State v. Ledger

• Citation: 499 N.W.2d 198,175 Wis.2d 116
• Decision Date: 03 March 1993
• Docket Number: No. 92-0750-CR,92-0750-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael S. LEDGER, Defendant-Appellant. d
• Court: Court of Appeals of Wisconsin

Page 198

499 N.W.2d 198

175 Wis.2d 116

STATE of Wisconsin, Plaintiff-Respondent, v. Michael S. LEDGER, Defendant-Appellant. ^d

No. 92-0750-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 24, 1992.

Opinion Released March 3, 1993.

Opinion Filed March 3, 1993.

Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.

NETTESHEIM, Presiding Judge.

Michael Ledger appeals from a judgment of conviction for masked armed robbery as a party to the crime, contrary to secs. 939.05, 939.641 and 943.32(2), Stats., and from an order denying his motion for postconviction On December 6, 1989, a masked armed robbery occurred at a Brookfield service station. Ledger was later arrested and charged with masked armed robbery as a party to the crime based upon information obtained from the victim and from Ledger's accomplice during the robbery.

relief. Ledger's principal argument is that his right to a jury trial under the Wisconsin Constitution was violated when the parties stipulated to allow a thirteen-member jury panel to deliberate and render a verdict. ¹ He also argues that statements obtained by the police after his arrest violated his sixth amendment right to counsel and that a voice identification lineup procedure was unconstitutionally violative of his right to due process and his sixth amendment right to counsel. We affirm.

By a pretrial motion, Ledger sought to suppress certain statements made by him to the police. He also sought to suppress the victim's voice identification obtained via a voice lineup procedure. The trial court denied both suppression requests.

At the opening of the trial, the trial court suggested that an additional juror be impaneled because of the anticipated length of the trial. The parties agreed. See secs. 972.04(1) and 805.08(2), Stats. The court also urged the parties to consider using the thirteen-member jury to deliberate and render a verdict. The court stated it would ask for the parties' position on the issue at the close of the evidence.

Before the case was submitted to the jury, the trial court revisited this question. The prosecutor and defense counsel mutually agreed to allow the thirteen-member jury to deliberate and render a verdict. In a personal colloquy with Ledger, the trial court explained the agreement and ensured that Ledger both understood and desired to have the thirteen-member jury deliberate his guilt or innocence. Ledger replied that he understood the agreement, that he had discussed the matter with his attorney, and that he wished to proceed with the thirteen-member jury. ²

Pursuant to the parties' agreement, the thirteen-member jury deliberated and returned a verdict. The jury found Ledger guilty of masked armed robbery as a party to the crime. The court sentenced Ledger to twenty-five years imprisonment. After denial of his postconviction motions, Ledger brought this appeal.

THIRTEEN-MEMBER JURY

Ledger claims that the use of a thirteen-member jury is not recognized by Wisconsin statutory law. Thus, he concludes that the use of the thirteen-member jury violated his right to a jury trial pursuant to the Wisconsin Constitution, art. I, sec. 7, ³ despite his agreement to the contrary.

Whether Ledger was denied a constitutional right is a question of constitutional Ledger relies upon a series of Wisconsin Supreme Court decisions to support his argument that his right to a jury trial under the Wisconsin Constitution was violated when the parties stipulated to a thirteen-member jury panel. In State v. Lockwood, 43 Wis. 403 (1877), the supreme court held that the trial court was without jurisdiction to try a criminal case without a jury even in the face of a jury waiver. "The right of trial by jury," the court declared, "is secured by the constitution, upon a principle of public policy, and cannot be waived." Id. at 405.

fact that we review independently as a question of law. State v. Dean, 163 Wis.2d 503, 511, 471 N.W.2d 310, 313-14 (Ct.App.1991).

Eight years later, in In re Staff, 63 Wis. 285, 294-95, 23 N.W. 587, 590-91 (1885), the supreme court departed from the absolute stance taken in Lockwood and upheld the constitutionality of the defendant's jury waiver. There, the defendant waived a jury trial in municipal court pursuant to a statute which recognized such a waiver in limited situations. ⁴ The court held that the defendant could constitutionally waive a jury trial in those instances where the legislature had expressly provided for such a procedure. Id. at 294-96, 23 N.W. at 590-91.

