State v. Mendoza, No. 97-0952-CR.

• Court: United States State Supreme Court of Wisconsin
• Citation: 227 Wis.2d 838,596 N.W.2d 736
• Docket Number: No. 97-0952-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert A. MENDOZA, Defendant-Appellant.
• Decision Date: 08 July 1999

227 Wis.2d 838
596 N.W.2d 736

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Robert A. MENDOZA, Defendant-Appellant

No. 97-0952-CR.

Supreme Court of Wisconsin.

Oral argument April 13, 1999.

Decided July 8, 1999.

227 Wis.2d 840

For the plaintiff-respondent-petitioner the cause was argued by Gregory M. Posner-Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general

227 Wis.2d 841

For the defendant-appellant there was a brief and oral argument by Michael K. Gould, assistant state public defender

¶ 1. DAVID T. PROSSER, J.

The State of Wisconsin (State) seeks review of the court of appeals' decision in State v. Mendoza, 220 Wis. 2d 803, 584 N.W.2d 174 (Ct. App. 1998), which reversed Robert A. Mendoza's (Mendoza) conviction on grounds that the circuit court erred when it removed four prospective jurors for cause. The issues presented are whether the circuit court erroneously removed the four jurors because they had been convicted of crimes, and, if so, whether automatic reversal of Mendoza's conviction is required.

FACTS & PROCEDURAL HISTORY

¶ 2. The facts are not in dispute. Mendoza was charged with possessing a controlled substance (cocaine) with intent to deliver, as a second or subsequent offense, in violation of Wis. Stat. § 161.41(3m) (1993-94).¹ A three day trial, beginning August 29, 1996, was held in Milwaukee County Circuit Court, the Honorable Laurence C. Gram, presiding.

¶ 3. The relevant facts concern jury selection, not the actual trial. After the State completed its examination of the jury panel as a whole, five prospective jurors were examined in chambers. The examination revealed that four of the jurors had been convicted of crimes and one had a brother-in-law who had been convicted of a drug offense.

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¶ 4. The first prospective juror called into chambers, Crane C. (Juror Number Two), was arrested on April 5, 1996, for misdemeanor possession of cocaine. He pled guilty to the charge in Milwaukee County and was sentenced to 16 days in jail with Huber privileges starting September 19, 1996. Crane C. assured the court that he could be fair to both the prosecutor and Mendoza and render a decision based on the facts of the case

¶ 5. The second juror, Douglas F. (Juror Number 12), revealed that his brother-in-law was arrested and convicted of cocaine possession in California the previous year. Douglas F. stated that he could not ignore his experience with his brother-in-law but would try to be fair and impartial.²

¶ 6. The third juror, James M. (Juror Number 19), disclosed that he had been convicted in Milwaukee County of armed robbery in 1966 and convicted of two misdemeanors (carrying a concealed weapon and resisting an officer) in 1982 or 1983. He stated that he believed his sentence for the armed robbery was too stiff and that the sentence still bothered him. He said he felt he should not have been arrested for the incident in the early 1980s. Nevertheless, James M. stated that he thought he could be impartial to both the State and Mendoza if he was chosen to sit as a juror.

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¶ 7. The fourth juror, Ike S. (Juror Number 11), disclosed he had been convicted of burglary in Alabama about 30 years before. He stated he had no problem with the manner in which the police or the prosecutor's office handled the situation. Ike S. stated that he knew he could be fair sitting as a juror.

¶ 8. The fifth prospective juror, Luciano R. (Juror Number 9), revealed he was convicted of burglary in 1994 in New York and incarcerated for eighteen months. He claimed he did not commit the burglary and that the woman who owned the burglarized building did not like him and falsely accused him of the burglary. He also stated that he thought people are set up by others who don't like them. Luciano R. assured the court that his case would not affect Mendoza's case.

¶ 9. After the defendant's examination of the jury pool, the assistant district attorney asked the circuit court to strike for cause the four prospective jurors who had been convicted of crimes:

MR. BENKLEY: [Assistant District Attorney]: Your Honor, I believe we have three persons who are convicted felons on the jury and I feel that that history itself is sufficient for striking those persons for cause. I think specifically Mr. [R.], Mr. [M.], and Mr. [S.]. Additionally Mr. [C.] has been recently convicted of possession of cocaine, has not yet even served his sentence and...must report for his sentence to incarceration at the House of Corrections on September I believe he said 19th, roughly three or four weeks from now or [three] weeks from now. Although he articulated it wouldn't affect him I'm just very uncomfortable with that situation.

