*1 904- at 43-44, 324 N.W.2d at Corcoran, 109 Wis. 2d] 905. trans- discretion its not abuse did trial court the mother child from parties’
ferring custody of the therefore, affirm. and, I would father, Plaintiff-Respondent-Petitioner, Wisconsin, State Defendant-Appellant. Poh, Robert J. Supreme Court Argued November No. 82-1187-CR. 1983. January 31, 198 Decided 4. 108.)
(Also reported in 343 N.W.2d *3 plaintiff-respondent-petitioner For the the cause was argued by Klos, Michael R. attorney general, assistant with whom on Follette, the briefs was Bronson C. La attorney general. defendant-appellant
For the there brief was a and oral argument by Yovovich, Michael pub- first assistant state lic defender.
SHIRLEY ABRAHAMSON, S. J. This is a review *4 unpublished an of decision appeals of the court of filed April 5, reversing an order of the circuit court county, Pies, Door Judge, Dean S. Circuit which de- nied defendant Robert Poh’s motion for a new trial. granting
There are two issues on review. In order its petition the for review parties this court directed the following address among the issue: “Did the comments subject of jurors that the this case constitute are the improperly . . prejudicial . extraneous meaning brought jury’s attention within the of to the parties 906.06(2), also addressed the Stats.?” sec. following standard should court use issue: “What warranted when whether reversal of conviction is assess improperly prejudicial information was extraneous brought jury’s the attention?” information had hold
We by to the attention one been jurors the be the and that conviction must reversed of possibility the there is error since a reasonable might Accordingly the conviction. contributed to appeals affirm the court and remand we decision of the the for a new trial. circuit court court
The facts relevant the issues this are before dispute. not in The defendant was convicted three by negligent operation of a vehicle counts homicide while under the influence of an in violation of intoxicant Approximately 904.09, month sec. 1979-80.1 one Stats. trial, relief, postconviction after the defendant moved for alleging preju had considered extraneous accompanied information. dicial Defendant’s motion was signed by stating juror an affidavit that dur McCain ing jurors of jury the course deliberations two commented driving prior about the and traffic defendant’s accidents violations. Also attached to motion were written alleged jurors concerning statements seven comm ents.2 940.09, 1979-80, provided Sec. follows: Stats. vehicle, negligent operation handling “Whoever of a or airgun firearm or of an intoxicant and while under influence felony. guilty D No causes death of another of a Class proof except upon
person convicted under section handling negligence operation while causal in addition to such under influence of an intoxicant.” lawyer’s or does some This case involve issue of presence person’s questioning the other outside *5 hearing evidentiary during circuit held an court questioned twelve which eleven of the were individ- ually whether information to determine outside record brought jurors’ attention, had been to the the nature information, and the circumstances under jurors’ information had come cir- to the attention. The inquiry cuit court avoided into the effects of this informa- jurors’ processes tion on mental or their delibera- procedure tions. The used circuit court this case complied 906.06, with 1981-82, sec. Stats. and After Welding Hours Management Co., v. Laneil 2dWis. 734, 742, N.W.2d prejudicial circuit court found that extraneous
information not had been to the jury’s that, had, attention and it apply if the standard to to determine reversal was whether this error was “not prejudicial beyond appeal a reasonable doubt.” On appeals court prejudicial concluded that extraneous improperly brought had been attention but not did decide what standard to use assess whether this constituted error. The appeals concluded, court of however, that the error was prejudicial no matter what standard was used the conviction had be reversed. considering impeachment
When of a verdict trial court must (1) consider prof- whether the evidence court, subject we do it. For address discussion of this see, e.g., 1983), United States v. Harrelson 33 Cr. L. Rep. 2518; Relating Standard Standards to Juror Use Management, Division, ABA Judicial Administration Committee tent, Jury July Standards, draft, 1982. might proper This case been avoided had there been parties voir might dire examination. The have learned about jurors’ personal knowledge appropriate challenges and made prospective jurors. Cautionary might instructions have been given. transcript A of the voir dire would have allowed appellate review. *6 1981-82; Stats. competent 906.06(2), under sec.
