State v. Kiernan

Decision Date08 July 1999
Docket NumberNo. 97-2449-CR.,97-2449-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Judith L. KIERNAN, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Paul Lundsten, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Chad A. Lanning and Barry S. Cohen, S.C., Elkhart Lake, with oral argument by Dennis M. Melowski.

¶ 1. ANN WALSH BRADLEY, J.

The State of Wisconsin seeks review of a published decision of the court of appeals reversing the convictions of Judith Kiernan for operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle while having a prohibited breath alcohol concentration.1 The State maintains five prospective jurors did not need to be removed for cause even though those prospective jurors had been part of a jury that two days earlier returned a verdict of guilty in a case involving the same defense attorney, similar facts, and the same defense theory. Because we conclude that reasonable jurors under these circumstances could not objectively set aside their opinion or prior knowledge so as to fairly and impartially decide Kiernan's case, we affirm the decision of the court of appeals.

¶ 2. Kiernan was arrested in rural Sheboygan County and charged with operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle while having a prohibited breath alcohol concentration, contrary to Wis. Stat. § 346.63(1)(a), (b) (1997-98).2 Kiernan pled not guilty and requested a jury trial.

¶ 3. Sheboygan County calls its residents for jury duty from a computer randomized list created for that purpose. This relatively large group called for jury duty is collectively assigned to a particular branch of the circuit court for a one-month period. See Wis. Stat. § 756.28(2). Every case called in that branch during that month has its jury selected from the large group of jurors. Apparently this system generally works well, but problems with such a system are revealed in the unique facts of this case.3 ¶ 4. The morning of Kiernan's trial began with jury selection. The circuit court randomly selected twenty prospective jurors from its monthly allocation—twelve to ultimately serve on the jury and eight extra persons to account for the four peremptory strikes both the State and Kiernan were allotted. As the pool of twenty prospective jurors made its way into the courtroom, Kiernan's attorney recognized five members from the jury of a case he had lost two days earlier in the same branch of the circuit court.

¶ 5. Ordinarily, as defense counsel later admitted, the reappearance of "veteran" jurors in another case tried by the same attorney would cause little, if any, concern. Here, however, Kiernan's case essentially was "deja vu all over again." It was a carbon copy of the earlier case.

¶ 6. In both cases the State prosecuted a person for driving an automobile while intoxicated with a breath alcohol content of 0.11. In both cases the State's strongest evidence was a reading from a breathalyzer machine, the Intoxilyzer 5000, showing that the defendants' breath alcohol was in excess of the permitted legal limit. Most importantly, in both cases the theory of defense was to discredit the breath alcohol reading given by the Intoxilyzer 5000.

¶ 7. The theory advanced in both trials was that objects in the mouth would absorb alcohol thereby rendering breathalyzer readings inaccurately high.4 While this concern has been most commonly associated with chewing gum or tobacco, both defendants wore dentures and asserted that the adhesive used to secure their dentures absorbed alcohol in a similar manner.

¶ 8. Kiernan's counsel, upon recognizing the five veteran jurors, immediately alerted the circuit court of his concern and requested that the five veteran jurors be replaced with five other prospective jurors. The circuit court apparently took his protestations under advisement and continued with voir dire. Unfortunately, it is unknown what exactly took place at voir dire because it was not recorded.

¶ 9. However, based on recorded conversations between the court and defense counsel that occurred after the jury was selected but before the trial began, we are able to discern the following information. First, defense counsel quizzed the five veteran jurors about their reliance on the Intoxilyzer 5000. One veteran juror indicated that she would trust the results of the machine unless it was shown that the breath test was administered by an unqualified person or the machine failed its own diagnostic check. Three of the other four veteran jurors agreed with that assessment. Second, the circuit court declined to remove any of the veteran jurors for cause. Third, Kiernan exhausted all of her peremptory strikes to remove the four veteran jurors who concluded that the breathalyzer machine, absent the extraordinary circumstances above, would render an accurate reading. Fourth, if the court would have removed the veteran jurors for cause, Kiernan would have used her peremptory strikes to remove other prospective jurors who ultimately ended up sitting on the jury that heard the case.5

