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COURT OF APPEALS DECISION DATED AND RELEASED January 24, 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 volume of the Official Reports. |
No. 95-2501
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Interest of
Sara V.,
A Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
SARA V.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Racine County: RICHARD G. HARVEY, JR., Reserve Judge, and
NANCY E. WHEELER, Judge. Orders
reversed.
BROWN, J. In
this CHIPS case, Sara V. alleges that the trial court erred when it made comments
to the jury suggesting how her case should be decided. After reviewing the record, we agree that
these statements interfered with the jury's deliberations and thus reverse the
verdict finding Sara in need of protective services and the trial court's
dispositional order.
In March 1994, the State
filed a petition alleging that Sara was in need of protective services. It relied on information from the Racine
Unified School District that Sara had been excessively truant from school during
the 1993-94 academic year and that her mother “seems to encourage her seclusion
by not sending her to school.” The
State sought a dispositional order with hopes that Sara would return to class.
At trial, Sara and her
parents attempted to show how Sara was harassed by other students. They claimed that Sara suffered from
depression and a bladder infection which created an unfortunate odor
problem. Sara and her parents contended
that the school district had failed to control the other students and make
school a less hostile environment for Sara.
The evidence at trial
consisted of testimony from Sara's mother and various school officials about
how each side had responded to her situation.
Sara was emotionally unable to appear in open court, but her testimony
was taken in chambers and read to the jury.
She explained how she was continually harassed at school and that she
believed that the administration had not taken any steps towards improving her
situation.
Sara's testimony was
followed by closing arguments. But
before formally instructing the jury, Reserve Judge Richard G. Harvey, Jr.,
presiding, made the following comments:
I'll tell you, members of the jury, I've
been a judge for 26 years and this is in a lot of ways an unusual case from my
point of view. ... And I had a brief enough conversation with
[Sara] in Chambers when we were doing the step to, I'm very confident that she
has a good mind and that she will, with the proper guidance, she'll take
advantage of it. And she's going to be
very much sought after, I'm sure, because she physically is quite
attractive. And particularly when
you're up close to her, she is very nice looking.
The function of the Court is to give some instructions. I think that the district attorney, what she
is asking for that outcome for is because she feels that's a necessary tool so
that we can achieve the educational path that we want. And that we need with this young lady. So, this is not to be taken as a reprimand
to the parents or to Sara. ¼ It is simply a finding of a situation that
she's in need of help on—legally speaking so that the powers available. And for that reason, not because her parents
are wicked or bad or don't know what they are doing ¼ but
simply because this thing would be helpful—that outcome would be helpful and
that was the point of view of the district attorney in asking you for that.
I must say, of course, that the comments made by the defense attorney
are fair and decent and he's done a nice job and he had a good motive in mind
for doing the defense that he's done and he deserves commendation ¼.
My own instruction and my—I don't want you to feel that I have some
special merit or power to make you make a verdict, that's your job. And I want you to do it the way you feel
it's sincere. I do feel that—that a yes
verdict would be—would be helpful toward the final outcome, but you make the
decision and you do what you feel is right and just and proper. So I thank you for your attention.
The
jury returned with a verdict finding Sara in need of protective services and
the trial court entered an appropriate dispositional order.
In a postverdict
hearing, the court[1] focused on
the additional cautionary instruction that was read to the jury; it stated:
If during the trial you gained any
impression that I have a feeling one way or the other on this case, you should
completely disregard any such impression because you jurors are the sole judges
of the evidence and the credibility of the witnesses in the case. My feelings are ¼
immaterial and that's important. I've
already told you that also.
The
trial court reasoned that the above instruction remedied any problem resulting
from the earlier comments to the jury and denied Sara's motion for a new trial.
On appeal, Sara
nonetheless renews her contention that these remarks interfered with the jury's
deliberative process. She relies on Breunig
v. American Family Ins., 45 Wis.2d 536, 173 N.W.2d 619 (1970), where
the supreme court warned that trial judges bear the responsibility of
maintaining an atmosphere of impartiality.
See id. at 547, 173 N.W.2d at 626. Sara contends that the trial court breached
its duty when it made these comments.
We agree.
The message sent by the
trial court could not be any clearer.
It wanted the jurors to know that the best thing they could do for Sara
would be to find her in need of protective services. These remarks were not casual, made in passing, or a simple
misstatement. Compare State
v. Vinson, 183 Wis.2d 297, 302-04, 515 N.W.2d 314, 316-17 (Ct. App.
1994) (trial court's use of the term credible, instead of competent,
not reversible error). The trial court
set aside time to make these statements.
And because the jury was so “instructed,” we are not confident that its
verdict was premised on an impartial review of the evidence. The trial court twice informed the jury that
it was ultimately responsible for the verdict, but it also informed them that
both sides had done a very good job of presenting their respective sides of the
story. In such a close case, the jury
was likely looking for something to base its decision on—and here it could rely
on the trial judge's personal conclusions that were backed up with twenty-six
years of experience.
We set aside the State's
concern, raised during the postverdict hearing, that Sara waived her right to
raise this error because an objection was not made until after the jury was
sent to deliberate. Under the plain
error rule, this court may review issues not squarely presented to the trial
court when a substantial right is affected.
See Virgil v. State, 84 Wis.2d 166, 192-93, 267 N.W.2d
852, 865 (1978); see also § 901.03(4), Stats. While certain
elements of the trial court's remarks pertained to Sara as a witness, and
reviewing such commentary may not fall within the scope of the plain error
rule, see Vinson, 183 Wis.2d at 303, 515 N.W.2d at 317,
the trial court's error also impeded Sara's right to an impartial jury. We thus conclude that the only proper remedy
is to grant her a new trial.
By the Court.—Orders
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.