State v. Lepsch

Decision Date31 March 2017
Docket NumberCase No.: 2014AP2813-CR
Citation374 Wis.2d 98,892 N.W.2d 682
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey P. LEPSCH, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner, there was a brief by Steven W. Zaleski, and Zaleski Law Firm, Madison, and oral argument by Steven W. Zaleski.

For the plaintiff-respondent the cause was argued by Sara Lynn Shaeffer, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished decision of the court of appeals, State v. Lepsch , No. 2014AP2813-CR, unpublished slip op., 366 Wis.2d 330, 2015 WL 7287026 (Wis. Ct. App. Nov. 19, 2015) (per curiam), which affirmed the La Crosse County circuit court's1 judgment of conviction of defendant Jeffrey Lepsch ("Lepsch") and order denying Lepsch's motion for postconviction relief.

¶2 A jury found Lepsch guilty of killing two individuals during an armed robbery in La Crosse, Wisconsin.2 Lepsch was sentenced to consecutive life terms in prison.

Before this court, Lepsch argues he is entitled to a new trial due to alleged errors pertaining to jury selection and the jury Lepsch received.

¶3 More specifically, Lepsch presents the following arguments: (1) Lepsch's right to a trial by an impartial jury was violated because certain of the jurors in his case were subjectively and objectively biased; (2) Lepsch's right to due process of law was violated because of circumstances that created the likelihood or appearance of bias and because of alleged deficiencies in the circuit court's investigation into and mitigation of these circumstances; (3) Lepsch's right to be present at a critical stage of his proceedings, right to a public trial, and right to a jury properly sworn to be impartial were violated because the La Crosse County Clerk of Courts administered the oath to the prospective jurors in Lepsch's case outside of Lepsch's presence;3 and (4) Lepsch's right to receive the proper number of peremptory strikes, to full use of those strikes, and to have biased jurors removed for cause was violated by the circuit court. Lepsch explains that "all of the issues litigated in this appeal have been raised via a claim of ineffective assistance of counsel."4

¶4 We conclude that each of Lepsch's claims fails, and that he is not entitled to a new trial. Consequently, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 On September 15, 2012, police were dispatched to a store in La Crosse, WI. The bodies of P.P. and A.P had been discovered by a family member at the store; each had been shot in the head. There were also signs of a robbery.

¶6 On October 10, 2012, Lepsch was charged with two counts of first-degree intentional homicide, contrary to Wis. Stat. § 940.01(1)(a). The following day, an amended complaint was filed additionally charging Lepsch with armed robbery with use of force, contrary to Wis. Stat. § 943.32(1)(a) and (2), and possession of a firearm by a felon, contrary to Wis. Stat. § 941.29(2)(a). On October 25, 2012, at Lepsch's arraignment, Lepsch stood mute and the circuit court entered pleas of not guilty on his behalf. A few months later, the case was set for a jury trial.

¶7 Jury selection in this case proceeded as follows. Prior to the date of jury selection, prospective jurors completed paper questionnaires asking dozens of questions on subjects ranging from the jurors' favorite television shows to the jurors' views on various legal propositions. These questionnaires required a signature under the following statement: "I affirm, under penalty of perjury, that I have given complete and honest answers to all of the questions above." The parties agreed to excuse about two dozen prospective jurors at least in part on the basis of the answers provided. On July 23, 2013, jury selection itself occurred. Prospective jurors gathered in the "jury assembly room," where they were sworn by the La Crosse County Clerk of Courts. The parties seem to agree that neither Lepsch nor his attorneys were present when the oath was administered.

¶8 Certain prospective jurors were then brought into the courtroom for individual questioning in the presence of the court, Lepsch, and his attorneys. A number of prospective jurors were excused. Next, remaining prospective jurors were brought into the courtroom as a group and questioned in the presence of the court, Lepsch, and his attorneys. Finally, Lepsch and the State were each given six peremptory strikes and a panel of 15 jurors was selected.

¶9 From Wednesday, July 24, 2013, to Friday, July 26, 2013, and from Monday, July 29, 2013, to Tuesday, July 30, 2013, Lepsch was tried before the jury. There is no dispute that this jury was properly sworn by a clerk in Lepsch's presence in court at the start of his trial. On July 30, 2013, the jury returned a verdict of guilty as to all counts charged. On September 3, 2013, the circuit court sentenced Lepsch to two life sentences without extended supervision for the homicide charges, a 40-year term of imprisonment for the armed robbery charge, and a 10-year term of imprisonment for the possession of a firearm by a felon charge, all to be served consecutively. On September 4, 2013, the judgment of conviction was entered.

