*1 Wisconsin, Plaintiff-Respondent-Petitioner,† State
v. Vance Defendant-Appellant. Ferron,
Supreme Court 9, 1998. argument April 96-3425-CR. Oral No. Decided 26, 1998. June 654.) (Also reported 579 N.W.2d 25,1998. August denied for reconsideration †Motion *3 plaintiff-respondent-petitioner For the the cause *4 argued by attorney gen- was Lundsten, Paul assistant Doyle, eral, with whom on the briefs was James E. attorney general. defendant-appellant
For the there a brief was and argument by Krueger oral Jane Smith, Oconto Falls.
484 of WILCOX, P. J. This is a review a JON 1. v. Fer- State appeals, of court of decision the published (Ct. ron, 1997), 268, App. 2d N.W.2d 883 214 Wis. 570 the Court for a of Circuit judgment which reversed Naze, circuit court Judge. Peter J. County, Brown (Ferron) request defendant Vance Ferron's denied the juror the challenged for cause after juror to strike a could "probably" set certainly try" said he "would defendant criminally a accused aside his that opinion take and tes- would the stand truly who was innocent his or her own behalf. tify on us on review. There are three issues before
2.¶ of appel- review which First, we consider the standard circuit court review of a upon late courts should employ juror impar- that can be determination a prospective Second, to the facts this tial. we that standard apply the circuit court committed case whether to determine juror challenged to strike the by failing an error of law invitation to to the State's Finally, reply for we cause. Ramos, in State v. Wis. recent decision overrule our (1997). 2d 564 N.W.2d decision, we Contrary appeals' to the court 3.¶- a circuit should overturn courts appellate hold that can be prospective juror that a court's determination is manifest. A bias juror's where impartial only as "manifest" be labeled can juror's appropriately bias (1) finding a that does not support the record whenever: who is a reasonable person the prospective or knowl- opinion prior aside an willing put sincerely (2) that finding a support the record does edge; or set could aside juror's position in the person reasonable knowledge. or prior opinion facts of to the this this standard Applying 4.¶ support record does not case, we conclude a rea- issue was at prospective finding *5 sonable was person sincerely willing who to aside put his opinion or bias. we hold Accordingly, that Ferron was of his deprived statutorily defined to due right of he process law when was to use his compelled one of as peremptory challenges, by Wis. Stat. provided (1993-94),1 972.03 § correct the circuit court's error. we Because discern no sound reason either so, in law or to do we public policy also decline the State's invitation overrule our decision in Ramos. Therefore, we modify the decision of the of appeals and, modified, as we affirm that decision. 6. The relevant facts in On are dispute. (State) 21,1995, November the State of Wisconsin filed a criminal Ferron and a complaint charging codefend- ant, Timothy (Nelson), Nelson party with to the crime 943.10(l)(a) burglary, violation of Wis. Stat. §§ and 939.05. The case was later set for jury trial, where Ferron and were Nelson to be tried as On codefendants. March 26,1996, the voir dire examination began. 7. The circuit court first posed questions the jury panel. Following these preliminary queries, Christopher Froelich (Froelich), Ferron, counsel for asked a questions series of to determine whether could prospective jurors serve impartially. Attorney Froelich's questions were followed the remarks and inquiries of codefendant counsel, Nelson's William
1All statutory future references to the are 1993-94 version unless otherwise noted.
Wisconsin provides pertinent § Stat. 972.03 part: Peremptory challenges. 972.03 only Each side entitled to peremptory challenges except provided as otherwise in this section. defendant, . . .If there is than one more the court shall divide the challenges equally practicable among them; as as and if their defenses protection are adverse and the court is satisfied that the rights requires, their may so the court allow defendants addi- challenges.... tional Fitzgerald (Fitzgerald). voir dire examination by Fitzgerald produced following exchange between *6 court, Fitzgerald, and prospective jurors James (Metzler) (Clark):2 Metzler and M.C. Clark MR. FITZGERALD: .. going argue .I'm that the provided State hasn't proof beyond a reasonable guilty doubt that Mr. Nelson is of anything.
Now, keeping mind, in I may that instruct Mr. Nel- son that I don't think that he has to take the witness stand. And what I any you wonder is would think well, yourself, you're saying the State's case is lousy, you your guy testify but didn't even have so Yes, what does your that make case? Mr. Metzler. Well, JUROR JAMES if your METZLER: client is innocent, why wouldn't he take the stand?
MR. FITZGERALD: [sic] Becauses the constitu- say tion doesn't he has to. Well, innocent,
JUROR JAMES METZLER: if he's why go up wouldn't he there and tell us he's innocent? Well,
MR. getting FITZGERALD: without into a long exchange rights about the constitutional have, only you we all I can tell that the Court will you instruct right that a defendant has the absolute jury, to decline to talk to the to talk to police, crime, talk to people investigating the and that might my advice to him he need take not your questioning stand. And is an indication that you hold against would him? may.
