State v. Hansford

• Decision Date: 19 June 1998
• Docket Number: No. 97-0885-CR,97-0885-CR
• Citation: 219 Wis.2d 226,580 N.W.2d 171
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald A. HANSFORD, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 171

580 N.W.2d 171

219 Wis.2d 226

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald A. HANSFORD, Defendant-Appellant.

No. 97-0885-CR.

Supreme Court of Wisconsin.

Argued May 27, 1998.

Decided June 19, 1998.

For the defendant-appellant there were briefs and oral argument by Suzanne Hagopian, Assistant State Public Defender.

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

Amicus curiae brief was filed by Craig W. Albee and Shellow, Shellow & Glynn, S.C., Milwaukee for the Wisconsin Association of Criminal Defense Lawyers.

¶1 N. PATRICK CROOKS, Justice

This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § 809.61(1995-96). ¹ The issue certified to this court is whether Wis. Stat. § 756.096(3)(am), ² which provides for six-person juries in criminal misdemeanor cases, violates art. I, § 7 ³ or ART. I, § 5 OF THE WISCONSIN CONSTITUTION⁴. A second issue which was not certified to this court but was raised by the Defendant in his brief to the court of appeals, is whether the circuit court committed reversible error in denying the Defendant's request for a jury instruction on a common law right to change his name, because the circuit court concluded that such right is not recognized in Wisconsin. ⁵

¶2 Upon review, we conclude that Wis. Stat. § 756.096(3)(am) violates art. I, § 7 of the Wisconsin Constitution which guarantees the right to a jury of 12 persons, as recognized by the common law as it existed at the time the Wisconsin Constitution was adopted. See Wis. Const. art. XIV, § 13. ⁶ Accordingly, we reverse the circuit court's judgment convicting the Defendant of obstructing an officer. We also reverse the Defendant's conviction for bail jumping, since it was premised solely upon the circuit court's finding that the jury found the Defendant guilty of obstructing an officer. Because we conclude that § 756.096(3)(am) violates art. I, § 7 of the Wisconsin Constitution, it is not necessary for us to determine whether the circuit court committed reversible error by denying the Defendant's request for a jury instruction regarding a common law name change. However, for purposes of clarifying Wisconsin's common law, we further conclude that Wisconsin does recognize a common law right to change one's name through consistent and continuous use, as long as the change is not effected for a fraudulent purpose.

I.

¶3 The facts relevant to our review are not in dispute. On June 21, 1996, the Defendant and Troy Ullman (Ullman) had an altercation at a bar. As a result, Ullman called the Madison Police Department and filed a report. Eight days later, Ullman saw the Defendant at the same bar and again called the police. When the police officer arrived, Ullman pointed out the Defendant and informed the officer that the Defendant frequently used the name Bryan Storm. The uniformed officer approached the Defendant and asked him whether he was Ronald Hansford. The Defendant replied, "No," and said his name was Bryan. The officer placed the Defendant under arrest, and repeatedly asked the Defendant his name. The Defendant continued to state that his name was Bryan Storm. The Defendant was subsequently transported to jail, where he was presented with a picture of Ronald Hansford. The Defendant acknowledged that it was a picture of himself, but did not state that his name was Ronald Hansford. At the time of his arrest, the Defendant had been previously released on bail for charges of theft and obstructing an officer pending in Dane County.

¶4 On July 1, 1996, the State of Wisconsin (State) charged the Defendant with three Class A misdemeanor offenses: battery contrary to Wis. Stat. § 940.19(1); obstructing an officer contrary to Wis. Stat. § 946.41(1); and bail jumping contrary to Wis. Stat. § 946.49(1)(a). The Defendant filed a motion to sever the bail jumping charge from the charges of battery and obstructing. The circuit court denied the motion, and the Defendant thereafter waived his right to a trial by jury with regard to the bail jumping charge.

¶5 On October 14, 1996, the Defendant filed another motion, requesting that the battery and obstructing charges be tried to a jury of 12 persons. He argued that Wis. Stat. § 756.096(3)(am), which mandates six-person juries in misdemeanor cases, violates art. I, § 7 of the Wisconsin Constitution. Citing several Wisconsin Supreme Court and Courts of Appeals' decisions, including State ex rel. Sauk County Dist. Attorney v. Gollmar, 32 Wis.2d 406, 409, 145 N.W.2d 670 (1966), the Defendant asserted that the jury contemplated by the framers of the Wisconsin Constitution is a 12-person jury, and that the right to a trial by jury applies to criminal misdemeanor cases.

