State v. Lindell

¶1¶ 132. (concurring).

The circuit court is particularly well-positioned to make a determination of objective bias, and it has special competence in this area. It is intimately familiar with the voir dire proceeding, and is best situated to reflect upon the prospective juror's sub*754jective state of mind which is relevant as well to the determination of objective bias.

¶2¶ 135. The preliminary question that the court must answer in this case is whether the circuit court erred in failing to strike D.F. for cause. The majority answers this question by stating that "[t]he totality of circumstances demonstrates that a reasonable person in D.F.'s position could not have remained fair and impartial." Majority op. at ¶ 41. While the juror's potential for fairness and impartiality must be measured against that of a reasonable person, the majority fails to engage in the inquiry that is ultimately controlling.

¶3State v. Faucher, 227 Wis. 2d 700, 720, 596 N.W.2d 770 (1999).

¶4¶ 133. I write separately because the majority opinion erases the deference that a reviewing court owes to a circuit court's objective bias determination expressed in the above quote. Like the court of appeals, I believe that the circuit court engaged in a thoughtful inquiry and reached a reasonable conclusion in determining that D.F. was not objectively biased.

¶5¶ 134. Applying the correct standard and giving the circuit court's determination the weight it properly deserves, I conclude that a reasonable circuit court judge could conclude that D.F. was not objectively biased. Because I conclude that there was no error in failing to strike D.F. for cause, I need not reach the question of the Ramos remedy. However, because the majority has seen fit to overrule recent precedent without sufficient justification, I address this aspect of the majority opinion as well.

¶6J — I

¶7*755¶ 136. When reviewing a circuit court's objective bias determination, precedent requires that we ask whether the circuit court's conclusion is one that no reasonable judge could reach. In State v. Faucher, 227 Wis. 2d at 718-21, after explaining that the objective bias of a juror is to be determined under a reasonable person standard, we also concluded that weight must be afforded to the circuit court's objective bias determination. That weight derives from the circuit court's first-hand observation of the voir dire proceedings and its ability to reflect on the juror's subjective state of mind. Id. at 720. The weight attributed to the circuit court's determination tilts the scales in favor of affirmance to such a degree that we will not reverse the circuit court unless it reaches a conclusion that no reasonable judge could reach:

We therefore give weight to the court's conclusion that a prospective juror is or is not objectively biased. We will reverse its conclusion only if as a matter of law a reasonable judge could not have reached such a conclusion.

¶8Id. at 721; State v. Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1999).

¶9¶ 137. The standard announced in Faucher, and reiterated in Kiernan, is quite different from the standard applied by today's majority. Under the correct standard, we do not simply ask whether a reasonable person in the juror's shoes could remain impartial. Rather, we must ask whether no reasonable circuit court asking that question could have concluded that the juror was not objectively biased. The question is not whether we would have struck the juror for cause.

¶10¶ 138. Applying the correct standard to the instant case, and giving the circuit court's determina*756tion the weight properly afforded to it, I conclude that the circuit court's decision that D.F. was not objectively biased must stand. The majority provides a litany of "bad facts" to support its independent conclusion that D.F. was objectively biased. However, it minimizes many of the considerations relied upon by the circuit court in making its determination that D.F. was not biased — a determination that is entitled to deference.

¶11¶ 139. In making its initial ruling declining to strike D.F. for cause, the circuit court explained that it relied on D.F.'s repeated assertions that she was impartial and could fairly evaluate the evidence of the defendant's guilt. After witnessing and participating in both the general voir dire of the jury panel and the individual voir dire of D.F., the circuit court explained:

[T]he fact of the matter is, [D.F.] has repeatedly assured you that her relationship with the deceased was minimal, that she can fairly and impartially try this case and that she can.. .be a good and fair juror.

¶12D.F. assured the court that she had not drawn any conclusions regarding the defendant's guilt and had not had any discussions regarding who was responsible for the crime. Ultimately, D.F. explained that she was "very confident" in her ability to sit on the jury.