JUROR JAMES METZLER: I think I exchanges during These appear the voir dire examination transcript proceedings in the dated March 1996. See Appeal (Jury 26-27,1996). Record on Trial March you may. think FITZGERALD: You MR. gentlemen, here's the THE COURT: Ladies has the A defendant in a criminal case instruction. right testify. not to constitutional absolute testify must not be con- defendant's decision not to way and must not influence by you any sidered anyone Is there here your any manner. verdict or follow that cannot follow would who instruction? wonder, I would like he
JUROR M.C. CLARK: said, know, nothing if he had to hide? why, you I THE COURT: understand. Why he would do that? ...
JUROR M.C. CLARK: right. get ques- All Let's to the THE COURT: back testifying. I'll read it tion of the defendant not *7 in again. A defendant a criminal case has abso- right testify. not to A defendant's lute constitutional testify by you decision not to must not be considered your influence verdict in any way in and must not any manner.
And I think Mr. Metzler's reaction is a common deny You can't that but that's not the law. reaction. may you into the That be the reaction come court- [with], before, but as I said we have to set room that personal opinions aside those beliefs or we going give with the law that I'm have that conflict is, any you is there one of who you. question The just you? cannot follow the law that I've read to Well, METZLER: I JUROR JAMES would have a if believing hard time that he was innocent he didn't [sic] and tell me he innocent. take the stand wasn't just my That's own belief. Well, that, I And I
THE COURT: understand sir. belief, you're certainly entitled to that said you're only person not the with that belief. But the United States Constitution and the Constitution of the State of give every person Wisconsin the right testify right not to and the that [sic] cannot be held against if they them choose not to do so. That's a right you have, have, that I everybody has, that including the defendants. So we have to honor that right. question your opinion
The strong your so or belief strong you're willing so not to set those aside for the purpose of this case and follow the law that I've given you? Well,
JUROR JAMES I METZLER: would cer- tainly try to set it aside.
THE COURT: Miss Clark? JUROR try aside, M.C. CLARK: I would to set it I'mbut not sure I could completely set that aside if my would be the back of they mind that didn't take the stand. That would kind of back that, knowing you there know— Well, THE obviously, COURT: if you're in there person stand, and the hasn't taken the we can't you make draw a blank. Right.
JUROR M.C. CLARK: THE COURT: thing you have to do is not use against the defendant. You have to decide the case on the evidence as it comes out the court- room, things that didn't happen. That's the point. you [sic] Can do did that?
JUROR M.C. CLARK: I'm not so I sure could. Metzler,
THE you? COURT: Mr. can JUROR JAMES Probably. METZLER: THE could, COURT: You don't think you Miss Clark? try, certainly it I would but M.C.CLARK:
JUROR always you guess be, know, I still would would try. there. I would THE COURT: Counsel? get- guess Well,I I feel we're
MR.FITZGERALD: ting jurors, Mr. I wouldmoveto relieve lowon but Metzler and Miss Clark. removing I'm Mr. Metzler. He
THE COURT: this. I'm concerned about Miss said he could do Clark. question Clark 8. The circuit court continued feelings. if she could set aside her When to determine ultimately she have a hard Clark stated that "would testify," they her and time that didn't the court excused accordingly. proceeded with the voir dire examination Following examination, Ferron used one of his two jury peremptory strikes to remove Metzler from the (limiting panel. § Ferron's chal- See Wis. Stat. 972.03 case). lenges to 2 in this 27, 1996, 9. On March Ferron was convicted burglary. appeal,
party
crime of
On
Ferron
to the
argued the circuit court committed reversible
cause,
it refused to strike Metzler for
error when
against
defendants
because Metzler exhibited
bias
testify. According
Ferron, the circuit
who decline to
compelled him
court's action
to exercise one of his stat-
utorily granted peremptory challenges to correct the
thereby depriving
right
error,
him of his
to due
court's
process under state law. The State asserted that Metz-
bias,
and that the circuit
ler did not exhibit manifest
upheld.
court's determination should therefore be
appeals
¶ 10. The court of
held that the circuit
failing
erroneously
exercised its discretion
strike Metzler for cause because his answers revealed
*9
that he was not indifferent
as
Wis. Stat.
required by
805.08(1).3
Ferron,
See
2d at 276.
Wis.
The court
§
of
also held that
the circuit court failed to fol
appeals
State,
v.
