COURT OF APPEALS DECISION DATED AND RELEASED September 12, 1996 |
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No. 94-3036-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
EDWARD RAMOS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Reversed and cause remanded for a new
trial.
Before Wedemeyer, P.J.,
Schudson, J., and Michael T. Sullivan, Reserve Judge.
SULLIVAN, J.
Edward Ramos appeals from a judgment of conviction, after a jury trial,
for first-degree intentional homicide.
At issue in this case is whether the trial court's failure to dismiss a
prospective juror during voir dire, who the State concedes on appeal
should have been removed for cause, but who was subsequently removed by the
defendant's use of a peremptory challenge, was a violation of the defendant's
procedural due process rights under the Fourteenth Amendment to the United
States Constitution.[1]
Because Wisconsin law
entitled Ramos to seven peremptory challenges in this case, see
§ 972.03, Stats., and
because trial court error arbitrarily deprived him of the effective use of one
of those challenges, we conclude that Ramos was denied due process under the
Fourteenth Amendment. Accordingly, we
reverse.
I.
Background.
The underlying facts in
this case are tragic. Police arrested
Ramos for the smothering death of his girlfriend's two-year-old child. The State charged him with first-degree
intentional homicide; Ramos opted for a jury trial. Ramos never denied that he killed the child, but argued that he
acted recklessly—not intentionally. Due
to the sensitive nature of the offense, prospective jurors were carefully
questioned by both Ramos's counsel and the State on their ability to be fair
and impartial. During Ramos's counsel's
questioning of one prospective juror, the juror stated, “[K]nowing that the
child was suffocated, I guess I couldn't be fair.” Then when the juror was specifically asked whether she could be
fair to Ramos, she stated, “No.” During
an in camera conference, Ramos's counsel moved to strike the juror for
cause, arguing that the juror stated she could not be fair and impartial. The prosecutor disagreed with Ramos's
counsel's recollection of the juror's statement, and argued that the juror
merely stated that “she would be more sympathetic but she couldn't tell until
she heard all the evidence.” The trial
court agreed with the prosecutor's erroneous version of the juror's statement
and denied Ramos's motion to strike the juror for cause. Regrettably, the trial court also denied
Ramos's request to have the court reporter read back the juror's responses to
the questions.
Ramos subsequently
removed the juror through the use of his first peremptory challenge; therefore,
the juror did not sit in judgment at Ramos's trial. After four days of trial, a jury found Ramos guilty of
first-degree intentional homicide.
II.
Analysis.
In its appellate brief, the State concedes
that the trial court erroneously exercised its discretion in denying Ramos's
motion to strike the prospective juror for cause. See State v. Zurfluh, 134 Wis.2d 436, 438,
397 N.W.2d 154, 154 (Ct. App. 1986) (whether to dismiss a proposed juror for
cause lies within the wide discretion of the trial court). The State agrees with Ramos that the
prospective juror, after initially giving equivocal answers, stated that she
could not be fair. Further, the State
concedes that further questioning did not establish that the prospective juror
could put aside her bias and be “indifferent in the case.” See § 805.08(1), Stats.[2] While we are not bound by the State's
concession of error, see State v. Gomaz, 141 Wis.2d 302,
307, 414 N.W.2d 626, 629 (1987), our review of the record confirms that the
trial court erroneously exercised its discretion when it failed to dismiss the
prospective juror for cause. The
prospective juror unequivocally stated that she could not be fair as a
juror. Given this error, we must next consider
whether Ramos is entitled to a new trial.
The State contends that
despite trial court error, Ramos is not entitled to a new trial because the
prospective juror was struck from the panel by Ramos's use of a peremptory
challenge and thus the jury that actually heard his case was impartial. This case, however, is not about whether
Ramos's right to a trial by an impartial jury under Article 1, Section 7 of the
Wisconsin Constitution and the Sixth and Fourteenth Amendments to the United
States Constitution was violated. The
United States Supreme Court has conclusively spoken on that issue: “So long as the jury that sits is impartial,
the fact that the defendant had to use a peremptory challenge to achieve that
result does not mean the Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S. 81,
88, 108 S. Ct. 2273, 2278, 101 L.Ed.2d 80, 90 (1988). Thus, the loss of a peremptory challenge to correct a trial court
error does not constitute a violation of the right to an impartial jury. Id.; see State v.
