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COURT OF
APPEALS DECISION DATED AND
RELEASED April
18, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-0877-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CARLTON
B. CAMPBELL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MARK A. FRANKEL, Judge. Reversed
and cause remanded.
SUNDBY,
J. In this criminal prosecution for disorderly conduct as a
repeat offender, we[1] conclude
that defendant-appellant Carlton B. Campbell must be granted a new trial
because he did not receive the effective assistance of counsel required by the
Sixth Amendment to the United States Constitution and art. I, § 7, of the
Wisconsin Constitution. The trial court
found that trial counsel did not advise Campbell that he could poll the
jury. The State does not claim that
this finding is clearly erroneous.
"The
right to poll the jury at the return of the verdict is a corollary to the
defendant's right to a unanimous verdict." State v. Behnke, 155 Wis.2d 796, 801, 456 N.W.2d
610, 612 (1990). "The right to
poll the jury is intertwined with the defendant's constitutional right to
counsel at the return of the jury verdict." Id. at 802, 456 N.W.2d at 612 (citing Smith
v. State, 51 Wis. 615, 8 N.W. 410 (1881)).
The
State argues that we held in State v. Jackson, 188 Wis.2d 537,
541, 525 N.W.2d 165, 167 (Ct. App. 1994), that "[w]hen a defendant accepts
counsel, the decision to assert or waive certain constitutional rights is
delegated to that attorney."
(Citing State v. Wilkens, 159 Wis.2d 618, 622-23, 465
N.W.2d 206, 208 (Ct. App. 1990)). We do
not believe the State seriously suggests that the defendant gives up control of
the decision whether to poll the jury simply because he or she elects to be
represented by counsel. Jackson
and Wilkens stand for the proposition that the trial court need
not conduct a colloquy with the defendant as to the purpose and value of
polling the jury. However, counsel is
ineffective if he or she does not inform the defendant of this valuable right.
It
is dangerous for counsel to assume that polling the jury is a waste of time, as
the State suggests is a choice counsel may reasonably make. In State v. Cartagena, 140
Wis.2d 59, 409 N.W.2d 386 (Ct. App. 1987), a juror changed his mind overnight
and dissented before the verdict was accepted.
We concluded that the sealed verdict lost its validity. Id. at 63, 409 N.W.2d at
387. In Jackson, this
writer pointed out that the Criminal Benchbook Committee recommends that the
trial court poll the jury in every case.
188 Wis.2d at 543, 525 N.W.2d at 168 (citing Wisconsin Judicial Benchbook, CR 25-3 (1994)) (Sundby, J.,
concurring).
There
is language in State v. McMahon, 186 Wis.2d 68, 96, 519 N.W.2d
621, 632-33 (Ct. App. 1994), to the effect that unless there is some showing of
uncertainty by the jury, it is not error for counsel to fail to poll the
jury. However, it is deficient
performance for counsel to fail to inform his or her client of that valuable
right.
Here,
at a supplemental Machner[2]
hearing, Campbell's trial counsel testified that he had no recollection of
informing Campbell of his right to poll the jury. Campbell testified that had he known he had that right, he would
have exercised it.
The
trial court concluded that while counsel's failure to inform Campbell of his
right to poll the jury may not have been the action expected of fully competent
counsel, Campbell was not prejudiced by the failure. Because defendant's right to poll the jury "is intertwined
with the defendant's constitutional right to counsel," Behnke,
155 Wis.2d at 802, 456 N.W.2d at 612, we conclude that prejudice is presumed
from counsel's failure to inform his or her client of that right, at least in
the absence of active jury involvement with the trial court during its
deliberations, demonstrating that it resolved any uncertainty, as was the case
in McMahon. We therefore
conclude Campbell was prejudiced by counsel's failure to poll the jury and to
inform Campbell that he had that right.
Accordingly, Campbell is entitled to a new trial.
By
the Court.—Judgment reversed
and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.