State v. Smith
| Decision Date | 27 June 2006 |
| Docket Number | No. 2004AP2035-CR.,2004AP2035-CR. |
| Citation | 716 N.W.2d 482,2006 WI 74 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Dale L. SMITH, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
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.
The defendant, Dale L. Smith (Smith), seeks review of an unpublished decision of the court of appeals,1 which affirmed Smith's judgment of conviction for operating a motor vehicle while intoxicated, second offense, and an order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:
¶ 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:
Later in chambers, the court posed the following questions to Juror No. 2:
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, 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:
Later in chambers, the following discussion occurred:
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 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
¶ 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 juror and the prosecutor did not know each other. See Smith, No. 2004AP2035-CR, ¶ 6 ( ...
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