*1 Wisconsin, Plaintiff-Respondent, State Defendant-Appellant-Petitioner. B. James Shillcutt, Supreme Court Argued April 26, June 198 1984.—Decided 83-528-CR. 4. No. 686.)
(Also reported in 350 N.W.2d *2 defendant-appellant-petitioner For the there were briefs argument by Lukoff, and oral Mark first assistant state public defender. plaintiff-respondent argued by
For the
the cause was
Becker,
attorney general,
David J.
assistant
with whom
general.
Follette, attorney
brief was Bronson C. La
DAY, J. This is a
review a decision of
court
affirming
appeals1
an order of the circuit court for Win-
nebago county,
Hawley,
Robert A.
Honorable
Circuit
denying
Judge,
the defendant’s motion for a new trial.
presented
(1)
ju-
issues are
Three
on this review:
aIs
during jury
ror’s statement
deliberations
the trial
court found “could be characterized
aas
racial slur”
competent
906.06(2), Stats.,
evidence under sec.
1981-
Shillcutt,
(Ct. App.
State
2dWis.
quire reversal of conviction matter as a of funda- fairness; (3) mental does a denial this court of a appeals’ request court for certification have au- thoritative value on the merits of the case. during jury (1) conclude:
We competent in this case deliberations is not evidence under 906.06(2), 1981-1982; (2) sec. Stats. the comment made require in this case does not reversal of the conviction as fairness; (3) a matter of fundamental denial precedential court of certification has no value on the merits of case. allegations prejudice
This case involves that racial so jury’s guilty affected the it must be over- Presumptions activity turned. of criminal because of race *3 place jurisprudence. have no in our Races do not commit crimes, judged individuals commit crimes and must as be according problem individuals to the evidence. approach pre- how best to this ideal at the and same time great guarantor serve that civil of our liberties and civil rights, jury system. the American (defendant) by jury
James B. Shillcutt was convicted a soliciting prostitutes3 keeping place prostitu- of and Competency Inquiry (2) “906.06. as witness. ... validity op Upon inquiry into vbrdict or indictment. an into validity indictment, juror may of a or testify any occurring during to matter or statement course of jury’s anything upon any deliberations or to the effect of or his juror’s influencing other mind or emotions as him to assent to or dissent from the verdict concerning or indictment or his mental processes therewith, except in juror may testify connection that a question on the whether extraneous information was improperly brought to any attention or whether outside improperly brought influence upon was any juror. to bear Nor any his affidavit or evidence of concerning him matter about precluded which he would testifying be from be re ceived.” Soliciting prostitutes. “944.32. intentionally Whoever solicits any person practice causes prostitution to any or establishes year tion.4 He was sentenced to two consecutive five prison terms.
Subsequent trial, to the defense made a motion for a supported by new trial. The motion was an affidavit jurors stating during from one the delibera- logical, tion had one commented: “Let’s be black, year girl— he he’s a sees seventeen old white type.” I know the The affidavit also stated that after this made, comment was “one of the female members of the agreed with the statement.” apparently comment has reference to Mel- ody Plante, prosecution, chief for witness who at trial that met testified she first the defendant years meeting, when was she seventeen old. At that first asked Ms. Plante if defendant she wished to become agreed dancing began . “exotic” dancer Ms. Plante engagements arranged by in bars the defendant. Money engagements paid dancing Ms. Plante for these was turned over defendant. began
Shortly dancing, after she the defendant told you guys “I want her: talk bar and see if go want refused, them to bed.” When Ms. Plante “slapped defendant around a little bit.” Thereafter [her] “dating.” began she testified She the time “working defendant,” engaged ap- she was for the she proximately ninety prostitution. to one-hundred acts of Money paid her turned over to the defendant. The paid utility defendant rent and bills the Oshkosh *4 person place prostitution guilty felony. in a of of is D Class age person guilty If the is under the of the defendant of a felony.” Class C Keeping place prostitution. intentionally “944.34. of Whoever following guilty felony: does of the of a D Class “(1) Keeps place prostitution; of “(2) place Grants the use or allows the use continued as prostitution.” place Melody provided lived and her
apartment Plante where clothing drugs. food, and with physi- instances of testified to a number of
Ms. Plante that the defendant. She testified the defend- cal abuse he, words, my burned her when her “stuck ant had me,” curling up iron inside that on one occasion she hospitalized when she fell and hit had to be her head on a her, had hit after the defendant the defend- desk gun. ant once threatened her with a testimony The also showed that the defendant acted as agent booking dancers, for a number of other one of whom was black. hearing questioned
A was held in trial which the court juror the affiant about the contents of affidavit. juror pres- testified the comment was made jurors approximately ence of all other fifteen to twenty minutes before the came back. She testified quoted made, that after statement was a second loving any- responded: capable “A man like that isn’t body.” This is the to in affidavit statement referred showing that “one of the female members of agreed juror’s] with the statement.” Defense coun- [first argument sel conceded at oral that this statement does not prejudice. racial evince She also testified that she had no any other recollection of references to race made the deliberation. taking testimony listening arguments counsel, the trial court denied mo- stating: “[A]lthough
tion for a new trial [the statement] categorized slur, could be as a racial the court does not by clear, satisfying convincing proof find evidence hypothetical this information would be to a jury. . .” appealed appeals
The defendant to the court of which (Rule) 809.61, to this court under certified the case sec. request Stats. 1981-1982. for certification was de- appeals The court of then affirmed the nied. trial court’s
793 basing denial of the motion for a new trial its decision part fact that on the this court had earlier denied certifi- accepted petition This court cation. defendant’s for re- view. prior involving impeachment two cases ver by testimony jurors, prescribed
dicts from this court has step procedure determining a three when a verdict steps should be overturned. The first two involve eviden- tiary questions: (1) proffered competent Is the evidence 906.06(2), 1981-1982; (2) under sec. Stats. does the error, is, grounds evidence show that substantial suffi (3) question cient overturn the verdict. The third seeking party impeach whether the the verdict was prejudiced requiring upset. the verdict be State v. Poh, 510, 515-516, ; 116 (1984) 2d 343 108 Wis. N.W.2d Welding Management Co., Hour v. Laneil 108 Wis. After 2d 734, 738, (1982). N.W.2d Because con we proffered competent clude evidence is not under 906.06(2), sec. we do not reach the second and third analysis steps of under the statute of whether there prejudiced. was error or the defendant was When the affidavit of a as to the misconduct himself or other of the members used as the basis trial, of a motion for a new court “the must choose be- redressing injury litigant private tween in- flicting public injury which would result if testify permitted happened were as to what Pless, room.” McDonald 238 U.S. 906.06(2), Stats., reach
Section seeks to an accommoda- competing policies. tion between these sometimes lays general juror may as a statute down rule “a testify any occurring during as to matter or statement the course deliberations or to the effect of anything upon his or other mind or emotions influencing him to assent to or dissent from the verdict concerning processes indictment or his mental con- *6 secrecy general juror This rule
nection therewith.”
policies including:
(1)
public
valued
a number of
fosters
losing
jurors by
parties
discouraging
harassment
aside; (2) encouraging
eager
free
set
to have
among jurors;
(3)
open
reducing incen
discussion
(4)
finality;
jury tampering;
promoting verdict
tives for
maintaining
viability
judicial
of the
as
(5)
decision-making
Virgin
body.
Government
Islands
1975),
denied,
(3rd
Cir.
cert.
Gereau,
F.2d
Important policies as give way interests must where these there are situations ensuring competing fair interest in trial and The just in the case. of the issues individual resolution opposing policies by mak- the two accommodates statute general incompetence ing exception rule of to the testimony question juror whether extraneous “on brought improperly prejudicial information was any whether outside influence attention or brought juror.” ques- improperly upon to bear The by made one of in case is whether the statement tion jurors during jury under rule deliberations falls juror exception. The two matters as to which a or the competent testify under the statute are “extraneous prejudicial information” and “outside influence.” competent in this to be order for the remark case categories. of those two it must fall under one meaning in The “extraneous” defined word Dictionary Third New International “exist- Webster’s origin: ing originating beyond: or or outside external in coming dictionary The “infor- from outside.” defines “knowledge mation” as ob- communicated others or study, investigation, from or tained or instruction” “knowledge particular Thus, of a or event situation.” prejudicial knowledge “extraneous information” is com- ing prejudicial. juror from the outside which is black, logical, this case stated: “Let’s be he’s a and he year girl type.” sees a old seventeen white know the —I “type” explain did not what he had mind. jurors gave factual Whatever content other to this catalogue supplied statement had to be from their own “types” ju- rather than from the statement itself. The category ror’s statement here does not fall under the extraneous information.5 Likewise this statement does fall under the cate- gory of “outside influence.” influence there Whatever might imposed have been the statement was not on the party through either from outside a third to or jurors. *7 past years
This court has twice within the
two
ad-
question
competency
the
the
dressed
of a
testi-
mony
impeach
Welding
to
Hour
his own verdict.