Nyberg
400, 249
low the directive in
75 Wis. 2d
(1977),
N.W.2d 524
that a motion to strike a
for
juror
must
granted
cause
be
whenever
the court reasonably
that circumstances
outside the evidence
suspects
will
See id. Because these
influence the
juror.
errors com
Ferron to
use one
his
strikes to
pelled
peremptory
error,
correct
circuit court's
the court of appeals
held that
had
right
Ferron's
due
been vio
process
lated,
reversed
the circuit
court's
judgment,
Ramos,
remanded for a
trial
in accordance with
new
the State's for review. substantial modifi- petition With reasoning, cations to its we now affirm the court of decision. appeals'
I. first consider the standard of review We which courts should review of a appellate employ upon circuit court determination that a can prospective juror impartial. parties agree question "[t]he whether is biased and should be prospective juror dismissed from the for cause is a matter of jury panel 805.08(1) part: provides pertinent Wisconsin Stat. § (1) 805.08 Jurors. examination. The court shall Qualifications, person juror examine on oath each who is called as a to discover juror marriage any party
whether the
is related
blood or
or to
case,
any
any attorney appearing in the
or has
financial interest in
case,
any
expressed
any opinion,
or has
or formed
or is aware of
case,
prejudice
bias or
in the case. If a
is not indifferent in the
shall be excused....
Ramos,
discretion."
A. Nyberg, argued appeal ¶ 18. In the defendant on delivery a controlled from his conviction of of substance erroneously that the circuit court exercised discre- its striking jurors tion three for cause of because Nyberg, shown at the voir dire examination. See 75 bias at 402-403. The court noted Wis. 2d first require prospective juror cause, dismissal of a for there suggestion partiality more than a of must be —the appropriate question panel for a member is whether juror prospective he or she can decide the believes that (citations fairly 404 the case on the evidence. See id. at omitted).
493
"[a]
Nyberg
¶ 19. The
court went on to state that
challenges
court
for cause
trial
must honor
whenever
may reasonably suspect that circumstances outside the
may
appearance
at
evidence
create bias or
of bias." Id.
added) (citing
(emphasis
Motors,
Nolan v. Venus
(1974)).
Inc.,
215, 223,
2d
64 Wis.
The trial
determining
has wide discretion in
qualifications
jurors.
of the
He was satisfied
jurors
competent
these
were
and fair.
can-We
not hold that in
rulings
these instances his
abused
sound discretion nor does the verdict
lead us to a
4 mentioned,
Nyberg
actually
As
cited
for
Nolan
proposition
challenges
that courts must honor
for cause
they
suspicion
turn,
when
have a reasonable
bias. In
however, Nolan cited
as
language
Kanzenbach
the source of the
language
and stated the
differently.
itself somewhat
See Nolan
Motors, Inc.,
223,
v. Venus
64 Wis. 2d
494
that
suspicion
prejudice towards the
on
defendants
However,
part
any juror actually
the
of
existed.
preserves
appearance
because it
the
as well as the
trial,
reality
good
an impartial
of
it is a
rule for the
trial
judge
challenges
honor
for cause whenever
may reasonably
suspect
he
that
circumstances
may
outside the evidence
create
or an appear-
bias
part
challenged juror.
ance of bias on the
of the
added).
Id. at 626-27 (emphasis
Thus,
21.
a review of our case law
reveals
the
language
which Ferron
under-
Nyberg
upon
relies
"a
following
went
as
metamorphosis:
began
good
follow,
rule" for
court judges
id.,
circuit
see
evolved
followed,
into a
which
principle
Nolan,
"should" be
see
223,
64 Wis. 2d at
and
of an
ultimately took
shape
and mandatory
affirmative
command to circuit court
in this state. See
however, an court that overturn juror's prospective a circuit court's assessment of appellate presents impartiality a whenever the record suspicion outside the reasonable that circumstances juror. e.g., See, Gesch, will influence the 163 evidence ("Nyberg compel 2d at the creation of Wis. broad, 997 does rules."). general compliance with To demand rigid a would to undermine the circuit such standard during court's discretion dire examinations. voir Nyberg inappropriately ¶ 24. court Because the expanded prior jurisprudence, portion our that of the "[a] opinion trial must honor which states that may challenges reasonably cause sus- for whenever may pect that circumstances outside evidence appearance Nyberg, bias," create bias or see 75 Wis. hereby proceed 404, 2d at We overruled.6 now proper elucidate the standard review.
