State v. Ferron, 96-3425-CR

• Decision Date: 21 October 1997
• Docket Number: No. 96-3425-CR,96-3425-CR
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Vance FERRON, Defendant-Appellant.

Page 883

570 N.W.2d 883

214 Wis.2d 268

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Vance FERRON, Defendant-Appellant.

No. 96-3425-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 2, 1997.

Opinion Released Oct. 21, 1997.

Opinion Filed Oct. 21, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jane Krueger Smith of Oconto Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Paul Lundsten, Assistant Attorney General.

Before CANE, P.J, and MYSE and HOOVER, JJ.

CANE, Presiding Judge.

Vance Ferron appeals a judgment of conviction for party to the crime of burglary, contrary to §§ 943.10(1)(a) and 939.05, STATS. Ferron contends the trial court committed reversible error when it refused to strike a prospective juror for cause, thus requiring Ferron to exercise one of his peremptory challenges to correct the court's error, thereby depriving him of his right to due process as defined by state law. Because the trial court erroneously exercised its discretion by refusing to strike the juror for cause, and because Ferron thereafter used a statutorily granted peremptory challenge to excuse the juror, we conclude Ferron was arbitrarily deprived of his right to exercise his full complement of peremptory challenges and, therefore, reverse and remand for a new trial.

The underlying facts of the appeal are neither complicated nor in dispute. Ferron and his codefendant, Timothy Nelson, were charged with party to the crime of burglary and were tried as codefendants. The jury found Ferron and Nelson guilty as charged. Ferron received a five-year prison sentence, which was stayed, and he was placed on probation for five years and required to serve one year in the county jail as a condition of probation. No postconviction motion was filed.

The issue on appeal arose during the voir dire examination of prospective jurors. Following the trial court's initial questioning of the jury panel, Christopher Froelich, counsel for Ferron, posed various questions to the prospective jurors, including whether any juror would hold it against his client if he did not testify on his own behalf. There were no responses to Froelich's queries. ¹

The colloquy giving rise to Ferron's challenge on appeal occurred during questioning by William Fitzgerald, counsel for the codefendant Nelson. The relevant colloquy is included at this juncture. The dialogue among Fitzgerald, jurors Metzler and Clark, ² and the court is provided below:

MR. FITZGERALD: ... 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?

JUROR JAMES METZLER: I think I may.

MR. FITZGERALD: You think you may.

The trial court then read the instruction to the jury panel iterating Ferron's absolute constitutional right not to testify and explaining that his decision must not be considered by the jury in any way or allowed to influence its verdict in any manner. At that point, Clark voiced concerns about Ferron not testifying and her additional concern that she could fairly consider evidence of alcohol use as a defense. Without addressing Clark's latter concern, the trial court refocused the discussion on the issue of a defendant testifying and asked the following questions:

THE COURT: [B]ut 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 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. ³

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. (Footnote added.)

Clark responded that she would try but she was not sure she could completely set her feelings aside. The colloquy continued as follows:

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?

JUROR JAMES METZLER: Probably.

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.

Froelich then moved to have Clark removed for cause based on her comments. The court continued to question Clark to determine if she could set her feelings aside and decide the case based on the evidence and the law, and she ultimately responded, "I would have to say I would have a hard time that they didn't testify." At that point, the court excused Clark.

Ferron contends the trial court committed reversible error by refusing to strike Metzler for cause. He argues Metzler held a bias against a defendant who did not testify and, because Metzler did not state he could set that bias aside, he was not indifferent and should have been excused. The State takes the position that Metzler's answers did not amount to manifest bias and, therefore, the trial court's decision should not be disturbed.

"The question of whether a prospective juror is biased and should be dismissed from the jury panel for cause is a matter of the circuit court's discretion." State v. Ramos, 211 Wis.2d 12, 15, 564 N.W.2d 328, 330 (1997), (quoting State v. Gesch, 167 Wis.2d 660, 666, 482 N.W.2d 99, 102 (1992)). On review, we will find an erroneous exercise of discretion if the trial court's decision is based on an error of law. See id. at 16, 564 N.W.2d at 330.

Section 805.08(1), STATS., sets forth the trial court's duty in determining whether jurors are qualified to serve: "The court shall examine on oath each person who is called as a juror to discover whether the juror ... has expressed or formed any opinion, or is aware of any bias or prejudice in the case." In addition, § 805.08(1) requires the court to excuse a juror who is not indifferent in the case. In addressing a motion to strike a prospective juror for cause, the trial court "must honor challenges for cause whenever it may reasonably suspect that circumstances outside the evidence may create bias or appearance of bias." Nyberg v. State, 75 Wis.2d 400, 404, 249 N.W.2d 524, 526 (1977). However, a juror who expresses an opinion or bias may still serve on the jury if the person "can lay aside his or her opinion and render a verdict based on the evidence presented in court." State v. Sarinske, 91 Wis.2d 14, 33, 280 N.W.2d 725, 733-34 (1979). The evaluation of the juror's sincerity in answering whether he or she can be fair and impartial is also a matter within the trial court's discretion. Id. at 33, 280 N.W.2d at 734.

We agree with Ferron that the trial court erroneously exercised its discretion when it refused to excuse Metzler for cause. Metzler stated the opinion that an innocent person would testify in his own behalf and stated he thought he may hold it against Ferron if he did not take the witness stand in his own defense. Metzler twice expressed the expectation that an innocent person would not hesitate to give his or her side of the story and that he would have a hard time believing Ferron was innocent if he did not take the stand and assert his innocence. The court recognized Metzler's bias as incompatible with the duty of a juror to be fair and impartial, and the court continued to question Metzler to determine whether he could be indifferent in the case. Metzler indicated that he "would try" to set his feelings aside. In response to the court's question of whether he could decide the case solely on the evidence presented and not hold it against the defendant if he did not testify, Metzler responded "Probably."

Metzler's response was not sufficient to establish that he could be indifferent and follow the court's instructions and decide the case based on the evidence. Absent a clarification of Metzler's final response, his answer of "Probably" did not establish he could set his feelings aside and be indifferent....