State v. Zurfluh, 86-0344-CR
| Decision Date | 28 October 1986 |
| Docket Number | No. 86-0344-CR,86-0344-CR |
| Citation | 397 N.W.2d 154,134 Wis.2d 436 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Brian ZURFLUH, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Mary E. Waitrovich, Asst. State Public Defender, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and Bruce A. Craig, Asst. Atty. Gen., for plaintiff-respondent.
Before GARTZKE, P.J., and DYKMAN and EICH, JJ.
Brian Zurfluh appeals from a judgment of conviction for the delivery of a controlled substance in violation of sec. 161.14(4)(j), Stats. Zurfluh challenges the trial court's order denying his motion to strike seven prospective jurors for cause. The dispositive issue is whether the court abused its discretion. We conclude that the court properly declined to strike six of the seven jurors but should have dismissed the seventh after she openly doubted her ability to be impartial. We therefore reverse and remand the case for a new trial.
During voir dire of the panel, five jurors said they were personally acquainted with Captain Cross, a police officer involved in coordinating the arrest of Zurfluh. A sixth juror was familiar with Zurfluh through her previous employment. The seventh, Hollander, said that her stepson's involvement with drugs might cause her to be biased against Zurfluh. The trial court refused to strike any of the seven. Zurfluh used his peremptory challenges to remove four of these jurors, but not Hollander. Zurfluh contends that the court should have dismissed all seven.
Whether to dismiss a juror for cause rests with the discretion of the court. State v. Chosa, 108 Wis.2d 392, 400, 321 N.W.2d 280, 285 (1982). A juror's personal knowledge of or acquaintance with a defendant or a witness, without more, is not such cause. Nyberg v. State, 75 Wis.2d 400, 405, 249 N.W.2d 524, 526 (1977). The juror must also believe that he or she cannot decide the case fairly on the evidence. Compare id. at 405, 249 N.W.2d at 526 ().
On voir dire, six of the jurors said that their knowledge of Captain Cross or Zurfluh would not impair their ability fairly to determine the evidence. The trial court adequately explained its rationale for not removing these jurors. Their relationships with Captain Cross or Zurfluh were superficial and distant. The trial court did not abuse its discretion in refusing to dismiss the six jurors.
We agree with Zurfluh's contention that the trial court abused its discretion by refusing to dismiss juror Hollander. Section 805.08(1), Stats., requires the trial court to determine whether a juror "is aware of any bias or prejudice in the case," and to excuse a juror who "is not indifferent in the case." A juror who believes he or she cannot decide the case fairly on the evidence should be excused. Nyberg, 75 Wis.2d at 405, 249 N.W.2d at 526.
On voir dire, Hollander said she felt she "might not be able to be fair." When the court explained to her the duties of a juror, Hollander said she understood. The court then asked Hollander whether she would have a problem in making a fair and impartial determination of the evidence. She replied:...
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