STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Judith L. KIERNAN, Defendant-Appellant.
No. 97-2449-CR
Supreme Court of Wisconsin
Decided July 8, 1999.
596 N.W.2d 760
Oral argument May 6, 1999.
For the defendant-appellant there was a brief by Chad A. Lanning and Barry S. Cohen, S.C., Elkhart Lake, with oral argument by Dennis M. Melowski.
¶ 1. ANN WALSH BRADLEY, J. The State of Wisconsin seeks review of a published decision of the court of appeals reversing the convictions of Judith Kiernan for operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle while having a prohibited breath alcohol
¶ 2. Kiernan was arrested in rural Sheboygan County and charged with operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle while having a prohibited breath alcohol concentration, contrary to
¶ 3. Sheboygan County calls its residents for jury duty from a computer randomized list created for that purpose. This relatively large group called for jury duty is collectively assigned to a particular branch of the circuit court for a one-month period. See
¶ 5. Ordinarily, as defense counsel later admitted, the reappearance of “veteran” jurors in another case tried by the same attorney would cause little, if any, concern. Here, however, Kiernan‘s case essentially was “deja vu all over again.” It was a carbon copy of the earlier case.
¶ 6. In both cases the State prosecuted a person for driving an automobile while intoxicated with a breath alcohol content of 0.11. In both cases the State‘s strongest evidence was a reading from a breathalyzer machine, the Intoxilyzer 5000, showing that the defendants’ breath alcohol was in excess of the permitted legal limit. Most importantly, in both cases the theory of defense was to discredit the breath alcohol reading given by the Intoxilyzer 5000.
¶ 7. The theory advanced in both trials was that objects in the mouth would absorb alcohol thereby rendering breathalyzer readings inaccurately high.4
¶ 8. Kiernan‘s counsel, upon recognizing the five veteran jurors, immediately alerted the circuit court of his concern and requested that the five veteran jurors be replaced with five other prospective jurors. The circuit court apparently took his protestations under advisement and continued with voir dire. Unfortunately, it is unknown what exactly took place at voir dire because it was not recorded.
¶ 9. However, based on recorded conversations between the court and defense counsel that occurred after the jury was selected but before the trial began, we are able to discern the following information. First, defense counsel quizzed the five veteran jurors about their reliance on the Intoxilyzer 5000. One veteran juror indicated that she would trust the results of the machine unless it was shown that the breath test was administered by an unqualified person or the machine failed its own diagnostic check. Three of the other four veteran jurors agreed with that assessment. Second, the circuit court declined to remove any of the veteran jurors for cause. Third, Kiernan exhausted all of her peremptory strikes to remove the four veteran jurors who concluded that the breathalyzer machine, absent the extraordinary circumstances above, would render
¶ 10. The circuit court, in declining to remove the veteran jurors, noted that the jury selection methodology used in Sheboygan County was lawful and that Kiernan had not shown any improper discriminatory exclusion of a person or group of persons. It then expressed confidence in the ability of the citizens of Sheboygan County to be fair and impartial jurors. The court reasoned that the veteran jurors were not biased merely because they rejected the defense theory at the first trial and would likely do so again at this trial. According to the circuit court, the veteran jurors’ rejection of the defense theory spoke not to their biases but to the deficiency of the theory and to the manner in which it was advanced at trial.6 Quite simply, the cir-
¶ 11. The jury as selected ultimately convicted Kiernan on both counts. Kiernan appealed and the court of appeals reversed.
¶ 12. The court of appeals concluded that reasonable jurors in the veteran jurors’ position could not set aside their opinions or prior knowledge and should have been removed for cause. See State v. Ferron, 219 Wis. 2d 481, 498-99, 579 N.W.2d 654 (1998). It reasoned that based on the record the veteran jurors expressed their disbelief of the theory advanced by the defense before they had heard the evidence in Kiernan‘s trial. Because they had formed opinions on the subject matter of the trial, the veteran jurors were biased and should have been removed for cause. Kiernan, 221 Wis. 2d at 139. Since they were not, Kiernan was forced to exercise all of her peremptory strikes to correct the circuit court‘s error. Under State v. Ramos, 211 Wis. 2d 12, 24-25, 564 N.W.2d 328 (1997), this act entitled her to a new trial, even though the jury that found her guilty was fair and impartial. The State petitioned this court for review.
