State v. Erickson, 98-0273-CR.

CourtUnited States State Supreme Court of Wisconsin
Citation227 Wis.2d 758,596 N.W.2d 749
Docket NumberNo. 98-0273-CR.,98-0273-CR.
PartiesSTATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. James E. ERICKSON, Defendant-Respondent-Cross-Appellant.
Decision Date08 July 1999

227 Wis.2d 758
596 N.W.2d 749

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent,
James E. ERICKSON, Defendant-Respondent-Cross-Appellant

No. 98-0273-CR.

Supreme Court of Wisconsin.

Oral argument April 13, 1999.

Decided July 8, 1999.

227 Wis.2d 760
For the plaintiff-appellant-cross respondent the cause was argued by Paul Lundsten, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general

For the defendant-respondent-cross appellant there was a brief and oral argument by Glenn L. Cushing, assistant state public defender.


This case is before the court on certification from the court of

227 Wis.2d 761
appeals pursuant to Wis. Stat. § 809.61 (1997-98).1 The circuit court concluded that the defendant, James E. Erickson, was entitled to a new trial under State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), because he did not receive the correct number of peremptory challenges during jury selection.2 The State argues that because Erickson's attorney did not object to the number of peremptory challenges, this case is properly analyzed under the ineffective assistance of counsel standard rather than the automatic reversal standard of Ramos. We agree. Further, because we decline to presume prejudice every time there is a denial of an equal number of peremptory strikes to both the defense and the prosecution and because Erickson did not show actual prejudice, the ineffective assistance of counsel claim must fail

¶ 2. Erickson also argues that the circuit court erred in refusing to strike a prospective juror for cause. He contends he needed to expend one of his peremptory challenges to correct the circuit court's error, an act entitling him to a new trial under Ramos. Because a review of the record indicates that the circuit court was well within its discretion in refusing to strike that juror for cause and in light of the defendant's failure to demonstrate ineffective assistance of counsel, we reverse the decision of the circuit court and remand the cause to that court with instructions to reinstate Erickson's conviction.

¶ 3. The facts are neither disputed nor extensive. Erickson was charged with one count of second degree sexual assault of a child contrary to Wis. Stat.

227 Wis.2d 762
§ 948.02(2) and one count of child enticement contrary to § 948.07(1). He had previously been convicted twice of second degree sexual assault of a child

¶ 4. The court began jury selection with 21 prospective jurors in the panel and indicated that from that panel twelve jurors and an alternate would hear the case. In addition, the court indicated that whenever a juror from the panel was struck for cause, that stricken juror would be replaced by another prospective juror. The State and the defense were each granted four peremptory strikes which, when exercised, reduced the panel to its final size.

¶ 5. Four peremptory strikes, however, was not the correct number. Because Erickson had already been convicted of "serious child sex offense[s]" under Wis. Stat. § 939.62(2m), a conviction on either of the two charges in this case would automatically subject him to life in prison without the possibility of parole. Wis. Stat. § 939.62(2m)(b). As a result of this potential penalty, the State and Erickson should have each received an additional two strikes. Wis. Stat. § 972.03. Further, because the court included a thirteenth juror the State and Erickson should have each been granted an additional strike. Id. Thus under the statutes, both the State and Erickson should have had a total of seven peremptory challenges rather than the four the court granted them. This error went unnoticed by the circuit court, by the State, and by Erickson's attorney.

¶ 6. During voir dire one of the prospective jurors, Juror L, indicated that she had experienced sexual abuse. When questioned individually, Juror L revealed that at the age of twelve she was fondled by a contractor working at her family's home. When the circuit court asked whether she would given the victim's testimony any more weight because of her experience,

227 Wis.2d 763
Juror L responded, "No, I don't think so."3 When the circuit court asked if she could be fair and impartial, Juror L responded, "I think so."4

¶ 7. Based on her responses in the individual voir dire, Erickson sought to have Juror L struck for cause. The circuit court refused, concluding that Juror L could be a fair and impartial juror. The court opined that her assault had occurred nearly forty years ago, that she spoke of the assault calmly and without emotion, and that her assault occurred under notably different circumstances than those at issue in this case.5

227 Wis.2d 764
¶ 8. In light of the circuit court's ruling, Erickson used one of his peremptory strikes to remove Juror L. In the end, the parties each exhausted their four peremptory strikes and it is undisputed that an impartial jury of thirteen members was impaneled.

