State v. Ramos

• Decision Date: 20 June 1997
• Docket Number: No. 94-3036-CR,94-3036-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward RAMOS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 328

564 N.W.2d 328

211 Wis.2d 12

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward RAMOS, Defendant-Appellant.

No. 94-3036-CR.

Supreme Court of Wisconsin.

Argued May 1, 1997.

Decided June 20, 1997.

For the plaintiff-respondent-petitioner there was oral argument by Paul Lundsten, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by Eduardo M. Borda, Milwaukee.

¶1 DONALD W. STEINMETZ, Justice

The issue in this case is whether the trial court's failure to remove a juror for cause constitutes reversible error when a defendant is forced to correct the trial court's error by using one of his or her statutorily provided peremptory challenges. We hold that the use of a peremptory challenge to correct a trial court error is adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right.

¶2 The facts leading up to this case are tragic. On the evening of November 15, 1993, the defendant, Edward Ramos, suffocated Brandon Webster, his girlfriend's two-year-old child. Ramos was subsequently arrested and was charged with first-degree intentional homicide in violation of Wis. Stat. § 940.01(1). Ramos never denied killing the child, but he argued that he acted recklessly, not intentionally. As such, Ramos opted for a jury trial to determine whether he acted intentionally. The trial was held before the Milwaukee County Circuit Court, Judge Patricia D. McMahon.

¶3 Due to the nature of the crime with which Ramos was charged, potential jurors underwent extensive voir dire. The panel faced questions from the trial court, the prosecutor, and defense counsel in an attempt to impanel an unbiased, impartial jury. During defense counsel's questioning of one prospective juror, the juror indicated that it was possible that she could not be a fair or impartial juror. When pressed, the juror stated: "Just knowing that the child was suffocated, I guess I couldn't be fair." The defense attorney asked her: "So you could not be fair to this man?" The juror replied with an unequivocal "No."

¶4 During a conference in the judge's chambers, Ramos' counsel moved to strike the juror for cause, arguing that the juror stated that she could not be fair and impartial. After both the prosecutor and the judge said that they did not recall the juror saying that she could not be fair, defense counsel asked that the reporter read back the juror's responses to clear up any confusion. The court declined to have the answers read back. Twice more, Ramos' counsel asked the court to ask the reporter to read back the juror's answers because the defense attorney was "still of the mind that she [the prospective juror] said she could not be fair, impartial in this case." Both times, the requests of Ramos' counsel were not met, and the court did not strike the juror for cause.

¶5 Ramos subsequently removed the juror through the use of his first statutorily granted peremptory challenge. Consequently, the juror did not participate in the final adjudication of Ramos' guilt or innocence. On April 7, 1994, a jury found Ramos guilty of first-degree intentional homicide.

¶6 Ramos appealed to the court of appeals. The court of appeals decided that a trial court's erroneous refusal to remove a potential juror for cause, which effectively forced the defendant to use a peremptory challenge to remove the juror, violated the defendant's right to due process as defined by state law. The court of appeals remanded the case to the trial court for a new trial. State v. Ramos, No. 94-3036-CR, unpublished slip op., 558 N.W.2d 704, 1996 WL 515652 (Wis.Ct.App. Sept. 12, 1996). The State appealed to this court, and we now affirm the decision by the court of appeals.

¶7 "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." State v. Gesch, 167 Wis.2d 660, 666, 482 N.W.2d 99 (1992), citing State v. Louis, 156 Wis.2d 470, 478, 457 N.W.2d 484 (1990),cert. denied, 498 U.S. 1122, 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991) (citations omitted). This court will find an erroneous exercise of discretion if a circuit court's discretionary decision is based on an error of law. See id., citing In re Marriage of Schulz v. Ystad, 155 Wis.2d 574, 599, 456 N.W.2d 312 (1990).

¶8 In Wisconsin, a juror who "has expressed or formed any opinion, or is aware of any bias or prejudice in the case" should be removed from the panel. Wis. Stat. § 805.08(1). Additionally, "[i]f a juror is not indifferent in the case, the juror shall be excused." Id.