¶6 The circuit court denied the Defendant's motion, concluding that the Defendant had not proved that Wis. Stat. § 756.096(3)(am) is unconstitutional beyond a reasonable doubt. In its oral decision, the circuit court distinguished Gollmar, stating that the statutory provisions addressed in Gollmar were distinct, and that Gollmar had been decided prior to court reorganization in 1978. The circuit court further concluded that the Wisconsin Legislature has the authority to alter the required number of jurors in a misdemeanor case.

¶7 On October 15, 1996, the Defendant filed a proposed jury instruction on the common law right to change one's name by consistently and continuously using a new name. ⁷ The proposed jury instruction was proffered as part of a theory of defense. The Defendant's theory of defense was that because he had changed his name in accord with the common law, he did not intentionally obstruct the officer in denying that he was Ronald Hansford and stating that his name was Bryan Storm. The circuit court denied the Defendant's request for the instruction, concluding that Wisconsin does not recognize a common law right to change one's name through consistent and continuous use. ⁸

¶8 The charges of battery and obstructing an officer were tried to a jury of six persons. The jury acquitted the Defendant of the battery charge, and convicted the Defendant of the obstructing charge. Subsequently, the circuit court convicted the Defendant of bail jumping, citing the Defendant's conviction for obstructing as violating the terms of his bond.

¶9 The Defendant appealed his convictions on the charges of obstructing and bail jumping, and this court accepted certification of the case from the court of appeals.

II.

A.

¶10 We first address the issue certified by the court of appeals: whether Wis. Stat. § 756.096(3)(am) violates art. I, § 7 or art. I, § 5 of the Wisconsin Constitution. Whether a statute violates the Wisconsin Constitution is a question of law, which we review de novo. See State v. Hall, 207 Wis.2d 54, 67, 557 N.W.2d 778 (1997). Although we review questions of law de novo, we benefit from the analyses of the circuit court and the court of appeals. ⁹ See Aiello v. Village of Pleasant Prairie, 206 Wis.2d 68, 70, 556 N.W.2d 697 (1996). Statutes are afforded a presumption of constitutionality. See Association of State Prosecutors v. Milwaukee County, 199 Wis.2d 549, 557, 544 N.W.2d 888 (1996). Therefore, the Defendant bears the burden of proving that § 756.096(3)(am) is unconstitutional beyond a reasonable doubt. See id.

¶11 We first consider the language of art. I, § 7 which states in part that "[i]n all criminal prosecutions the accused shall enjoy the right ... in prosecutions by indictment, or information, to a speedy public trial by an impartial jury ..." To determine the Defendant's rights guaranteed under this provision of the Wisconsin Constitution, we must attempt to ascertain the intent of the framers of the constitution, as well as how the right to trial by jury was understood at common law, at the time the constitution was adopted. ¹⁰

¶12 The Wisconsin Constitution was adopted in 1848. Records from the constitutional conventions of 1846 and 1847-48 ¹¹ contain almost no debate about the guarantee of the right to a trial by jury. The little debate there was centered around the guarantee of a jury trial as opposed to a trial to the court, rather than the requisite number of jurors. ¹² Thus, the issue of the number of jurors guaranteed by the constitution was not directly addressed. However, it was referenced by a delegate during a debate regarding whether art. I, § 5 should prohibit judges from instructing juries other than as provided by statute. In his speech to the convention, Charles H. Lakin, a delegate from Milwaukee, stated in part:

If it be the name of trial by jury that enamours you, you can get something that will do as well, perhaps better, than flesh, and blood, and bones. Erect within your temples of justice twelve hollow, graven, brazen images. Have them so constructed that they will cast an echo; and as the dicta of the bench shall be hurled at them, the same will be reflected back to record; and if you will, you may call this, trial by jury.

Confident am I, that every freeman would like to be able to say to every usurper, "thus far shalt thou come, and when you step over the line which divides you from the jury box, you tread upon ground hallowed and rendered sacred by the genius of the constitution."

Journal of the Convention to form a Constitution for the State of Wisconsin, 124 (1848) (emphasis in original).

¶13 The statements of Charles H. Lakin seem to indicate that the framers may have viewed the right to a trial by jury as the right to a jury of 12 persons. However, due to the limited information elicited from the debates of the constitutional conventions, we seek guidance from decisions of this court, particularly those decisions that were handed down shortly after the adoption of the Wisconsin Constitution.

¶14 Five years after the adoption of the Wisconsin Constitution, this court addressed the issue...