Taylor v. State

¶1files the following statement, in which ROONEY, Justice, joins:

¶2I concur and join in the court’s opinion. My only hesitancy has been with that part of the conditions under which a verdict may be accepted when it is less than unanimous, set out as 6(B) requiring the trial judge to inform the defendant that “[ajnother trial judge will be assigned to the second trial if that is defendant’s desire.”

¶3It appears to me that we are amending Rule 23(d) and (e), W.R.Cr.P. by imposing another condition under which a trial judge may be peremptorily disqualified from presiding and thus violating our own rule of procedure. If the trial judge is biased or prejudiced against the defendant, then the regular procedure for disqualification for cause provided by Rule 23(e) should be followed. I cannot believe that a judge can be considered biased and prejudiced, per se, because he has been through one trial, which is the implication of this requirement.

¶4It is not entirely clear to me wherein such a condition to waiver of a unanimous verdict has any relevancy. To change judges following a mistrial, in the absence of bias or prejudice, in fact deprives the system of justice of the best fitted judge to go into a second trial. While something new always shows up in a second trial, most of the new trial is a replay of the first. The trial judge’s acquaintanceship with the evidence to be produced has removed most of the surprises, has created an awareness of possible pitfalls, and the danger of hasty rulings is lessened. A new judge will be required to prepare himself from scratch, perhaps hold a more extensive pretrial conference than otherwise would be necessary, must possibly leave his own district which involves time lost and the expense of travel.

¶5I entertain some reservations as to the useful purpose of the requirement.

¶6specially concurring.

¶7I concur in the result reached by the majority opinion, and I appreciate the effort made by it in establishing standards and requirements for accepting less-than-unanimous verdicts. However, I believe the majority opinion has improperly extended the holding of the two cases which form the very cornerstone of the opinion; and that the opinion is, thus, in error. I do not wish to join in judicially changing the policy relative to unanimous verdicts in criminal cases as now flatly and plainly stated in the rules promulgated by us.1

¶8LESS-THAN-TWELVE DISTINCTIONS

¶9The distinction between a jury which consists of less than twelve persons and one in which a verdict is allowed to be made by less than the number of persons on the jury must be kept in mind. Many of the cases cited and quoted from in the majority opinion have to do with whether or not a jury of less than twelve persons is proper and not with whether or not a less-than-unanimous verdict is proper. A waiver of a jury in toto differs from a waiver of a jury of twelve persons, and both differ from a waiver of the requirement for a unanimous verdict.

¶10APODACA AND JOHNSON DISTINGUISHED

¶11The two cases having to do with a less-than-unanimous verdict and upon which the majority opinion relies for the proposition that the Sixth Amendment of the United States Constitution is not offended through application of the Fourteenth Amendment thereto by state provisions imposing less-than-unanimous verdicts in criminal jury trials are Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) and *865Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).2 It is important to recognize that the court was considering in each case, a question of whether or not state constitutional provisions were violative of the United States Constitution.3 It decided that they were not.

¶12This is a far different determination than a determination that a criminal defendant may waive the requirement of a unanimous verdict. He may waive it from the standpoint that such does not violate United States constitutional provisions, but such waiver may nonetheless require an authorization or an enabling provision at the state level before it can be made. The majority opinion points to the right to waive other protected rights (defense of double jeopardy, refusal to testify on the grounds of self-incrimination, to request counsel, to speedy trial) as indicative of the application of “the general rule that all rights and privileges designed for the benefit of the defendant may be waived, so long as there is no violation of public policy and the public’s interests are not thereby jeopardized.” It then asks: “[I]f all of these rights and more can be waived — upon what ground can we say that the waiver of unanimity is so sacred that it cannot be added to the list?”

¶13PUBLIC POLICY

¶14The question is answered and the ground is found in the general rule itself. A waiver of a unanimous verdict is violative of public policy and does prejudice the public’s interest.