¶ 10. The circuit court, in declining to remove the veteran jurors, noted that the jury selection methodology used in Sheboygan County was lawful and that Kiernan had not shown any improper discriminatory exclusion of a person or group of persons. It then expressed confidence in the ability of the citizens of Sheboygan County to be fair and impartial jurors. The court reasoned that the veteran jurors were not biased merely because they rejected the defense theory at the first trial and would likely do so again at this trial. According to the circuit court, the veteran jurors' rejection of the defense theory spoke not to their biases but to the deficiency of the theory and to the manner in which it was advanced at trial.6 Quite simply, the circuit court reasoned that from the evidence produced at the first trial, the veteran jurors could do nothing but believe the breath alcohol reading from the Intoxilyzer 5000 was accurate.

¶ 11. The jury as selected ultimately convicted Kiernan on both counts. Kiernan appealed and the court of appeals reversed.

¶ 12. The court of appeals concluded that reasonable jurors in the veteran jurors' position could not set aside their opinions or prior knowledge and should have been removed for cause. See State v. Ferron, 219 Wis. 2d 481, 498-99, 579 N.W.2d 654 (1998)

. It reasoned that based on the record the veteran jurors expressed their disbelief of the theory advanced by the defense before they had heard the evidence in Kiernan's trial. Because they 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. Ramos, 211 Wis. 2d 12, 24-25, 564 N.W.2d 328 (1997), this act entitled her to a new trial, even though the jury that found her guilty was fair and impartial. The State petitioned this court for review.

[1]

¶ 13. Two years ago, this court concluded that a defendant forced to exercise peremptory strikes in order to correct a circuit court's error in voir dire impermissibly deprived the defendant of an important statutory right. Ramos, 211 Wis. 2d at 24-25. The deprivation warranted reversal of the conviction and a new trial even though the jury that ultimately heard the case was in all respects impartial. Id. Since that time, this court has faced a number of juror bias cases where the issue has not been whether the defendant was convicted by an impartial jury but whether court errors in the jury selection process entitled the defendant to a new trial. Ferron, 219 Wis. 2d at 498-99; State v. Erickson, 227 Wis. 2d 758, 772-73, 596 N.W.2d 749 (1999); State v. Mendoza, 227 Wis. 2d 838, 861, 596 N.W.2d 736 (1999). This is another such case.

[2]

¶ 14. We recently noted that three types of bias can exist. State v. Faucher, 227 Wis. 2d 700, 716-17, 596 N.W.2d 770 (1999). The first and least common is statutory bias. This category of bias derives from Wis. Stat. § 805.08 and declares as a matter of law that certain categories of persons shall be removed as jurors "regardless of his or her ability to be impartial." Faucher at 717. Statutory bias is a conclusion of law premised on the belief that certain relationships are so inherently prone to partiality that an individual case-by-case inquiry is not worth the time or effort. See Dennis v. United States, 339 U.S. 162, 181 (1950) (Frankfurter, J., dissenting)

("if the circumstances of that class in the run of instances are likely to generate bias. . .it would be a hopeless endeavor to search out the impact of these circumstances on the mind and judgment of a particular individual").

[3]

¶ 15. The second type of bias is termed subjective bias. This category of bias inquires whether the record reflects that the juror is a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the juror might have. Ferron, 219 Wis. 2d at 498; see also State v. Delgado, 223 Wis. 2d 270, 282, 588 N.W.2d 1 (1999)

. Discerning whether a juror exhibits this type of bias depends upon that juror's verbal responses to questions at voir dire, as well as that juror's demeanor in giving those responses. These observations are best within the province of the circuit court. On review, we will uphold the circuit court's factual findings regarding a prospective juror's subjective bias unless they are clearly erroneous.

[4-6]

¶ 16. The third and final category of bias is objective bias. In some circumstances, bias can be detected "from the facts and...

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