fered is is, error, the evi- whether (2) there was whether grounds to overturn sufficient dence shows substantial verdict; (3) the conviction should be whether and the prejudicial. was the error overturned because After Although the Hours, first two supra, Wis. 2d at 738. evidence, namely, competency relating and the issues to relating to error sufficiency, the third harmless issue separately overlap extent, treat them as we shall to some Hours.3 we did in After
I. evidentiary juror’s The first issue an one: the com- testify. petency May juror testify to to a as the com- allegedly jurors In ments made the in this case? other alleged words, to the the issue is whether comments the 1980) (2d The ABA for Criminal ed. Standards Justice similarly separates the issues. competency impeach- 15-4.7 Of evidence in relates Standard provides ment of the as verdict follows: “(a) Upon inquiry validity verdict, aof no evi- an into the statement, any of dence shall be received to show the effect conduct, event, upon juror of a or con- or condition the mind cerning processes by the the determined. mental which verdict was paragraph (a) “(b) bar The limitations in not shall concerning the lot. whether verdict was reached juror's Subject paragraph (a), “(c) to the limitations in testimony it concerns: or shall be received when affidavit “(i) came to attention whether not in evidence matters jurors, violate of or which would one more under circumstances right to be confronted with constitutional defendant’s against her; witnesses him or permits any jurisdiction “(ii) other for which misconduct jurors impeach their verdict.” (2d 8-3.7, Justice II ABA for Criminal Standard Standards sufficiency 1980), to set aside of the evidence to the ed. relates provides as follows: and harmless error verdict jurors constitute extraneous in- improperly brought formation attention meaning within 906.06(2), of sec. Stats. 1981-82. 906.06(2), Sec. virtually identical to Rule 606 (b) governs Evidence, Federal Rules com- petency testify inquiry validity an into the provides It verdict. as follows: (2) INQUIRY “Sec. 906.06 INTO VALIDITY OP VERDICT OR Upon inquiry validity an into ver- indictment. indictment, juror may testify any dict or occurring during matter or statement the course *7 jury’s anything upon deliberations or of to the effect his any juror’s or him to influencing other mind or emotions as to assent or from dissent the verdict or indictment concerning processes or his mental in there- connection with, except juror may testify question a on the prejudicial whether extraneous im- was brought properly jury’s any to the attention or whether brought improperly upon outside influence was to bear any juror. may any Nor of affidavit or evidence his concerning by statement him a matter about which he precluded testifying would be from received.” explained (2) As we Hours, in 906.0.6 seeks sec. After pro- policies: to reach an accommodation between two tecting verdicts, jury finality en- trial and the of suring just accomp- result in each case. The statute by prohibiting juror’s lishes this accommodation testi- mony during as and as to statements made deliberations allowing processes jurors to the deliberative of the but defendant, guilty any “On criminal motion of a verdict of in granted whenever, on the case shall be aside a new trial set ¡basis competent evidence, of likeli- a substantial court finds ex- hood that vote of more influenced one or was posure relating to the to the defendant or matter part case itself of the trial record on which that was not jury. Nothing case was this recommendation submitted to the in any procedures jurisdiction is intended affect rules concerning impeachment jury verdicts.” 518 testimony
juror’s
on occurrences and
outside
events
improper
influ-
record
indicate
which
jury.4
the difficulties
The cases illustrate
on the
ences
distinguishing
“inherent” matters
between
involved
relating
jurors’
processes and deliberations
to the
mental
testimony
precluded and “extraneous”
to which
attention as
matters
testimony
permitted.5
bring commonly
expected
known facts
Jurors are
arriving
experiences
ver-
at their
and their
to bear in
“expunge
dict.6
from
We cannot
deliberations
subjective opinions
jurors,
exposi-
their attitudinal
very
philosophies.
tions or their
These involve the
strengths
human
that constitute one
elements
4
par.
