State v. Kiernan
| Decision Date | 22 July 1998 |
| Docket Number | No. 97-2449-CR,97-2449-CR |
| Citation | 221 Wis.2d 126,584 N.W.2d 203 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Judith L. KIERNAN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Rebecca Lyman Persick, Law Offices of Barry S. Cohen, S.C. of Elkhart Lake.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert J. Wells, Jr., District Attorney and James A. Haasch, Assistant District Attorney.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
The notion that a criminal defendant is entitled to a fair trial before an impartial jury is the cornerstone of the Due Process Clause of the Fourteenth Amendment. Because we conclude Judith L. Kiernan was denied her fundamental due process rights when the trial court refused to strike for cause five jurors who had earlier rejected the identical theory of defense to be employed by her, we reverse.
Kiernan entered a not guilty plea and requested a jury trial on charges of operating a motor vehicle while intoxicated, third offense, in violation of §§ 346.63(1)(a) and 346.65(2)(c), STATS., and operating a motor vehicle with a prohibited blood alcohol concentration, third offense, contrary to §§ 346.63(1)(b) and 346.65(2)(c). On the surface, the jury selection process complied with the requirements of ch. 756, STATS., and §§ 972.03 and 972.04, STATS. Twenty-five of the twenty-seven jurors summoned for jury duty appeared. Using a computer-generated random list, twenty jurors were called for voir dire. After replacing one potential juror excused for cause, Kiernan and the State exercised four peremptory challenges each to secure a twelve-person jury.
However, prior to jury selection, trial counsel for Kiernan entered an objection to the array of the jury. The trial court put the objection aside until the completion of jury selection. Once the jury was sworn, it was excused and a record was made of Kiernan's objection. The thrust of the objection was that the trial court erred in not excusing five jurors called for voir dire who had served on a six-person jury two days earlier. The earlier trial was a first offense drunk driving case before the same judge and defended by the same attorney. Counsel pointed out that the defense theory in the earlier trial was that "residual mouth alcohol is a problem for the Intoxilyzer 5000" and he planned to use the same defense on behalf of Kiernan. 1
Counsel was troubled by the responses from four of the five veteran jurors during voir dire:
[F]our jurors indicated that unless I can prove to them that the person who operated the machine was a boob, or the machine didn't have all kinds of bells and whistles going off that it was malfunctioning, ergo, it does not pass its own diagnostic check, they are going to vote guilty on the prohibited alcohol concentration .... 2
And he described the problem that this created:
That leaves me any [sic ] the unenviable position of having to strike those jurors who I know will reject my defense today, and retain those jurors who I would otherwise strike if this were an untainted jury pool.
Counsel also made a record specifying the two potential jurors he would have struck if he had not been forced to use the four peremptory strikes to remove four of the five veteran jurors from the earlier trial. One individual had a close relative who had been injured by a drunk driver and the other was a social worker who knew several police officers.
Finally, counsel argued that the court's refusal to remove those five jurors from the jury pool summoned for the trial was unfair to Kiernan:
Miss Kiernan is the one that suffers. Because now we have twelve jurors who were the product of the Hobson's choice that I was presented with of leaving those jurors on, knowing that they were going to convict her on the prohibited alcohol concentration charge, and those jurors that I would have typically used my strikes for.
The assistant district attorney was not surprised by defense counsel's apprehension about having the same jurors on successive panels. He questioned the fundamental fairness of Sheboygan county's new jury system. He explained that he did not believe the jurors could disregard what went on in the earlier trial even if given a limiting instruction. The prosecutor expressed his concern that the veteran jurors would hear the exact same defense used two days earlier.
The trial court denied Kiernan's motion. The court explained that Sheboygan county had adopted a "lawful system" that is similar to the jury management system used in other counties that select jurors to serve for four weeks. 3 It noted that Kiernan's counsel had not presented any evidence that the jury management system was unlawful or that it unfairly discriminated by the exclusion or inclusion of certain groups or individuals. The court acknowledged that there had been complaints about the jury management system from other sources "and, I think in part, the complaints may have some justification."
However, according to the court, those complaints The court concluded that the jury that was ultimately selected and sworn could be fair and objective, that the jury selection process was not unfair and that it did not "unnecessarily cause defense counsel to have to strike this person or that person."