¶9 In the case at bar, the challenged prospective juror should have been removed for cause. She clearly expressed that she could not be a fair and impartial juror in the case. The Wisconsin Statutes provide that "[a]ny party objecting for cause to a juror may introduce evidence in support of the objection." Id. Ramos' attorney attempted three times to introduce such evidence by having the reporter read back the challenged jurors' answers. Unfortunately, the trial court prohibited him from doing so. We conclude that the trial court should have allowed the reporter to read back the responses and should have dismissed the challenged juror for cause. Therefore, we find that the failure to dismiss the challenged juror for cause was an erroneous exercise of discretion by the trial court.

¶10 Under the statutes, Ramos was entitled to seven peremptory challenges to strike potential jurors from the panel. Wis. Stat. §§ 972.03 ¹ and 972.04(1). ² The statutes provide that a defendant "is entitled to" and "shall be allowed" the stated number of peremptory challenges. The word "shall" is presumed to be mandatory when it appears in a statute. Wagner v. State Medical Examining Bd., 181 Wis.2d 633, 643, 511 N.W.2d 874 (1994). Therefore, we find that Ramos had a right to the maximum amount of peremptory challenges prescribed by the statute.

¶11 Ramos contends that the failure to dismiss the juror for cause forced him to spend one of his peremptory challenges to correct the trial court error, thereby depriving him of his statutorily guaranteed right to a full complement of peremptory challenges. The State, relying largely on the United States Supreme Court decision in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), contends that despite the trial court error, Ramos is not entitled to a new trial because the jury that ultimately decided Ramos' case was impartial.

¶12 In Ross, the United States Supreme Court considered the issue of when a trial court's erroneous refusal to strike a juror for cause constitutes reversible error. Ross, a capital case, involved a prospective juror who had stated that he would vote to impose the death penalty automatically if the jury found the defendant guilty. Based on this statement, the defendant moved to have the juror struck for cause. The trial court refused this request. However, the defendant struck the juror using one of his peremptory challenges. On appeal, the defendant asserted that the trial court's error in failing to remove the juror for cause violated "both his Sixth and Fourteenth Amendment right to an impartial jury, and his Fourteenth Amendment right to due process." Id. at 85, 108 S.Ct. at 2277.

¶13 In the first part of the opinion, the United States Supreme Court held that requiring a defendant to use a peremptory challenge to remove a juror who should have been removed for cause did not violate the defendant's Sixth Amendment right to an impartial jury. Id. at 88, 108 S.Ct. at 2278. The Court also stated that peremptory strikes were not of a constitutional dimension and that they are merely a means to achieving an impartial jury. Id. As long as the jury was impartial, the fact that the defendant had to use a peremptory challenge to achieve the result did not mean that the Sixth Amendment was violated. Id.

¶14 In the second part of the opinion, the Court considered the defendant's claim that the trial court's failure to remove the juror for cause violated his Fourteenth Amendment right to due process by arbitrarily depriving him of the full complement of peremptory strikes allowed under Oklahoma law. In discussing this issue, the Court noted "that the right to exercise peremptory challenges is 'one of the most important of the rights secured to the accused.' " Id. at 89, 108 S.Ct. at 2278, quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965). The Court also stated that "[t]he denial or impairment of the right is reversible error without a showing of prejudice." Id. at 89, 108 S.Ct. at 2279.

¶15 In analyzing whether the defendant's right to exercise peremptory challenges was denied or impaired, the Court ruled that these challenges were creatures of state law and that it was "for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise." Id. Thus, the Supreme Court reasoned that "the 'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which state law provides." Id.

¶16 Oklahoma law requires that a defendant who disagrees with the trial court's ruling on a for-cause challenge must use his or her peremptory challenges to remedy trial court errors in order to preserve the claim that the ruling deprived him or her of a fair trial. See id. The Court in Ross found that the defendant received all that Oklahoma law allowed when he was forced to use a peremptory challenge to remedy the trial court's erroneous failure to remove the juror for cause. Therefore, the defendant in Ross was not denied his due process right under the Fourteenth Amendment to the United States Constitution.

¶17 Wisconsin Statutes do not suggest that a defendant should be required to use a peremptory challenge...