¶ 14. We recently noted that three types of bias can exist. State v. Faucher, 227 Wis. 2d 700, 716-17, 596 N.W.2d 770 (1999). The first and least common is statutory bias. This category of bias derives from
¶ 16. The third and final category of bias is objective bias. In some circumstances, bias can be detected “from the facts and circumstances surrounding the...juror‘s answers” notwithstanding a juror‘s statements to the effect that the juror can and will be impartial. Delgado, 223 Wis. 2d at 283. This category of bias inquires whether a “reasonable person in the juror‘s position could set aside the opinion or prior knowledge.” Ferron, 219 Wis. 2d at 498. We give weight to the circuit court‘s conclusions that a prospective juror is or is not objectively biased. We will reverse its conclusion only if as a matter of law a reasonable court could not have reached such a conclusion. Faucher, 227 Wis. 2d at 721.
¶ 17. Should bias exist in this case, it will rest either in the subjective or objective categories. There is no suggestion that any of the jurors should have been removed for cause because they fell into one of the
¶ 18. Kiernan‘s contention that the veteran jurors should have been removed for cause because they displayed subjective bias is also problematic largely for one reason: the voir dire proceeding was not recorded. As noted above, subjective bias is based on the juror‘s responses and demeanor at voir dire. Even with a transcript, an appellate court is at a disadvantage to gauge subjective bias because the demeanor and sincerity of the juror are difficult to convey in the paper record of a proceeding. Ferron, 219 Wis. 2d at 509-10 (Bradley, J., dissenting). Take away the transcript and an appellate court‘s disadvantage increases exponentially.
¶ 19. Without a transcript this court has no way of knowing exactly what was said at voir dire and, absent specific findings by the circuit court, has no way of knowing that court‘s impression of the jurors. Here, the circuit court‘s and Kiernan‘s summaries of the events at voir dire, while helpful to paint a picture of the voir dire in broad strokes, insufficiently furnish the detail necessary to undertake effective appellate review on subjective bias.
¶ 20. As a result, the outcome of this case will hinge on an objective determination, whether the record reflects that reasonable people in the position of the veteran jurors could set aside their prior opinions or knowledge and judge Kiernan‘s case solely on the evidence presented at her trial. Ferron, 219 Wis. 2d at 498. Answering this question requires us to decide essentially two issues.
¶ 22. The overwhelming majority of jurisdictions, both state and federal, have concluded that jurors who serve on another jury involving similar facts and issues need not categorically be removed for cause solely on that basis. See, e.g., United States v. Garcia, 936 F.2d 648, 652 (2d Cir. 1991); United States v. Carranza, 583 F.2d 25, 28-29 (1st Cir. 1978); United States v. Riebschlaeger, 528 F.2d 1031 (5th Cir. 1976) (per curiam) (collecting cases); United States v. DeMet, 486 F.2d 816, 819 (7th Cir. 1973), cert. denied, 416 U.S. 969
¶ 23. Moreover, we have been quite hesitant to create classes of persons that are per se excluded from jury service. State v. Louis, 156 Wis. 2d 470, 479, 457 N.W.2d 484 (1990) (law enforcement officers); McGeever v. State, 239 Wis. 87, 96-97, 300 N.W.2d 485 (1941) (part-time employee under the supervision of the district attorney and sheriff); State v. Olson, 179 Wis. 2d 715, 720, 508 N.W.2d 616 (Ct. App. 1993) (victims of sexual abuse). See also Nolan v. Venus Ford, Inc., 64 Wis. 2d 215, 225, 218 N.W.2d 507 (1974); Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 626, 79 N.W.2d 249 (1956); Good v. Farmers Mut. Ins. Co., 265 Wis. 596, 598-99, 62 N.W.2d 425 (1954); but see State v. Gesch, 167 Wis. 2d 660, 666-67, 482 N.W.2d 99 (1992) (relatives of witnesses categorically excluded from sitting on the jury). As a result, we will not categorically conclude that a veteran juror is objectively incapable of being fair and impartial in a subsequent case where the issues and facts are similar.
