State v. Ferron, 96-3425-CR

Citation579 N.W.2d 654,219 Wis.2d 481
Decision Date25 August 1998
Docket NumberNo. 96-3425-CR,96-3425-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, d v. Vance FERRON, Defendant-Appellant.
CourtUnited States State Supreme Court of Wisconsin

For the plaintiff-respondent-petitioner the cause was argued by Paul Lundsten, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by Jane Krueger Smith, Oconto Falls.

¶1 JON P. WILCOX, Justice

This is a review of a published decision of the court of appeals, State v. Ferron, 214 Wis.2d 268, 570 N.W.2d 883 (Ct.App.1997), which reversed a judgment of the Circuit Court for Brown County, Peter J. Naze, Judge. The circuit court denied the defendant Vance Ferron's (Ferron) request to strike a juror for cause after the challenged juror said he "would certainly try" and "probably" could set aside his opinion that a criminally accused defendant who was truly innocent would take the stand and testify on his or her own behalf.

¶2 There are three issues before us on review. First, we consider the standard of review which appellate courts should employ upon review of a circuit court determination that a prospective juror can be impartial. Second, we apply that standard to the facts of this case to determine whether the circuit court committed an error of law by failing to strike the challenged juror for cause. Finally, we reply to the State's invitation to overrule our recent decision in State v. Ramos, 211 Wis.2d 12, 564 N.W.2d 328 (1997).

¶3 Contrary to the court of appeals' decision, we hold that the appellate courts should overturn a circuit court's determination that a prospective juror can be impartial only where the juror's bias is manifest. A juror's bias can appropriately be labeled as "manifest" whenever: (1) the record does not support a finding that the prospective juror is a reasonable person who is sincerely willing to put aside an opinion or prior knowledge; or (2) the record does not support a finding that a reasonable person in the juror's position could set aside the opinion or prior knowledge.

¶4 Applying this standard to the facts of this case, we conclude that the record does not support a finding that the prospective juror at issue was a reasonable person who was sincerely willing to put aside his opinion or bias. Accordingly, we hold that Ferron was deprived of his statutorily defined right to due process of law when he was compelled to use one of his peremptory challenges, as provided by Wis. Stat. § 972.03 (1993-94), 1 to correct the circuit court's error.

¶5 Because we discern no sound reason either in law or public policy to do so, we also decline the State's invitation to overrule our decision in Ramos. Therefore, we modify the decision of the court of appeals and, as modified, we affirm that decision.

¶6 The relevant facts are not in dispute. On November 21, 1995, the State of Wisconsin (State) filed a criminal complaint charging Ferron and a codefendant, Timothy Nelson (Nelson), with party to the crime of burglary, in violation of Wis. Stat. §§ 943.10(1)(a) and 939.05. The case was later set for jury trial, where Ferron and Nelson were to be tried as codefendants. On March 26, 1996, the voir dire examination began.

¶7 The circuit court posed the first questions to the jury panel. Following these preliminary queries, Christopher Froelich (Froelich), counsel for Ferron, asked a series of questions to determine whether the prospective jurors could serve impartially. Attorney Froelich's questions were followed by the remarks and inquiries of codefendant Nelson's counsel, William Fitzgerald (Fitzgerald). The voir dire examination by Fitzgerald produced the following exchange between the court, Fitzgerald, and prospective jurors James Metzler (Metzler) and M.C. Clark (Clark): 2

MR. FITZGERALD: ... I'm going to argue that the State hasn't provided proof beyond a reasonable doubt that Mr. Nelson is guilty of anything.

Now, keeping that in mind, I may instruct Mr. Nelson that I don't think that he has to take the witness stand. And what I wonder is would any of you think to yourself, well, you're saying the State's case is lousy, but you didn't even have your guy testify so what does that make your case? Yes, Mr. Metzler.

JUROR JAMES METZLER: Well, if your client is innocent, why wouldn't he take the stand?

MR. FITZGERALD: Becauses [sic] the constitution doesn't say he has to.

JUROR JAMES METZLER: Well, if he's innocent, why wouldn't he go up there and tell us he's innocent?