Management
losing
Co.,
party
v. Laneil
the
in civil
law-
attempted
impeach
suit
to
the
verdict
an affi-
with
juror stating
during jury
davit from a
that
deliberations
by jurors
(1)
were
comments
made
which
referred
corporation
officer
defendant
wit-
sole defense
Jew”;
“cheap
(2)
son,
ness as a
that his
an
stated
attor-
ney,
“Outlaws,” motorcycle gang;
had defended the
opinion
argues
dissenting
The
of Justice Bablitch
Stats,
juror
906.06(2),
is admissible under
sec.
evi
(Infra, pp.
dence of the introduction
an extra-record
fact.
831-32.) The “fact” which is said to be contained in the statement
way
pimps
get young
girls
is that “the
black
work
white
is
working
happened
them
for
and that’s what
in this
case.”
(Pp. 831-32.)
accept
Even if we were to
characterization
logical
remark,
tending
there is no
force in the statement
guilty.
purported
show that
defendant
The
extra-record
get
pimps
young
girls working
“fact” is that “black
. . .
white
imply
logically
them.
. . .” The dissent
seems to
follows
pimp.
from this statement
if X
X
is black then
is a
It does
logical
not. It no more
follows as
conclusion from this statement
pimp
that a
young
girl
black man is
than it
that a
follows
white
prostitute.
is a
(3) stated that the father and son had been involved in
judge.
compe
suicide of a local
On the issue of the
tency
proffered evidence,
this court
affirmed
appeals’
holding
allegations
court of
decision
all three
competent.
court,
specifically
were
while not
ad
dressing
question
religion
of whether the reference to
“extraneous
information”
under the stat
ute, stated:
it comes to a trial
“Whenever
court’s atten
tion that a
verdict
been the
have
result of
prejudice
race, religion, gender
form of
based on
or na
origin, judges
especially
tional
should be
sensitive to such
allegations
investigation
and conduct an
out the
‘ferret
”
(quoting Morgan
truth.’
797
philosophies.
very
their
ments
These involve the
human ele-
strengths
jury
constitute one of the
of our
system.’
McKinney,
United
1019,
States v.
429 F.2d
(5th
1970).
1022-28
Cir.
“Nevertheless,
principle
justice
a fundamental
of our
system
government
is that
has the burden of estab-
lishing guilt beyond a reasonable doubt on the
of ev-
basis
idence offered in the courtroom under
rules
supervision
evidence and under the
of the court. While
century jury may
the thirteenth
have been selected be-
background
familiarity
cause of
facts,
its
with
mod-
jury
solely
ern
basis
arena.
determines
merits of a case
on the
developed
adversary
of the evidence
before it in the
theory
system
‘The
of our
is that the conclusions
only by
to be reached in a
will
case
be induced
evidence
argument
open court,
by any
and
ence,
and not
outside influ-
private
public print.’
whether of
talk
Patterson
or
Colorado,
454,
(1907).”
205 U.S.
2d at
Wis.
(Footnotes omitted.)
519.
footnote,
quoted
language
approval
the court
with
from
McKinney,
United States v.
429 F.2d
(5th
1970),
denied,
cert.
(1970)
Cir.
wisdom and
so must not
every
extra
into
room. In
criminal case we
facts
jurors
must endeavor to see that
in the
the
do not [consider]
specific
confines of
specific
room . . .
facts about
greatest
defendant
then
...
ex-
on trial.
To
possible
through
pass
tent
all factual
must
[material]
judicial sieve,
guarantees
pro-
where the fundamental
crime,
rights
protect
cedural law
of those accused of
”
(emphasis
original.)
The court
concluded
information which
“[t]he
‘general knowledge’
‘the
received
not the
expect jurors
bring
wisdom’ we
to their task” but
meaning
rather “extraneous information within the
(2).”
sec. 906.06
521.
Wis. 2d at
*9
generally interpreted
The federal courts have
the com
parable
contained in
federal rule
Federal Rule of Evi
606(b)6
prohibit
impeachment
jury
dence
of
verdicts
by juror testimony
during jury
of statements made
delib
evincing subjective prejudice
erations
or
bias.
United
Duzac,
(5th Cir.),
denied,
trict of New York held the Federal Rule did evincing Smith, racial ror’s statement bias Tobias 1979). challenge Supp. (W.D. F. N.Y. in that affidavit the verdict case was based on stating had remarked that one of foreman identify photo failure de- the witness’ of the black ‘you “didn’t can’t tell fendant matter because one black ” *11 They from another. all alike.’ The affidavit also look juror jury stated that another had said that the “should opposed take the word of two white victims as Supp. black defendant.” F. at 1289. The court held 468 competent that the rule: the evidence was under federal Evidence, 606(b) “Under Rule Federal Rules of the codifies, and under the which the rule a court cases receive evidence influences were tion. affidavit are sufficient the and that tions.” 468 that of the fact extraneous brought jury’s improperly atten- My juror’s in the conclusion is that the statements question raise a as to whether jury’s by improper verdict influences was discolored they merely are not matters of delibera- Supp. F. at 1290. juror sufficiently statement in Tobias is different juror holding from that made here precedent Tobias is not useful for this case. reading (2) conclude our of sec. 906.06
We based on interpreting comparable the cases federal this and the juror rule that deliber statements made here competent impeach the ations are not evidence to testifying prohibits juror “to verdict. The from statute juror’s anything mind upon other effect of his or influencing or from emotions as him to assent or dissent only . understood verdict. .” This statement can be
801
forbidding
by
sub
inquiry
the court into a
an
voting
way he did. The rule
jective
for
motives
ap
against
juror’s impeaching
own verdict has been
his
allegation
jurors
inquiry
an
that
prohibit
into
plied to
intentionally
law,7
misapplied
that
or
misunderstood
charge
which the de
jurors
for
misunderstood
pressured
trial,8
coerced or
that a
was
fend was on
distracted,
upset
jurors,9
jurors
or otherwise
by
were
other
by
at means
arrived
that the
10
averaging
dam
estimates of
compromise11
12
ages.
noted that
prominent
has
commentator
One
7
Stacey,
(9th
1973);
Cir.
United
v.
475
1119
United States
F.2d
1979):
D’Angelo,
1002,
(5th
“The
Cir.
v.
F.2d
1003
States
possibility
598
intentionally
mis-
misunderstood or even
applied
. . .
not warrant
reversal of
conviction.”
law
does
8
Chereton,
(6th Cir.) cert.
v.
United States
309 F.2d
201
denied,
(1962):
Secrecy deliberations is fundamental type very of free debate and conflict of views is the making. essence decision As one commentator has put precise throwing together it: “The value of in a representative community room a cross-section of just through thoroughgoing that a reached consensus is exchange impressions.”13 It has fre- ideas been quently process according noted if is to work theory, participants completely must feel free to dis- Deliberations,” Jury Note “Public Disclosure 96 Harvard L. Rev.