B. principle ¶ It is a well-settled of law this state that a determination circuit court prospective juror impartial can be should be over-
6
Because Nolan
merely
suggested
circuit
courts
guideline,
suspicion
"should" follow the reasonable
adhere
we
Nolan,
that decision. See
turned where bias is only prospective juror's See, Messelt, e.g., State v. "manifest.” 185 Wis. 2d *14 Louis, 269, 232 (1994); 518 N.W.2d 156 2d at Wis. State, Hammill v. 478-79; 404, 416, 89 Wis. 2d 278 Delgado, State v. (1979); N.W.2d 16, 821 215 2dWis. (Ct. 1997). 25, 572 479 N.W.2d App. The United 26. States Court has fre- Supreme See, Patton v. to the e.g.,
quently ruled same effect. Yount, Dowd, v. Irvin 1025, 467 (1984); U.S. 1031-32 States, Holt v. United 717, 366 U.S. 723-24 (1961); 218 Ex Spies, Parte 245, (1910); 131, U.S. 248 123 U.S. Reynolds States, v. United 179-80 U.S. (1887); 98 (1878). 155-57 see no to from We reason this depart of
accepted standard review.7 The that requirement juror bias or circuit court error be "manifest" before is overturned is appropriate because circuit has to observe the atti- opportunity prospective juror's tude and the voir dire examination. disposition during To the to contrary, appellate attempt courts which make their of a prospective juror's own assessments cold, must do so from the impartiality typewritten Reynolds, record. See words of an 98 U.S. at appellate ("[T]he 156-57 manner testifying of the while is oftentimes the real of more indicative of character his below, his seen opinion than words. That is but cannot record."). stated, always upon As we have spread of advo- adoption suspicion" the "reasonable standard cated would do with the away Ferron circuit court's broad discretion this area law. of assertions, Contrary to Ferron's the determination impartiality A require two-step approach. does not is, juror's ability set aside his or her bias as the State con tends, "part parcel" inquiry. and of the manifest bias
c. acknowledge "[impartiality 28. We conception. mind. For the It is a state of a technical appropriate of this mental attitude of ascertainment lays particular no indifference, the Constitution down any procedure ancient is not chained and tests Wood, v. 299 U.S. artificial formula." United States (1936). persuaded Nevertheless, we 123, 145-46 are clarify standard because we further the manifest bias recognize compels our recent decision in Ramos carefully chal the circuit courts to more lenges scrutinize generally Ramos, See 211 Wis. for cause. 2d (holding challenge peremptory use of to cor that the error law for failure to strike a rect a circuit court's *15 reversal). juror adequate grounds for is for cause Accordingly, prospective ¶ 29. we hold that a juror's bias "manifest" whenever a review of the is (1) support finding prospec- not a the record: does that juror sincerely person tive is a reasonable who is willing put prior knowledge; opinion to an or aside or (2) finding person support not a that a does reasonable juror's position opinion in the prior knowledge. set the or could aside approach Adopting pur- ¶ 30. two this serves jurors' subjective poses. prospective With a on focus willingness prong biases, to set aside their the first of superior approach this accounts the circuit court's for position disposition pro- the of assess demeanor jurors. prong appellate spective The second the allows particular courts to determine whether under the cir- surrounding examination, dire cumstances the voir no opinion juror put reasonable could aside the bias or by e.g., See, Gesch, which is the record. 167 revealed Wis. 2d at 667 (concluding prospective jurors who are related to a state witness blood or marriage the degree third must be struck from the on jury panel bias). of the basis implied
II. 31. clarified the Having standard appropriate to be a review of circuit court's employed upon determi- a nation that can we prospective juror impartial, apply that standard the facts of this As case. we have stated, of "[t]he whether a is question prospective juror biased and should from jury be dismissed for panel cause is a matter of the circuit court's discretion." (citation omitted). Ramos, 211 Wis. 2d at "This court an of will find erroneous exercise if a circuit discretion is on discretionary court's decision based an error of law." Id. at 16. Wisconsin, 32. In who "has or juror expressed
formed or is of or any opinion, any aware bias prejudice in the case" from must be struck for cause. panel 805.08(1). Wis. Stat. "If a indifferent § shall be excused." Id. case, have previ- We ously appearance "[e]ven stated that bias should Louis, be avoided." Wis. 2d at 478. case, In this dia- review the relevant defendants,
logue court, between the counsel for the jurors and the illustrate the cir- prospective will *16 cuit an of by failing court committed error law to strike Metzler for cause. examination 34. The relevant dire this voir in
¶ case with began Attorney Fitzgerald's questions on regarding possible bias based the defendant's choice "Well, not to Metzler testify. responded, your if client why reply, In innocent, he take the stand?" wouldn't Fitzgerald informed Metzler of a criminal defendant's right testify. to elect not to constitutional Apparently unpersuaded, again ¶ Metzler 35. why go up innocent, he asked, "Well, if wouldn't he's tell us innocent?" answer led Fitz- there and he's This gerald explanation a detailed of a criminal to offer more right testify to decline to on his own behalf. defendant's again hold asked Metzler would his bias When whether responded, may." against I Ferron, Metzler "I think point, stepped At in to inform 36. this court jurors prospective of criminal defendant's "abso- right testify" lute constitutional not to which "must not you any way and must not influence be considered your any Following manner." verdict brief exchange prospective Clark, the with M.C. jury panel on the instructed law a second time. Despite instructions, 37. the court's detailed express criminal Metzler continued to his belief testify defendants who elect not on their own behalf guilty wrongdoing. added, "Well, He I are would have believing a hard time that he innocent if he didn't was [sic] the stand and tell me he take wasn't innocent. just my That's own belief." Although ¶ 38. Metzler later stated that he certainly [his try bias] aside," to set the record "would indicates that the circuit court was satisfied with question regard- answer, Metzler this continued ability ing impartial juror. his as an serve Metzler's response "[p]robably" that he final indicated could set his bias aside. regarding In all, the discussion Ferron's right to