Evidence
Berger,
Weinstein’s
Weinstein
606[03]
1961);
(1982); Wigmore,
(McNaughton
Evidence see. 2346
8
ed.
pp.
15-4.7,
Justice,
III
Criminal
Standard
ABA Standards
Jury
Impeachment
(2d
Comment,
1980);
15-152-15-159
ed.
Impeachment
Verdicts,
Note,
360,
(1958);
U. Chi. L. Rev.
Jury Verdicts,
In re
258,
(1970);
Marq.
261-62
L. Rev.
1982);
(6th
Beverly
Litigation,
207,
Fire
Cir.
Hills
695 F.2d
1981);
Inc.,
(5th
City,
Cir.
Martinez
Ford
658 F.2d
1979),
Marques,
United States
600 F.2d
747-48
*8
denied,
Annot.,
Ad
(1980);
cases in
cert.
and
519 jury system.” our United States v. McKinney, 429 F.2d 1019, 1022-23 (5th 1970). Cir. principle justice
Nevertheless, fundamental of our system government has the burden of estab- lishing guilt beyond a reasonable on doubt the basis of evidence in offered the courtroom under rules of supervision evidence and under the of the court. While century jury thirteenth have been selected be- background cause of familiarity facts, its with jury modern solely determines the merits of a case the basis of developed the evidence before it in the ad- versary arena. theory system “The of our is that conclusions to be reached in only a case will be induced argument evidence and open court, by any in and not outside influence, private public whether of talk or print.” Colorado, Patterson v. 454, 205 U.S.
See Dowd, also Irvin v. (1961).7 U.S.
By allowing juror testify extraneous, as to whether information was explained: As one court very “It is jury system’ jury course ‘the stuff of the for the experience exercise dissecting its collective wisdom and properly process it; 'before the cross- pollination opinion, viewpoint, insight into human affairs is one strengths. of the But this does not include com- juror objective munication from one to another of extrinsic facts regarding alleged the criminal defendant or his crimes.” United Howard, 1975). States 506 F.2d explained: Another court recognize, course, complete sanitizing “All must that a jury impossible. expunge jury room cannot from We subjective opinions jurors, their attitudinal deliberations expositions, philosophies. Nevertheless, or their . . while the . jury may experience, leaven its deliberation with its wisdom and doing jury bring in every it In so must not extra into room. facts criminal we do not must endeavor to see specific in the room . . . facts confines [consider]
520 juries 906.06(2) attention, ensures that will jury’s sec. the known to the basis of information verdicts on reach negatively party whose case is the parties and affords probe and rebut.8 a chance to affected the information testify juror competent that To demonstrate seeking impeach the 906.06(2), party sec. under testimony prove juror’s that the verdict has burden (rather than de- information concerns extraneous processes jurors), the extraneous liberative atten- was potential- tion, was the extraneous information ly prejudicial. requirements determine were satis-
To whether these fied, look at the nature of the information about we first testimony. juror’s which the defendant seeks the At hearing juror during circuit court McCain testified approximately dinner, ride one or two bus back from jury’s verdict, juror be hours before the believed to she juror Koskubar informed her that the defendant “didn’t have a driver’s at the accident and that license time previously he in in had been involved other accidents which someone had killed.” said she else been McCain juror any told the did not more. she want to hear McCain juror person also Turk testified that a she believed to forty-five stated, had an minutes to hour before specific greatest about then on trial. ... To defendant possible through pass extent all factual must [material] procedural judicial guarantees sieve, the fundamental where protect rights of those of crime.” United States law accused 1970), McKinney, (5th 1019, cert. Cir. F.2d 1022-23 denied, (1970) (emphasis original). U.S. 922 Impeachment Mueller, and Indictments Jurors Verdict 920, 944, 606(b), Rev. Federal Court Under Rule 57 Neb. L. Howard, (1978); F.2d 865 n. United States 1975). *10 verdict, on, guy history its reached “Oh come has driving. Everyone that.” testi- of drunk knows McCain jurors “jumped fied that at” Turk for mak- several ing the remark. making statement,