The jury returned guilty verdicts on both counts. Kiernan appeals from the judgment of conviction on the charge of operating while intoxicated, third offense. On appeal, Kiernan challenges the court's denial of her motion to strike the five veteran jurors. She argues that the court's actions violated her constitutional and statutory rights to a fair and impartial jury. She asserts that the court erroneously exercised its discretion in refusing to strike the five veteran jurors and this created the appearance of bias and prejudice. She contends that the five veteran jurors had the potential for unconscious bias and that from their voir dire responses that they would accept the Intoxilyzer 5000 as operating properly, it would be reasonable to infer that they had a bias against her theory of defense.
The State's response focuses on the jury that was ultimately selected. The State insists that Kiernan is not entitled to a perfect jury. It maintains that Kiernan failed to produce any evidence that the jury which rendered the verdicts was anything less than fair and impartial. Although the State also expresses some concern over the fact that five of the potential jurors had previous jury experience in a similar case, "the State firmly believes that the jury was impartial and the Trial Court was untainted by any erroneous exercise of discretion." 4
We are required to decide if prior jury service during which jurors rejected a theory of defense creates bias in subsequent cases where the same theory of defense is to be used. Whether the trial court arbitrarily forced Kiernan to use her peremptory challenges and thereby deprived her of a statutory guarantee turns on whether the five veteran jurors' bias is "manifest."
It is a well-settled principle of law in this state that a determination by a circuit court that a prospective juror can be impartial should be overturned only where the prospective juror's bias is "manifest."
State v. Ferron, 219 Wis.2d 481, 579 N.W.2d 654, 660 (1998).
The Wisconsin Supreme Court has recently clarified the standard of review that appellate courts must employ upon review of a circuit court's determination that a prospective juror can be impartial:
Accordingly, we hold that a prospective juror's bias is "manifest" whenever a review of the record: (1) 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) does not support a finding that a reasonable person in the juror's position could set aside the opinion or prior knowledge.
Adopting this approach serves two purposes. With a focus on prospective jurors' subjective willingness to set aside their biases, the first prong of this approach accounts for the circuit court's superior position to assess the demeanor and disposition of prospective jurors. The second prong allows the appellate courts to determine whether under the particular circumstances surrounding the voir dire examination, no reasonable juror could put aside the bias or opinion which is revealed by the record.
Id. at 498, 579 N.W.2d at 661.
Without a transcript of the voir dire, we are unable to focus on the jurors' subjective willingness to put aside what they learned in the earlier trial. We are unable to review the dialogue between the attorneys, the court and the potential jurors. We are also in the dark as to the trial court's conclusions concerning the prospective jurors' attitude, demeanor and disposition during voir dire. See id. at 497, 579 N.W.2d at 660. In denying Kiernan's motion, the court expressed its faith in the jurors in Sheboygan county. However, the court did not assess the impartiality of the five veteran jurors. See id. at 498, 579 N.W.2d at 660-61.
We are restricted in our analysis to the second prong of the test of whether a juror's bias is manifest. We must resolve whether under the particular circumstances surrounding the voir dire examination--the presence of five jurors who had previously heard and rejected a similar defense several days earlier--no reasonable juror could put aside what he or she had learned and assess Kiernan's defense fairly and impartially. See id.
Whether the trial court should have dismissed a potential juror for cause is a question of the proper exercise of the trial court's...
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State v. Kiernan
...had formed opinions on the subject matter of the trial, the veteran jurors were biased and should have been removed for cause. Kiernan, 221 Wis. 2d at 139. Since they were not, Kiernan was forced to exercise all of her peremptory strikes to correct the circuit court's error. Under State v. ......
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State v. Baker, 98-3489-CR
...who should have been removed for cause. See State v. Ramos, 211 Wis. 2d 12, 24-25, 564 N.W.2d 328 (1997); State v. Kiernan, 221 Wis. 2d 126, 137, 584 N.W.2d 203 (Ct. App. 1998), aff'd, 227 Wis.2d 736, 596 N.W.2d 760 5. In State v. James H. Oswald, 2000 WI App 3, 4, Nos. 97-1219-CR, 97-1899-......