¶13¶ 140. The goal of the jury selection process is to have a fair and impartial jury. In assessing the bias of jurors, an appellate court is left with only a written transcript to review, several months, often several years, after the actual jury selection. This reality limits our ability to fully assess the fairness and impartiality of an individual juror whom we have neither heard nor observed. The written transcript that we review is usually limited only to the spoken word. Yet a juror cannot *757speak fairness or talk impartiality. Fairness and impartiality are communicated.

¶14¶ 141. The essence of the weight afforded to the circuit court's determination are the unknown factors that do not survive transcription: tone of voice, demeanor, body language, and other intangibles. While we are not privy to these elements, there is more to the exchange between counsel, the circuit court, and D.F. than the majority relates in its opinion. Ultimately, there is more underlying the circuit court’s determination that D.F. could be impartial and fair than the cold text of D.F.'s words.

¶15¶ 142. These elements of the circuit court's decision were further explained by the circuit court when it denied Lindell's post-conviction motion seeking a new a trial based upon the failure to strike D.F. for cause. I believe that these excerpts reveal the deliberation of a reasonable circuit court concluding that it need not strike D.F. for cause:

As to the issue of [D.F.], let's not talk about the questions that were asked of [D.F.] in a vacuum here....

... [T]o take this whole questioning and understand it, you have to take it in the context in which it occurred....

. . . [L]et's talk about what I saw and what I didn't see....

... I can emphatically say that there was absolutely nothing that was blocking my view of any of the jurors, including counsel, the podium, where they stood, how they stood, etc. I saw at a very close distance, maybe twenty feet, each and every juror *758that was asked questions and the testimony that they gave. And I saw [D.F.j.

. . .[I]n 25 years that I've been practicing law, and in the 14 years I've been on the bench, I've seen a lot of jurors, I've seen a lot of jurors asked a lot of questions. I've seen jurors who it's pretty clear are not giving truthful answers.

It was clear from the very beginning that this was going to be an emotional case. We're talking about a very heinous crime and the death of a — death of a human being. This is not a disorderly conduct case, never was.

It was clear from the way all of the jurors reacted to the questioning that they took it as serious as everybody else did, [D.F.] included. I would not describe her as emotional. I would describe her as very honest, very sincere. I would describe her demeanor as somebody who is trying very, very hard to search her heart and her soul to answer as honestly and truthfullly as she could. Was she having some difficulty with that? Yes. Did she have to think about it? Yes. Were there pauses in her answers? Yes.

But in 14 years on the bench I don't think I've ever been more impressed with a juror who was trying to be as honest, sincere, and thorough as she possibly could. She was trying as hard as she possibly could to follow the instructions of the Court, to answer the questions as honestly and thoroughly as she could, and I think she did.

Now, what did she say? That she knew Miss Otto. She knew Mr. Harmacek but only through a business relationship. That she didn't have hardly any contact with Miss Otto. The only contact she had was with Mr. Harmacek when he delivered the beer to her parents' tavern. That she did not deal with him every day. That she never expressed an *759opinion, and that she had no opinions about the guilt or innocence of Mr. Lindell. That she never had any discussions with Miss Otto about the case. And when she was asked — oh, that her parents had never offered any opinion about the guilt or innocence of Mr. Lindell.

So what you have is someone who had never socialized with either Miss Otto or Mr. Harmacek, never expressed an opinion of the guilt or innocence of the defendant, never discussed the guilt or innocence of the defendant with anyone else, that the only relationship she had with the two people was a business relationship, and who repeatedly time after time indicated that she could fairly and impartially decide this case, and that was an assertion that I believe and believe to this day.

And when she said, quote, "I think I can," the inflection on her voice was very emphatic, and I believe it was absolutely unequivocal. . . .1 believe she was pretty emphatic that she could fairly and impartially try the case.

... I do not believe that this [juror] was evasive in any way. I think she was honest, fair in her answers. It's clear from her demeanor that she searched her soul and answered fairly and that she could fairly and impartially decide this case....