803 credibility people. This sect the and motivations of other requires is that there be some assurance that what said larger in will not reach a As Jus- room audience. 1, v. States, tice stated in Clark United 289 Cardozo U.S. (1922) might “Freedom of debate be stifled and inde- 13 : pendence thought jurors checked if were made to feel arguments freely pub- that their and ballots were to be Similarly Pless, lished in McDonald v. to the world.” 238 267-268, at Justice Lamar stated: U.S. solemnly once be established verdicts “[L]et publicly into court can be attacked and
made and returned testimony part who took in their set aside on the of those be, many be, publication followed thing all could would verdicts discovering by inquiry hope some- finding. might which invalidate the Jurors would party be harassed the defeated in an effort and beset might to secure from them evidence of facts which lish misconduct sufficient estab- If to set aside a verdict. evi- used, dence thus secured could would be be thus result private deliberation, to make what was intended be a subject investigation public the constant the de- —to all struction of conference.” frankness and freedom of discussion and Ordinarily, ensuring impartiality means for challenges through peremptory voir dire. Duzac, v. United States F.2d at 913. Wisconsin jurors impartiality further oath ensured give they which all must take that “a true will ver according given dict . . . to law and the evidence 895.39(1), . .” court . Section 1981-1982. These Stats. ensuring provide foolproof means do not mechanism for jury completely However, prejudice. free of bias perfect take further measures an effort very Judge could well kill it. As Learned Hand said in Jorgensen Machinery Corp., York Ice 160 F.2d Cir.) denied, (2nd (1947) cert. : U.S.
804 impracticable impose would be to the of counsel “[I]t perfection stand, absolute that no verdict shall unless every entirely bias, and has been without has based only upon in his doubtful he has court. It vote evidence heard than in whether more one a hundred verdicts test; although justice would stand such a and absolute may require much, impossibility achieving the as has judges they course, induced to take a middle rec- have ognized survive; that the institution could not otherwise they Penelopes, engaged would unrav- become forever in elling they the in webs wove. Like much else human af- fairs, deeply system its defects in are so enmeshed disentangle wholly that quite to kill them would it.” Similarly, 1002, D’Angelo, v. United States 598 F.2d (5th 1979), Appeals 1005 Cir. the Fifth Circuit Court of said: permitted retry verdicts, “If courts were to such every jury result would be would either be- permitted come court’s verdict or would be stand to only by destroy the court’s effec- leave. This would jury process justice tiveness of the which substantial de- guarantees.”
mands the constitution We conclude evidence of compe- made is not deliberations here tent under (2), sec. 906.06 Stats.
Although (2), Stats., prohibit we construe sec. 906.06 juror testimony testimony impeach except a verdict in- “extraneous information” or “outside fluence,” recognize might we also “that there be instances testimony in which . . . could not be ex- [a] ‘violating jus- plainest principles cluded without ” Pless, tice.’ McDonald v. at 268-269. In Smith U.S. slip opinion page Brewer 799, discussed at above court, concluding after Rule Federal of Evidence (b) preclude juror prejudice was intended evidence of jury room, in the went on to state that the Rule should dogmatically disregard applied complete “be alleged occurred in the room.” 444 what is to have “ Supp. here ... F. The court stated that 490. [w] likeli- proof that there a substantial offer of showed prejudiced in- defendant was hood that a criminal ignore jury room, racial fluence of bias might very offend well fundamental fairness.” evidence at 490. F.2d Polley, (5th 689 F.2d 581-582 Cir. In Carson v. Appeals interpreted 1982) Court the Fifth Circuit *15 subjective shielding inquiry 606(b) Rule from “[t]he may thoughts influenced a and emotions that have case, appropriate a let- “In an deliberations” but stated: magnitude a such ter from a court reveal grant prejudice a new trial court to of as to move the justice.” of Simi- rather than suffer an obvious default (E.D. larly Wright States, Supp. 559 F. 1139 United 1983) District for the United States Court N.Y. pointed are out that there Eastern District of New York applying “potential Rule constitutional difficulties allegations prejudice” con- 606(b) all of racial analyze such rule ... each cluded that “the better case-by-case Supp. 559 at 1151. claim on a basis.” F. holdings agree reasoning with and the We supra. McDonald, Wright Smith, Carson and cases We not a that here does “reveal such conclude record magnitude prejudice” “an obvious de- as to constitute justice,” fault of or such a “substantial likelihood” show prejudiced the influence of that defendant was fundamental racial room as to “offend bias justice.” principles of plainest fairness” or “violat[e] hearing Appeals court after a and the Court trial violation occurred here. We found that no both such agree. racially apparent
It referenced statement very only part of the delibera- concerned small 806 twenty
tion. The statement was made fifteen to minutes of a hour deliberation. The who before end six supplied the affidavit testified that did not she recall any other were references to race made the de- that the liberation. conclude evidence does war- We rant a conviction conclusion must be reversed as guaranteed by a matter of fundamental fairness due process clause. question final is what if conclusion is to be concerning
drawn merits case from court’s this request appeals denial of certification. The court of appears partly to have based its decision in case this on request the fact that had court earlier denied Shillcutt, hear the case certification. State v. 116 Wis. 233, 2. improper. 2d n. This is A denial this court request of a implication ap for certification carries no agreement. proval Nye, 63, 65, State v. 2dWis. request A N.W.2d denial of a for certifi nothing cation means more than “unusual circumstances” require present are not this court to review the case. J.S.R., 261, In Interest 2d Wis. 330 N.W.2d *16 (1983). Therefore, improper it is to infer from a de request anything nial of a for certification insofar as the particular merits of a case are concerned.
By the Court. —The appeals decision the of court is affirmed.
HEFFERNAN, (concurring). C.J. This case was by taken this court for (1) review two To reasons: language determine appeals whether the of the court of respect in decision to the effect of this court’s denial of a request erroneous, (2) for certification was to decide whether, case, juror under the facts of this one could tes- tify respect upon in by to the effect her aof remark an- juror referring other during to the race of the defendant the course deliberations. issue, apparent to respect first it was this
In interpret- erroneously appeals was court that court of requested certification. ing a denial of a the effect of review, part, rest Thus, taken on to set at this case was important appellate procedure. mem- question of No an disagrees majority’s position in court with the ber of this way respect. A deline- denial certification no suggests position this court’s on the merits of a ates case. agree issue, majority respect I the second with
opinion; separately appro- I I because believe it but write priate case and to call attention the record this also emphasis by point out I to be dis- what believe techniques upon that, proper problem trial senters were employed, sub- need not have and could have been existed stantially by proper procedures. voir dire avoided record, the trial the state of this court should be
Under affirmed, testimony complaining of the because incompetent by and barred the rules of evidence de- signed right jury. protect of trial alleged
I would so hold because the statement was not therefore, and, implicate fact one of did not the denial of rights It is ele- the confrontational of the defendant. court, mentary 906.06(2), law rule sec. general Stats., counterpart its federal establish testify juror may that “a as to matter or rule occurring of the the course de- particularly probing . . .” It liberations . forbids the any juror’s Here, processes. face of the af- mental complaining juror, appeal fidavit processes” jury. has re- “mental what been While being “logic” by complained of as ferred to as apparent prejudiced clearly non-logic, it con- it is process cerns mental a sort. —of Yet, argued exception in the law it is that there anis *17 permits testimony respect process to the mental juror if it informa- involves “extraneous respect or if it is in to influence . . . tion” “outside im- brought upon j properly to bear uror.” I believe that argument exceptions to be ill-founded. two latter are against juror prohibition testifying They to the all. exceptions post-verdict prohibition not are blanket any juror’s testimony respect proc- to the mental esses himself or another or the effect a statement processes upon another on the mental wishing testify. rely heavily purports upon of the
One
dissents
State
Poh,
510,
v.
2dWis.
