Justia.com Opinion Summary: Defendant was convicted of battery to a law enforcement officer and disorderly conduct. Although the circuit court judge's daughter-in-law was not a member of the jury, she was in the pool of potential jurors, and Defendant used a peremptory challenge to remove the judge's daughter-in-law from the jury. The circuit court denied defendant's motion for a new trial, noting that neither party moved to strike the daughter-in-law for cause and neither the State nor Defendant suggested that the daughter-in-law was not a suitable juror. The court of appeals reversed the judgment of conviction and the order denying post-conviction relief, holding that presiding judges must sua sponte remove their immediate family members from the panel of potential jurors. The Supreme Court reversed, holding that because Defendant exercised a peremptory strike to remove the judge's daughter-in-law from the jury, and because Defendant did not claim the jury was unfair or partial, a new trial was not required under the circumstances.
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2012 WI 5
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2010AP445-CR
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Sharon A. Sellhausen,
Defendant-Appellant.
REVIEW OF THE DECISION OF THE COURT OF APPEALS
Reported at 330 Wis. 2d 778, 794 N.W.2d 793
(Ct. App. 2010-Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
February 1, 2012
September 7, 2011
CIRCUIT
SHEBOYGAN
EDWARD L. STENGEL
ABRAHAMSON, C. J. concurs (Opinion filed).
BRADLEY, J. joins concurrence.
ZIEGLER, J. concurs (Opinion filed).
PROSSER, ROGGENSACK and GABLEMAN, JJ. join
concurrence.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For
the
plaintiff-respondent-petitioner
the
cause
was
argued by Jeffrey J. Kassel, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant there was a brief by Byron C.
Lichstein
and
the
Frank J.
Remington
Center,
Madison, and oral argument by Bryon C. Lichstein.
UW
Law
School,
2012 WI 5
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2010AP445-CR
(L.C. No.
2008CF771)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent-Petitioner,
v.
FEB 1, 2012
Sharon A. Sellhausen,
A. John Voelker
Acting Clerk of Supreme
Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals.
Reversed and
remanded.
¶1
SHIRLEY S. ABRAHAMSON, C.J.
This is a review of a
published opinion of the court of appeals.1
The court of appeals
reversed the judgment of conviction of Sharon A. Sellhausen, the
defendant, and the order denying post-conviction relief of the
circuit court for Sheboygan County, L. Edward Stengel, Judge.
¶2
The dispositive issue before this court is whether the
defendant is entitled to a new trial even though she used a
1
State v. Sellhausen, 2010 WI App 175, 330 Wis. 2d 778, 794
N.W.2d 793.
No.
2010AP445-CR
peremptory challenge to remove the judge's daughter-in-law from
the jury.
¶3
new
The circuit court denied the defendant's motion for a
trial,
noting
daughter-in-law
that
for
neither
cause
and
party
moved
neither
the
to
strike
State
nor
the
the
defendant suggested that the daughter-in-law was not a suitable
juror.
The circuit court concluded that it did not believe it
"would
have
been
within
its
appropriate
discretion
just
to
automatically exclude a juror that had otherwise been legally
selected."
¶4
The
court
of
appeals
conviction of the circuit
court
reversed
and
the
the
order
judgment
of
denying post-
conviction relief.
¶5
"[I]nterstitially applying the underlying rationale of
[State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737],"2
the court of appeals held that "presiding judges must sua sponte
remove
their
immediate
family
members
from
the
panel
of
108,
245
potential jurors."3
¶6
Distinguishing
State
v.
Lindell,
2001
WI
Wis. 2d 689, 629 N.W.2d 223, the court of appeals further held
that "the Lindell holding is not applicable to this case or
others like it because [the defendant's] use of a peremptory
2
Sellhausen, 330 Wis. 2d 778, ¶23.
The decision in State
v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, was
released approximately three weeks before the defendant's trial;
neither the circuit court nor the parties were aware of the Tody
decision during the trial in the present case.
3
Sellhausen, 330 Wis. 2d 778, ¶14.
2
No.
2010AP445-CR
challenge did not adequately correct a trial court error."4
court of appeals concluded
that
"a
bright-line
rule
The
[that
a
circuit court must remove an immediate family member sua sponte]
is far more efficient than a case-by-case analysis of whether
the presence of a prospective juror on the voir dire panel might
have affected the outcome of a trial."5
¶7
We conclude that the present case is governed by State
v. Lindell.6
We conclude that because the defendant exercised a
peremptory strike to remove the circuit court judge's daughterin-law from the jury, and because the defendant does not claim
the jury was unfair or partial, a new trial is not required
under the circumstances of the present case.7
4
Id., ¶21.