¶ 24. Rather, a party seeking to have that veteran juror removed for cause will need to make an individualized showing that the particular juror is objectively biased.9 Here, Kiernan has made such a showing. We must reverse the circuit court because as a matter of law a circuit court acting reasonably could not arrive at the conclusion that these veteran jurors were fair and impartial.
¶ 25. We arrive at this conclusion based on the veteran juror‘s statement at voir dire, as summarized by defense counsel and the circuit court. In the discussion on the record of Kiernan‘s motion to the court, defense counsel summarized what one of the veteran jurors had stated in voir dire. The gist of the statement was that the juror believed that the Intoxilyzer 5000‘s readings would be correct unless it could be shown either that the machine was operated by an unqualified person or that the machine failed its self diagnostic
¶ 26. Due process requires that a defendant be judged solely on the evidence adduced at the trial. Irvin v. Dowd, 366 U.S. 717, 722 (1961); Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994). This requirement means that the jury‘s verdict must be supported by the evidence at trial, Thompson v. City of Louisville, 362 U.S. 199 (1960), may not be based on information learned about the defendant that was not produced at trial, Irvin, 366 U.S. at 725-26, and may not be based on preexisting opinions on the issue put before the jury in the case, see United States v. Haynes, 398 F.2d 980, 985-87 (1968).
¶ 27. Here the veteran jurors opined that they would conclude that the Intoxilyzer 5000 gave an accurate reading unless one of two extraordinary scenarios was presented. Their candor at voir dire should be commended; however, their candor also reveals that they had decided the case without hearing the evidence.
¶ 28. The crux of Kiernan‘s defense was that the breathalyzer rendered an inaccurate reading for reasons other than operator error or machine malfunction. By their own statements at voir dire, the veteran jurors had reached a conclusion on that very issue before they heard one sentence of testimony.10 Those jurors had formed a steadfast opinion outside the confines of Kiernan‘s trial on the very issue they were being called upon to decide at her trial. This is the essence of bias.
¶ 30. In sum, veteran jurors cannot be removed for cause solely on the basis of their having served as jurors in a similar case. Rather, such veteran jurors must be shown individually to have exhibited bias in the case they are called to hear. We conclude that these veteran jurors did exhibit bias, in that reasonable jurors in their position could not set aside expressed opinions and prior knowledge relating to the veracity of breathalyzer results. Accordingly, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
¶ 31. ANN WALSH BRADLEY, J. (concurring). The dissent, having declared “great respect” for stare decisis, then ignores it. It attempts to justify this contradiction by explaining that all it wants overruled is the automatic reversal requirement of Ramos. The automatic reversal rule, however, is the essence of Ramos. I write separately to address this contradiction
¶ 32. The dissent maintains that it has “great respect for the principle of stare decisis” while in the same sentence arguing that the “automatic reversal requirement” of State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), should be overruled. Dissent at 754-55. I interpret the dissent as saying that only the “automatic reversal requirement of Ramos should be overruled” and by implication suggesting that the rest of Ramos remain good law. The difficulty with such a proposal, of course, is that if the automatic reversal rule of Ramos is reversed, there remains no meaningful shred of the decision that has precedential value. Ridding this state of the automatic reversal rule can only be accomplished by ridding this state of Ramos.
¶ 33. A discussion of stare decisis was recently articulated in State v. Ferron, 219 Wis. 2d 481, 486, 504-05, 579 N.W.2d 654 (1998):
Because we discern no sound reason either in law or public policy to do so, we also decline the State‘s invitation to overrule our decision in Ramos.
. . . .