Poh
Poh,
involved
extraneous material.
because
above,
of the
supportive
majority
position
present
in the
case. It
relevant
to this case
points
proper
post-verdict
extent it
out a
field of
impeachment
inquiry
improperly
“facts”
are
—where
brought
to the attention of the
and the defendant’s
rights
thereby
constitutional confrontational
are
violated.
case,
put
jury.
the instant
no facts were
before
jury “unwisdom,”
The statement was one of
with which
system
lawyers
is occasionally saddled when
fail to do
job.
type
their
Poh is a different
from
case
the one be
fore us
Welding,
and so is
Hour
Inc. Laneil Man
agement Co.,
;
(1982)
108 Wis. 2d
but both facts the mean- information” —within liberations —“extraneous inquired ing about 906.06(2), as which be of sec. forbidding general impeachment of exceptions to the rule by juror. a verdict a rights, implicated Hour also the confrontational After specific injected delibera- were the
because facts into nothing processes do that had to with the mental tions employed by jury. The al- rationale to the be legedly the Hour officer of de- made in the After causing part corporations and son a fendant his had judge the offi- also that the suicide of Milwaukee factual al- son “the outlaws.” These were cer’s defended legations prove the dehors the record tended to specific In committed “other crimes.” defendants had Poh Hour the extraneous information both and After specific of the concerned the conduct on other occasions very the defendants before court. case, pointed out, the state- as been instant has by I the trial
ment was not one of fact. also concerned am acceptance court’s, appeals’, court’s court and this disgruntled juror’s happened, with version what “ferreting only superficial out” of the most facts accept competent, and as a the trial court To level. disgruntled verity, juror, without statement of adequate investigation hearing, a record more leaves replete ambiguity impossible with almost —one certainty. understand with
Although postconviction judge trial commenced hearing verdict, respect recit- to the attack ing requirements proper factfind- in some detail the hearing Hour, ing by itself as mandated only interrogation complaining consisted of an juror. “Evidence” which No were called. other ought by testimony appears in the been elicited have by the court or record the course of remarks specific findings counsel. No of fact were made court. interpretation, accordingly, more than one can
While by perusal record, be reached the “facts” used concurring opinion perusal are derived from the the record and are not contradicted therein. *19 case, disgruntled present juror
In the not com- did according plain, judge to the statement of the trial at the hearing, until, discharge jury, ap- after the of she was parently “threatened” had because she to convict voted exculpate attempts the defendant. Her affidavit her- juror, from the onus of her own self act as the convic- tion juror of the defendant. This of is a classical case impeaching pos- his her own verdict in order to avoid consequences very sible censure verdict’s —the Stats., designed 906.06(2), vice sec. is to insure against. Moreover, she stated that she had wished to vote guilty the-contrary but voted to because of “duress.” This, then, specific testimony is the proc- of her mental by in the esses room which she arrived at her ver- testimony It
dict. of the effect of a “statement” or “anything” upon exactly her mind or emotions. This is by what is forbidden the rule of this court —a rule that acceptance preserve has universal order to the sanc- —in tity of the deliberations. accept testimony Even if we the affidavit and the of the juror suspect hearing, at the information is not ex- upon traneous empha- facts of the kind which placed was sis Poh. It is a recitation of the statement juror recounting complaining of another and the juror’s process. mental incorrect,
I however, accept juror’s believe verity, version a because her statement has not been appropriately juror’s motives, tested. While this al- though self-serving might exculpatory, have been honorable, juror willing hold-out to claim that he or subject would, under was to duress the dissenters’ she case, able to reversal of a trial re- view of be secure grounds obtain a new trial for a defendant sult pressure the emotional labelled (2), Stats., sec. effect of 906.06 as “duress.” Whatever upon should not acted a claim this kind be unless factfinding accepted therein are verified facts procedure. years ago, Hour, we stated
Less than two evidentiary hearing step proper was the threshold that a allowing impeach a verdict. In the instant case, than the the record reveals that no other disgruntled juror, complaining who one was called. The sought verdict, of blame for the shed herself testify person as to what another on the allowed was, course of the said deliberations. She however, allegedly not even sure of the name offending offending juror. juror, who has And although named, speculatively, in his been counsel *20 given briefs, opportunity was never an to state his ver- any disgruntled contradiction, had, if sion or he Only self-serving testimony juror’s testimony. her proposition for ever stands that the statement was jurors Only complain- made. No other called. were ing juror’s any show that other tends to jurors were even within earshot. disgruntled juror’s affidavit,
I re- that believe any vealing, my view, impeachment as it did in probed have of a mental would the forbidden area hearing. processes, triggered any How- should not have hearing ever, undertaken, once a was have been should reasonably required pres- exhaustive should have jurors. ence other gratuitous evidentiary nature, remarks, revealing court, respect
counsel of the are to what inadequate problem be the real this trial —an with jurors dire counsel. Defense voir of the defense hearing at stated: counsel up “I sat there voir and I dire asked the individually. group; ‘Well, now, I asked them Mr. them, / they didn’t even ask were Shillcutt is black.’ if 'prejudice just you likely I stated would more [d]. be give (Emphasis sup- benefit of the doubt to the state?”
plied.) that, appear It would under these circumstances as himself, only perfunctory a most described counsel fair, impartial jury effort was made secure a at the time the selected.
Thus, upset I am concerned dissenters would upon inadequate a verdict of an basis devoid record amI corroboration. also concerned the rec- ord reveals that defense counsel did not use the tools any lawyer impartial jury. available to secure grandiloquent I prose believe that should reserved be necessity emphasizing this case for the of the adequate counsel to utilize procedures, voir dire rather inveigh against prejudice than to which need have occurred appropriate had there been defense counsel vigilance. Emphasis upon techniques should be neces- sary system great make bastion our —the day Magna liberties since the work, rather Carta — than to new make and unwarranted incursions into privacy. Had greater counsel demonstrated voir care . stage,
dire case posture, could be in a far different might for it well been juror, have shown that a under oath, perjured had dire, per- himself. voir with its emptory cause, strikes and prime strikes for in- *21 designed strument of the common law an assure impartial jury and a trial. fair Both Hour, 737, Poh, at at stress the
importance of the voir securing impartial jury. dire in an continuing however, we to condone appears, that are It by review- proceedings inadequate dire nevertheless voir by ing have been avoided more search- that issues could light ing jury procedures. In statements selection hearing, I post-conviction of defense counsel which, arguably, by a less that the error would conclude might optimum jury have that was selected been than suggest vacated, I If verdict of counsel. were to be proce- only it after an be done examination securing jury. used in a dures impact case, as viewed from
The of this at least dissenters, dire is a perspective of the is that the voir .superfluous it so—and even device—or can become though stumbles, may kick at he have second counsel arguably prejudiced jury. upshot the cat if might error of a result of counsel well be reversal verdict, it but be the basis should by impeachment here. asserted dissenters protecting jury from deliberations reasons scrutiny repeated. have oft been It is well stated in Supra, majority opinion. I at 802-03. believe by guarding rights preserved are best minorities sanctity insuring juries, deliberations and part jurisprudential institution, as of our be as will prejudice-free possible. accomplished as best be This can utilizing by voir dire as is intended to used and be by proper superintendence proceedings vigilant judge. trial where Those instances compromised deliberations have been “extraneous facts, Pola clear— makes information” — brought improperly or where influence” “outside specifically exceptions bear are made to the rule of non- disclosure, and in those circumstances a verdict be impeached. proc- probe is no There need mental jurors, attempted inquiry esses of the as was in the here. any event, judge where a trial concludes that there is *22 allegation impropriety of that would come within an meaningful exception rule, there must be hear- only case, inquisition ing not, inas this an of the com- — juror. plaining not, A reversal could under the method- Hour, ology predicated be If we record. judicial oaths, duty are be true to our it to is our to hold proper “feet to the fire” to make sure counsel’s that the techniques provided employed equal law are to assure justice under law to and avoid likelihood that trial ought prejudice. ignore results will be skewed We not our own rules and procedures tested criminal trial designed protect right by jury. are to to a fair trial jury system up We should not open subvert our ver- the fact. dicts after
One “easy dissenter has referred this case strange so, If court, one.” that the trial the court of disagree appeals, urged and this court with the result easy part that dissent. The of the case is the statement in the person Anglo- dissent with which no attuned to justice American disagree, values of could “Racial stereo- types place judicial proceedings.” (Abraham- have no son, J., dissenting opinion, 829) I think that that dis- argue, senter assert, would or even venture to judge, the trial appeals, court of or the majority of this court contrary. believe to the easy What tois stereotype only presenting this case as problem prejudice. racial do sanctity To so is to overlook the deliberations try- and the time-tested method of ing prejudice-free to assure easy verdicts. The case anis one, at to label, problem least if the confidenti- ality is not addressed in the framework of Rule 906.06
I find it a difficult every case because instinct of a judge committed to the constitution is to lash out at prejudice evil; manifestation but, case, in this giving do that without all heed to the values involved is cripple jury system going without source for not present case. The reasons in the problem or her have allowing impeach his been I ad will not publications nauseum. repeated in numerous dissents, opinion, majority repeat them here. *23 replete Hour, Poh supporting with cita- and are After however, quote appropriate, the words think it tions. I Supreme of the South Dakota of Justice Wollman Chief specially) (concurring when that court considered Court Referring difficulty problem. a somewhat similar question, he of the said: prejudice say difficult, . . “I because . is so abhor- process speak judicial temptation there
rent in is magniloquent expressing condemnation terms our it.” State fashioning remedies to of counteract and Finney, v. (S.D. 1983). 167, 170 337 N.W.2d Although adequate hearing I believe a more should predicate held as a have been review of the court’s question majority, presented, here I conclude fulminating general problem instead of about of prejudice, properly points jury system, out that the cor- rectly used, preservation our best assurance of the of rendering prejudice-free civil liberties for I expand excep- verdicts. conclude that we should not tions to the rule that would intrude into delibera- though unintentionally, subvert, tions and in the end justice. cause join majority
I opinion in the for concur the rea- sons stated herein. joins
I am authorized to state Justice Callow in this concurrence. agree
STEINMETZ, (concurring). J. I with the majority opinion; however, result I believe the reasoning confusing faulty to be either I and therefore concur. majority misapplied phase of the test has first Management Welding Co., Hour Laneil After majority 2d N.W.2d
Wis. “Thus, prejudicial ‘extraneous information’ holds: knowledge coming prejudicial. from the outside which is . . . The here does not fall under category (Su prejudicial of extraneous information.” pra, 794.) Hour this court held: parties “The concern fairness to the and monitor- ing judicial integrity system us con- leads may, appropriate clude that a trial court stances, circum- allegations consider that extraneous part remarks were made to which were not guarded judicially they evidence received.” 108 Wis. 2d at 739. By that the court meant “extraneous” referred to out- proceedings side of the court and evidence received *24 though during therein even it came deliberations. necessary foreign It is not a source which is jurors prejudicial make the in remarks order for it to be 906.06(2), Stats., outside influence. Section distin- guishes prejudicial between “extraneous information improperly brought which was attention” “any outside influence improperly was [that] brought juror.” upon any bear majority
If the
is
competent
convinced this is not
evi-
dence
906.02(2),
under
Stats.,
sec.