. . . Could a reasonable person under these circumstances be impartial? When you look at the cases that talk about juror impartiality, virtually all of them involve knowledge of a witness. They all involve somebody judging the credibility of a witness.

Miss Otto was a witness, although her testimony was extremely minor. If there was any feelings about Mr. Harmacek by [D.F.], unfortunately, Mr. Harmacek wasn’t a witness here. This juror was not going to be asked to discuss the credi*760bility of Mr. Harmacek, was he telling the truth or not? She was not going to be asked. . .anything about him at all.

If this had been a case where there was a burglary, and Mr. Harmacek was testifying as a witness, as a victim, perhaps she would have been excused. But that wasn't the case here.

Is it reasonable for a person who has a relative who knows a victim to be able to put that aside and judge a case fairly and impartially when the victim's credibility, the victim's actions, are not in any way, shape, or form being judged or examined? Can we say that just because [D.F.] had a business relationship with the victim that she would want to convict somebody, anybody, even an innocent man? Because that's what the claim of bias boils down to, that somehow she would try to convict an innocent man based only on, on her minimal relationship with the victim.

I believe a reasonable person under these circumstances could fairly judge, impartially judge the case. I do not believe there was objective bias. There is a big difference between answers to questions that would result in a juror being struck for cause and answers to questions that would cause somebody to exercise a peremptory strike. And based on her answers, perhaps counsel wished to strike her and obviously did. But I do not believe. . .the evidence here justified my striking that juror.

¶16¶ 143. If this thoughtful explanation is not that of a reasonable circuit court, I do not know what is. Would I have struck D.F. for cause? Maybe. But that is not the controlling inquiry. The controlling inquiry is whether a circuit court, exercising reasonable judgment, could decline to strike D.F. The circuit court in this case not only rested its bias determination upon relevant facts and considerations, but it carefully *761explained its decision. I cannot conclude that the circuit court's determination was unreasonable.

¶17¶ 144. Rather than give weight to the circuit court's determination, the majority eliminates the element of deference to be applied in an objective bias analysis. It parses D.F.'s words and draws its own conclusion that a reasonable juror in D.F.'s position could not remain fair and impartial.1 The majority's approach is a departure from precedent, and it is a departure that I ultimately find to be determinative of the outcome of this case.

¶18¶ 145. I now briefly address the majority's decision to overrule State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997). I happen to be among those who believe Ramoswas wrongly decided. I joined the dissent in Ramos. See id. at 30 (Crooks, J., dissenting). I later continued to dissent in State v. Ferron, 219 Wis. 2d 481, 508, 579 N.W.2d 654 (1998) (Bradley, J., dissenting). However, despite my disagreement, because of the many and consistent affirmations of Ramosby this court I eventually had to acknowledge it as valid precedent. See, e.g., Kiernan, 227 Wis. 2d at 751-52 (Bradley, J., concurring).

¶19*762¶ 146. Until today, Ramosremained valid precedent. Out of respect for the law and this court as an institution, I believe that the majority should continue to acknowledge it as precedent. Instead, with nothing changed but the bodies on this court, the majority overrules a case that, to my recollection, has been reaffirmed more than any other case in the last four years.

¶20¶ 147. The court's decision in State v. Ramos was grounded in Wisconsin statutory law. See, e.g., 211 Wis. 2d at 19 ("Wisconsin Statutes do not suggest that a defendant should be required to use a peremptory challenge against a juror who should have been removed for cause"). It was, after all, only Ramos's "statutory rights" that were deemed violated. Id. at 24-25. While the majority points to the decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000), and other factors in its decision to overrule Ramos, it points to no statutory change or anything indicating a shift in legislative intent to justify its reversal.

¶21¶ 148. Our job, in statutory interpretation is to discern the intent of the legislature when it enacted the statute. Now four years later, a new majority apparently has a new interpretation of what the legislature meant when it enacted the statute. There has been no change in the relevant statutes, no change in the constitution, and no change in the underlying principles. Nonetheless, the majority substitutes its will over its obligation to stare decisis.