5
The defendant has
Id., ¶23.
6
In State v. Lindell, 2001 WI 108, 238 Wis. 2d 422, 617
N.W.2d 500, the court overruled State v. Ramos, 211 Wis. 2d 12,
564 N.W.2d 328 (1997).
The Lindell court held that when a
peremptory challenge is used to strike a juror, reversal of a
conviction and a new trial are not required in light of the
Wisconsin law on peremptory challenges and harmless error,
United States v. Martinez-Salazar, 598 U.S. 304 (2000), the
systemic problems resulting from the Ramos decision, and the
significant steps the court has taken to address the issue of
juror bias. See Lindell, 245 Wis. 2d 689, ¶53.
7
The court unanimously agrees that Lindell
present case and a new trial is not warranted.
governs
the
Justice Ziegler's concurrence is the majority opinion on
the issue addressed in Tody, namely, whether a circuit court has
inherent authority to strike his or her immediate family member
from the panel of potential jurors.
Thus, Justice Ziegler's
concurrence in Tody and Justice Ziegler's concurrence in the
present case now represent the opinion of the majority of this
court.
3
No.
2010AP445-CR
not shown that the presence of the challenged juror in the pool
of potential jurors affected the defendant's substantial rights.
Accordingly, we reverse the decision of the court of appeals
ordering a new trial.
¶8
Because
conviction
the
defendant
be
reversed
should
asserts
that
on
additional
the
the
judgment
of
ground
of
ineffective assistance of trial counsel, we remand the cause to
the court of appeals to decide this issue.8
I
¶9
The facts relating to the issue before this court are
not in dispute.
The jury, which did not include the presiding
circuit court judge's daughter-in-law as a member, convicted the
defendant of battery to a law enforcement officer and disorderly
conduct.
¶10
The
circuit
court
judge's
however, in the pool of potential jurors.
daughter-in-law
was,
During voir dire, the
circuit court judge and his daughter-in-law had the following
exchange:
THE COURT: All right. Nikki, you're my daughter-inlaw. All right. I've told the attorneys that you and
I have had no discussions about the case, correct?
JUROR STENGEL:
Correct.
8
The circuit court rejected the defendant's claim of
ineffective assistance of trial counsel; the court of appeals
did not reach this issue. The parties stipulated, and the court
agreed, that if the court of appeals' decision on the juror
issue were reversed, this court would remand the claim of
ineffective assistance of trial counsel to the court of appeals.
4
No.
2010AP445-CR
THE COURT:
As a matter of fact, I didn't know until
last night that you were coming in as a juror in this
matter, right?
JUROR STENGEL:
Correct.
THE COURT: Very good. You didn't ask and I wouldn't
have excused you anyways so.
But you're competent,
you can be fair and impartial?
JUROR STENGEL:
Uh-huh.
THE COURT:
The fact that I'm the judge
affect your ability in this matter at all?
JUROR STENGEL:
wouldn't
No.
THE COURT: Listen to all the evidence and decide the
case, correct?
JUROR STENGEL:
Correct.
THE COURT:
And if we see you after the case, you
wouldn't be at all hesitant as to how you decide the
case, right?
JUROR STENGEL:
Correct.
THE COURT:
Very good.
And I have told the lawyers
about this, so they understand that as well.
¶11
Shortly
after
this
exchange,
defense
counsel
questioned the circuit court judge's daughter-in-law as follows:
[DEFENSE COUNSEL]:
I guess I have to ask you, Ms.
Stengel, since you're related to the judge.
If you
would have any preference over any law enforcement
officials of any kind over a private citizen?
JUROR STENGEL:
No.
[DEFENSE COUNSEL]:
JUROR STENGEL:
THE COURT:
No preference whatsoever?
No preference.
You're not talking about judges, are you?
[DEFENSE COUNSEL]:
Oh, absolutely, that's included.
5
No.
THE COURT:
All right.
[DEFENSE COUNSEL]:
Thank you.
¶12
in-law
I think that's all I need to ask.
Defense counsel did not move to strike the daughterfor
peremptory
jury.
2010AP445-CR
cause.
Defense
challenge
to
counsel
remove
the
did,
however,
daughter-in-law
use
from
a
the
At the hearing on the defendant's post-conviction motion,
defense
counsel
testified
that
he
did
not
believe
he
had
specific grounds to strike the judge's daughter-in-law for cause
because the circuit court had established that the daughter-inlaw could be impartial.