then there
no need
phases
to consider the other two
of the
Hour test.
After
prejudicial
The extraneous
information
this case
jury “through
judicial
did not come to the
sieve,
guarantees
procedural
where the fundamental
of
law
rights
protect
of those accused of crime.” United
McKinney,
(5th
1970),
States
429 F.2d
Cir.
denied,
cert.
The “We conclude that the evidence states: does not warrant a must conclusion conviction guaran- of a matter fundamental fairness reversed as be 806.) process (At That teed the due clause.” principle Poh of Hour and stated After forming phase for the third test but it is not basis phases. phase It fit in either one of the the second grounds the evidence substantial of whether shows suf- phase ficient to overturn the verdict or third prejudiced hypothetical whether the error would have jury. average majority competent holds that it not
Since was majority opinion, evidence, page as it did at 794 of the phases then not it should consider the second and third misleading majority agree Hour. It is for the After appeals analysis, with the trial court and court of which competent was not on it based whether evidence. majority in- that the trial held “this states court hypothetical be formation would [not] phase (Majority 792.) op. at That is third . .”. compe- Hour, phase of not first or second as a tency grounds to set or substantial aside of law. matter attempting to a fair trial only for protection jurors discover is to prejudices individual
eliminate phase proceedings and the voir dire them challenges. All peremptory or them cause strike however, prejudices; persons have some like all religion, gender race, national is one when other an influence on origin, used as it must be making jurors by keeping from decisions based them elimi- prejudice cannot be If individual the evidence. *25 judicial least, system prevent it nated, must at the the influencing jurors by spreading other from as cancer decision-making process. As we impartial the cannot ‘ex- Poh, 2d at 518-19: “We Wis. stated subjective opinions the punge from deliberations philoso- expositions jurors, attitudinal or their their very the that con- involve human elements phies. These ” strengths jury system.’ How- the one of our stitute expressed by juror ever, attitudes are which when such received, outside of the evidence an influence have must such information. If trial court consider looking at it such information when means comes attention that a trial court’s have been prejudice (After Hour), result such form of duty judicial system it is a not a burden then truth, applying by ferret out the and this done one or phases of all of the three Hour test arrive After truth. case, In this I believe evidence of the state- competent 906.06(2), ment was under sec. I do Stats. satisfying not believe evidence clear and shows proof grounds that substantial sufficient to set aside the proof verdict exist as a matter of law. therefore phase fails under the second Hour test. After 2d at Wis. 740.
This record does not show that the trial court held a hearing findings sufficient or made all of the seven requirements Hour, stated in 2d at Wis. reviewing They the extraneous information. are: “ ‘(1) made; that the statement inwas fact “ ‘(2) specifically made; when it was “ ‘(3) made; the circumstances under which was ‘“(4) it; who made (5) which, jurors if any, present; were “‘(6) whether present were informed of statement; “ ‘(7) other relevant facts about the statement which will assist the trial prospect court to assess of unfair ” prejudice.’ requirements
Had those been considered the record reviewing court, trial courts would be in a position analyze better the extraneous information. In the dissent of Bablitch, Justice he states: “[T]he against could have become biased the defendant *26 reject hearing (Dissent 833.) I information.” after phase or third that a test under either the second phase Hour The test under the second test. After satisfying Hour test is whether clear and the After proof extraneous information demonstrated substan- grounds tial matter sufficient set aside verdict as a phase law; the test under the third there whether possibility probability hypo- is a reasonable or that the average jury prejudiced thetical would have been in the considering. total context of the evidence which it was majority concurring opinions. See, Poh, I do believe the other 11 can be said to be so weak and prejudiced uncommitted to their against oaths been have considering the defendant when the total evi- dence before them. statement, made, if was one fraught prejudice with the individual’s racial without any specific knowledge of the individual defendant’s say character as was the case in Hour. To After personal prejudiced and isolated remark could influence average jurors 11 other with the evidence before them jury system beyond giving as here is to weaken the any conclusiveness. phase The third Hour need not be considered. appears However, since there to be confusion in ma- jority opinion, compelled although I feel state apparent prejudice juror, evidence shows there convincing showing was not a there was a reasonable possibility probability prejudice would have re- hypothetical average jury sulted on a on the basis the nature of the matter and the total context of the jury. majority evidence before {See, Poh, and con- curring opinions.) Although disagree reasoning I with the of the ma- jority, I concur in the result and would affirm the deci- appeals. sion of the court of (dissenting). SHIRLEY ABRAHAMSON, S. J. deliberating nearly in this case had been six charged with male black The defendant
hours. *27 prostitution. keeping place soliciting a of prostitutes and young woman who white witness was state’s chief earnings from gave her defendant that she testified prostitution. logical, juror others,
Finally
“Let’s be
said to the
one
girl
year
black,
old white
he sees a seventeen
he’s a
and
jury
type.”
of the
ex-
Another member
—I know the
Twenty
agreement
minutes
pressed
with this statement.
guilty.
of
later the
reached
verdict
delib-
of
incidents
version
This
testimony of
one of
taken from the sworn
erations is
hearing.
juror
only
After this
jurors,
at the
witness
testified,
that “the court would
the circuit
stated
court
witness,
juror]
credible
to be a
find —would believe [the
place
did take
and she also
the statement
fact
of
to the court that
of the female members
indicates
one
agree
Transcript
did
with that statement.”
Hearing, pp.
the Dec.
15-16.1
only
presented
juror’s post
this
issue
on
review as
testimony by
either the state or defense or the court of
appeals opinion
relates
the racial statement. Two issues were
presented at the circuit
and
After the
court—racial
coercion.
bias
post-verdict hearing,
testified at the
each issue was treated
separately
distinctly by
counsel and the circuit court.
After the circuit court ruled that the racial statement
not
was
grounds
verdict,
sufficient
to overturn the
the circuit court asked
counsel to
discuss
second issue—coercion and duress. The
juror had testified that she had voted for conviction
because
jurors.
duress
argument
and coercion
the other
No
was made
appeals
before the
court of
or this court
either the state or
defense counsel that the conviction should be overturned on the
ground
of coercion
testify
or that
type
could
toas
this
of coercion.
judge’s
prosecutor’s
In
issue,
discussion
the coercion
there
alleged
juror.
is mention of an
threat
made
Aside
from
threat,
the mention
nothing
of a
this record reveals
about
nothing
threat.
