State v. Franklin, No. 99-0743-CR

• Decision Date: 11 July 2001
• Docket Number: No. 99-1285-CR, No. 99-1283-CR, No. 99-1287-CR., No. 99-1284-CR, No. 99-1286-CR, No. 99-1282-CR, No. 99-0743-CR
• Citation: 245 Wis.2d 582,2001 WI 104,629 N.W.2d 289
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jesse FRANKLIN, Defendant-Appellant-Petitioner. STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey A. HUCK, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

245 Wis.2d 582

2001 WI 104

629 N.W.2d 289

STATE of Wisconsin, Plaintiff-Respondent, v. Jesse FRANKLIN, Defendant-Appellant-Petitioner.

STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey A. HUCK, Defendant-Appellant-Petitioner.

Nos. 99-0743-CR, 99-1282-CR, 99-1283-CR, 99-1284-CR, 99-1285-CR, 99-1286-CR, 99-1287-CR.

Supreme Court of Wisconsin.

Oral argument May 31, 2001.

Decided July 11, 2001.

For the defendants-appellants-petitioners there were briefs and oral argument by Richard D. Martin, assistant state public defender.

For the plaintiff-respondent the cause was argued by Gregory M. Posner-Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. WILLIAM A. BABLITCH, J.

Defendants Jesse Franklin and Jeffery Huck seek review of two court of appeals' decisions in which the court denied the defendants' claims of ineffective assistance of counsel. The defendants were convicted in separate trials on misdemeanor counts by six-person juries. Both defendants argue that they received ineffective assistance because their trial attorneys failed to object to the six-person juries, even though around the time of their trials the court of appeals certified State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998) to this court and we accepted this certification. The certified issue in Hansford was whether Wis. Stat. § 756.096(3)(am) (1995-96),¹ the statute authorizing six-person juries, was constitutional.

¶ 2. We conclude that the defendants did not receive ineffective assistance because they have failed to show prejudice as required under Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, we affirm the decisions by the court of appeals.

I

¶ 3. Franklin was convicted of four misdemeanors in two separate trials. One trial occurred on January 14-16, 1998, and the other occurred on May 14-15, 1998. Both trials were conducted in Milwaukee County Circuit Court before six-person juries. Franklin did not object to being tried by a six-person jury in either instance.

¶ 4. Huck was likewise tried by a six-person jury on several misdemeanor counts in Milwaukee County Circuit Court. His trial, which occurred on March 17-19, 1998, resulted in convictions on 11 counts of violating a domestic abuse injunction, two counts of criminal damage to property, and six counts of bail jumping. Like Franklin, Huck also did not object to being tried by a six-person jury. ¶ 5. Both defendants filed post-conviction motions requesting new trials. These motions alleged in part that they were entitled to new trials because they had been denied their constitutional right to a trial by jury of 12 persons and because their trial attorneys had rendered ineffective assistance of counsel by failing to object to juries of fewer than 12 persons.

¶ 6. Both defendants were denied relief by the circuit court. In Franklin's case, the circuit court simply denied his motion as untimely. In Huck's case, in response to his motion alleging ineffective assistance, the circuit court held a hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) and took trial counsel's testimony regarding the absence of an objection to a six-person jury. After the hearing, the court denied the motion, concluding that Huck failed to prove prejudice to support his claim.

¶ 7. On appeal, the defendants again alleged that their trial attorneys were ineffective for failing to object to the six-person juries at their trials. More specifically, they asserted that their attorneys were ineffective for failing to be aware of the court of appeals' certification of Hansford to this court and for failing to offer it in support of a request for trial by a jury of 12. The court of appeals certified Hansford to us on December 11, 1997. The issue on certification was "whether Wis. Stat. § 756.096(3)(am), which provides for six-person juries in criminal misdemeanor cases, violates art. I, § 7 or art. I, § 5 of the Wisconsin Constitution." See Hansford, 219 Wis. 2d at 229 (footnotes omitted). We accepted certification of this issue on January 23, 1998, and issued a decision on June 19, 1998, finding the statute unconstitutional.