“ … [T]he term ‘public policy’ of a State is nothing more or less than the law of the State, as found in its constitution and statutes and when they have not directly spoken, then in the decisions of the courts and in the regular practice of government officials. … ” Higgins v. Nationwide Mutual Insurance Company, 50 Ala.App. 691, 282 So.2d 295, 298 (1973).

“ * … Fundamental public policy is declared in the Constitution. If not there declared then public policy is to be looked for in legislative enactments, which are conclusive unless they contravene some provision of the Constitution. … ” District Grand Lodge No. 25 Grand United Order of Odd Fellows v. Jones, 138 Tex. 537, 160 S.W.2d 915, 920 (1942).

¶15Contrary to the constitutions of Oregon and Louisiana, our constitution does not speak directly to the matter. Article 1, § 9 of the Wyoming Constitution provides in part:

“The right of trial by jury shall remain inviolate in criminal cases, but a jury in civil cases in all courts or in criminal cases in courts not of record, may consist of less than twelve men, as may be prescribed by law. … ”

¶16*866In 1900, this court held legislation to be unconstitutional which authorized a verdict by three-fourths of the jury members. In doing so, it said that “[t]he essential and substantive attributes or elements of jury trial are, and always have been, number, impartiality, and unanimity” and that:

“But there is no specific mention in the section or anywhere in the constitution of the third essential of unanimity. Is it, then, to be deemed a matter unprovided for, a right not preserved, leaving the legislature at full liberty to enact such laws upon the subject as it may deem proper, unrestrained by the constitution? We do not think so. … ” First National Bank of Rock Springs, Wyo. v. Foster, 9 Wyo. 157, 164, 61 P. 466, 467 (1900).

¶17Now, I recognize that waiver of a right is a concept other than that referred to in such quotations. However, the element of public policy, so essential to a valid waiver, is emphatically declared therein. The majority opinion recognizes the necessity for the prosecution and the court to consent to the waiver. This recognition is an acknowledgment of a public aspect. If the legislature cannot change the unanimity attribute of the jury, where does the prosecution or court obtain the power to do so?

¶18Beyond that, the legislature has seen fit to establish public policy as requiring a unanimous verdict. Section 1-11-210, W.S. 1977 provides:

“The jury may be discharged by the court on account of the sickness of a juror or any accident or calamity requiring its discharge, or by consent of both parties or after the jurors have been kept together until it appears there is no probability of their agreeing." (Emphasis supplied.)

¶19Section 1-11-212, W.S.1977 provides in pertinent part:

“When the jurors agree upon their verdict, it shall be reduced to writing and signed by the foreman. … ” (Emphasis supplied.)

¶20Section 1-11-213, W.S.1977 provides:

“If a jury disagrees, or if when the jury is polled a juror answers in the negative, or if the verdict is defective in substance, the jury shall be sent out again for further deliberation and either party may require the jury to be polled by the clerk or court asking each juror if it is his verdict.” (Emphasis supplied.)

¶21Again, waiver is not specifically addressed, but the tenor of the enactment and the fact that waiver is not addressed reflect the public policy relative thereto as intended by the legislature, i. e., that verdicts shall be unanimous, and waiver is not possible.

¶22If more need be said in this respect, public policy was flatly set forth in the Rules of Criminal Procedure adopted by this court. Rule 32(a) thereof provides in part: “The verdict shall be unanimous.” There are no exceptions set forth relative to waiver or otherwise. Rule 32(d), W.R.Cr.P. provides for a poll of the jury and states:

“ … If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.” (Emphasis supplied.)

¶23If public policy relative to a unanimous jury could be changed judicially, it should be done by rule change, with usual input from the rules committee, and not by decree. Properly, however, any change in this long-standing policy should be by constitutional amendment. The holdings of Apoda-ca and Johnsonwould then apply. Under the present constitutional, statutory, and judicial language, the Wyoming public policy is the same as is federal public policy. And such waiver cannot be made in federal cases.

“ … [T]he unanimous verdict requirement, with its deep roots in federal jurisprudence and its clear expression in the unequivocal command of Rule 31(a), should be observed in every trial of a crime in federal court. … ” United States v. Scalzitti, 3rd Cir. 1978, 578 F.2d 507, 512. See Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948).

