State v. Tucker

• Citation: 259 Wis.2d 484,657 N.W.2d 374,2003 WI 12
• Decision Date: 05 March 2003
• Docket Number: No. 00-3354-CR.,00-3354-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Sherrie S. TUCKER, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

259 Wis.2d 484

2003 WI 12

657 N.W.2d 374

STATE of Wisconsin, Plaintiff-Respondent, v. Sherrie S. TUCKER, Defendant-Appellant.

No. 00-3354-CR.

Supreme Court of Wisconsin.

Oral argument September 12, 2002.

Decided March 5, 2003.

For the defendant-appellant there were briefs and oral argument by Paul LaZotte, assistant state public defender.

For the plaintiff-respondent the cause was argued by Kathleen M. Ptacek, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. WILLIAM A. BABLITCH, J.

We are asked to decide under what circumstances a circuit court may restrict the disclosure of juror information in a criminal trial, and, if juror information is restricted, what precautions must be taken to avoid prejudice to the criminal defendant.

¶ 2. The defendant, Sherrie Tucker (Tucker), was convicted of possession with intent to deliver cocaine within 1,000 feet of a school while armed, in violation of Wis. Stat. §§ 961.41(1m)(cm), 939.05 and 961.49 (1999-2000).¹ Prior to jury selection, the circuit court judge told counsel off the record that "[i]t has been my practice to use numbers and not names in this court." The court proceeded to use numbers over defense counsel's objection "because it is a case involving sales of drugs." Although the jurors names were withheld from the record, both parties had access to all the juror information, including the jurors' names.

¶ 3. Tucker appealed her conviction, arguing that the use of numbers instead of the jurors' names constituted prejudicial error. The court of appeals certified the following issues to this court: (1) Whether voir dire by number constitutes an anonymous jury under State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996), when the restriction only applies to using the jurors' names in open court; and (2) Whether Britt's holding that an anonymous jury may be empanelled only if there is a strong reason the jury needs protection should continue to be the legal standard in Wisconsin.

¶ 4. We hold that in accordance with the standard articulated in Britt, if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant. Therefore, we conclude that the circuit court in this case erroneously exercised its discretion in withholding the jurors' names from the record because it failed to make an individualized determination that the jury needed protection and failed to take reasonable precautions to minimize any prejudicial effect to Tucker. Nevertheless, we further conclude that the error was harmless based on the overwhelming evidence of Tucker's guilt.

¶ 5. Tucker also raised an issue regarding a ruling of the circuit court that denied the admission of out-of-court statements by an unavailable witness. We conclude that the circuit court did not erroneously exercise its discretion by refusing to admit the out-of-court statements by an unavailable witness since the court reached a reasonable conclusion through a rational process based upon the relevant facts. We further conclude that Tucker was not denied her constitutional right to present a defense based upon an independent review of the record.

FACTS AND PROCEDURAL HISTORY

¶ 6. In March 1998, law enforcement officers executed a search warrant at an apartment shared by Tucker and her boyfriend, Damien McCray (McCray). In the apartment, officers found cocaine in a bag marked "Shiree Tucker," a .38 caliber revolver, and bullets. Tucker made a statement to police after a Miranda² warning was given, in which she admitted that the cocaine belonged to her and that she had been selling cocaine for about a month. Tucker was tried and convicted of possession of cocaine with intent to deliver within 1,000 feet of a school while armed with a dangerous weapon, which resulted in a seven-year prison sentence. The circuit court judge stayed the prison sentence and instead ordered seven years of probation for Tucker.

I. Restriction on Jurors' Names

¶ 7. Prior to jury selection for Tucker's trial, the circuit court judge told counsel off the record that "[i]t has been my practice to use numbers and not names in this court. . . . What I'm prohibiting is the names of jurors being stated in the courtroom and for the record when other people may be sitting in the audience and using those names for any other reason." When defense counsel objected, the judge explained that the use of numbers is appropriate because this was a case "involving drugs and an allegation of drug dealing which I think raises the bar to some extent in terms of any danger to jurors." The judge further explained that "it's the practice of this Court simply to use numbers and just go right into using numbers as opposed to names, not highlighting the fact that the numbers are used and certainly making no statement to jurors about numbers being used for safety or anything else." During the trial, the judge corrected defense counsel when he referred to a juror by name, stating "it's my practice to refer to the jurors by number, so please follow the practice." There was no other statement made in front of the jury regarding the use of numbers instead of their names.

