State v. Lehman
| Decision Date | 02 July 1982 |
| Docket Number | No. 81-1253-CR,81-1253-CR |
| Citation | 321 N.W.2d 212,108 Wis.2d 291 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. William E. LEHMAN, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Mary E. Waitrovich, Asst. State Public Defender, for defendant-appellant.
Chris Heikenen, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.
The validity of a jury verdict is challenged in this review on the ground that during the jury deliberations a regular juror was discharged and, over defendant's objection, an alternate juror who previously had been discharged by the circuit court joined the jury and participated in the jury's deliberations and verdict. In its memorandum decision on motions after verdict, the circuit court for Douglas county, Arthur A. Cirilli, Circuit Judge, apparently concluded that it had erred in allowing the alternate juror to join the jury mid-way in the jury deliberations but that the error was harmless. The defendant appealed from the judgment of conviction and from the order denying his motion for a new trial, and this court granted defendant's petition to bypass the court of appeals. Sec. 808.05(1), sec. (rule) 809.60, Stats.1979-80. We hold that because no statute or rule expressly authorizes a circuit court to substitute an alternate juror during jury deliberations for a juror who has been discharged, the circuit court committed error in making the substitution and that the error constitutes ground for reversal.
The facts are not in dispute. The defendant was charged with numerous offenses, including robbery, armed robbery, escape, endangering safety by conduct regardless of life and auto theft. The defendant plead not guilty and not guilty by reason of mental disease or defect. Prior to the completion of the guilt phase of the bifurcated trial, several charges were dismissed, and the defendant changed his plea to guilty to the remaining charges.
The second phase of the bifurcated trial dealing with the plea not guilty by reason of mental disease or defect commenced. The second phase of the trial was brief, lasting only about four and one half hours. 1 Thirteen jurors, twelve regular jurors and one alternate juror, heard all the evidence and were instructed in the law by the circuit court. At 4:25 p. m. when the jury retired to deliberate, the circuit court advised the alternate juror as follows:
The jury deliberated from 4:25 p. m. until dinner. According to the circuit court's memorandum decision the jurors went to dinner at about 6 p. m. During this stage of the deliberations, one of the jurors apparently became ill. Although it appears from the record that the clerk's office knew that one of the jurors was ill before the jurors went to dinner, the record does not indicate when or by whom the juror was discharged. The record is silent as to whether that juror was discharged before or at the dinner break and whether only eleven jurors conferred for some time before dinner. The record is silent as to whether the circuit judge questioned the juror prior to her discharge. According to the docket entries, the jurors returned from dinner at about 7:10 p. m., and retired for further deliberations at about 7:20 p. m.
At the hearing on defendant's motion for a new trial, the alternate juror described his activities from 4:25 p. m. to 7:10 p. m. as follows: He remained in the courtroom for about forty-five minutes and was then discharged from jury duty by the circuit judge. He drove directly home, approximately twenty-six miles from the courthouse. He estimated his driving time as forty-five to fifty minutes. Upon arriving home he received a phone call from a woman (whom he supposed worked in the clerk's office) and was asked to return to the courthouse because one of the jurors had been taken ill. (On the basis of the alternate juror's testimony, the telephone call appears to have come at about 5:55 p. m.) He spent about ten minutes at home, going to the bathroom and getting a sandwich. He then drove back to the courthouse and went to the courtroom, which was empty. (Thus it appears that he returned to the courtroom at about 6:50 p. m.) He spoke to no one about the case after he was released from jury duty and before he entered the jury room. No one told him what to do when he arrived in the courtroom. He did what he assumed he was supposed to do. He just waited, and when the jurors returned to the courtroom after dinner he just followed them into the jury room and joined the deliberations. He was not questioned by either the state's or defendant's attorney or the circuit court prior to his retiring with the jury, and neither he nor the other jurors were given any further instructions by the court.
Some time after the jury came back from dinner (the exact time is not clear in the record) and while the alternate juror was deliberating with the original jurors, the circuit court judge held a conference in chambers with both counsel and the defendant. The circuit judge told those present that a juror had been taken ill and had gone home. The circuit judge proposed that the alternate juror join the jury deliberations. The circuit judge did not advise counsel that the alternate juror had been discharged and had driven to and from his home, but merely said: The defense counsel and defendant objected to the substitution of the alternate juror and were unwilling to stipulate to a jury of eleven persons. The circuit court "ordered that the thirteenth juror will take the place of the juror who became ill and he will go into deliberations with the others." Unbeknownst to the circuit court and counsel, the alternate juror had already joined the jury deliberations.
The circuit court then asked the jury to be brought to the courtroom to answer questions which the jury had sent to the court. Neither the time the jury submitted the questions nor the content of the questions appears in the record before us. The record does not explain whether eleven or twelve jurors formulated the questions and, if twelve, whether the twelfth was the discharged juror or the alternate juror.
At about 8:07 p. m., according to the circuit court's memorandum decision, the jury returned to the courtroom, and the foreman advised the circuit court that There was an unreported bench conference after which the circuit court told the jurors that the questions being asked were irrelevant, that they had their instructions, and that they should go back and deliberate. At 8:11 p. m., according to the docket entries, the jury retired for further deliberations. Thirty-four minutes later, at 8:45 p. m., according to the court reporter's transcript, the jury returned with its verdict. The jury found that at the time the crimes were committed the defendant did not have a mental disease. Thus the jury deliberated for about one hour and thirty-five minutes (4:25 p. m. to 6:00 p. m.) before the alternate juror joined the deliberations and for about one hour and twenty-one minutes (7:20 p. m. to 8:07 p. m.; 8:11 p. m. to 8:45 p. m.) after the alternate juror joined the jury.
The defendant presents two arguments for reversal of the judgment of conviction and the order denying post-conviction relief. The defendant argues that the circuit court erred when the regular juror was discharged during jury deliberations without the court making inquiry on the record into the necessity for the discharge. The defendant also asserts that the circuit court erred in substituting the alternate juror after jury deliberations had begun.
We first consider the defendant's assertion that the circuit court erred in discharging a regular juror without making inquiry on the record into the necessity for the discharge or without explaining on the record the reasons for the discharge. 2 The defendant bases this claim of error on sec. 972.02, Stats.1979-80, sec. 7, Art. I of the state constitution 3 and the sixth amendment and the due process clause of the fourteenth amendment of the federal constitution. 4
The defendant asserts that his statutory right to jury trial by twelve persons was denied when the circuit court allowed one of the regular jurors to be discharged during jury deliberations without the consent of the parties and without inquiring into or making findings of the necessity for the discharge. Sec. 972.02, Stats.1979-80, provides for a jury of twelve in criminal cases unless the defendant waives a jury or stipulates to any number fewer than twelve in writing or by statement in open court on the record. Sec. 972.02(1), (2), Stats.1979-80, provides as follows:
The defendant did not waive a jury or stipulate to being tried by fewer than twelve jurors.
This court has previously considered the powers of the circuit court to discharge a regular juror during trial. We have concluded that the circuit court has discretion to discharge a regular juror during trial for...
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