(1) and concerns whether the prospective juror has "expressed or formed any opinion, or is aware of any bias or prejudice in the case," id., and it is "revealed through the words and demeanor of the prospective juror," Faucher, 227 Wis. 2d at 717,596 N.W.2d at 778. Finally, as to "objective bias," we consider the facts and circumstances surrounding voir dire along with the facts in the case and then decide "whether [a] reasonable person in the individual juror's position could be impartial." Id. at 718, 596 N.W.2d at 779.
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