MR. FITZGERALD: Well, without getting into a long exchange about the constitutional rights that we all have, I can only tell you that the Court will instruct you that a defendant has the absolute right to decline to talk to the jury, to talk to the police, to talk to people investigating the crime, and that it might be my advice to him he need not take the stand. And is your questioning an indication that you would hold that against him?


MR. FITZGERALD: You think you may.

THE COURT: Ladies and gentlemen, here's the instruction. A defendant in a criminal case has the absolute constitutional right not to testify. The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner. Is there anyone here who cannot follow or would not follow that instruction?

JUROR M.C. CLARK: I would wonder, like he said, why, you know, if he had nothing to hide?

THE COURT: I understand.

JUROR M.C. CLARK: Why he would do that? ...

THE COURT: All right. Let's get back to the question of the defendant not testifying. I'll read it again. A defendant in a criminal case has the absolute constitutional right not to testify. A defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.

And I think Mr. Metzler's reaction is a common reaction. You can't deny that but that's not the law. That may be the reaction you come into the courtroom [with], but as I said before, we have to set aside those personal beliefs or opinions that we have that conflict with the law that I'm going to give you. The question is, is there any one of you who cannot follow the law that I've just read to you?

JUROR JAMES METZLER: Well, I would have a hard time believing that he was innocent if he didn't take the stand and tell me he wasn't [sic] innocent. That's just my own belief.

THE COURT: Well, I understand that, sir. And I said you're certainly entitled to that belief, and you're not the only person with that belief. But the United States Constitution and the Constitution of the State of Wisconsin give every person the right not to testify and the right that [sic] cannot be held against them if they choose not to do so. That's a right that you have, that I have, everybody has, including the defendants. So we have to honor that right.

The question is your opinion so strong or your belief so strong you're not willing to set those aside for the purpose of this case and follow the law that I've given you?

JUROR JAMES METZLER: Well, I would certainly try to set it aside.

THE COURT: Miss Clark?

JUROR M.C. CLARK: I would try to set it aside, but I'm not sure I could completely set that aside if that would be in the back of my mind that they didn't take the stand. That would be kind of back there knowing that, you know--

THE COURT: Well, obviously, if you're in there and the person hasn't taken the stand, we can't make you draw a blank.


THE COURT: The thing you have to do is not use that against the defendant. You have to decide the case on the evidence as it comes out in the courtroom, not things that didn't happen. That's the point. Can you do did [sic] that?

JUROR M.C. CLARK: I'm not so sure I could.

THE COURT: Mr. Metzler, can you?


THE COURT: You don't think you could, Miss Clark?

JUROR M.C. CLARK: I certainly would try, but it would be, you know, I guess still it would always be there. I would try.

THE COURT: Counsel?

MR. FITZGERALD: Well, I guess I feel we're getting low on jurors, but I would move to relieve Mr. Metzler and Miss Clark.

THE COURT: I'm not removing Mr. Metzler. He said he could do this. I'm concerned about Miss Clark.

¶8 The circuit court continued to question Clark to determine if she could set aside her feelings. When Clark ultimately stated that she "would have a hard time that they didn't testify," the court excused her and proceeded with the voir dire examination accordingly. Following the examination, Ferron used one of his two peremptory strikes to remove Metzler from the jury panel. See Wis. Stat. § 972.03 (limiting Ferron's challenges to 2 in this case).

¶9 On March 27, 1996, Ferron was convicted of party to the crime of burglary. On appeal, Ferron argued that the circuit court committed reversible error when it refused to strike Metzler for cause, because Metzler exhibited a bias against defendants who decline to testify. According to Ferron, the circuit court's action compelled him to exercise one of his statutorily granted peremptory challenges to correct the court's error, thereby depriving him of his right to due process under state law. The State asserted that Metzler did not exhibit a manifest bias, and that the circuit court's determination should therefore be upheld.

¶10 The court of appeals held that the circuit court erroneously exercised its discretion by failing to strike Metzler for cause because his answers revealed that he was not indifferent as required by Wis. Stat. § 805.08(1). 3 See Ferron, 214 Wis.2d at 276, 570 N.W.2d 883. The court of appeals also held that the circuit court failed to follow the directive in Nyberg v. State, 75 Wis.2d 400, 249 N.W.2d 524 (1977), that a motion to strike a juror for cause must be granted whenever the court...

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