Juror Koskubar denied juror apparently testify. Turk was ill and unable resump-
Juror testified after Thiesen that dinner and jurors deliberations, present, tion of when all were prior woman mentioned that the defendant “had records . . jury . related to alcohol.” Five other members of the acknowledged having heard a comment or comments re- lating alleged drinking to defendant’s record driving. jurors thoroughly jury All these stated that the reaching discussed the evidence before a verdict. juror thought
One that she was told after the verdict that previously the defendant had been arrested drinking driving. jurors they anything
Two testified that had not heard driving about defendant’s record. jurors testifying were about information some
jurors had furnished the others. This information re- specific concerning lated facts not of record the de- charged. fendant and the crime The information which jurors “general knowledge” received was not the or expect jurors bring “the wisdom” we to their jurors thought task. testifying were not their about processes or deliberations. It is clear that testifying were about extraneous information within the meaning of sec. 906.06
It apparent also information improperly brought jurors. was to the attention of the recognized In numerous cases that where a courts juror brings extraneous information not on record jurors, information such of other attention jury.9 limited have not Courts
improperly before 906.06(2) information to extraneous sec. jury, as a such sources outside
jurors’ from attention newspaper article.1 court official apparent the extraneous It is also 906.06(2). term is used in sec. was *11 the defendant juror’s relate to facts about comments charged evidence in the nature of and are and crime admitted against was not developed the defendant not have an the defendant did and which at the trial probe The circuit court should opportunity rebut. to and determining competency of purposes have ruled 906.06(2) the in- juror’s testimony under sec. making germane decision formation was and was to the defendant. jurors competent were that the
We therefore conclude testimony testify 906.06(2) their under sec. admissible. II. analysis applying Hours issue,
The second
After
verdict,
suf-
is the
whether to overturn
determine
testimony
namely,
ficiency
evidence,
whether
of the
is,
occurred, that
jurors
that error
demonstrates
9
Virgin
Welding, supra;
See, e.g.,
Government
Hours
After
denied,
Gereau,
1975),
cert.
140,
(3d
v.
Islands
523
151
Cir.
F.2d
Howard,
F.2d 865
v.
(1976);
506
United States
424
U.S. 917
Blair,
Supp.
1975)
1275-
(5th
;
444 F.
United States v.
Cir.
McMann, 435
v.
ex rel. Owen
1978);
United States
(D.D.C.
76
(1971);
denied,
906
cert.
(2d
1970),
402
U.S.
Cir.
F.2d
817
1970).
States,
Farese United
directly the crime comments related to concerning other acts. nature were the alle- (which in fact has a basis Even such evidence if gen- lacked), not gations in such evidence is this 904.04(2), erally Sec. Stats. admissible evidence. thought will other acts evidence 1981-82. It encourage subtly jury, infer that distract propensity wrongs, to commit the defendant has such is, he punishment invite of the defendant because person. charged, bad other than the offense reasons Rutchik, 2d 341 N.W.2d Wis. State these we as a Under circumstances conclude Hours, 2d that the law, matter of 108 Wis. at After jury against extraneous information could bias moving party Indeed and was error. the state does dispute as a matter that the comments constituted error argument law. its on the Instead state focuses applied circuit court standard should be purposes of de- and this court to assess error for termining whether the reversed. conviction should be
Accordingly sufficient we conclude that the evidence is for the circuit court to concluded that these com- error, ments error test constituted and thus harmless applied.11 must be
HH hHb-i
only
dispute
parties
issue
between the
standard the circuit court and this court should use to
assess whether
reversal
warranted
of a conviction is
erroneously
when extraneous
information was
attention.
11
rights
involve “constitutional
There
some errors
are
can never be treated
basic to a fair trial
their
infraction
so
*13
Chapman
California,
v.
as harmless
error.”
U.S.