Fifth Amendment be free from self-incrimina- produced pages dialogue record, four in the tion which included two instructions on the law from *17 counsel four defense and instructions from the court. end, Yet in the most the the circuit court to was able willingness ascertain as to Metzler's to set aside his against obvious bias defendants who choose not to tes- tify "[p]robably." on their own behalf was emphasize questions pro- We 40. that as to a juror's spective willingness sincere to set aside bias largely should left to be the circuit court's discretion. magical spoken by There are no prospective words that need be the juror, affirmatively and the need not "definitely" state that he or she can the set bias aside. say appropriate follow-up to Suffice it questions by that the without juror's court,
the circuit final word "probably" willing- is insufficient to indicate a sincere against parties ness set or aside his her bias who rights.8 choose to exercise their constitutional explicit Indeed, that Metzler's bias was hinged upon right Ferron's Fifth Amendment free importance from self-incrimination is of considerable Supreme in As this case. the United States Court has against compul- privilege stated, the Fifth Amendment sory self-incrimination: a complex
reflects of our fundamental values and important marks an in aspirations, and advance development any can liberty. of our It be asserted criminal, or or proceeding, judi- civil administrative cial, investigatory adjudicatory, protects or against any disclosures reasona- which witness example, appropriate follow-up question For an these be, you juror gives would If the instances "Will follow law?" willingness put an answer which indicates less-than sincere case, in that apply particular aside all biases and law panel be struck for must from cause. prosecution in a criminal bly believes could be used might be so or lead to other evidence could *18 to safeguard Court has been zealous used. This privilege. underlie the values which (1972) States, v. United 406 U.S. 444-45 Kastigar omitted). (footnotes do we not decide Although issue, may in case differ- our decision this have been Metzler exhibited a given the same record —had ent — con- which did not conflict with such an essential bias stitutional right.9 Bradley by and both Justice Geske Justice dissents importance forcefully
stress the of this case and contend we judges the discretion the trial in this state. See have removed dissent; Bradley's generally Justice dissent. We Justice Geske's disagree, emphasize circuit retain wide dis and that the courts juror's responses in prospective cretion this area of law. The willing simply case indicate this were insufficient to a sincere by deciding ness to the United Constitution in abide States Ferron's fate. end, argue give
To this
both
same
dissents
that we
as
guidance
circuit courts no
to what will be deemed sufficient
jurors during
responses
prospective
voir dire examinations.
("The
gives
gui-
majority
See Justice Geske's dissent at 508
no
ends.");
judges
dance to trial
as to
their
where
discretion
Justice
("The
Bradley's
majority opinion
dissent at 512
leaves circuit
guidance
and appellate
they
courts
courts with no
as
venture to
cases.").
guess
majority
what this
will deem sufficient in future
so,
doing
internally
In
are
the dissents
inconsistent.
case,
"gui-
Adopting
giving
a standard
this
or
extensive
away
dance"
the circuit
would do
their
courts
with
emphatically
discretion —a result which the dissents
disavow.
We decline to set forth a
test which
definitive
draws
fine
acceptable
between those answers which are
those
and
which
because,
frankly,
quite
are not
there is no such test.
During
¶ 42.
examinations,
voir dire
the circuit
thorough
courts are
advised
establish a
record which
denying
sets forth the court's rationale for
a motion to
strike a
for cause. The circuit courts are also
striking prospective jurors
advised to err on the side of
appear
appellate
who
biased,
if the
even
impartiality.
would not reverse their determinations of
e.g.,
See,
Kanzenbach,
¶ 43. We
to note the inherent difficulties
attempting
voir
with
dire examinations. In
to ascertain
sincerity
prospective juror's willingness
of a
to set
opinion,
prior knowledge,
aside an
bias or
circuit courts
*19
badgering
juror,
prospective
should refrain from
the
or
giving
appearance
doing
from
that it is
so.10Even
appearance
of such assertiveness
the court is
likely to alter
demeanor,
inflection and answers
particular panel
which that
member, and others
may give
questions.
around him her,
or
to voir dire
willing-
¶ 44. Because Metzler's lack of sincere
ness to set aside his bias illustrates that he was not
required by
"indifferent
§
in the case" as
Wis. Stat.
805.08(1),
we conclude that the circuit court commit-
thereby erroneously
ted an
law,
error of
and
exercised
denying
discretion,
its
in
the motion to strike Metzler
e.g.,
See,
for cause.
State v.
Zurfluh,
Wis. 2d
(Ct.
1986)
App.