¶ 9. At the conclusion of the trial, the jury acquitted Erickson on the second degree sexual assault charge but found him guilty of child enticement. Consistent with Wis. Stat. § 939.62(2m)(b), the court sentenced Erickson to life in prison without the possibility of parole.

¶ 10. Erickson sought post-conviction relief, arguing that because he received fewer peremptory strikes than were provided under the statute he was entitled to a new trial as a matter of law under Ramos. As a second ground for relief, Erickson argued that to the extent that the circuit court's error had not been preserved for appeal with a timely objection, it constituted ineffective assistance of counsel under the federal and state constitutions.

¶ 11. At the post-conviction hearing, Erickson's trial attorney indicated that he was genuinely unaware that Erickson was entitled to seven peremptory strikes under the law. He further stated that if he had been given the additional strikes, he would have used them all. Specifically, Erickson's trial attorney identified a particular juror who, although there was no basis to remove for cause, was someone that he had identified as a person likely to be sympathetic to the State's case.

227 Wis.2d 765
Due to the erroneous number of strikes, that juror remained on the jury and was chosen as the jury's foreperson.

¶ 12. In rendering its decision, the circuit court concluded that Erickson had been denied the effective assistance of counsel. Noting that peremptory challenges are "one of the most important rights belonging to an accused," the circuit court reasoned that prejudice to the defendant was to be presumed. As a result, although Erickson did not timely object to the error and was judged guilty by a fair and impartial jury, the circuit court determined that the reasoning in Ramos led to the conclusion that prejudice from deficient performance of trial counsel must be presumed and that Erickson was entitled to a new trial. The State appealed the automatic reversal, and Erickson cross-appealed the circuit court's failure to remove Juror L for cause. The court of appeals certified the appeal to this court.6


¶ 13. We address first whether this case should be analyzed under the automatic reversal standard of Ramos or under the ineffective assistance of counsel standard of Strickland v. Washington, 466 U.S. 668, 694 (1984). Erickson urges this court to disregard the fact that his trial attorney failed to object to the circuit court's error in awarding peremptory strikes. He asks us to decide the case on its merits, which means ascertaining whether the circuit court's denial of the additional peremptory strikes mandates automatic

227 Wis.2d 766
reversal under Ramos. Noting that the waiver rule is one of judicial administration rather than jurisdiction, Erickson initially urges this court to ignore the waiver because the importance of this case warrants a decision on its merits. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). However, Erickson also concedes that this case can properly be analyzed under an ineffective assistance of counsel claim.

¶ 14. We are well aware that the waiver rule is one of judicial administration and that appellate courts have authority to ignore the waiver. However, the normal procedure in criminal cases is to address waiver within the rubric of the ineffective assistance of counsel. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 374 (1986); Lockhart v. Fretwell, 506 U.S. 364, 380 n.6 (1993) (Stevens, J., dissenting); State v. Smith, 207 Wis. 2d 258, 273, 558 N.W.2d 379 (1997) (failure to object to prosecutor's breach of plea agreement); State v. Vinson, 183 Wis. 2d 297, 306-07, 515 N.W.2d 314 (Ct. App. 1994) (failure to object to witness' improper testimony about the credibility of another witness).

¶ 15. The waiver rule exists to cultivate timely objections. Such objections promote both efficiency and fairness. By objecting, "both parties and courts have notice of the disputed issues as well as a fair opportunity to prepare and address them in a way that most efficiently uses judicial resources." State v. Agnello, 226 Wis. 2d 164, 173, 593 N.W.2d 427 (1999). If the waiver rule did not exist, a party could decline to object for strategic reasons and raise the error only when that party needed an advantage at some point in the trial. Similarly, judicial resources, not to mention the resources of the parties, are not best used to correct errors on appeal that could have been addressed during the trial. State v. Corey J.G., 215 Wis. 2d 395, 405, 572

227 Wis.2d 767
N.W.2d 845 (1998); State v. Caban, 210 Wis. 2d 597, 604-05, 563 N.W.2d 501 (1997).

¶ 16. In Ramos, the error was brought to the circuit court's attention when the defendant objected to the court's refusal to remove a particular juror for cause. Ramos, 211 Wis. 2d at 14-15. As a result, the circuit court was made aware of its error and had the opportunity to correct it. The case only reached this...

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