There is
affidavit,
in the
inor
her
testimony in
testimony
this
preliminary
case or in her
in the
show
does not
whether
were
The record
blacks
probability
but in all
jury,
on the
this was
all-white
although
jury.
unlikely,
of,
It
that a
unheard
racially referenced remark would have been
in the
made
presence
person. Furthermore,
aof
black
case
Winnebago county
only
tried
where
one third
one
percent (approximately
132,000)
popu
380 out of
1983-84, p.
lation
Blue Book
is black. Wisconsin
if
among
one
Even
of those few blacks had been
prospective
jurors,
easily
could
state
have
jury.
or him
stricken her
from the
Wisconsin there
presumption
challenge
is a
peremptory
the state’s
minority persons
rights.
does not
violate
defendant’s
Grady,
1, 10,
State v.
See
93 Wis. 2d
and Ceci and Chief Justice Heffernan and Jus- together Grady Callow, tice rule, with the hinders the judiciary’s ability prejudice to ensure that racial does jury not enter into I deliberations. must therefore dissent. (part record)
examination
another
case
inis
this
about
which
any threat.
anywhere
There
record,
briefs,
no
is
information
in the
or
argument
suggest
oral
to
threat or coercion
related in
was
any
juror’s testimony
manner
to
the racial statement.
appearances, nothing
To all
juror
other than
as a
conscientiousness
motivated
her
come forward.
2
Grady,
State
1, 10,
(Ct. App.
v.
93
2dWis.
286
609
N.W.2d
1979),
county
was a Milwaukee
case in which the defendant was
black and
prospective
the state
jurors.
struck all three
black
appeals
concluding:
court of
affirmed
conviction
prosecutor
presumption
using
is
“[There
a]
his
peremptory challenges
impartial
jury.
fair and
to obtain a
. . .
merely
prosecution
We do not
error
find
because the
struck all
three
on the
blacks
in this case.
. Nor
. .
do we find error
being
because the
state’s action resulted in defendant
tried
which
did
contain
members
his own
State
race.”
Grady,
1, 11,
v.
(Ct.
Wis.
App. 1979).
93
2d
right impartial jury. an be tried art. Wis. Const, right 5, 7; VI, I, amends. secs. U.S. XIV. The process.3 impartial at the heart due Each impartial. juror to be Each swears takes an oath “according a verdict to the law to render and the evi- given 895.39(1), in court.” Sec. dence Stats. 1981-82. impartial jurors judgment of this were sit Twelve “permitted to summon that thir- defendant. No juror, prejudice.” v. Antonelli United States teenth J., (1946) (Frank, 631, Co., Fireworks 155 F.2d 659 dissenting) .4 juror sought case, apparently in this one
Nevertheless jurors to convince least two other to vote for convic- by injecting relating specifically tion a reference defendant’s race to the facts of the case and the crime charged. Apparently jurors were asked to assume young girls im- that black men tend to use white purposes assumption moral and to reason from this young prostitute being if a white man accuses black pimp, probably pimp. Apparently he is a at least one agreement type other indicated some stereotype. with this 3 Const, Const, XIV; I, 8; Smith Wis. art. U.S. amend. sec. 717,
Phillips,
Dowd,
209,
(1982);
Irvin v.
U.S.
U.S.
Colorado,
454,
(1907);
(1961); Patterson v.
721-722
205 U.S.
Poh,
519,
State v.
2d
116 Wis.
Race especially discrimination is odious. It is justice. odious the administration of Race discrimina- tion constitutions, violates our federal and state our statutes, and the fundamental ideals of our democratic society. When race jury room, discrimination occurs in a only the harm is not people defendant but of the state. Race discrimination in a room de- stroys judicial system. integrity of our As Chief Burger recently Justice wrote Supreme unanimous custody Court in case, a child “The Constitution cannot prejudices control such but neither can it [race] tolerate them. Private biases be outside the reach of the law, cannot, directly but the law give indirectly, them - effect.” Palmore Sidoti, -, -, U.S. 52 L.W. Techniques such as voir dire5 and instructions from judge6 safeguard help the trial impartiality of a case, Hov/r, reported. In this inas the voir dire was not argument post hearing, circuit court at the de briefly fense questioning counsel in this case referred to his jurors racial But us bias. this reference does not tell very much about the voir dire. only Defense counsel’s reference to the voir dire is as follows: up “I sat indi- there dire I voir asked vidually. group; ‘Well, now, I asked them as a Mr. Shillcutt they prejudice. just black.’ I didn’t even ask them if were I *30 824 persons who have racial
and ensure biases will making interfere with their decision not do sit on you likely give stated would be more to benefit doubt to the ‘No, you likely state? we wouldn’t do that?’ Would be more to require prove Mr. Shillcutt to his innocence rather than the state prove ‘No, But, yet, despite its case? we wouldn’t do that?’ those promises, despite have, the internal restraints we all scene prejudice ugly racial reeked its and did so head deliberations.” record, trying As I read the remind the defense counsel was to they merely jurors circuit court that he did not ask the whether prejudice. rely going harbored racial Defense not counsel was juror’s subjective on prejudice. determination of Defense coun- questions prejudice apparently designed sel’s toas racial were might provide elicit objective answers which an for counsel basis juror’s impartiality. to evaluate a questions Defense counsel’s designed were ways also jurors they might to show the in which unconsciously improperly impose and burdens a black defendant. obligation question While defense counsel at has voir dire to jurors impartial as to racial bias to ensure an and a fair trial, prosecuting attorney duty. prosecut- has a similar ing attorney representative ordinary party “is the anof to a controversy, sovereignty obligation but govern of a whose im- partially compelling obligation is as govern as all; its and interest, therefore, whose prosecution in a criminal is not that case, shall justice win a Berger but be done.” v. United States, 295 U.S. 88 framing For a difficulty questions discussion of the voir potentially prejudiced dire jurors, Dyke, to weed out see Van Voir Dire: How Should It Be Conducted to Ensure that our Juries Representative Are Impartial, Hastings L.Q. 65, Const. 92 Levit, (1976); Nelson, Chernick, Expediting Ball and Voir Dire: Empirical An Study, (1971); Jury Ginger, S. Cal. L. Rev. 916 Selection in Civil and (2d 1984). Criminal Trials 535-41 ed. The circuit court instructed the as follows: “The court you regarding govern has instructed the rules of law which should you your great deliberations. The time has now come when the reaching burden just, fair and conscientious decision of wholly upon case is to you, be thrown for this selected important duty. swayed by sympathy, prejudice, You will not be passion. very weighing You will be careful and deliberate charge you keep your mind, evidence. I steadfastly duty upright citizens, just to render a and true verdict.” *31 techniques are not infallible. jury. But these And they used, are when a or not claim made after whether juror racially a was biased and at- the verdict sway jury using tempted stereotypes, the racial court still decide whether the claim is circuit must valid requires thus reversal the verdict. and safeguard “back-up” “back-up” A of fair trial —a which sparingly great post- should be used and with caution —is inquiry jury 906.06(2) as to misconduct. Sec. ground juror rules under may sets forth the which testify inquiry. in such an
The issue in this case is whether circuit court can testimony juror consider the of the who testified that Invoking jury racial bias entered room. 906.06 sec. (2), Day, Callow, Chief Heffernan and Justice Justices say juror’s testimony and Ceci that the cannot be consid- testify. not competent ered because although Thus a defendant ain criminal case has a con- right by impartial jury, to a fair trial stitutional an today’s decision will hinder defendant who tries to post-verdict inquiry in a show that racial bias entered proceedings. into the post-verdict inquiry jury
Limitations on into delibera- necessary. Secrecy jury tions are pro- deliberations jurors’ engage tects freedom open and frank finality discussions. Moreover there is need for judges Penelopes, verdicts engaged lest “become forever unravelling they Jorgensen the webs wove.” v. York Machinery Cory., 432, Ice (2d 1947), 160 F.2d Cir. 435 (1947). cert. den. 332 764 U.S. right
Nevertheless,
the defendant’s
to a trial
an
impartial
protected.
must be
When reasonable
grounds
exist to
indicate that
have been
exposed to
improper
influences,
extraneous or
“the en-
picture
tire
explored,”
should be
Remmer v. United
States,
377,
(1956).