(holding
439,
edy decision in Ramos. our recent to overrule request III. of a peremp- Ramos, held that the use In we for failure court error correct a circuit to tory challenge for rever- grounds cause is adequate for to strike of a the defendant arbitrarily deprives it sal because Ramos, See 2d at 211 Wis. statutorily granted right. not examine we need reasons which 24-25. For various court to "reconsider" detail, the State asks this to do so. We decline decision. on our yet dry the ink has to 46. Put simply, Ramos, we find
decision in Ramos. Were we to overrule confi- suggest public of faith to leap it no great Moreover, be diminished. dence in the would judiciary that bench appear agree in this case both parties familiarize themselves attempted bar alike have its Ramos, taken with steps comply and have with the rule of society depends upon In a which holding. forms the decisionmaking law, upon judicial reliance of our culture. legal centerpiece Court has the United States Supreme 47. As decisis is the "[sitare course because stated, preferred and consistent evenhanded, predictable, promotes reliance on fosters legal principles, development actual and decisions, and contributes to the judicial Payne v. judicial process." of the perceived integrity *20 (1991). Tennessee, 501 U.S. 808, 827 the doctrine of stare from "[A]ny departure '48. ¶ Arizona v. Rum- decisis demands special justification." (1984). The State no sey, 467 provides U.S. to overturn our or compelling justification "special" much of the Instead, argument it repeats decision. Ramos, in and presented even asks the court to recon- sider the rationale set forth in the Ramos dissent. path upon which State would
¶ have us travel is uncertain and precarious. By adhering our decision in Ramos, we choose a which path may lead to always results, infallible but which certainly more provides stable and predictable for the footing future.
IV.
50. Because Ferron was
compelled
¶
use one of
his statutorily granted peremptory
to cor-
challenges
rect the circuit
law,
court's error of
his conviction must
reversed,
and the cause remanded for a new trial in
Ramos,
accordance with our
decision in
By the Court. —The decision of the court of appeals modified, and modified, as affirmed. 51. WILLIAM BABLITCH, {concurring). A. J. I join the majority opinion, only write to answer the dissenting of Justice opinions Geske and Justice Bradley. 52. Both dissents take the position Metzler of
response "probably" was good It enough. was not when good enough taken context. 53. The issue to which the juror was asked to was whether he respond would afford the defendant the rights due him under the Fifth Amendment to the U.S. Constitution. Thus, was, his answer "I reality, will probably grant the defendant his under the rights Fifth Amendment." That juror's is not the choice. He *21 rights Consti- under the his the defendant
must afford "probably;" that won't, or he He either will tution. potential that he will not. term connotes the exacerbating the issue is that ¶ 54. Further appear response juror's in a vacuum. His did not only "probably" response after a number came colloquies defendant, the cir- for the counsel between colloquies juror. are well These court, and cuit they majority opinion, include but in the documented " your Well, as if Metzler such from statements why stand?"; he take the innocent, wouldn't client is go up why he there and innocent, wouldn't "Well,if he's (in may." response I to a "I think innocent?"; us he's tell question defendant's fail- he hold the of whether would defendant); against "Well, I the stand ure to take believing innocent that he was a hard time would have [sic] me he and tell wasn't if he didn't take the stand certainly try aside."; to set innocent."; "Well, I would "Probably." then, ¶ court, at the conclusion of all The circuit 55. removing he Mr. Metzler. He said "I'm not this, stated: respectfully, was in error. Mr. court, The could do this." say said, do this. He "Proba- did not he could Metzler good Following preceded bly." this, it was not what enough. dealing here with whether 56. are not We accept instructions on some mun- the court's can dealing are with fundamental
dane area of the law. We absolutely majority's rights. correct. conclusion is that Justice Don- I am authorized to state join Patrick Crooks Steinmetz and Justice N. ald W. concurrence. this (dissenting). join GESKE, I 58. JANINE P. J. Bradley's separately I
Part of Justice dissent. I write *22 express my deep majority concern that has sub- stantially inappropriately and restricted the circuit during process. In court's discretion the voir dire felony every prospective case, almost serious honest jurors express concerns about the heinous factual alle- gations, presumption prior innocence, record, of a testimony, option other acts a defendant's not to tes- evaluating testimony tify, police a in officer's the same witnesses, manner as other or the victimization of elderly person. encourage child, or trial disabled We judges explore fears, biases, those and natural reac- prospective jury panel. tions with the members of the they people honestly Few can tell the court that are factors in the case and then bothered some these absolutely, equivocation, judge without reassure the they they disregard are certain can their concerns. they people only Most honest can commit that will do judge then, must based their best to be fair. The trial person's upon her assessment of that sincer- his or own ity ability person fair, and to be decide whether qualified particular to sit on that case. Judge just
