State v. Faucher
| Decision Date | 08 July 1999 |
| Docket Number | No. 97-2702-CR.,97-2702-CR. |
| Citation | 596 N.W.2d 770,227 Wis.2d 700 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. George A. FAUCHER, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
For the defendant-appellant there was a brief and oral argument by Suzanne Hagopian, assistant state public defender.
¶ 1.
The State seeks review of a published decision of the court of appeals, State v. Faucher, 220 Wis. 2d 689, 584 N.W.2d 157 (Ct. App. 1998), which reversed a judgment of conviction and an order denying postconviction relief of the Circuit Court for Ozaukee County, the Honorable Tom R. Wolfgram. The circuit court denied defendant George A. Faucher's postconviction motion for a new trial. In his postconviction motion, the defendant asserted that the circuit court erred when it earlier had denied his motion to strike a juror for cause and for a mistrial after the challenged juror stated that he could set aside his opinion that the State's key witness, his neighbor of four years, was a "person of integrity" who "wouldn't lie."
¶ 2. We are presented with the following issue: did the circuit court err in refusing to strike a juror for cause when the juror testified at a special voir dire that for four years he had lived next door to the State's main witness, knew the witness to be a "person of integrity" who "wouldn't lie," and subsequently stated that he could set his beliefs aside to consider the case impartially?
¶ 3. The circuit court found that the juror could be impartial and refused to strike him. On examination of the record, we conclude that a reasonable judge could only conclude that a reasonable person in this juror's position could not be impartial.
¶ 4. In addition to reviewing the issue presented, we also take the opportunity this case affords us to clarify our jury bias jurisprudence. The case at bar is but one of six jury bias cases this term for which we have granted petition for review.1 From these cases we have come to recognize that our past decisions in this area of the law have to a degree lacked the clarity necessary to properly guide the bench and bar in the appropriate examination of prospective jurors for evidence of bias. We believe that the resulting confusion stems from our inconsistent, and at times imprecise, use of the terms "implied," "actual," and "inferred" to describe a juror's bias. Today, we no longer refer to juror bias in these terms; their usefulness has run full course.
¶ 5. In their places we adopt the terms "statutory bias," "subjective bias," and "objective bias." The value in using these terms is twofold: each is particularly descriptive of the reason a prospective juror may not serve and each term accurately describes the analysis a circuit court will make in discerning whether a juror is biased. Further, our review of seven leading jury bias cases reveals that while we have not expressly used the terms we adopt today, the decisions implicitly recognize that when jurors were removed for cause, their removal was grounded in evidence of one of these three forms of bias. Our adoption of these new terms does not, however, change our existing jurisprudence.
¶ 6. The facts are undisputed for the purposes of this appeal. George A. Faucher (Faucher), the defendant, was charged with second-degree sexual assault of a 70-year-old patient at a nursing home where the defendant was employed as a nursing assistant. The charges against Faucher were supported by the witness account of a second nursing home employee, Paulette Hayes (Hayes), who testified at Faucher's trial that she saw the defendant fondling the victim's breast. The defendant denied that he had ever fondled the resident, and further testified that he was not in the resident's room when the alleged assault occurred but, instead, was transporting other residents from the dining hall to their rooms.
¶ 7. The State presented six witnesses in addition to Hayes, although none of the others testified to seeing the defendant engage in inappropriate touching of the victim or any other resident. Hayes was the State's key witness, and alluding to her significance, in his closing argument the prosecutor succinctly stated that "the heart of this case is really whether or not Paulette Hayes can be believed when she said that she poked her head into Room 103. . . ." He explained to the jurors that "[t]his case boils down to credibility of witnesses, that's it; who are you going to believe." The case was at its essence a credibility contest between Hayes and Faucher.
¶ 8. The possibility of a partial jury was made evident at the close of the State's case when juror David Kaiser (Kaiser) notified the court that he recognized Hayes as an acquaintance. During the initial voir dire, juror Kaiser did not see Hayes, who was not then present. Nor did Kaiser recognize her name when read from a witness list; apparently, due to marriage, she had changed her last name. The parties do not question that Kaiser did not have an opportunity to know that Hayes was a witness until she testified.
¶ 9. Alerted to the problem, the circuit court conducted a special, individual voir dire of Kaiser. After establishing that juror Kaiser knew Hayes, the court asked Kaiser to describe, "in general, the nature of that acquaintanceship." Kaiser replied that "[s]he was our next-door neighbor, and I knew the family very well—well, relatively, so I knew who she—I knew of her, and not only knew of her, and she was a girl of integrity, so." Kaiser also admitted to living next door to Hayes for the four years prior to the trial.
¶ 10. The voir dire continued:
¶ 11. To questions by the prosecutor, juror Kaiser affirmatively responded that he could set aside his knowledge of other facts or details that he was aware of and decide the case only on what he heard in the courtroom.
¶ 12. The defense counsel inquired further into juror Kaiser's ability to set aside his opinion regarding Hayes's credibility:
¶ 13. Following this voir dire, defense counsel moved to strike juror Kaiser from the jury because of the bias he expressed. Defense counsel argued that it would be unfair to allow Kaiser to remain on the jury when he had formed an opinion, based on matters outside the evidence, that Hayes would not lie. However, the circuit court had empanelled only 12 jurors. Because no alternates had been seated, defense counsel also moved for a mistrial, explaining that he did not want to proceed with a jury of 11.
¶ 14. The court refused to grant a mistrial because, the court noted, Kaiser had testified that he "could put aside any feelings that he may have and judge the credibility of all the witnesses based upon the criteria that the Court will give him." After the mistrial motion was denied, defense counsel consulted briefly with the defendant and informed the court that proceeding with 11 jurors "would be acceptable to him as a lesser solution to the request to declare a mistrial."
¶ 15. Before a decision on the request was made, the court called Kaiser back into the courtroom and conducted a second, individual voir dire to determine if Kaiser had...
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...§ 805.08(1). This state recognizes three classifications of juror bias: statutory, subjective, and objective. State v. Faucher , 227 Wis. 2d 700, 716, 596 N.W.2d 770 (1999). On appeal, Thomas concedes that Zina was not statutorily or subjectively biased, but he submits that she was objectiv......
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Oswald v. Bertrand
...in § 805.08(1) codifies the requirement of the Sixth Amendment and its state counterpart that jurors be impartial. State v. Faucher, 227 Wis.2d 700, 715, 596 N.W.2d 770 (1999). Under the Sixth Amendment, a juror's impartiality is determined by the following test: did the "juror swear that h......
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...States Constitution and Art. I, § 7 of the Wisconsin Constitution, as well as [by] principles of due process." State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770 (1999). These constitutional protections are further codified by Wis. Stat. § 805.08(1), which provides that a potential juro......
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...State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999); State v. Broomfield, 223 Wis. 2d 465, 589 N.W.2d 225 (1999); State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999); State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999); State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999);......
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Commentary: Admitting too many prior convictions harmless.
...credibility, without directly affecting the jury's perception of the complainant's, there was no prejudice. Finally, in State v. Faucher, 227 Wis.2d 700, 733, 596 N.W.2d 770, 785 (1999), the Supreme Court noted, "the trial was a credibility contest between [the complainant] and Faucher -- t......