¶23¶ 149. (dissenting). The court today overrules State *763v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997). I disagree with the court's overruling for three reasons:

(1) Today's majority opinion violates the rule of stare decisis, which requires a court to "stand by things decided." In other words, once this court has officially considered and settled a principle of law, this court must remain faithful to its precedent unless there are good reasons to overrule precedent. No such reasons exist to overrule Ramos. The Ramoscourt considered the authority and the rationale advanced by today's majority opinion and rejected them.

(2) Today's majority opinion violates a basic rule of statutory interpretation: Once this court has authoritatively construed a statute, the court maintains this construction unless and until the legislature either amends or repeals the statute. Ramosis based on this court's interpretation of Wis. Stat. § 972.03 (1995 — 96) governing peremptory strikes. The legislature has not changed this statute since the Ramos case, and the court should not change its interpretation of the statutes without new information.

(3) Today's overruling of Ramosleaves defendants with no satisfactory remedy for a circuit court's error in failing to strike a juror for cause.

¶24hH

¶25¶ 150. The simplest, easiest reason to dissent in the present case is to rely on the doctrine of stare decisis.1

¶26*764¶ 151. And stare decisis is an especially good reason in the present case because nothing new has been brought to the court's attention since Ramosthat would justify a departure from precedent in Ramos.

¶27¶ 152. Today's majority opinion focuses on the harmless error statute and nineteenth-century case law. The dissent in Ramosurged a harmless error analysis, and the Ramoscourt declined the invitation. Likewise, the Ramosdissent focused on nineteenth-century cases such as Pool,2Bergman,3 and Carthaus,4 which the Ramoscourt found unpersuasive.

¶28¶ 153. Today's majority opinion has not added any new material for the court's consideration to justify overturning a 1997 decision of this court. To overturn a decision requires more than the majority opinion musters.

¶29II

¶30¶ 154. The second reason to dissent in the present case is that Ramosis a statutory interpretation *765case,5 and the legislature has not changed the relevant statutes since Ramos. The general rule of statutory interpretation is that once this court has authoritatively construed a statute, the court maintains this construction "unless and until the legislature either amends or repeals the statute."6

¶31¶ 155. Today's majority opinion ignores this basic rule of statutory interpretation when it concludes that the legislature could not have intended the authoritative construction that the Ramoscourt gave the peremptory challenge statute.7 If the legislature does not overturn an interpretation of the statute, we assume the legislature agrees with our interpretation.8 The legislature has not overturned our construction of *766the statutes in Ramos. Legislative silence on this question is far more revealing than today's revisiting of nineteenth-century case law and the harmless error rule.

¶32¶ 156. The Ramosdecision rests on an interpretation of Wis. Stat. § 972.03 (1995-96), which provides that "the defendant is entitled to 6 peremptory challenges. . . . Each side shall be allowed one additional peremptory challenge if additional jurors are to be impaneled under s. 972.04(1)."9

¶33¶ 157. Today's majority opinion ignores these jury statutes directly at issue in the present case and in Ramosand instead turns the reader's attention to the harmless error rule.

¶34¶ 158. Justice Donald Steinmetz, writing for the court in Ramos, focused on the defendant's substantive right to a full complement of peremptory challenges guaranteed by Wis. Stat. § 972.03. The Ramosdecision refused to apply the harmless error rule as a matter of statutory interpretation. Justice Steinmetz's concluding words in the Ramosopinion are as follows:

Although it is a shame to have a new trial in this tragic first-degree murder case when a fair and impartial jury made the final decision, the error by the trial court requires that the defendant receive a new trial. We hold that the use of a peremptory challenge to correct a trial court error is adequate *767grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right.10

¶35¶ 159. I joined Ramos, but that fact is irrelevant for purposes of this discussion. What is relevant is whether I have learned anything new to justify reconsideration of our statutory interpretation in Ramos. The answer to that question is no.