¶ 59. Naze conducted such a discus- upon concluded, here. He based sion and assessment juror observed, he heard and that the could be what majority disagrees Judge assess- fair. The with Naze's majority Instead, that Mr. ment. concludes ever heard or Metzler, none of us on this court whom observed, maintained a manifest bias and could Judge juror. Exchanges a fair like the one between Metzler occur in Wisconsin courtrooms Naze every day. judges, cases, criminal Trial in both civil and routinely Judge type of assessment that Naze make may any us on this court have did here. Whether call as Naze is not discretionary Judge made the same call belonged to our discussion. That judgment relevant in and not to us in the to the trial the courtroom judge room words on reading court conference bare supreme a transcript. has, effect, In majority this opinion
told the circuit courts that courts are appellate judgment major- better to make this call. position trial their ity guidance judges no as where gives decision, Because of this the court of discretion ends. must now assume the new task of at appeals looking jurors the answers of on cases which have prospective tried, to reach an already appellate been court assess- ment of whether a should have been struck for cause. This court should have left that discretion where *23 the hands of the trial belongs judges. —in BRADLEY, J. {dissenting). 61. ANN WALSH
¶ I the importance What want stress is of this case. important I think that this is the most case I that forever, I lawyer have ever had. haven't been a this, years by about 15 at this is far the most but important case I've ever had. This case affects not cases, only criminal but it affects civil cases. We're talking finality the about of verdicts. 62. As noted the assistant by attorney general
at oral argument, the issue in this case important affects the In finality addressing verdicts. the issue of the standard of appropriate review of a appellate circuit court's determination that a prospective can be the concludes that the mani- impartial, majority fest bias standard should I While applied. agree with the standard adopted by majority, as it a circuit court's more acknowledges advantageous posi- I dire, a believe the evaluating majority tion for voir of the standard in this errs in the application case.
I. An a circuit may overturn appellate where juror impartiality only court's determination "man- juror's a of the record shows that a bias is review Louis, ifest." See State v. 470, 478-79, 2d 156 Wis. (1990). In this language, interpreting N.W.2d by the test for manifest bias offered majority adopts not State. That test indicates that manifest bias will a prospective juror exist where the record shows that sincerely willing put a reasonable who is person and that a reason- knowledge aside an or opinion prior in the could set aside person juror's position able or prior knowledge. opinion I with the test agree adopted 64. While I with the court's of that disagree application
majority, court, the majority test here. In the circuit reversing the chal- claims that the record does not indicate case, Metzler, willing was sincerely this lenged juror against his bias a defendant put potential aside However, not a case where the this is testify. does refused to put record indicates that a potential a This is also not case where procedural aside a bias. counsel's concern about ignored the circuit court where, Rather, based on this is case potential juror. instruction, and first-hand legal extensive questioning, *24 court comments, the circuit assessment of Metzler's aside his willing put that the was determined bias. deci- In review over exercising appellate
¶ credibility a determination effectively requiring sions acknowledge must this court prospective juror, indicia of convey cannot adequately that a cold record The sincerity. you reason for this is cannot talk simple: sincerity, you communicate review sincerity. Appellate of the record and is limited to a large review of the talk. The communication available for the circuit court to assess includes seeing body language, hearing inflection, experiencing the or hesitancy, pauses, certainty of the statement. 66. The record indicates that Metzler
expressed doubts about the defendant's motivations In failing testify. defense response, counsel and the circuit court instructed the voir dire on the defen- pool dant's constitutional rights. circuit court then asked if Metzler was to set "willing [doubts] those aside for the purpose of this case and follow the law?" Metzler "Well, I replied, would certainly try set it aside." 67. After further of another questioning pro- spective juror, the court advised that "[t]he thing you have to do is not use that against the defendant. You have to decide the case on the evidence as it comes out in the room, court not things that didn't happen. That's the point. you Can do did [sic] that?" Metzler responded, "Probably." When defense counsel asked the court to remove Metzler from the jury pool, stated, "I'm not removing Mr. Metzler. He said he could do that." 68. Based on this colloquy, focusing partic- on
ularly Metzler's use of the word "Probably," the majority determines that Metzler maintained a mani- fest bias against defendant. In so doing, majority violates its own test. The majority emphasizes evaluating prospective juror's sincerity is best left to the circuit court and declares there are no magical words or "affirmative[ ] state[ments]" that a juror need make to indicate impartiality, and that there is no "definitive test which draws the line *25 between those answers which are acceptable those are which not. . . ." at Majority op. Yet, 501-02 n.9. word, on one based the "Probably," majority reverses the circuit court's first-hand evaluation of the prospec- tive juror's ability to the judge defendant impartially. 69. In conclusion, this reaching
¶ the majority that requires which it disclaims —a definitive affirma- tive statement indicating that the potential is able and willing set aside a any against bias defen- dant Yet, who does not testify. faced with a daunting and legalistic like, "Can question you aside all put bias," I submit that voir dire average participant will with a respond qualified affirmative instead of the unambiguous declaration that the majority seems to require. 70. The majority asserts that Metzler's