¶ 10. Mendoza's counsel objected, stating:

227 Wis.2d 844

MR. MALONE [Defense Counsel]: For the record, Judge, I would object to the individuals that the State has requested that there be a challenge for cause to because I think during the individual voir dire that was conducted they said that they basically could be fair by the law. I think that the inference here is that a person has been convicted of a felony and that, therefore, they somehow do not qualify for service on a jury is something analogous to saying that if there is a case involving police officers, if somebody who is sitting on the jury panel is a police officer, that they are not qualified and I think the Court has already ruled—the courts in this state, trial court has ruled that's not so.

...

Here we have a situation where we have three—four people, three involving felony offenses. I believe all except for Mr. [R.], Number Nine, who pled guilty and so these are people that despite their convictions and despite maybe that they aren't particularly happy, accepted their responsibility and for that they received a conviction. That does not automatically disqualify them because they haven't—they haven't said anything in response to questioning during voir dire that has left any reason to doubt their ability to be fair and impartial.

¶ 11. Judge Gram granted the State's motion to strike, stating:

THE COURT: Well, let me say this as a general proposition. That I was concerned as a I heard some of the responses to the questions about the panel as a whole. I felt there were an unusual number of people that had perhaps problems who indicated that they might have difficulty being fair and that bothers me, the number, because many times I have denied challenges for cause and pointed out that we

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have peremptory challenges and they are for a reason and to a certain extent that's true but when I get this number it bothers me.

So, I tell you what I'm going to do. This is a matter that goes to the broad discretion of the Court. We have a panel here of 25 people. We have five people challenged. If we strike all five people, we will have—we have got—we are left with 20. We still have the basis of selecting a jury and I think, if we select a jury from those 20, we are more likely to have a fair and impartial jury than if we—than if I simply—I think I could either accept all of them, I could summarily deny all of them. In this case I'm going to accept all of them which means that we will strike Juror Number Two [Crane C.], Juror Number Six [Jacqueline D.],³ Juror Number Nine [Luciano R.], Juror Number Eleven [Ike S.], Juror Number 19 [James M.] and we proceed to select the jury from the balance. I don't think we have to do any changing of positions or anything like that. Everybody knows who we struck and at this point except for those we have

¶ 12. After the court struck these five prospective jurors, the parties exercised their peremptory strikes.

227 Wis.2d 846

The remaining jurors then sat as the jury that heard Mendoza's case.

¶ 13. Mendoza was convicted of possessing a controlled substance with intent to deliver as a second or subsequent offense. He appealed and the court of appeals reversed, holding in part that the circuit court "failed to exercise its discretion by removing the four jurors for cause, solely because each had been convicted of a crime." Mendoza, 220 Wis. 2d at 813-14. The court of appeals concluded:

§ 972.03 grants each side not only the right to four peremptory challenges of its own, but also the right that the other side not be entitled to more than four peremptory challenges. Furthermore, we conclude that by erroneously granting the State's request to remove four jurors for cause, the trial court effectively granted the State four additional peremptory challenges. By effectively granting the State eight peremptory challenges, the trial court deprived Mendoza of his statutorily created right under § 972.03 that each side be "entitled to only 4 peremptory challenges." Therefore, we conclude that the trial court's erroneous removal of the four jurors requires reversal of Mendoza's conviction.

Id. at 816.

ANALYSIS

¶ 14. This case presents the flip side of State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997). In Ramos, we were faced with a situation in which the circuit court failed to dismiss a prospective juror for cause when the prospective juror should have been struck. This failure caused the defendant to use one of his peremptory strikes. We concluded that "the use of a peremptory challenge to correct a trial court error is

227 Wis.2d 847

adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right." Id. at 14.

¶ 15. In this case, the circuit court did not fail to dismiss a prospective juror who should have been struck for cause; it struck four prospective jurors who arguably should not have been struck for cause. Mendoza argues that when the circuit court improperly struck four jurors on grounds that they had been convicted of a crime, it allowed the State eight peremptory challenges while he was allowed only four.

I.

¶ 16. We first examine whether the circuit court committed error when...