¶10 On November 25, 2013, Lepsch filed a notice of intent to seek postconviction relief, and on July 15, 2014, Lepsch filed a postconviction motion for a new trial. In his motion he challenged the convictions asserting that he received ineffective assistance of counsel. On September 4, 2014, the circuit court held a Machner hearing on Lepsch's motion. See State v. Machner , 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979). On November 14, 2014, the circuit court denied Lepsch's motion.

¶11 On December 2, 2014, Lepsch filed a notice of appeal. On November 19, 2015, the court of appeals affirmed the circuit court's judgment of conviction and order denying postconviction relief in an unpublished, per curiam opinion. Lepsch , unpublished slip op., ¶1.

¶12 On December 4, 2015, Lepsch filed a petition for review in this court. On May 11, 2016, this court granted the petition.

II. STANDARD OF REVIEW

¶13 "A claim of ineffective assistance of counsel is a mixed question of fact and law." State v. Ortiz-Mondragon , 2015 WI 73, ¶30, 364 Wis.2d 1, 866 N.W.2d 717 (quoting State v. Carter , 2010 WI 40, ¶19, 324 Wis.2d 640, 782 N.W.2d 695 ). We review the circuit court's findings of fact under a clearly erroneous standard, but independently determine the legal question of whether counsel's assistance was ineffective. Id. (quoting Carter , 324 Wis.2d 640, ¶19, 782 N.W.2d 695 ).

¶14 We "review[ ] constitutional questions, both state and federal, de novo." State v. Lagrone , 2016 WI 26, ¶18, 368 Wis.2d 1, 878 N.W.2d 636 (quoting State v. Schaefer , 2008 WI 25, ¶17, 308 Wis.2d 279, 746 N.W.2d 457 ).

¶15 Other applicable standards will be discussed below.

III. ANALYSIS

¶16 Lepsch's appeal focuses on his ineffective assistance of counsel claim.5

Lepsch possesses state and federal constitutional rights to the effective assistance of counsel. U.S. Const. amends. VI, XIV ; Wis. Const. art. I, § 7 ;6 Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Starks , 2013 WI 69, ¶54, 349 Wis.2d 274, 833 N.W.2d 146. "The standard for determining whether counsel's assistance is effective under the Wisconsin Constitution is identical to that under the federal Constitution."

State v. Thiel , 2003 WI 111, ¶18 n.7, 264 Wis.2d 571, 665 N.W.2d 305. "First, the defendant must prove that counsel's performance was deficient. Second, if counsel's performance was deficient, the defendant must prove that the deficiency prejudiced the defense." Carter , 324 Wis.2d 640, ¶21, 782 N.W.2d 695 (citation omitted). With regard to the first part of this test, "[c]ounsel's conduct is constitutionally deficient if it falls below an objective standard of reasonableness." Thiel , 264 Wis.2d 571, ¶19, 665 N.W.2d 305 (citing Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ). With regard to the second part of this test, "the defendant must show that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ " Id. ¶20 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

A. Impartial Jury

¶17 In Lepsch's first ineffective assistance of counsel claim, Lepsch argues his attorneys were ineffective in failing to raise jury bias issues during jury selection. As a result, he claims nine of the jurors in his case were biased, which denied him his right to an impartial jury under the Wisconsin and federal constitutions. Lepsch bases this challenge on various answers given in response to four questions on the pre-trial questionnaires completed by the prospective jurors. He argues that his attorneys were ineffective for "failing to sufficiently examine and challenge prospective jurors for cause."

¶18 We now present the four questions at issue. Question 30 of the questionnaire reads as follows: "You will be hearing testimony from several police officers in this case. Do you think you would give police officers more credibility, less credibility or the same amount of credibility as other witnesses who were not police officers?" The question contained spaces for the prospective juror to check "more credibility," "less credibility," or "the same credibility," and asked the prospective juror to explain his or her answer. Seven of the twelve jurors who sat on Lepsch's case answered "more credibility."7

¶19 Question 35 of the questionnaire contained the following questions, among others: (1) "Have you ever expressed the opinion that Mr. Lepsch was guilty?"; (2) "Do you have any feelings at this time that you have...

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