In a later case, Jennings v. State, 134 Wis. 307, 114 N.W. 492 (1908), however, the supreme court relied on Lockwood to support its holding that an accused cannot consent to a jury of less than twelve. The court reasoned that "[i]f it is deemed good public policy to extend the privilege of waiving a jury in criminal cases, such policy should find expression in appropriate legislative action." Jennings, 134 Wis. at 310, 114 N.W. at 493.

In 1911, the Wisconsin legislature enacted a statute which allowed a waiver of less than twelve jurors but not a waiver of a jury trial altogether. ⁵ Mindful of this fact, the supreme court ruled in State v. Smith, 184 Wis. 664, 672-73, 200 N.W. 638, 641 (1924), that the defendant could not waive a jury in full. The legislature responded one year later with an amendment to the trial by jury statute permitting a trial without a jury with the consent of the defendant. See sec. 357.01, Stats. (1925). ⁶

The theme Ledger draws from these cases is that unless the legislature has expressly recognized a particular kind of jury waiver, such waiver is constitutionally Section 972.02, Stats., provides in relevant part:

ineffective. See, e.g., State ex rel. Sauk County D.A. v. Gollmar, 32 Wis.2d 406, 410 & n. 3, 145 N.W.2d 670, 672 (1966). He reasons that because the present trial by jury statute, sec. 972.02, Stats., does not expressly recognize a jury comprised of more than twelve members, his agreement to the contrary and the trial court's approval of the procedure is without legal effect.

Jury trial; waiver. (1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury of 12, drawn as prescribed in ch. 805, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.

(2) At any time before verdict the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than 12.

We accept Ledger's assertion that the jury contemplated by art. I, sec. 7 of the Wisconsin Constitution is the type of jury recognized at common law, i.e., a twelve-member jury. See, e.g., State ex. rel Sauk County, 32 Wis.2d at 409, 145 N.W.2d at 671-72; State v. Cooley, 105 Wis.2d 642, 645, 315 N.W.2d 369, 370-71 (Ct.App.1981). We also accept that a thirteen-member jury is not contemplated by sec. 972.02, Stats., since subsec. (1) of the statute recognizes a twelve-member jury and subsec. (2) recognizes a jury of less than twelve members when all parties stipulate. We also note that sec. 805.08(2), Stats., states that "if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them." (Emphasis added).

Nonetheless, we are not persuaded that the procedure employed here requires reversal. When the trial court suggested the possibility of using a thirteen-member jury, the court directed defense counsel to discuss the matter with Ledger. The court clearly stated that it would not use the procedure unless agreed to by all the parties. At the close of the evidence, defense counsel and the prosecutor indicated their agreement. The court then engaged in a personal colloquy with Ledger assuring that Ledger: (1) understood the agreement, (2) understood its consequences, (3) had received sufficient time to discuss the matter with his counsel, and (4) wished to proceed with the thirteen-member jury.

After the agreement was consummated and before the jury began its deliberations, the trial court instructed the jury that "before you can return a verdict which legally can be received, your verdict must be unanimous. In a criminal case all 13 of you must agree on what the verdict is before that verdict can legally be received by me." When the jury returned after deliberations, the verdicts were received without complaint, and the court inquired whether the jury had "arrived at a unanimous verdict."

We see no constitutional impediment to the use of a thirteen-member jury in the face of such an elaborate and detailed record documenting the defendant's consent and the jury's understanding of the unanimity requirement.

Moreover, we are convinced there is no likelihood that a thirteen-member jury would convict more readily than would a twelve-member jury. Indeed, the case law commentary suggests just the opposite. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court upheld a Florida statute which limited defendants to a six-member jury in all but capital cases. The Court stated that "the 12-man jury [might] give[ ] a defendant a greater advantage since he has more chances of finding a juror who will insist on acquittal and thus prevent conviction." Id. at 101 & n. 47, 90 S.Ct. at 1906 & n. 47. In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), the Supreme Court upheld the defendant's conviction by a nine-member majority vote of the jury. The Court stated: "Of course, the State's proof could be regarded as more certain if it had convinced all 12 jurors instead of only nine; it would All of the cases Ledger cites recognize that statutory authority is required to diminish a defendant's constitutional right to a jury trial. See, e.g., Lockw...