State v. Louis
| Decision Date | 06 July 1990 |
| Docket Number | No. 89-0044-CR,89-0044-CR |
| Citation | 156 Wis.2d 470,457 N.W.2d 484 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Dana Anthony LOUIS, Defendant-Appellant-Petitioner. d |
| Court | Wisconsin Supreme Court |
Catherine M. Canright, argued, and Foley, Pollack & Canright, on briefs, Milwaukee, for defendant-appellant-petitioner.
James M. Freimuth, Asst. Atty. Gen., argued, and Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent.
This is a review of part of a decision of the court of appeals, State v. Louis, 152 Wis.2d 200, 448 N.W.2d 244 (Ct.App.1989), which affirmed a judgment of conviction for armed robbery and a post-conviction order of the Circuit Court for Milwaukee county, the Honorable Michael J. Skwierawski, Judge.
Defendant-Appellant-Petitioner Dana Anthony Louis (Defendant) was found guilty of armed robbery, contrary to secs. 943.32(1)(a) and (2), Stats.1985-86, 1 on January 8, 1988, following a trial by jury. Defendant contends that at trial, he was deprived of his constitutional right to a fair and impartial jury when the circuit court during voir dire denied his request to remove two members of the Milwaukee Police Department from the jury panel for cause. Defendant asserts that as a result he was deprived of two of his four statutorily-granted peremptory challenges, see sec. 972.03, Stats.1985-86, 2 because he was "forced" to use those challenges to strike the police officers from the petit jury.
Two issues are raised on review. First, should "law enforcement officials" of the jurisdiction where the crime was committed be per se removed for cause from the venire on the ground of implied bias? If not, second, did the circuit court abuse its discretion when it denied Defendant's motion to remove the police officers for cause on the ground of actual bias?
We conclude that law enforcement officials of the jurisdiction where the crime was committed should not be automatically disqualified from the petit jury as a matter of law. We further conclude the circuit court properly exercised its discretion in refusing Defendant's request to remove the police officers for cause because no actual bias had been shown. Accordingly, we affirm the decision of the court of appeals.
The complaint against Defendant, filed on May 18, 1987, charged him with the May 17, 1987, armed robbery of Shaw's Lounge in Milwaukee, Wisconsin. A preliminary examination was held on August 11, 1987, and Defendant was bound over for trial. On January 7, 1988, a jury panel was assembled for voir dire examination. Included in the venire were two members of the Milwaukee Police Department, Officer Gilbert Adams and Detective John Wesley. The voir dire was commenced by the judge introducing the prosecutor and Detective Dante LaPorte of the Milwaukee Police Department, one of the State's chief witnesses, as well as Defendant and his counsel, to the jury panel. The circuit court asked the members of the venire if any were acquainted with any of those participants. Both Officer Adams and Detective Wesley responded affirmatively. The circuit court then proceeded to question them individually as follows:
Following these exchanges, Defendant's counsel moved to have Officer Adams and Detective Wesley removed for cause. The circuit court denied the motion, and the voir dire proceeded. After additional potential witnesses were introduced, including four other members of the Milwaukee Police Department, the circuit court again questioned Officer Adams and Detective Wesley.
Subsequently, Defendant's counsel questioned Officer Adams and Detective Wesley as follows:
Each party was then permitted to exercise their peremptory challenges and the petit jury was chosen. Both Officer Adams and Detective Wesley were stricken, though the record does not reflect by whom. However, Defendant's counsel claims he struck Officer Adams and Detective Wesley, and the State does not challenge that assertion.
Trial commenced and culminated in a guilty verdict. Judgment of conviction was entered on March 16, 1988. On October 14, 1988, Defendant's counsel filed a post-conviction motion contending that Defendant was denied his constitutional right to a fair and impartial jury and seeking a new trial. Defendant asserted two grounds in support of his contention. First, Defendant argued that the circuit court erred by failing to remove Officer Adams and Detective Wesley from the jury panel for cause. Second, Defendant argued that another member of the venire, who eventually served on the petit jury, had not been fully candid regarding his employment at the House of Corrections. On December 16, 1988, the circuit court denied Defendant's motion.
Defendant appealed, raising the same arguments. The court of appeals affirmed. The court of appeals concluded that the circuit court properly exercised its discretion in refusing to strike Officer Adams and Detective Wesley for cause. Louis, 152 Wis.2d at 207, 448 N.W.2d 244. The court of appeals rejected Defendant's contention that police officers are per se ineligible to serve as petit jurors. Id. at 206, 448 N.W.2d 244. The court of appeals further concluded that the circuit court did not err in rejecting Defendant's argument that one of the jury members had not been candid during voir dire. Id. at 208-09, 448 N.W.2d 244.
Defendant petitioned this court for review, which was granted. Defendant's only contention in this court is that the circuit court erred in refusing to remove Officer Adams and Detective Wesley from the venire for cause. We conclude that the circuit court committed no error. Accordingly, we affirm.
A criminal defendant is guaranteed the right to a trial by an impartial jury by Article I, Section 7 of the Wisconsin Constitution 3 and the Sixth Amendment of the United States Constitution, 4 as well as principles of due process. See Hammill v. State, 89 Wis.2d 404, 407, 278 N.W.2d 821 (1979). Prospective jurors are presumed impartial, and the challenger to that presumption bears the burden of proving bias. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); McGeever v. State, 239 Wis. 87, 96, 300 N.W. 485 (1941). Bias may be either implied as a matter of law or actual in fact. United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 179, 81 L.Ed. 78 (1936); State v. Wyss, 124 Wis.2d 681, 730, 370 N.W.2d 745 (1985). Even the appearance of bias should be avoided. Peters v. Kiff, 407 U.S. 493, 502, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972); Nyberg v. State, 75 Wis.2d 400, 404, 249 N.W.2d 524 (1977). The question of whether a prospective juror is biased and should be dismissed from the jury panel for cause is a matter of the circuit court's discretion. Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 209, 93 L.Ed. 187 (1948); Nyberg, 75 Wis.2d at 405, 249 N.W.2d 524. The circuit court must be satisfied that it is more probable than not that the juror was biased. Wyss, 124 Wis.2d at 730, 370 N.W.2d 745. A determination by the circuit court that a prospective juror can be impartial should be overturned only where bias is "manifest." Irvin, 366 U.S. at 723-24, 81 S.Ct. at 1642-44; Hammill, 89 Wis.2d at 416, 278 N.W.2d 821.
Defendant contends that the circuit court abused its discretion in failing to remove Officer Adams and Detective Wesley for cause because both were implicitly and actually biased. Defendant first argues that by the very nature of their occupation, police officers of the jurisdiction where the crime was committed are implicitly biased against the defense, and this court should adopt a per se rule precluding those persons from eligibility for the petit jury. Defendant next argues that irrespective of our resolution of that issue, Officer Adams and Detective Wesley still should have been removed for cause on the ground of actual bias because both admitted during voir dire that they were acquainted with some of the trial's participants. We find neither of Defendant...
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