¶24The requirement is founded in the Sixth Amendment, not only in Rule 31(a), F.R. *867Cr.P. United States v. Morris, 10th Cir. 1979, 612 F.2d 483. Our Rule 32(a), W.R. Cr.P. is the exact language of Rule 31(a), F.R.Cr.P., i. e., “[t]he verdict shall be unanimous.” Our situation, historically, philosophically and rationally identifies our public policy with that of the federal government rather than with that of Louisiana and Oregon, i. e., states with constitutional provisions establishing a ten-to-two and nine-to-three verdict as their public policies. Obviously, the presence of these constitutional provisions are the distinctive causation for the Apodacaand Johnsonopinions being contrary to the law resulting from application of the Sixth Amendment to federal cases.

¶25RATIONALE

¶26The propriety of requiring a unanimous verdict is founded on more than custom. The opinions in Apodacaand Johnsonwere five to four. The majority of one was accomplished by virtue of a specially concurring opinion of Justice Powell, who stated at page 1641 of 92 S.Ct. that: “ … I see no constitutional infirmity in the provision adopted by the people of Oregon. It is the product of a constitutional amendment, approved by a vote of the people in the State ….” (Emphasis supplied.)

¶27Justice Blackmun, as one of the five majority justices, stated in his concurring opinion to the Apodacacase at page 1635 of 92 S.Ct.:

“I join the Court’s opinion and judgment in each of these cases. I add only the comment, which should be obvious and should not need saying, that in so doing I do not imply that I regard a State’s split-verdict system as a wise one. My vote means only that I cannot conclude that the system is constitutionally offensive. Were I a legislator, I would disfavor it as a matter of policy. Our task here, however, is not to pursue and strike down what happens to impress us as undesirable legislative policy.” (Emphasis supplied.)

¶28Of course, the minority opinions in these two cases take issue with the determination in the majority opinion that the concept of reasonable doubt is not diluted and that the concept of jury representation of a cross section of the community is not violated. For example, Justice Douglas, at page 1650 of 92 S.Ct.:

“Proof beyond a reasonable doubt and unanimity of criminal verdicts and the presumption of innocence are basic features of the accusatorial system. What we do today is not in that tradition but more in the tradition of the inquisition. Until amendments are adopted setting new standards, I would let no man be fined or imprisoned in derogation of what up to today was indisputably the law of the land.”

¶29And Justice Brennan at page 1651 of 92 S.Ct.:

“It is in this context that we must view the constitutional requirement that all juries be drawn from an accurate cross section of the community. When verdicts must be unanimous, no member of the jury may be ignored by the others. When less than unanimity is sufficient, consideration of minority views may become nothing more than a matter of majority grace. In my opinion, the right of all groups in this Nation to participate in the criminal process means the right to have their voices heard. A unanimous verdict vindicates that right. Majority verdicts could destroy it.”

¶30And Justice Marshall at page 1653 of 92 S.Ct.:

“ … It should be emphasized, however, that the fencing-out problem goes beyond the problem of identifiable minority groups. The juror whose dissenting voice is unheard may be a spokesman, not for any minority viewpoint, but simply for himself — and that, in my view, is enough. The doubts of a single juror are in my view evidence that the government has failed to carry its burden of proving guilt beyond a reasonable doubt. … ”

¶31CONCLUSION

¶32I cannot join my fellow justices in abrogating the long-standing policy of unani*868mous verdicts in criminal jury trials. I believe such policy is implicit in the language of the Wyoming Constitution and in subsequent legislative enactments. The fact that the United States Supreme Court has not (as of this date) struck down as violative of the United States Constitution the constitutional provisions of two other states which set the policies in those states to authorize non-unanimous verdicts is of no materiality or relevance to Wyoming’s position.

¶33I would reverse this case only on the ground that Rule 32(a), W.R.Cr.P., which requires a unanimous verdict, was not enforced by the district court.