¶ 8. In Franklin's case, the court of appeals, in a one-judge decision, affirmed the circuit court's judgments of conviction and order denying Franklin's motion for post-conviction relief. In particular, with respect to his claim for ineffective assistance, the court concluded that Franklin was not entitled to relief because he had failed to allege any error that was committed in the fact-finding process at trial and failed to prove that he suffered any prejudice resulting from his six-person jury trials. The court admitted that it was conceivable that Franklin's chances for acquittal or hung juries may have been greater with 12 jurors than with six. However, the court stated that this assertion was speculative at best and was insufficient to establish prejudice.

¶ 9. The court of appeals also issued a one-judge decision in Huck's case, affirming the circuit court's judgments of conviction and orders denying post-conviction relief. With respect to Huck's ineffective assistance claim, the court held that, because the statute authorizing six-person juries was still good law at the time that Huck was tried, the failure of Huck's counsel to raise the issue at trial did not constitute deficient performance by counsel. Therefore, no claim for ineffective assistance could be established.

¶ 10. We are presented with one issue on review: whether the misdemeanants in these consolidated cases were denied the right to effective assistance of counsel when their attorneys failed to object to the six-person jury statute which was found unconstitutional in Hansford. We conclude that, because the defendants have failed to prove that any deficient performance prejudiced their defense, the defendants have failed to prove that they were denied effective assistance of counsel. As a result, we affirm the decisions of the court of appeals.

II

¶ 11. For ineffective assistance of counsel claims, this state has adopted the analysis from Strickland, 466 U.S. 668. In Strickland, the United States Supreme Court noted that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. To this end, the Court developed a two-pronged test to determine whether the assistance was so defective that reversal of conviction is required. Id. at 687. Under this test, a defendant must show (1) that his or her counsel's representation was deficient and (2) that this deficient performance resulted in prejudice to the defense. Id.

[1]

¶ 12. A claim of ineffective assistance of counsel presents a mixed question of fact and law. State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). The circuit court's findings of fact will not be overturned on appeal unless they are clearly erroneous. Id. Whether the trial counsel's conduct was deficient and whether it was prejudicial to the defendant are questions of law reviewed by this court de novo. Id.; State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).

¶ 13. Under the deficient performance prong, we examine whether "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The defendants assert that the performances of their attorneys fell below this standard because their attorneys knew or should have known of the court of appeals' certification of Hansford to this court and should have objected to six-person juries in light of this knowledge. We, however, need not address this issue because, even if the attorneys had performed deficiently, the defendants cannot prove prejudice under the second prong of the Strickland analysis. See Strickland, 466 U.S. at 697 (a court need not address both components of the inquiry if the defendant makes an insufficient showing on one).

¶ 14. To prove prejudice, a defendant is required to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. In other words, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Id. at 694. Under this test, a defendant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. However, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. The defendant's burden is to show that counsel's errors "actually had an adverse effect on the defense." Id.

[2]

¶ 15. Applying this test, we conclude that the defendants have failed to prove prejudice. In particular, the defendants have not shown that, but for their attorney's failure to object, there was a reasonable probability for a different result in their cases. A six-person jury in and of itself is an insufficient basis for us to conclude that the defendants were deprived of a fair trial whose result is reliable. In State v. Huebner, 2000 WI 59, ¶¶ 17-19, 31, 235 Wis. 2d 486, 611 N.W.2d 727 (3-1-3 decision), it was stated that, in view of our holding in Hansford, a six-person jury does not automatically render the trial invalid or affect the accuracy of the proceeding.

Nothing in Hansford suggests that having a six-person jury trial is equivalent to having no jury trial at all. Hansford did not state that a six-person jury is procedurally unfair or that it is an inherently invalid factfinding mechanism. Hansford only held that a six-person jury trial is not consistent with the historical meaning of the right

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