COURT OF APPEALS DECISION DATED AND FILED November 13, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from orders of the circuit court for
Before Higginbotham, P.J., Dykman and Lundsten, JJ.
¶1 DYKMAN, J. James Poblitz appeals from an order finding that he is a sexually violent person under Wis. Stat. § 980.01(7)(2005-06),[1] and from an order denying his postconviction motion seeking a new trial. Poblitz argues that the trial court erroneously exercised its discretion by questioning and dismissing an impaneled juror outside the presence of either Poblitz or his attorney. Poblitz argues that the court erroneously exercised its discretion by applying the wrong legal standard and failing to use a reasoning process in questioning and dismissing the juror. We conclude that any error by the trial court in questioning and discharging the juror was harmless. We affirm.
Background
¶2 The
following facts are undisputed. On
September 26, 2005, the State filed a petition for an order to detain Poblitz
as a sexually violent person pursuant to Wis.
Stat. § 980.01(7). The matter was tried to a jury. During the jury selection, the court advised
the prospective jurors that the purpose of the case was to determine whether
Poblitz “suffers from a mental disorder that makes it more likely than not that
he will engage in future acts of sexual violence.” Thirteen jurors were impaneled to hear the
case, with the expectation that if no juror were excused during the trial, one
would be randomly selected and dismissed before deliberations began. After the close of evidence, but prior to instructions
and closing arguments, juror Molly Baehr wrote a note to the court. The note read as follows:
Over the course of this trial, I have come to realize that I will not be able to make a decision. At 8:00 a.m. yesterday morning, I had no moral objection to determining the fate of a fellow human being but as of now, I do.
I cannot morally say that the defendant should be allowed to walk free any more than I can say that he should spend the rest of his life institutionalized.
I have been considering the possibilities since we adjourned last night, and have arrived at my conclusion by my own free will.
The only way I can morally go [on] at this point is to ask to be the alternate juror.
¶3 The trial court shared the note with counsel and Poblitz. Noting that there were still twelve jurors, the court expressed that it was “inclined to strike her for cause at this point.” The court invited counsel to “contemplate [the situation] … over the lunch hour.” Following lunch, the court informed counsel that it would conduct a voir dire of Baehr, and that the court did not believe it would be appropriate for counsel to ask questions or interact with Baehr during this voir dire. The court informed counsel that a transcript of the voir dire would be made available to them. Counsel agreed that it was not necessary for them to be present during the questioning since there would be a complete record available.
¶4 After
questioning Baehr outside of the presence of Poblitz and his counsel, the court
decided to excuse her from the jury. The
court summarized her testimony:
She … went into areas of being confused and not knowing how she could possibly decide this case, and I had some concerns about that and tried to follow-up with questions concerning that regarding arguments of counsel and court’s instructions and things like that, but ultimately she would always come back to her feeling that she couldn’t morally say that Mr. Poblitz was … a sexually violent person versus not sexually violent.
Neither attorney objected to the court’s dismissing the juror. The trial proceeded with instructions and closing
arguments. The twelve remaining jurors
found Poblitz to be a sexually violent person.
¶5 Poblitz
moved the trial court for a new trial, arguing that the court had erroneously
exercised its discretion by dismissing the juror, and that it had violated his
rights to be present and to be assisted by counsel when the trial court
questioned Baehr outside the presence of either Poblitz or his attorney. Poblitz also argued that if his attorney’s
failure to object to the court’s questioning or dismissing Baehr waived those
objections, he was deprived of his right to the effective assistance of
counsel. After a hearing, the trial
court rejected all of Poblitz’s arguments and denied the motion for a new
trial. The court concluded that Poblitz
had not been denied his right to a trial by an impartial jury or effective
assistance of counsel. Poblitz appeals.
Discussion
¶6 Poblitz argues that the trial court erroneously exercised its discretion in questioning and dismissing Baehr, thus requiring reversal. Poblitz contends that the court applied the wrong legal standard for responding to a juror’s request to be dismissed because it did not apply the procedure set forth in State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212 (1982) (stating that the juror should be questioned in the presence of counsel and the defendant, and that the court should avoid discharging the juror). Poblitz also contends that the court violated his right to be present and assisted by counsel at trial under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Wisconsin Constitution by questioning Baehr outside the presence of Poblitz and his counsel. Finally, Poblitz argues that the trial court failed to provide a reasonable explanation for why Baehr was unqualified to continue to serve as a juror.[2]
¶7 The State responds that the trial court did not erroneously
exercise its discretion in questioning and dismissing Baehr because the
procedures set forth in Lehman are not mandatory. Further, the State contends, the court acted
within its discretion in dismissing Baehr because there were thirteen impaneled
jurors before Baehr was dismissed and Baehr said that she was unable to reach a
decision on moral grounds. Thus, the
court preserved an impartial jury with twelve jurors by dismissing Baehr. Finally, the State argues that even if
Poblitz’s constitutional rights were violated, the error was harmless because
Poblitz indisputably received a trial by twelve impartial jurors. We
agree that any error in questioning and dismissing Baehr was harmless.[3]
¶8 Poblitz
contends that the trial court’s error in questioning and dismissing Baehr was
structural error and therefore per se
prejudicial, thus requiring reversal. See State v. Shirley E., 2006 WI 129,
¶62, 298
¶9 Poblitz
next argues that even if a harmless error analysis applies, the errors here are
not harmless because the State has not proven beyond a reasonable doubt that
dismissing Baehr did not contribute to the verdict. See
id.,
¶114. Again, Poblitz argues that Baehr’s
expression of doubt as to the State’s evidence indicated that the result may
have been different if she had remained on the jury. The State responds that the focus of our
harmless error analysis is on the jurors who sat on the case, not on the
dismissed juror.[4]
¶10 In
Tulley,
the trial court conducted voir dire
of three potential jurors in chambers, outside the presence of counsel or
Tulley, and dismissed each potential juror for cause.
¶11 Here,
the trial court questioned Baehr, an impaneled juror, outside the presence of Poblitz
or his counsel. During this
conversation, Baehr said that she was unable to perform her duties as a juror. Baehr was excused for cause, which left twelve
jurors to deliberate the case. Poblitz
and his counsel were present during the voir
dire of the remaining twelve jurors.
There is no contention that the jury which actually sat on the case was
anything other than fair and impartial.
Because Baehr was discharged for cause, leaving twelve remaining
impartial jurors, we conclude that the State has met its burden to prove that any
trial court error in questioning and discharging Baehr was harmless. Accordingly, we affirm.
By the Court.—Orders affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Poblitz also argues that if he is deemed to have waived his objection to the court’s questioning and dismissing Baehr, his counsel was ineffective. We conclude that if the trial court erred by questioning and dismissing Baehr, the error was harmless. We therefore do not reach Poblitz’s ineffective assistance of counsel claim.
[3] The
State asks us to hold that deviation from the procedures set forth in State
v. Lehman, 108
[4] In reply, Poblitz contends that the State’s focus on the remaining jurors means that a court is free to question the jurors about their decision after evidence is presented but before the case is submitted, and then dismiss jurors who favor one side or the other. Again, those facts are not presented by this case, and we do not address that argument.
[5] The
test for harmless error has been stated alternately by the supreme court as
“whether there is a reasonable possibility that the error contributed to the
outcome” and whether it is “clear beyond a reasonable doubt that the result of
the proceeding would not have been the same absent the error.” State v.
[6] In
State
v. Tulley, 2001 WI App 236, 248