350
Frequently
U.S.
only
get
way
picture”
questioning
“the
jurors, since
only
usually
to the events
witnesses
jurors are
court,
for the
wrote
question. As Justice Steinmetz
against impeachment
verdict is
the rule
“While
strong
in stone nor is it
necessary,
not written
it is
and
being
competes
opened. It
with
incapable of
a door
injustice
system
duty
judicial
to avoid
desire
litigants.”
grievances
private
and to redress
Management Co.,
Welding
Hour
v. Laneil
Wis.
737-38,
2d
324 N.W.2d
906.06(2)
be-
to reach
accommodation
seeks
Sec.
secrecy
one
policies
finality
on the
tween the two
—
906.06(2)
and fair
trial on the other.
hand
Sec.
by allowing
this accommodation
to tes-
reaches
*32
tify
improperly
as to extraneous
matters
brought
attention or
influence
to the
outside
brought
upon any
pro-
improperly
juror,
to bear
while
hibiting testimony
as to matters which inhere
language
906.06(2)
verdict. The
sec.
is broad.
Poh,
510, 518,
State v.
116
2d
Four
After
testimony
racial
juror’s
as to
persuaded that a
are
goes
during jury
“effect”
deliberations
comments
that the
something upon
and
minds of
testify
impeach the verdict.
incompetent
to
to
adhering
I,
to
and
and Bablitch
Justices Steinmetz
After
by the
persuaded
Poh,
that consideration
are
Hour
stereotypes
to “outside influence”
racial
amounts
testify.
juror may
to which the
as
906.06(2)
to de-
language of
of the
parsing
Justices’
testify
masks
competency to
juror’s
termine
Judge
Hand
Learned
As
issue.
underlying determinative
incom-
jurors are
rubric”
warned,
consecrated
“the
easy
“offers
impeach their
testify
petent
escape
embarrassing
Jorgensen
from
choices.”
York
Machinery
Ice Co.
Corp.,
Chief Justice Burger, then adopted Judge view, writing: Hand’s problem “The crux of the would be more clear if we regard the issue not as admissibility the sufficiency affidavit but rather its purposes of im-
peaching the verdict. dispose We should not of this case ground admissibility. Rather we should view Judge it as Hand did and consider what the affidavit says, assuming its truth purposes for these then de- cide whether it should lead to reversal.” Kilmes v. States, United (D.C. 263 F.2d 1959). Cir. devoting seventeen of pages nineteen to the is- juror’s competency sue of impeach verdict, majority joined opinion, justices, two other ac- juror may impeach “The familiar rubric that his own verdict, dating oversimplifi gross from Lord Mansfield’s time ais *33 Advisory 906.06, cation.” Federal Committee’s Note to 69 Wis. Wigmore, 2352, R167. See p. 2d also 8 Evidence! sec. (McNaughton 1961). rev. ed. Commentators have noted that the juror rule that a impeach cannot the verdict is a rule of ad convenience, ministrative justify difficult to theoretical conceptual grounds, and that there is a trend discernible broadening exceptions towards the to the rule that testify. cannot Practice, par. 31.08[l][a], See 8A Moore’s Federal p. (9/78); 31-68 Justice, III ABA Standards for Criminal Stan Relating dards Jury, 15-4.7, p. Trial Commentary, sec. 15- (2d 1980); ALI, ed. Evidence, Model 301; Code of Rule Impeachment Comment, Jury Verdicts, 25 U. Chi. L. Rev. impeach the competency
knowledges tha.t recognize They issue. determinative not the secrecy of the and the finality the verdict that greater way concern give must jury deliberations process, due assured defendant be the individual that I 794, 804, 789, 793, 805. J., Day, pp. trial. fair yield 906.06(2) must majority that agree sec. with requirements. process to due finally defendant majority concludes that the fundamentally record does fair trial and that the
given a require magnitude prejudice” toas such not “reveal disagree proper p. that Day, J., I 805. a reversal. magnitude prejudice.” The usual “such a test possi- requires there is a reasonable reversal when test complained injec- of—here bility error might have stereotype in tion of a racial deliberations — supra. Ap- Poh, State to the conviction. contributed case, I con- in this would have to plying test the usual ais must be reversed: there conviction clude injection of the racial possibility that reasonable stereotype to the conviction and was contributed harmless error. very hearing post-verdict this case consisted juror. questioning type of of one This is not the
limited “investigation” Hour ferret out the called for in After prejudice I room. conclude truth as racial that, require minimum, Hour Poh at a and After be court to conduct a this case sent back circuit hearing testimony and take from all the full available as to the incidents described who testified. forcefully promised eloquently and
This court has judiciary would citizens of this state that the Wisconsin gen- vigilant racial, religious, ethnic, keeping be stereotypes prejudices jury room. out of the der negative stereotyping on the basis Hour involved *34 participants religion; referred to one This court wrote: “Cheap as a Jew.” the trial that a a trial attention it comes to court’s “Whenever may form of the result of jury prejudice have been verdict religion, gender race, or national based judges especially to such alle- origin, gations sensitive should be investigation out the to ‘ferret and conduct an jury only har- one of a . . . For even if member truth.’ right by prejudice, the a trial an a material bors impartial all within their means to jury . impaired. . . Trial should do is courts ensure have not that verdicts by jurors prejudice compromised who harbor been towards any minority. justice system truth, . . seeks whatever “. Our be, jury cannot be finds truth to but that truth jury exposed determined when the prejudices and is to extraneous clearly judge or information that finds convincingly might hypothetical have affected average designed jury. The to eliminate voir dire striking prospective jurors jurors prejudices hold such who Having panel. prejudices that, from the done creep jury into room should not be allowed to extraneous information that have affected an determines would average hypothetical jury.” 2dWis. 739, 740, 744. willing relaxing join majority I am not our vigilance. easy case, me this not a hard one.
For case is minimum, ought At a we to remand and insist give trial court assertion that a this prejudice have been the of racial a hard look. result stereotypes place judicial proceedings. Racial no have guard permit court racial When lowers stereo- types to be “evidence” to consider jury deliberations, only it harms not individual de- justice. fendant but the administration On the basis of testimony record without further appears to there be a substantial likelihood that the in- *35 stereotype jury of the racial de- troduction prevented deciding liberations from the case solely presented deprived on the evidence and the de- rights guaranteed by fendant of the state constitution: process, equal protection law, impartial due and an jury. rights judi- Those are fundamental values our system. Impairment rights endangers cial of those integrity judicial system. basic and foundation of the “Equal justice just catchy phrase under law” is not buildings carved in stone on appro- court or recited on priate patriotic ceremonial or occasions. To “administer justice respect persons” without promise is a judges of this keep. judge’s state have sworn to See oath office, 757.02(1), sec. case, Stats. 1981-82. This like Hour, presents opportunity keep promise.
I cannot affirm the conviction this record. I dissent. BABLITCH,
WILLIAM A. (dissenting). sys- J. Our justice tem expects, and in ju- fact must demand, that put rors prejudices during aside their deliberations judge a guilt defendant’s solely innocence or on the evi- presented dence and the law as to them at trial. That clearly happen did not Accordingly, in this case. I would reverse and remand for a new trial.
