State v. Smith, 2006 WI 74 (Wis. 6/27/2006), No. 2004AP2035-CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtJon P. Wilcox
Citation2006 WI 74
PartiesState of Wisconsin, Plaintiff-Respondent, v. Dale L. Smith, Defendant-Appellant-Petitioner.
Decision Date27 June 2006
Docket NumberNo. 2004AP2035-CR.

Page 1

2006 WI 74
State of Wisconsin, Plaintiff-Respondent,
Dale L. Smith, Defendant-Appellant-Petitioner.
No. 2004AP2035-CR.
Supreme Court of Wisconsin.
Opinion Filed: June 27, 2006.

Appeal from the Circuit Court, Milwaukee County, Russell W. Stamper, Judge.

REVIEW of a decision of the Court of Appeals. Affirmed. Reported at: 279 Wis. 2d 519, 693 N.W.2d 148 (Ct. App. 2005—Unpublished)

For the defendant-appellant-petitioner there were briefs by Allison M. Ritter and Hartley Law Office, Milwaukee, and oral argument by Allison M. Ritter.

For the plaintiff-respondent the cause was argued by Juan B. Colas, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.


¶ 1 The defendant, Dale L. Smith (Smith), seeks review of an unpublished decision of the court of appeals,1 which affirmed Smith's judgment of conviction for operating a motor vehicle while intoxicated, second offense, and an order of the Milwaukee County Circuit Court, Russell W. Stamper, Sr., Reserve Judge, denying his motion for postconviction relief.

¶ 2 Smith contends that at trial, he was denied his constitutional right to a fair and impartial jury when the circuit court, during voir dire, denied his motion to strike a juror for cause. Smith argues that an administrative assistant employed by the Milwaukee County District Attorney's Office was objectively biased because she worked for the same entity as the prosecuting attorney.

¶ 3 We hold that the circuit court reasonably concluded that Charlotte T. (Charlotte) was not objectively biased under the facts and circumstances, as a reasonable person in Charlotte's position could be impartial. Therefore, we conclude the circuit court did not erroneously exercise its discretion in denying Smith's motion to strike Charlotte for cause. Essentially, we decline to create a per se rule that excludes potential jurors for the sole reason that they are employed by the Milwaukee County District Attorney's Office. As such, the decision of the court of appeals is affirmed.


¶ 4 In the early morning hours of October 3, 2001, Smith was pulled over by City of Franklin Police Officer Rebecca Fletcher (Fletcher). Based on her observations at the scene, Fletcher requested that Smith take a Breathalyzer test in order to determine whether he had a prohibited alcohol concentration. According to the criminal complaint, Smith refused to submit to the test, and Fletcher arrested him. On October 16, 2001, a criminal complaint was filed against Smith for unlawfully operating a motor vehicle while under the influence of an intoxicant, contrary to Wis. Stat. §§ 346.63(1)(a) and 346.65(2) (1999-2000). This was Smith's second such offense.

¶ 5 A jury trial began on September 30, 2003. During voir dire, prospective juror Charlotte called to the court's attention that she worked for the Milwaukee County District Attorney's Office. Specifically, Charlotte worked as an administrative assistant at the Children's Court Center in Wauwatosa. She also stated that she did not work on investigations. When asked whether she would have a problem being an impartial juror, Charlotte said, "No."

¶ 6 Later in chambers, Smith's counsel, Patrick D. Wait (Wait), moved to strike Charlotte for cause. The discussion between the court, Wait, and Assistant District Attorney Tiffany Harris (Harris) proceeded as follows:

MR. WAIT: All right. I'd ask Number 9. be stuck [sic] for cause, she works for the D.A.'s office.

THE COURT: What's the cause?

MR. WAIT: She works for the law firm prosecuting this case. Her employer is Michael McCann.

THE COURT: Is there authority for that?

MR. WAIT: I think that is for cause.

THE COURT: Is it occupational exclusion? By virtue of [the] fact she works for the D.A.'s office is it impossible for her to be impartial?

MR. WAIT: I don't think I have to prove impartiality; I think there can be a finding her employer is prosecuting the case.

THE COURT: I understand your opinion, do you have authority for that belief?

MR. WAIT: No, I don't have any cases I can cite.


MS. HARRIS: Judge, I really don't think—I don't know her. She doesn't work in this particular building; she's out at Children's Court. I don't think there is any authority for that.

THE COURT: Request denied. That was Number 9.

¶ 7 Besides Charlotte, Smith raised challenges to two other potential jurors in voir dire. These challenges were denied by the circuit court. In his brief to this court, Smith further argues that two additional jurors were "very problematic from a defense perspective."