Turney
Ohio,
Payne
(1958);
Arkansas,
(1967);
356 U.S.
Although having single advantage we see the cases, standard for all we conclude that Hours the After “probable effect,” probabilities reasonable can- standard applied not be in this criminal case. We hold that Chapman possibility test of applied. reasonable is to be
When a considers facts in a criminal evidence, have not been introduced as has defendant deprived opportunity present been evi- when being presented, dence represented by to be counsel at evidentiary proceeding trial, an during to cross-examine presented “witnesses” evidence, who evi- to offer rebuttal, request dence in curative instructions, including argument steps, jury, take tactical other place perspective jury. the evidence in for the implicates error in this case defendant’s federal rights state present constitutional to be at trial and to have the assistance of counsel with confrontation and cross-examination. implicates information in this case right
three constitutional doctrines: criminal defendants’ *14 526 jury, right present by impartial their to be trial an right
during
represented
proceedings, and their
to be
attorney.
VI;
amend.
Wis.
an
U.S. Const.
Const.
IV,
5, 7, 8. These
are linked in this
secs,
art.
doctrines
adversary process
ef
“the
ceases to work
case because
fectively
attorney
when
the defendant nor his
neither
significantly
is informed
an event that
affect
ability
impartially
weigh
of member
-
presented
Spain,
v.
to him.” Rushen
U.S.
evidence
453,
(1983) (Marshall, J., dissenting).
-,
466
104 S. Ct.
subject
requires
amendment
that
The sixth
judicial
control and the rules of evidence and
counsel
opportunity
an
wit
to cross-examine the state’s
Louisiana,
466,
v.
Turner
379
nesses.
U.S.
472-73
(1965).
States,
See also Remmer
347 U.S.
v. United
(1954) ;
Gladden,
227,
(1966).
229
Parker v.
385
U.S.
rights
implicated,
Because federal
are
constitutional
one
numerous cases have classified error similar
Although
the error
as constitutional error.12
dimension,
in this case
of constitutional
reversal
is not
is
prejudicial.
mandated
error is
unless
assessing
an
in-
The standard
the effect of
error
volving
being brought
phrased
attention
has been
variety
ways
courts which have considered
federal
(b).
question
Evidence
under Federal Rule of
Louisiana,
472-73,
(1965);
See, e.g.,
466,
Turner v.
379 U.S.
1981);
877,
Bagnariol,
(9th
United
v.
Cir.
States
666 F.2d
1981);
460,
(7th Cir.
Bruscino,
United States v.
662 F.2d
457-58
1980);
(9th
Clanon,
United
Gibson
633 F.2d
853-64
Cir.
1972).
Thomas,
See also
Cir.
States
Other
the standard
circuits
possibility.”16
“reasonable
13
e.g.,
1179,
See,
Marx,
(10th
United
v.
F.2d
1184
States
485
1973),
denied,
(1974),
cert.
v.
Cir.
United States
Dallago
(D.C.
States,
546,
v.
F.2d
Cir.
United
427
560
14
e.g.,
(2d
See,
Crosby,
928,
v.
United
294 F.2d
950
States
1961);
McMann,
F.2d
Cir.
United
ex rel.
v.
435
States
Owens
(2d
813, 818,
(significant
effect)
possibility),
(probable
n. 5
820
1970).
Cir.
15See, e.g.,
548,
(2d
Adams,
v.
United States
385 F.2d
550-51
1967).
Cir.
16See, e.g.,
(5th
Howard,
United
v.
528 possibility equivalent
The “reasonable
test”
“beyond doubt”
reasonable
standard formulated in
Chapman
reh’g
(1967),
v.
18
California, 386
denied,
U.S.