Traylor, 170 Wis.2d 393, 400, 489 N.W.2d 626, 629 (Ct. App. 1992)
(applying Ross's holding to Wisconsin). What is at issue in this case, however, is whether the trial
court's error in failing to dismiss a prospective juror for cause arbitrarily
deprived Ramos of a full complement of his legislatively‑entitled
peremptory challenges, thereby violating his procedural due process rights
under the Fourteenth Amendment. This is
an issue of first impression in Wisconsin.
A. Procedural Due
Process.
“The Fourteenth
Amendment reads in part: `nor shall any State deprive any person of life,
liberty, or property, without due process of law,' and protects `the individual
against arbitrary action of government.'”
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454,
459-60, 109 S. Ct. 1904, 1908, 104 L.Ed.2d 506, 514 (1989) (citation omitted). A protected liberty interest that does not
arise directly from the Due Process Clause may nonetheless be created by state
statutory enactment. See Hewitt
v. Helms, 459 U.S. 460, 469, 103 S. Ct. 864, 870, 74 L.Ed.2d 675, 686
(1983). Further, the arbitrary
deprivation of a liberty interest that state law provides is a violation of
Fourteenth Amendment procedural due process.
See Hicks v. Oklahoma, 447 U.S. 343, 346, 100
S. Ct. 2227, 2229, 65 L.Ed.2d 175, 180 (1980); Casteel v.
McCaughtry, 176 Wis.2d 571, 579, 500 N.W.2d 277, 281 (discussing
procedural due process claims), cert. denied, 114 S. Ct. 327, 126
L.Ed.2d 273 (1993).
“[P]eremptory challenges
are not required by the Constitution.” Mu'Min
v. Virginia, 500 U.S. 415, 424-25, 111 S. Ct. 1899, 1905, 114 L.Ed.2d
493, 505 (1991). They are merely a
creature of statute. Ross,
487 U.S. at 89, 108 S. Ct. at 2279, 101 L.Ed.2d at 90. Accordingly, “it is for the State to
determine the number of peremptory challenges allowed and to define their
purpose and the manner of their exercise.”
Id. Hence, “the
`right' to peremptory challenges is `denied or impaired' only if the defendant
does not receive that which state law provides.” Id. at 89, 108 S. Ct. at 2279, 101 L.Ed.2d at
91.
In Ross,
the Supreme Court addressed a Fourteenth Amendment procedural due process
challenge identical to that raised here—an Oklahoma criminal defendant had to
exercise a peremptory challenge to remove a juror whom the trial court should
have dismissed for cause. Id.
at 88-89, 108 S. Ct. at 2278, 101 L.Ed.2d at 90. The defendant argued that the trial court's failure to remove the
juror for cause violated his due process rights by “arbitrarily depriving him
of the full complement of nine peremptory challenges allowed under Oklahoma
law.” Id. The Court rejected the challenge by
concluding that the defendant had “received all that was due under Oklahoma
law.” Id. at 91, 108 S.
Ct. at 2280, 101 L.Ed.2d at 92. The
Court reached its decision by analyzing Oklahoma law. In Oklahoma:
[A] defendant who disagrees with the
trial court's ruling on a for-cause challenge must, in order to preserve the
claim that the ruling deprived him of a fair trial, exercise a peremptory
challenge to remove the juror. Even
then, the error is grounds for reversal only if the defendant exhausts all
peremptory challenges and an incompetent juror is forced upon him.
Id. at
89, 108 S. Ct. at 2279, 101 L.Ed.2d at 91.
The Court concluded that while the defendant “exercised one of his
peremptory challenges to rectify the trial court's error, and consequently ...