Put simply, the ink has yet to dry on our decision in Ramos. Were we to overrule Ramos, we find it no great leap of faith to suggest that public confidence in the judiciary would be diminished.
. . . .
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process....
[A]ny departure from the doctrine of stare decisis demands special justification.... The path upon
which the State would have us travel is uncertain and precarious. (Citations omitted.)
¶ 34. I joined the dissent in Ramos. I continued that dissent in Ferron, a case that followed quickly on the heels of Ramos. I acknowledge that Ramos is now binding precedent. However, today‘s opinions more clearly delineate, and in doing so circumscribe, the significance of Ramos. We apply an appellate standard of review that is deferential to the determinations of the circuit court, majority op. at 745, and have narrowly defined the rule of Ramos. See State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999).
¶ 35. The dissent should refrain from parsing stare decisis in an attempt to avoid the rule of Ramos. The automatic reversal rule is Ramos and cannot be separated from it. The dissent should acknowledge that a court cannot overrule the automatic reversal rule without overruling Ramos and affirm today‘s limitation of that decision. Accordingly, I concur.
¶ 36. N. PATRICK CROOKS, J. (dissenting). I dissent for the reasons stated in my dissent in State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), since this case presents a somewhat similar fact situation and is clearly controlled by the Ramos decision.1
¶ 37. I concluded in Ramos, and I conclude here, “that by using a peremptory challenge to strike a juror who should have been excused for cause” the defendant, Kiernan, “effectively exercised this challenge for the purpose it is intended—to impanel an impartial jury.” Ramos, 211 Wis. 2d at 30.
¶ 38. In this case, as in Ramos, there is no claim that the defendant, Kiernan, did not receive a fair trial by an impartial jury.2 The automatic reversal rule adopted by the majority in Ramos, and continued by the majority here, is contrary, I believe, to a commonsense approach. See id. at 24-25.
¶ 39. Where a defendant receives a fair trial with an impartial jury, why should there be a new trial? That is a penalty for trial court error which is much too severe, where there has been no violation of any constitutional right of the defendant.
¶ 40. While I have great respect for the principle of stare decisis,3 the automatic reversal requirement of
¶ 41. If a biased juror actually sat on the jury, so that there was not a fair trial with an impartial jury, then a new trial is indeed appropriate. But there should not be an automatic reversal and a new trial as a result, unless that has occurred.
¶ 42. We should return to the approach taken by this court in Carthaus v. State, 78 Wis. 560, 47 N.W. 629 (1891), Pool v. Milwaukee Mechanics Insurance Company, 94 Wis. 447, 69 N.W. 65 (1896), Bergman v. Hendrickson, 106 Wis. 434, 82 N.W. 304 (1900), and also taken by the court of appeals in State v. Traylor, 170 Wis. 2d 393, 489 N.W. 626 (Ct. App. 1992), review denied, 491 N.W.2d 768 (Wis. 1992).
¶ 43. In Traylor, the court of appeals relied on Carthaus and Pool when it concluded, “Wisconsin‘s longstanding rule is that where a fair and impartial jury is impaneled, there is no basis for concluding that a defendant was wrongly required to use peremptory challenges.” Traylor, 170 Wis. 2d at 400.
¶ 44. In the Ramos dissent, we analyzed the holding of the United States Supreme Court in a case involving peremptory challenges that arose in Oklahoma.
The United States Supreme Court considered an analogous Fourteenth Amendment challenge in Ross v. Oklahoma, 487 U.S. 81 (1988). The Court
Ramos, 211 Wis. 2d at 31-32 (Crooks, J., dissenting).
¶ 45. We noted, in the Ramos dissent, that the Ross Court had also considered whether there was a Sixth Amendment violation. The United States Supreme Court held: “So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.”4 Ross, 487 U.S. at 88.
¶ 46. Where there is no constitutional violation, automatic reversal and a new trial are uncalled for, unless the erroneous ruling on a challenge for cause actually resulted in prejudice to a defendant.5 There was no actual prejudice in this case.
¶ 47. For all of these reasons, I respectfully dissent.