987,17
applied
386 U.S.
this court
in criminal
involving
cases
federal
error. State v.
constitutional
Billings,
665, 666,
110
2d 661,
Wis.
contributed to conviction’ beyond prove a doubt error reasonable constitutional complained verdict obtained.” contribute to the of error did at 24. 386 U.S. lay study judicial interesting empirical as- of For an impact of evi- kinds of various of sessments Evaluating Sutton-Barbere, Johnson, dence, Teitelbaum, see Identify Judges Prejudicial Evidence: Can Effect of Juries?, 1147. Improper L. Rev. Impact on Wis. Evidence of government principle a “It is fundamental that the has guilt establishing solely the burden of on the of basis evi- produced dence in the courtroom and under circumstances assuring safeguards the accused all the fair of trial. juror [s’], knowledge . . Judicial control of the of pursuant the laws of is fundamental evidence prevention prejudice. of bias and rules Our of designed evidence are exclude from consideration objects the prejudice those facts and tend to presented or confuse. under Evidence exclusionary subject rules is to cross-examination and necessary rebuttal. It is therefore that all evidence against developed an ‘come from accused the witness public judicial stand in courtroom there where is full protection right confrontation, of the defendant’s cross-examination, Louisiana, and of counsel.’ Turner v. 472-73, 1965, 466, 546, 550, 379 U.S. 85 S. Ct. 13 L. Ed. 2d 424.” Chapman beneficiary Under the test of the con- error, stitutional prove state, this case the “. . must . beyond a complained reasonable doubt that the error did not contribute to the verdict . . obtained . and the court must be able to declare a belief that constitu- [the beyond tional was harmless error] reasonable doubt.” Id. 24. at The court determines whether the error by assessing impact erroneously harmless ad- average jury, mitted the minds of an Har- rington v. California, is, (1969), U.S. by assessing possibility whether there is a reasonable complained might the evidence have contributed Fahy the conviction. 375 U.S. Connecticut, (1963).18 86-87 *17 18 Some commentators have that the harmless error concluded rule is of different dimensions in criminal and civil cases 'be proof types cause of the different of in of burdens the two They ap reviewing cases. stress that in verdict the the
pellate usurp jury’s court be must to the careful function. larger margin proof, The lower the burden of of error allowed
530 Chapman
Although possibility” “reasonable easy easy state, apply. v. is it is not to State standard 661, 668, Billings, 2d 192 110 329 N.W.2d Wis. guidelines assessing impact posited for This court has jury. v. of certain of errors on the See kinds Reichhoff (1977) State, 375, 381, 251 470 76 Wis. 2d N.W.2d (prosecutorial of invocation comment on defendant’s 661, 669, right silence) ; Billings, 110 2d State Wis. (1983) (admission of de- into evidence 329 192 N.W.2d incriminating statement; cumula- out-of-court fendant’s evidence). In this case where extraneous tive brought attention complained of, trial and error we conclude is the evaluating impact guided appellate courts should be by considering the nature of the error factors as such under information and the circumstances jury’s attention; the nature which it was trial; case; presented at of the state’s the defense information and the connection between the extraneous Based on a consideration a material issue the case. factors, error that in this case the was these we conclude beyond not harmless a reasonable doubt. margin jury. higher proof, the less the burden of The preponderance They argue jury. if error allowed the used for trial, he test should standard is used at a similar only namely, if judging appeal, reverse error the court should on reasonably probable the decision. affected it is the error certainty required trial, it is greater degree at .as If a assessing appeal error case,
in a criminal standard appellate stringent: court should correspondingly should beyond a rea clear it conviction unless reverse the criminal guilty verdict. not contribute that errors did sonable doubt [06], p. par. Burger, Wright Evidence Weinstein’s See Error, Saltzburg, Harmless Harm (1982); 103-56 8(1973). v. Lockheed also Haddad See L. Rev. 98 Va. Calif. Crimmins, People 1983); Corp., 720 F.2d dissenting). (Cooke, J., (1975) 326 N.E.2d N.Y. *18 alleged nature of the extraneous information was wrongs defendant, or other acts is there thus a direct connection between the extraneous information and the material issues in this case. The extraneous in- general formation has no factual basis in record. wrongs rule evidence of other admissible as supra, p. evidence. See 8. Other evidence raises “a acts jury might punish definite risk convict person they perceive generally to be a actor bad where State, automobiles are Hart v. concerned.” 2dWis. 371, 394, N.W.2d
The extraneous information was furnished to point at a critical in the course of the trial— probably during deliberations and within an hour or so before a verdict was reached.
