State v. Huebner

Decision Date20 June 2000
Docket NumberNo. 98-2470-CR.,98-2470-CR.
Citation2000 WI 59,235 Wis.2d 486,611 N.W.2d 727
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Juergen HUEBNER, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there was a brief by Sally Day and Law Office of Sally Day, Milwaukee, and oral argument by Sally Day.

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. JON P. WILCOX, J.

The issue in this case is whether a defendant who did not object to the use of a six-person jury at his misdemeanor trial, as authorized by Wis. Stat. § 756.096(3)(am), may obtain a new trial in reliance on State v. Hansford's holding that § 756.096(3)(am) is unconstitutional. We conclude that he may not.


¶ 2. On February 18, 1998, the defendant Juergen Huebner was tried and convicted of two misdemeanors in the Circuit Court for Milwaukee County, Clare L. Fiorenza, Judge. The verdict in Huebner's case was rendered by a six-person jury, under the authority of Wis. Stat. § 756.096(3)(am)(1995-96).2 ¶ 3. At the time of Huebner's trial, this court had accepted the court of appeals' certification of State v. Hansford, No. 97-0885-CR, on the question of whether the six-person jury authorized by Wis. Stat. § 756.096(3)(am) violated art. I, § 7 of the Wisconsin Constitution. Huebner acknowledges that although Hansford was pending before this court at the time of his trial, he did not object to the use of a six-person jury at his trial.

¶ 4. On June 19, 1998, this court released its decision in State v. Hansford holding that the six-person jury authorized by Wis. Stat. § 756.096(3)(am) violated the jury trial guarantee of art. I, § 7 of the Wisconsin Constitution. State v. Hansford, 219 Wis. 2d 226, 243, 580 N.W.2d 171 (1998).

¶ 5. On August 25, 1998, Huebner filed a notice of appeal. Huebner's sole argument on appeal is that even though he did not object to the six-person jury at the time of his trial, Hansford applies retroactively to invalidate his conviction by a six-person jury. Huebner raises no other challenge to his conviction.

¶ 6. In an unpublished opinion, the court of appeals rejected Huebner's request for a new trial. State v. Huebner, No. 98-2470-CR, unpublished slip. op. (Wis. Ct. App. Dec. 22, 1998). The court of appeals concluded that Hansford only applies retroactively to cases in which the defendant objected to his trial by a six-person jury. Id. at 3. The court reasoned that although an increased number of jurors provides some numerical advantage to a defendant, that advantage did not warrant overturning an otherwise error-free trial when the defendant never objected to the six-person jury. Id. The court also rejected Huebner's argument that he had received ineffective assistance of counsel, because the court found no reasonable probability that a twelve-person jury would have produced a different outcome in Huebner's case. Id. at 3 and n.2.

¶ 7. This court granted Huebner's petition for review.


¶ 8. Huebner concedes that he made no objection to the use of a six-person jury at his trial. Furthermore, Huebner has abandoned any claim that he received ineffective assistance of counsel. Instead, Huebner now asserts that his trial counsel's assistance was neither incompetent nor deficient. Nonetheless, Huebner claims that this court should grant him a new trial under Hansford.

¶ 9. To support this argument, Huebner relies primarily on the retroactivity analysis set forth in State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993). In Koch, this court adopted the retroactivity analysis that the United States Supreme Court applies to cases on direct appeal. Under this approach,

`[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past.'

Koch, 175 Wis. 2d at 694 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). According to Huebner, this

rule means that Hansford applies retroactively to his case.

[1, 2]

¶ 10. The flaw in Huebner's reasoning is that unlike the defendants in Koch, Griffith, and Hansford, Huebner made no constitutional objection at the trial court level. It is a fundamental principle of appellate review that issues must be preserved at the circuit court. Issues that are not preserved at the circuit court, even alleged constitutional errors, generally will not be considered on appeal. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997). The party who raises an issue on appeal bears the burden of showing that the issue was raised before the circuit court. Id. at 604.