¶ 8 First, Juror No. 2 stated that she had a friend who almost killed somebody while driving under the influence, and she had several friends arrested for driving under the influence with whom she did not associate anymore. Attorney Wait then asked her the following:

MR. WAIT: Does that make it more difficult for you to judge a case fairly?

JUROR NO. 2: No, I don't think so.

MR. WAIT: Do you think it's going to be difficult for you to be impartial here?

JUROR NO. 2: Yes.

Later in chambers, the court posed the following questions to Juror No. 2:

THE COURT: Can you be impartial with respect to this case?

JUROR NO. 2: I think so.

THE COURT: At this point, are you inclined to believe one side as opposed to the other side?

JUROR NO. 2: Not necessarily, no.

THE COURT: You are at point zero?

JUROR NO. 2: Yes.

THE COURT: You are fair and neutral as to each side?

JUROR NO. 2: Yes.

After this questioning, Wait did not continue with his argument that Juror No. 2 should be struck for cause. The court had previously noted that difficulty in remaining impartial is not sufficient to excuse a juror.

¶ 9 Next, Wait challenged Juror No. 6, who informed the court that he encountered a drunk driver while driving with his wife and children. When asked whether that experience would make it problematic for him to sit on a case where the defendant is charged with drunk driving, Juror No. 6 stated, "I guess I'd have to hear more information. At the time, if I had had a gun, I'd have shot him." During later questioning, Juror No. 6 revealed that his brother was put into a two-week coma because of a drunk driver. Wait then asked him the following:

MR. WAIT: Is that going to affect your ability to be impartial here?

JUROR NO. 6: I hope not, but I'm not sure.

MR. WAIT: You also said that when you saw someone suspected of drunk driving, if you had a gun you would have shot him.

JUROR NO. 6: I got that angry with him because I was with my wife and kids. . . .

MR. WAIT: Do you feel you can be fair here today?

JUROR NO. 6: I can try.

Later in chambers, the following discussion occurred:

THE COURT: The real question is, can you be impartial, fair, and neutral in this case?

JUROR NO. 6: I understand. I don't know, I haven't heard the evidence yet. I would say absolutely not if I found out the person had denied the police the right to check his blood or check that if he was. To me that tells me he was drunk. I don't care, he should go to jail.

THE COURT: You don't know the answer to that question, right?

JUROR NO. 6: No.

THE COURT: Given that you don't know the answer as to what the evidence is going to say, I need you to tell us at this time, right now, are you at zero neutral, or are you leaning one way or the other?

JUROR NO. 6: I'm trying to stay at neutral.

THE COURT: Where are you?

JUROR NO. 6: I believe I am neutral.

THE COURT: You have the best opinion of where you are, and you believe you are neutral. That's your belief, right?

JUROR NO. 6: Yes.

Ultimately, the court concluded that Juror No. 6 said he could be impartial, and it refused to strike him for cause.

¶ 10 In addition to these two jurors, Smith contends that Jurors Nos. 3 and 11 were problematic. Juror No. 3 was a police officer who had arrested people for operating while intoxicated. She said that she thought she could be impartial. Wait did not challenge Juror No. 3 for cause during voir dire.

¶ 11 Finally, in response to Wait's question of whether anyone on the jury had any feelings already developed about the defendant, Juror No. 11 stated, "I kind of feel you would not be here unless you were doing something wrong." Wait then asked, "[s]o in that regard, you've already formed an opinion?" Juror No. 11 responded with "[p]erhaps" followed by "Yes. I do feel I can be impartial." In chambers, Wait informed the court that "[r]egarding Number 11, I wrote `he has formed an opinion as to this defendant that he's guilty.'" The court noted, however, that Juror No. 11 said he could be impartial. There was no further discussion about Juror No. 11.

¶ 12 Smith ultimately used his four peremptory challenges to strike Jurors Nos. 2, 3, 6, and 11. Charlotte was seated on the jury, and on October 1, 2003, Smith was unanimously convicted and sentenced to 90 days of jail.

¶ 13 After his conviction, Smith filed a postconviction motion for an order vacating the judgment and for a new trial based upon his being denied the right to an impartial jury as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. The circuit court denied his motion, concluding that "the mere fact that a juror works for the prosecuting office, without more, does not in and of itself disqualify the juror from service. . . . Taking all [the] factors into consideration, the court cannot infer that a reasonable person in Juror T.'s position would be biased."

¶ 14 On appeal, the court of appeals primarily relied on two of our previous decisions: State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), and State v. Louis, 156 Wis. 2d 470, 457 N.W.2d 484 (1990), in reaching its decision. Based on Faucher, the court noted that only objective bias, not statutory or subjective bias, was at issue. The court also analogized the facts in this case to Louis in that the prospective...

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