Furthermore, wrongs alleged the other were similar charged case, related to the offense in this and the history drinking information about the defendant’s driving may proba- have been viewed causation, disputed tive intoxication and issues in this case. against
The state’s case the defendant on the issue of intoxication was based on the results of a blood alcohol test taken a few percentage after the hours accident. The by weight blood alcohol in his blood was measured at percent. .333 presented The defense at trial was an at- reliability tack on the of the blood test results.
On the issue of negligence, causal principal the state’s against provided by defendant was a wit- ness had night-time who observed the collision between the defendant’s vehicle and the second vehicle in rear- his view mirror. The witness testified that the collision place took in the second vehicle’s lane of travel. In addi- tion, an officer who observed the scene of the accident expert testified opinion as to (based analysis his on an gauge marks, marks, tire concentrations of debris passed had defendant’s automobile trails) that the fluid causing line, with the second collision the center over *19 latter’s lane of travel. in the vehicle on the presented at trial an attack defense was eyewitness emphasizing that icredibility of the p.m. place at and that in the dark 8:50 accident had taken through a rear- the accident had observed the witness headlights seeing only vehicle mirror, of the view flying.” also “sparks The defendant and then him behind gauge mark traceable to the that a offered evidence line, the center had found close to vehicle been second creating inference that second vehicle an Furthermore, responsible for the collision. been the second that the driver of offered evidence defendant by weight percent level of .161 vehicle had a blood alcohol accident; inferred at could have the time of the victim caused the collision. from this evidence that the Although in case was sufficient this conviction, especially case, on cau- support a state’s average hypothetical sation, If have weaknesses. did from the extraneous information —as inferred prone they apt was do—that the defendant were sig- drinking negligent driving, this information nificantly is- material the state’s case on both bolstered dispute. in sues Chap- analysis
Applying the set forth herein and standard, declare we cannot man we conclude that possibility that the extra- there no reasonable was improperly prejudicial was neous information which brought jury’s might to the attention have contributed to the conviction or that the state has demonstrated be- yond information a reasonable doubt that this did express a contribute the verdict. cannot belief We beyond a reason- the constitutional error was harmless strong against de- able had doubt. state fendant, prejudicial information but the extraneous in attention was conclude, as did the nature that we of such a case was possibility appeals, there is a reasonable court might have affected that the appeals and the court of Accordingly we affirm verdict. trial. remand for new appeals af- court of
By the Court. —Decision firmed. agree (concurring). I with the re-
STEINMETZ, J. applying “rea- a test of differ in sult this case but possibility had a effect that the error sonable average 525) juror” (supra rather upon hypothetical at Welding Laneil Hour than the test stated After Management Co., 2d N.W.2d 108 Wis. *20 average hypothetical “probable upon (1982), effect of My objection jury.” that I do not believe there initial is any may two It be that distinction between the tests. is quality probabil- possibility a reasonable rises ity. is, however, unnecessary make It an distinction to judge there was a rea- since the trial will decide whether miscroscopic possibility probability or a and no sonable judge making aid can in Trial assist the a distinction. regard judges years questions have said in con- taining “possibility” anything possible. the word speaks possibility” But now this test of a “reasonable likely probability. I which is most the same as a would judges more felt comfortable for trial if the ma- jority tests, had stated in if the difference the there is one, judges recognize they so the can it when Not see it. only majority change test, places does the it the but the on the burden state. I would leave the burden party challenging the the verdict. cases,
There is no to have one need test for civil After Hour, cases, and one test for criminal such as this one. majority’s analysis Chapman, dealing ex- with beyond
elusionary error test the harmless evidence and adopts effect, test for a similar and a reasonable doubt coming' the matters nonevidence unnecessary intellectual exercise This an attention. solving only rather than assists one that confuses problem at trial court level. the the keep problem factor effects on the of extraneous To expanding occurring, are from or there several verdicts things trial courts can do. dire, recording