retained only eight peremptory challenges...[,] he received all that Oklahoma
law allowed him” because Oklahoma law required him to expend peremptory
challenges to cure trial court error in its for-cause rulings. Id. at 90-91, 108 S. Ct. at
2279, 101 L.Ed.2d at 91. Hence, the
defendant was not arbitrarily deprived of a liberty that Oklahoma law provided;
therefore, his procedural due process rights were not violated. Id. at 91, 108 S. Ct. at
2279‑80, 101 L.Ed.2d at 91‑92.[3]
To evaluate properly
Ramos's procedural due process claim, we must analyze Wisconsin's law on
peremptory challenges to determine what state law provides criminal
defendants. Section 972.03, Stats., provides in relevant part:
“When the crime charged is punishable by life imprisonment the state is
entitled to 6 peremptory challenges and 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).” (Emphasis added.)[4] Section 972.04(1), Stats., prescribes the exercise of peremptory challenges:
Exercise of challenges. (1) The
number of jurors impaneled shall be 12 unless a lesser number has been
stipulated and approved under s. 972.02 (2) or the court orders that additional
jurors be impaneled. That number, plus
the number of peremptory challenges available to all the parties, shall be
called initially and maintained in the jury box by calling others to replace
jurors excused for cause until all jurors have been examined. The parties shall thereupon exercise in
their order, the state beginning, the peremptory challenges available to them,
and if any party declines to challenge, the challenge shall be made by the
clerk by lot.
It is
undisputed that the above statutes entitle both the State and a criminal
defendant to a specific number of peremptory challenges, dependant upon the
type of case being tried. We stress the
word “entitle” because the statutory language of § 972.03—“is entitled”
and “shall be allowed”—mandates that the State and Ramos each receive a
specific number of peremptory challenges.
See Wagner v. State Medical Examining Bd., 181
Wis.2d 633, 643, 511 N.W.2d 874, 879 (1994) (declaring that “the word `shall'
is presumed to be mandatory when it appears in a statute”).[5]
Given the legislature's
clear mandate, we conclude that Wisconsin's statutorily provided peremptory
challenge is a protected liberty interest subject to procedural due process
analysis. See Casteel,
176 Wis.2d at 579, 500 N.W.2d at 281 (stating that a court examining procedural
due process questions must first ask whether there is a protected liberty
interest). Indeed, “[t]he peremptory
challenge is one of the most important of the rights secured to the accused.” State v. Gesch, 167 Wis.2d
660, 671, 482 N.W.2d 99, 104 (1992).
Further, it is also
clear in Wisconsin that a trial court's failure to dismiss a prospective juror
who should have been removed for cause can interfere with and deprive a
defendant of that protected liberty interest by requiring the defendant to
exercise a peremptory challenge to remove that juror. See Casteel, 176 Wis.2d at 579, 500 N.W.2d
at 281 (examining court must also determine whether state action interfered
with protected liberty interest).
Unlike the Oklahoma law at issue in Ross, Wisconsin law does
not require a criminal defendant to use peremptory challenges to correct
erroneous trial court rulings on for-cause challenges. See
§ 805.08(1), Stats.
(providing standard for dismissing a prospective juror for cause; see supra note
2 for relevant statutory language).
Indeed, the Wisconsin Supreme Court has refused to require that a
criminal defendant exercise a peremptory challenge to correct a trial court's
error to strike a juror for cause or face waiver of the issue.[6] Gesch, 167 Wis.2d at 671, 482
N.W.2d at 104.
Given our conclusion
that a trial court's error in failing to dismiss a juror for cause, in
combination with the defendant's subsequent use of a peremptory challenge to
remove that juror deprives a criminal defendant of a statutorily created
liberty interest, we must next ask whether such a deprivation is arbitrary—that
is, whether the defendant has received the minimal process that is due under
the Fourteenth Amendment. See Hewitt,
459 U.S. at 472, 103 S. Ct. at 871, 74 L.Ed.2d at 688-89.
As stated above, “[t]he
peremptory challenge is one of the most important of the rights secured to the
accused.” Gesch, 167
Wis.2d at 671, 482 N.W.2d at 104.
Further, “it must be exercised with full freedom, or it fails of its
full purpose.” Lewis v. United
States, 146 U.S. 370, 378, 13 S. Ct. 136, 139, 36 L.Ed.2d 1011, 1014
(1892) (citing 4 William Blackstone,
Commentaries *353). In light of
the importance of this statutory right, procedural due process analysis
requires that a criminal defendant receive non-arbitrary procedural protections
if the right is to be diminished. See
Hewitt, 459 U.S. at 473, 103 S. Ct. at 872, 74 L.Ed.2d at 689
(declaring court must consider inter alia defendant's interest involved
and “the value of procedural requirements in determining what process is due
under the Fourteenth Amendment”). A
trial court error on a for-cause challenge that results in a deprivation of the
effective use of a peremptory challenge provides no procedural protection—accordingly,
it is, by definition, arbitrary.