This charged case soliciting involves a black man with prostitutes keeping place prostitution. against
state’s chief witness the defendant was a white female who testified that she met the defendant when years she was seventeen Approximately old. five hours and 40 minutes deliberations, into the said: logical; black, “Let’s be he’s a and he sees a seventeen year girl old white type.” Twenty know the minutes —I later, guilty returned with a verdict. majority’s upholding decision the denial of the de- fendant’s motion for a new based, trial part, on its
00CO- majority 906.06(2), Stats. The interpretation of sec. was made dur- that the concludes competent evidence under ing is not the deliberations prejudicial in- “extraneous neither because statute pp. 794, formation,” See 795. nor an “outside influence.” disagree. I testify Stats., 906.06(2), allows
Section in- question extraneous “. . . on whether brought improperly atten- formation tion. (Emphasis supplied.) interpreting . this . princi- “. . . a fundamental phrase court noted: has *36 government system ple justice that the has the of our is beyond establishing guilt a reasonable doubt of burden courtroom under the evidence in the the basis offered of supervision the court.” rules evidence and under the 510, 519, Poh, 116 343 108 2d N.W.2d State Wis. (1984). supplied.) (Emphasis This court has also stated ver-, 906.06(2) juries reach that will that “sec. ensures parties known to the and on the basis diets information negatively party affected whose case is affords probe at a chance to and rebut.” 2d information Wis. (Emphasis supplied.) 520. case, making juror
By in was this statement bringing trying jurors by clearly persuade his fellow In effect “facts” outside the record to their attention. logical. a was: “Let’s be Here’s what this said charged soliciting prostitutes keep- man with black way things ing place prostitution. I know the these a way know it too. fact is that the You should The work. get girls working young pimps white work is to for black happened that’s what here.” them and evincing juror’s statement, per- in The addition to type prejudice, persuade intended to was of re- sonal jurors they should consider the “fact” that luctant by utilizing young pimps operate white women as black part prostitutes. This “fact” was not ad- evidence offered, trial, and had it been it could not have duced This both been received. extraneous information, opportunity which the defendant had no rebut. majority’s juror’s conclusion statement is competent 906.06(2), Stats., evidence under sec. contrary prior
also to this court’s decision in Hour After Welding Management Co., v. Laneil 108 Wis. 2d Hour, N.W.2d delibera- After remarks, including tions made certain com- corporation ment that an officer of the defendant was “a cheap jurors’ Jew.” court This held that remarks competent meaning were within 906.06(2). of sec. See 108 .2d at I Wis 739-40. fail to see how court Hour, could conclude that remarks which After non-par- were made a civil case and which concerned suit, competent evidence, yet ties to the were conclude juror’s case, statement in this criminal which defendant, competent concerned the is not within the meaning anything, of the presents statute. If this case egregious much more case and therefore an easier case concluding juror’s competent that the statement ev- corporate idence. reference in Hour to the offi- religion clearly subjective cer’s prejudice evinced who made remark. The *37 case, however, only this subjective preju- evinced a attempt bring dice but prejudicial was also an a “fact” jurors’ outside the record to the other attention. ma- jority attempt distinguish makes no Hour and After explanation offers no holdings for the inconsistent in language Hour and this case. Based on the of sec. After (2) holding 906.06 and the Hour, in I conclude that After the in competent this case is under sec. 906.06(2), and part satisfies the first of the test set forth Hour, in upon and elaborated in Poh. After
I also conclude that parts the second and third Hour-Poh test were met in this case. The second After
833 part the shows concerns whether evidence of the test grounds verdict, sufficient to set aside substantial Hour, this at 740. As matter of law. 108 2dWis. After requires part PoK, second of the test the court stated it is con- “. . . determine whether that the trial court alleged satisfactory that the clear and evidence vinced could, jury bias and reached the extraneous information against moving party.” jury Poh, 116 2d Wis. at part (Emphasis supplied.) re- The third of the test 523. quires pos- whether there is a reasonable determination prejudicial sibility information that that the extraneous might brought jury’s attention have contribu- was to the Poh, 525-32. 2d ted to the conviction. Wis. case, that the trial court determined state- Further,
ment was made deliberations. placing the effect of the statement had before op- had no in the record which the defendant “fact” not directly portunity rebut, to the crimes related charged. I defendant therefore con- with which the a matter of law that the could have become clude as hearing against the after this informa- biased defendant tion. Finally, assessing impact of the error occurs brought when extraneous information is jury’s ap- attention, this court has that trial and held pellate “. . courts should consider . such factors as circum- nature the extraneous information brought stances under which it was atten- presented ; case; tion the nature of the state’s defense trial; in- at and the connection the extraneous between concurring opinion rejects this conclusion cites to but phase test either it “. . . as a under the second third 818-819.) concurring (Steinmetz, J., op. Hour test.” After However, precisely analysis this is this court used part originally Poh to determine whether the second of the test Poh, Hour set forth in was satisfied. See 2d at Wis. 523-24. *38 Poh, and material case.” formation a issue Here, 2d at 530. the statement had effect Wis. putting oper- the “fact” that black men before by using young places prostitution ate white women as charged prostitutes. the defendant Because was with logical keeping place prostitution, it is to assume given jury may weight have case more state’s light of this extraneous information. How- only attempt persuade ever, not did this statement jurors by putting other a new fact for forth considera- tion, but it made more than hours into the 5% jury returning guilty deliberations, with the approximately twenty after the minutes statement was possibility made. I conclude that a reasonable that this extraneous information existed might have contributed to the conviction. I would therefore reverse and remand for new trial.
I would also reverse and remand because I con-
majority’s holding
cludethat the
denies
defendant his
rights.
acknowledged,
constitutional
As this court has
ex-
during jury
traneous information that arises
delibera-
may impact upon
tions
three constitutional
doctrines:
right
impartial jury,
criminal defendant’s
to trial
an
right
present during
proceed-
the defendant’s
to be
ings,
attorney.
right
represented by
and the defendant’s
to be
rights
Poh,
835 recognized importance of Hour, this court In After impar- by right trial an to a constitutional a defendant’s jury it stated: tial when that a attention to a trial court’s it comes “Whenever any form of the result
jury verdict have been gender religion, or national race, prejudice based to such origin, judges especially sensitive should be investigation allegations to ‘ferret out an and conduct (5th States, Morgan F.2d 97 United 399 truth’. 1025 For even 1968), cert. denied 393 U.S. Cir. jury preju only of a harbors material if one member impaired. dice, right by impartial jury is to a trial 1973).” Booker, (7th United F.2d States v. 1310 Cir. Hour, 108 2d at Wis. 739-40. After two language Hour in with accord This racially prej question of federal that discussed the cases Smith, juror. In Tobias v. udicial comments made juror Supp. 1287, 1289 1979), stated N.Y. (W.D. F. insignifi in that the issue of identification the case was “ cant because ‘You can’t tell one from another. black ” They juror all that the look alike.’ Another stated testimony believe the of two white victims should opposed this black defendant. The court allowed juror testimony 606(b) heard under be Rule equivalent Evidence, Federal Rules of sec. 906.06 (2), Stats., because the were “sufficient statements question raise a as to whether the verdict was dis by improper they colored not influences and that are merely Supp. matters deliberations.” 468 F. 1290. distinguish majority opinion attempts Tobias stating: juror in
from this “The statement case sufficiently Tobias is statement different from the holding prece- made here that the in Tobias is not useful Slip op. dent for this case.” at 800. I do not find this persuasive. I conclude that the in Tobias are statements case, nature to the
similar appli- equally in that case set forth rationale presented this case. to the issue cable (E.D. Supp. States, Wright 559 F. v. United evidentiary hear- that an 1983), concluded the court N.Y. ing because possible bias was warranted into an isolated possibly prejudicial involved was comment epithet spoken How- racial outside of deliberations. *40 “Certainly, ever, if a defendant the court stated: criminal jury racially prejudiced, could show the was such ignored trampling could not be without the sixth evidence guarantee impartial of a fair trial and an amendment’s jury.” Supp. F. 1151. The court also stated: “ ‘ testimony here such of be instances in which [t] juror violating could not without the be excluded ” plainest principles justice.’ Id., quoting of McDonald Pless, v. 264, precisely 238 U.S. 268-69 is This majority’s the effect that the conclusion has this case. Here, during jury uttered a statement delibera- prejudiced incapable tions that giving reflects a mind Furthermore, the defendant a fair trial. at- tempted persuade to other with this extraneous clearly information. impacted This on the defendant’s right by impartial to jury, right be tried an his to be present during proceedings and rebut this informa- tion, right represented and his to by be attorney. an opinion majority recognizes the defendant’s con- right stitutional by to impartial be tried jury, and right defines that encompassing separate rights: two right by be jury, tried a right and the tried be by jury a impartial. p. See majority’s 802. The focus on the secrecy need for jury deliberations re- flects its concern with the protect need to right by be jury. tried a What majority opinion fails recognize, however, right is that by to be tried meaningless is rendered if impartial. is not right goal preserving abstract, In the protection laudatory; however, jury is trikl right to a defendant of small consolation which he or she has particular if the been case impartial. tried I and remand for trial.
I dissent. would reverse new Wisconsin, Plaintiff-Respondent-Petitioner, State Defendant-Appellant. Stephen Serebin, Supreme Court 29, Argued 198 March June 82-232-CR. No. 4.—Decided 1984. 65.) (Also reported in 350 N.W.2d