First, by is not now re- the voir which questions regarding jurors' quired, proper prospective knowledge case, parties the facts the will be re- recording of In Hour there was no corded. After therefore, dire, and, voir this court and the trial court through rely arguable on an of it had to reconstruction attorneys’ case, In this memories differed. recording any analy- dire, there was since no voir of whether defendant have waived the sis harmful effects of the extraneous matters was foreclosed. may may A recorded voir or dire not have shown sub- grounds stantial to set as a sufficient aside a verdict law, matter of Hour. which is second issue of After dire, attorneys judge develop On voir should any knowledge jurors have obtained from outside case, facts, the courtroom as parties, its witnesses, participants total, including and the judge, so later extraneous information can be labeled jurors1 reported by a violation of the oath taken *21 806.08(1), Stats., provides: Sec. (1) Qualification, “805.08 Jurors. examination. The court juror person shall examine oath each who a is called as to juror by marriage any discover whether the to related blood or party any attorney appearing any case, or to in fi- the or has expressed any case, nancial interest in or has formed the prejudice opinion, any or is the case. If aware of bias or in juror juror case, is not the the be indifferent in shall excused. juror Any objecting may party for cause introduce judge immediately the verdict jurors to the before other reached. during preliminary judge instructions to Secondly, the jurors the commencement of the prospective before jurors during in if service as voir dire can state considered, anyone, including being if other the case (outside) brings any jurors, jury’s attention, reported judge. that should during Also, judge may jury wish to tell the may only they received, trial consider the evidence judge knowledge instructions of the bring every day them from the of life. with affairs However, they any knowledge at the if voir dire of during case, parties facts or that should be disclosed questioning. recently by Supreme
As was held the United States McDonough Equipment, Court in Inc. v. Power Green- wood, 82-958, January 18, No. filed 1984: ruling Appeals “The of the Court of in this case must against background. be assessed One touchstone impartial capable a fair trial is an trier fact —‘a willing solely to decide the on the evidence be it.’ Phillips, fore Smith v. 455 U.S. dire Voir protect right examination serves to exposing possible biases, unknown, both known and on the part potential jurors. Demonstrated in the re bias sponses questions may juror on voir dire in result be ing cause; excused for hints of bias not to war sufficient challenge exercising rant parties for cause assist in- peremptory challenges. necessity their of truthful prospective jurors process answers if this is to serve purpose McDonough. Slip its opinion is obvious.” at 6. support objection. This section be construed as shall not abridging1 any right party supplement manner of either any person qualifications, the -court’s examination of -as to but repetitious upon hypo- such examination shall not be or based questions.” thetical *22 737-88, Hour, at 2d was said in Wis. As After impeachment against verdict the rule of
“While strong necessary, it not written in stone nor and being opened. competes incapable door of It with is it a system duty judicial to of avoid in- the desire litigants.” grievances justice private and to of redress system balancing judicial of these of attitudes certainty fairness, begin finality and with must result preliminary at the voir instructions so dire impossibility record will the near show of extraneous coming they jurors’ matters attention or that reach the grounds level of substantial sufficient set aside the as a verdict matter law. Hour. After appeals I would also affirm the court of with the but reasoning concurring opinion. stated in this CECI, (concurring).
LOUIS J. J. I concur in the opinion of the court. trial courts this state are overburdened to a
degree requires by no documentation this writer. attempt expedite In them, a valiant the matters before permitted the trial recording courts have of voir dire closing arguments solely option to be of trial This, course, permits stenographic counsel. the court’s reporter up to catch pending, matters that but puts judge it position. trial in an Appel- unenviable late courts cannot review that which is not submitted. We do not transcript have a voir us; dire before thus, opinion we render our without the benefit of know- ing questions what were asked counsel and what the responses questions to those were in this case. require
I would all trial courts of this state record the entire voir arguments. dire and closing would, This my view, protect integrity process. of the trial