Where a defendant must
use a legislatively-entitled peremptory challenge to remove a potential juror
who should have been dismissed by the trial court for cause, that defendant is
arbitrarily deprived of a liberty that state law provides. See Ross, 487 U.S. at
89, 108 S. Ct. at 2279, 101 L.Ed.2d at 91.
While the right to a peremptory challenge remains purely statutory, the
arbitrary deprivation of that right does violate Fourteenth Amendment due
process. Further, our supreme court has
already stated the appropriate remedy for this procedural due process
violation: “There is little doubt that
if the trial court ... deprived [a defendant] of his right to the effective
exercise of his peremptory challenges it would have provided grounds for a new
trial.” State v. Wyss,
124 Wis.2d 681, 724, 370 N.W.2d 745, 765 (1985), overruled on other grounds,
State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990); see
also Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct. 824,
835, 13 L.Ed.2d 759, 772 (1965) (“The denial or impairment of the right is
reversible error without a showing of prejudice.”), overruled on other
grounds by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712, 90 L.Ed.2d 69 (1986).
Here, there is no
question that the trial court erred when it failed to remove the potential
juror for cause. It is also clear that
Ramos exercised his first peremptory challenge to remove that prospective
juror, and that he exercised all seven of his allotted peremptory
challenges. Given these facts, we can
reach only one conclusion—Ramos was arbitrarily deprived of the effective use
of his full complement of peremptory challenges by the trial court error.
In sum, Ramos's
Fourteenth Amendment procedural due process rights were violated. Accordingly, he is entitled to a new
trial. We reverse the judgment of
conviction and remand the matter to the trial court for a new trial.
By the Court.—Judgment
reversed and cause remanded for a new trial.
Recommended for
publication in the official reports.
No. 94-3036-CR(D)
WEDEMEYER, P.J. (dissenting). I write separately because the issue
presented in this appeal ought to be decided by our supreme court in its supervisory
policy-making role. The issue presented
is one of first impression in this state.
Although in the past we have not hesitated to decide issues of first
impression, because the resolution of the issue presented is of such import and
its disposition could cause such far reaching consequences to our jury trial
system, I conclude it is far preferable for our supreme court to decide whether
Ramos was denied due process when the trial court refused to dismiss one juror
for cause. We are primarily an error
correcting court and only secondarily, by necessity, a policy creating court, see
Hillner v. Columbia County, 164 Wis.2d 376, 396, 474 N.W.2d 913,
920 (Ct. App. 1991). Therefore, I would
certify this case to our supreme court.
Accordingly, I respectfully dissent.
[1] Ramos raises a secondary issue concerning the trial court's denial of his mistrial motion after a State witness referenced Ramos's probationer status at trial. Because we resolve this appeal on other grounds, we need not address this argument. See State v. Dwyer, 181 Wis.2d 826, 830, 512 N.W.2d 233, 234 (Ct. App. 1994) (only dispositive issues need to be addressed).
[2]
Section 805.08(1), Stats.,
provides in relevant part:
Jurors. (1) Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.
[3] The Supreme Court did not decide “the broader question whether, in the absence of Oklahoma's limitation on the `right' to exercise peremptory challenges, `a denial or impairment' of the exercise of peremptory challenges occurs if the defendant uses one or more challenges to remove jurors who should have been excused for cause.” Ross v. Oklahoma, 487 U.S. 81, 91 n.4, 108 S. Ct. 2273, 2281 n.4, 101 L.Ed.2d 80, 92 n.4 (1988).
[4] In this case two additional jurors were impaneled so each side was allowed seven peremptory challenges.
[5] We do note that the liberty at issue in this case is purely a function of statutory enactment; thus, the Wisconsin Legislature can alter the specifics of Wisconsin's peremptory challenge statute if it so chooses.
[6] Of course, it is possible that under the procedure provided in § 972.04(1), Stats., the State could remove the suspect juror through its peremptory challenges. In such a case, it is obvious that a defendant is not then deprived of a peremptory challenge by the trial court error. Likewise, if the defendant chooses not to exercise all of his or her peremptory challenges, it cannot be said that a trial court error on a for-cause challenge deprived the defendant of a peremptory challenge.