[3, 4]

¶ 11. We have described this rule as the "waiver rule,"3 in the sense that issues that are not preserved are deemed waived. See id.; State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999)

. The waiver rule is not merely a technicality or a rule of convenience; it is an essential principle of the orderly administration of justice. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 894-95 (1991) (Scalia, J., concurring)(citing 9 C. Wright and A. Miller, Federal Practice and Procedure § 2472 at 455 (1971)). The rule promotes both efficiency and fairness, and "go[es] to the heart of the common law tradition and the adversary system." Caban, 210 Wis. 2d at 604-05; see also Erickson, 227 Wis. 2d at 766.


¶ 12. The waiver rule serves several important objectives. Raising issues at the trial court level allows the trial court to correct or avoid the alleged error in the first place, eliminating the need for appeal. Erickson, 227 Wis. 2d at 766. It also gives both parties and the trial judge notice of the issue and a fair opportunity to address the objection. Erickson, 227 Wis. 2d at 766. Furthermore, the waiver rule encourages attorneys to diligently prepare for and conduct trials. Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). Finally, the rule prevents attorneys from "sandbagging" errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal. Freytag, 501 U.S. at 895; see also Vollmer, 156 Wis. 2d at 11

. For all of these reasons, the waiver rule is essential to the efficient and fair conduct of our adversary system of justice.

¶ 13. Huebner does not attempt to show that the constitutional issue he raises on appeal was raised below. He concedes that at the trial court level he acquiesced in the application of Wis. Stat. § 756.096(3)(am) to his case.

¶ 14. Instead, Huebner argues that he can circumvent the waiver rule because of constitutional considerations. Although the waiver rule is an important principle of judicial administration, it does not apply to all defects in trial court proceedings. Huebner points out that a criminal defendant has certain fundamental constitutional rights that may only be waived personally and expressly. State v. Albright, 96 Wis. 2d 122, 129-30, 291 N.W.2d 487 (1980). These fundamental rights include the right to the assistance of counsel, the right to refrain from self-incrimination, and the right to have a trial by jury. Id. at 130 (citations omitted). Such rights cannot be forfeited by mere failure to object.

¶ 15. Huebner argues that his right to a twelve-member jury falls within this category of rights. He cites Albright's statement that "the decision whether to request a trial by jury" is a fundamental, personal right. See Albright, 96 Wis. 2d at 130

. Equating the right to a jury of twelve members with the right to a trial by jury, Huebner argues that he could not forfeit his right to a twelve-member jury in the absence of an express, personal waiver.


¶ 16. Whether Huebner's waiver of his right to a twelve-member jury could only be made expressly and personally is a question that requires the application of constitutional principles. We review such questions independently. State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999).

¶ 17. As Albright states, the right to a jury trial is a fundamental constitutional right that may only be waived personally and expressly. However, Huebner has not lost his right to a jury trial. A trial by six jurors is not equivalent to no jury trial at all. Huebner received an otherwise fair and error-free trial by six jurors.


¶ 18. 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 to a jury trial under art. I, § 7 of the Wisconsin Constitution. Hansford, 219 Wis. 2d at 249. The court reached this conclusion based on a careful examination of the history of the Wisconsin Constitution and this court's longstanding interpretation of the right to trial by jury in art. I, §§ 5 and 7. Id. at 242-43.

¶ 19. We find nothing in Hansford to support the conclusion that the difference between a six-person jury trial and a twelve-person jury trial is so fundamental that a six-person jury trial, which was conducted without objection under the express authority of a statute, is automatically invalid.

¶ 20. Our conclusion on this point may appear to conflict with State v. Cooley, 105 Wis. 2d 642, 645-46, 315 N.W.2d 369 (Ct. App. 1981). See also State v. Wingo, 2000 WI 31, ¶ 16, 233 Wis. 2d 467, 609 N.W.2d 162

(discussing Cooley). However, we conclude that Cooley does not apply to Huebner's case.

¶ 21. The defendant in Cooley was on trial for second-degree sexual assault. Cooley, 105 Wis. 2d at 643. During the trial, one of the jurors announced that she knew the victim's mother, who was...

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