response he could "probably" base his decision on the solely evidence leaves the court with an equivo- cation. The majority concludes that is response "insufficient to indicate a sincere to set willingness aside his or her bias. . . ." at 501. Majority op. Such a conclusion is incorrect. to the Contrary majority's dis- comfort with Metzler's no of "probably," precedent this indicates "probably" is unacceptable equivocation. 71. Our jurisprudence with replete examples rely which we on a standard of we make probability:
arrests, issue warrants and commit individuals mental institutions a upon showing probable cause; of an opinion founded expert upon reasonable degree is a sufficient probability upon basis which award millions of Yet, dollars cases. complex majority disparages juror's use of and on "probably," that basis elevates its assessment of a prospective juror's sincerity above that of the circuit court. scope attempt of its to narrow In an dependent majority makes its result
conclusion, the *26 right against upon self-incrimi- Amendment the Fifth going decision far to state that "our nation, so as even given may the same this case have been in different — did not a which Metzler exhibited bias record —had right." constitutional an essential conflict with such acknowledge impor- Majority op. the I at 502. While majority's Amendment, reliance the Fifth the tance of upon appears justify to an result in this case be it to its arbitrary precludes courts from elic- It circuit exercise. majority iting any guidance the whatsoever from majority explain why analysis to the could serve which in this case.1 the circuit court's decision overrules majority opinion circuit courts The leaves 73. guidance they appellate as venture and courts with no majority guess deem sufficient this will what Compounding is the this lack of direction future cases. they guess severity consequences if incor- of the finality rectly jeopardizing the of verdicts. — appellate are The circuit courts and courts 74. "probably" is sufficient. Ini- left to wonder if the word majority opinion tially, seems to discussion in opinion suggest Yet, the it not be sufficient. sub- would suggests "may" sequently equivocates majority point, alleging that the dis The confuses this mistakenly internally majority also sents are inconsistent. bright-line rule. I equates guidance request a call for with a for Quite contrary, I bright-line "magic" words. to the espouse no strongly that the circuit courts are best left continue to believe However, sincerity juror. if the prospective of a assess majority going usurping take the tactic of ill-advised case, entirely then the acceptable circuit court's decision this guidance by majority provide our courts with some sort of must which to examine future cases. if
sufficient there is no conflict "such with a constitu- tional right." Courts will be left to why wonder: should Fifth Amendment constitutional right be elevated above and considered more essential than other consti- tutional rights? In the Fifth Amendment holding for up spe-
cial treatment in the voir dire analysis solely to justify conclusion, court's errant the majority opinion ignores the more encompassing fundamental constitu- tional with right really which this case deals —the defendant's to a fair trial. right Because courts must act to preserve defendant's constitutional to a right trial, fair whether the alleged bias the defen- against dant is based on personal attributes such as race or on attributes such legal as the defendant's invocation of *27 Amendment, the Fifth exaltation of the Fifth Amend- ment considerations over other of the fair aspects trial constitutional guarantee is, appears, arbitrary. 76. The majority also when it missteps
¶ con- cludes that it is in a position better than is the circuit court to assess a prospective juror's credibility and We should sincerity. reserve our own view of imposing the record to those cases where the circuit court's inter- has no in the record or pretation support where circuit court its duties. I ignores Accordingly, dissent from the conclusion majority's the circuit court as a matter of law exercised its discretion. erroneously
II. 77. I Additionally, note that this court is again a conviction based on State v. faced reversing with (1997). Ramos, 12, 211 Wis. 2d 564 328 N.W.2d court takes this action not because defendant has jury demonstrated his criminal impaneled case was other than fair and but anything impartial,
513
ruling
court's
that the "trial
rather
of Ramos'
because
challenged juror
effec-
for cause
to dismiss the
failure
right
[the defendant]
tively deprived
of the
to exercise
statutorily granted peremptory chal-
all seven of his
lenges." Ramos,
statutory
challenges
peremptory
not to allow
exist
randomly
jury pool
their
shuffle a
defendants to
impar
impaneling of an
favor,
rather to ensure the
but
component
jury
of our constitutional
tial
guarantee
as a
Ramos,
defendant has
anything
impartial,
than fair and
the defendant's
other
if the defendant was forced
conviction must be reversed
challenge
peremptory
to excuse a
who
to use
Ramos, 211
excused for cause. See
should have been
contrary to a
2d at 24-25. Such a result seems
Wis.
significant body
See State v.
of Wisconsin case law.
(Ct.
Traylor,
App.
393,
2d
court, its rationale is no more correct was agree year ago I one when it was decided. While weight great the doctrine of stare decisis deserves incongruous jurisprudence, to refuse to our it seems solely grounds on stare decisis reconsider the decision disregarded line when, above, as noted Ramos itself reaching spanning century precedent over a its currently acknowledge I conclusion. While authority, controlling I continue to Ramos was believe incorrectly decided. I to state that JANINE P. am authorized joins opinion. I
GESKE, J. Part of this