II. Out-of-Court Statements

¶ 8. In December 1998, McCray was interviewed by defense investigator, Cynthia Kollath (Kollath) and Tucker's attorney. Kollath prepared a memorandum that summarized the interview. At Tucker's trial, McCray invoked his Fifth Amendment privilege, so defense counsel sought to introduce McCray's statements through Kollath's memorandum. Defense counsel argued that McCray's statements should be admissible as statements against penal interest or alternatively, as statements made under the residual hearsay exception for unavailable witnesses. The circuit court found that neither of these hearsay exceptions applied in this case because the statements lacked the requisite indicia of trustworthiness. Tucker filed a postconviction motion seeking a new trial based on two issues: (1) Whether the circuit court erred by not admitting McCray's out-of-court statements; and (2) Whether she had been denied the right to present a fair defense. After a hearing, the circuit court denied Tucker's postconviction motion for a new trial.

¶ 9. The court of appeals certified issues regarding the definition and use of an anonymous jury in light of the standard announced in Britt, and Tucker appealed the circuit court's refusal to admit McCray's out-of-court statements under an exception to the hearsay rule.

ANALYSIS

I. "Anonymous" Juries

[1-3]

¶ 10. Appellate review of a circuit court's decision to use an anonymous jury examines whether the circuit court properly exercised its discretion. Britt, 203 Wis. 2d at 34. According to the Seventh Circuit, the review of a court's decision regarding an anonymous jury is for "abuse of discretion, and must be particularly deferential to the trial court's substantial discretion." United

States v. Crockett, 979 F.2d 1204

, 1215 (7th Cir. 1992). The proper exercise of a circuit court's discretion requires a reasoning process that considers the applicable law and the facts of record, leading to a conclusion that a reasonable judge could reach. State v. Jeske, 197 Wis. 2d 905, 912, 541 N.W.2d 225 (Ct. App. 1995). However, a circuit court erroneously exercises its discretion if it makes an error of law. State v. St. George, ¶ 37, 252 Wis. 2d 499, 643 N.W.2d 777.

[4, 5]

¶ 11. The issues certified by the court of appeals deal with the definition of an "anonymous" jury and the circumstances under which an "anonymous" jury may be used. In this case, it may be more appropriate to describe the jury as a "numbers" jury instead of an "anonymous" jury since only the jurors' names were withheld from the record. Both parties had access to all the juror information, including the jurors' names. Furthermore, the public presumably could have obtained the jurors' names by inquiring at the clerk of courts' office. A jury is typically deemed "anonymous" when juror information is withheld from the public and the parties themselves. See, e.g., Crockett, 979 F.2d at 1215 n.10

. Therefore, the jury in this case was not a classic "anonymous" jury. Notwithstanding whether the jury in this case is characterized as an "anonymous" or a "numbers" jury, if restrictions are placed on juror identification or information, due process concerns are raised regarding a defendant's rights to an impartial jury and a presumption of innocence. Accordingly, although this case does not deal with the classic "anonymous" jury, the reasoning in cases involving anonymous juries is beneficial to our analysis.

¶ 12. The empanelling of an anonymous jury is a relatively recent phenomenon that was rarely utilized before the Second Circuit's opinion in United States v. Barnes, 604 F.2d 121 (2d Cir. 1979)³. The court in Barnes addressed juror anonymity with respect to its effect on the practice of voir dire. Id. at 142. In Barnes, the district court ordered that the jurors' identities, addresses, religious affiliations, and ethnic backgrounds remain anonymous, even from the parties themselves. Id. at 133. The court began its analysis by noting a judge's broad discretion in conducting voir dire. Id. at 137. The court then examined each of the restrictions placed on juror information and concluded that the jurors' demeanors and responses to questions regarding their family, education and other matters would provide substantially the same information as the juror information that was restricted. Id. at 142. Consequently, the court rejected the argument that the defendant was denied the ability to intelligently exercise peremptory challenges. Id. In sum, the Second Circuit held that the circuit court had permitted adequate questioning of the jury and had acted in accordance with its responsibility "to...