¶36¶ 160. The majority opinion criticizes the Ramoscourt for reading too much into Ross v. Oklahoma11 and not anticipating the holding of United States v. Martinez-Salazar,12 But in Ross, the U.S. Supreme Court endorsed our Ramosinterpretation of the Wisconsin statutes.13 Moreover, there was no need for this court to anticipate Martinez-Salazar: that decision is based purely on an interpretation of the federal rules of criminal procedure and has no bearing on how state courts interpret their peremptory challenge statutes.14

¶37I — I l-H h-1

¶38¶ 161. The third reason to dissent in the present case is that the Ramosautomatic reversal rule maintains a level playing field for both the State and the defendant. As a result of Ramos, each party is guaranteed a full complement of peremptory strikes, and the *768parties are not forced to take over the circuit court's role of removing jurors for cause.

¶39¶ 162. With Ramosoverruled, few if any practical remedies are available to a defendant, other than to "lose" a peremptory challenge when the circuit court errs in allowing a biased juror to sit. Three alternative courses of action have been suggested, none of which provides a firm foundation for ensuring both a defendant's right to an unbiased jury and a defendant's right to a statutorily guaranteed complement of peremptory challenges.

¶40¶ 163. First, a defendant could allow a juror who should have been removed by the circuit court for cause to serve and then claim an unfair trial. In State v. Gesch,15 this court held that a defendant does not waive the right to challenge a conviction on the ground of an unfair trial if the defendant does not use a peremptory challenge to remove a juror whom the circuit court should have removed for cause. Although today's majority opinion relies on our holding in Gesch, some readers might, in the light of today's Ramosreversal, view Gesch as perched on a banana peel.

¶41¶ 164. In his concurring opinion in Martinez-Salazar, Justice Antonin Scalia explains the practical problems a court faces in abiding by the Gesch rule. Justice Scalia wrote:

The difficult question, however, is. . .whether normal principles of waiver.. .disable a defendant from objecting on appeal to the seating of a juror he was entirely able to prevent. I would not find it easy to overturn a conviction where, to take an extreme example, a defendant had plenty of peremptories left but chose instead to allow to be placed upon the *769jury a person to whom he had registered an objection for cause, and whose presence he believed would nullify any conviction.16

¶42¶ 165. Counsel for the defendant in the present case suggests that as a practical matter defense counsel would be reluctant to rely on Gesch:

Certainly Gesch is still the law in Wisconsin. However, it is hard to imagine sitting next to a client at defense table during voir dire and informing him that you cannot use a peremptory on a certain juror who just minutes earlier you were seeking to remove for cause in hopes that Gesch would not be overturned on waiver grounds.

¶43¶ 166. A Gesch-h&sed approach seems to raise legal and practical problems, limiting its usefulness in most cases.17

¶44¶ 167. Second, a defendant could try to show that the circuit court deliberately misapplied the law and the circuit court's purpose in misapplying the law was to force the defendant to use a peremptory challenge to correct the court's error.18 I view it as highly unlikely that a Wisconsin circuit court judge would act in this manner.

¶45¶ 168. Third, a defendant who has used a peremptory challenge to cure an erroneous denial of a challenge for cause and who has exhausted his statutory peremptory challenges could request a "make-up" peremptory challenge or could raise an objection to a sitting juror who would have been struck if the defendant had any remaining statutory challenges. The *770circuit court's denial of his request or objection would raise an issue not presented in this case.19 As the State points out, the defendant in the present case did not request additional peremptory challenges or object to any juror who sat. Of course the defendant did not. There was no need to do so. The defendant in the present case was relying on, and was justified in relying on, our Ramosrule of automatic reversal. The majority concludes, however, that the defendant cannot get the benefit of his reliance on the Ramoscase.

¶46IV

¶47¶ 169. In summary, I am sorry to see Ramosoverturned. Sorry not because Ramoswas, in my opinion, a correct decision, but more importantly because overturning Ramosundermines confidence in the reliability of our decisions.

¶48¶ 170. For the reasons stated, I dissent.

¶49*771¶ 171. I am authorized to state that Justice WILLIAM A. BABLITCH joins this opinion.