Nonetheless, defense counsel used a
peremptory challenge because he "thought that there might be
some prejudice there and it's just better safe than sorry."
¶13
Also
at
the
post-conviction
motion
hearing,
the
circuit court judge stated that before voir dire, he had spoken
with both parties' attorneys off the record to tell them that
his daughter-in-law would be one of the potential jurors.
The
judge also recalled telling counsel that he would be glad to
excuse the juror if either party so requested.
Defense counsel
could not recall this conversation clearly enough to confirm or
deny its substance.
II
¶14
the
This case requires us to determine the application of
Lindell
and
Tody
cases
to
the
present
case.
The
interpretation and application of prior cases to a new set of
facts
is
a
question
of
law,
6
which
this
court
decides
No.
independently
of
the
circuit
court
or
court
of
2010AP445-CR
appeals
but
benefiting from their analyses.
III
¶15
We turn first to the Lindell case.
¶16
Lindell overruled State v. Ramos, 211 Wis. 2d 12, 564
N.W.2d 328
(1997),
"which
would
have
required
an
automatic
reversal in any situation where the defendant used a peremptory
strike
to
excused
remove
for
a
prospective
cause . . . ."9
juror
The
who
Lindell
should
court,
have
been
applying
a
harmless error analysis based on the harmless error statute,
Wis.
Stat.
Lindell
§ 805.18(2)
exercised
a
(2009-10),10
peremptory
strike
concluded
against
that
the
because
challenged
juror, "the circuit court's error did not affect the substantial
rights of the defendant."11
9
10
Thus, under Lindell, reversal of the
Lindell, 245 Wis. 2d 689, ¶5.
Wisconsin Stat. § 805.18(2) (2009-10) provides:
No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the
ground of selection or misdirection of the jury, or
the improper admission of evidence, or for error as to
any matter of pleading or procedure, unless in the
opinion of the court to which the application is made,
after
an
examination
of
the
entire
action
or
proceeding, it shall appear that the error complained
of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to
secure a new trial.
All subsequent references to the Wisconsin Statutes are to the
2009-10 version unless otherwise indicated.
11
Lindell, 245 Wis. 2d 689, ¶5.
7
No.
conviction
is
not
automatically
required
when
2010AP445-CR
a
peremptory
strike removes the challenged juror from the jury.
¶17
"[t]he
The Lindell court acknowledged, however, that although
substantial
impaired
when
a
rights
of
defendant
a
party
chooses
are
to
not
affected
exercise
a
or
single
peremptory strike to correct a circuit court error," situations
might arise when the exercise of a peremptory challenge does not
cure the trial court's error of failing to excuse a juror for
cause.12
Although the Lindell court declined "to evaluate other
situations,"13 it referred to Pool v. Milwaukee Mechanics' Ins.
Co., 94 Wis. 447, 453, 69 N.W. 65 (1896), in which the court had
commented
court],
that
the
"if,
party
is
by
the
obliged
erroneous
to
ruling
exhaust
challenges, the error is harmful."14
all
[of
the
trial
his
peremptory
The Pool court explained:
The court has rejected the State's argument, which has been
made in prior cases.
The State argues that a defendant's
failure to exercise a peremptory challenge to a juror who was
challenged for cause but not excused results in a waiver of the
defendant's right to raise the issue of whether the juror should
have been struck for cause.
See, e.g., Lindell, 245
Wis. 2d 689, ¶117; State v. Faucher, 227 Wis. 2d 700, 569
N.W.2d 770 (1999); State v. Gesch, 167 Wis. 2d 660, 482
N.W.2d 99 (1992).
Under Wisconsin case law, if a juror who
should have been removed for cause is erroneously allowed to be
a member of the jury, the conviction must be reversed without
inquiry into harmless error even if the defendant declined an
opportunity to remove the juror with a peremptory challenge.
Gesch, 167 Wis. 2d at 671.
12
Lindell, 245 Wis. 2d 689, ¶113.
13
Id.
14
Lindell, 245 Wis. 2d 689, ¶113 (quoting Pool v. Milwaukee
Mechanics' Ins. Co., 94 Wis. 447, 453, 69 N.W. 65 (1896)).
8
No.
2010AP445-CR
"The true rule, we hold, is . . . to the effect that it is not
prejudicial error to overrule a challenge for cause, unless it
is shown that an objectionable juror was forced upon the party,
and
sat
upon
the
case
after
such
party
had
exhausted
his
peremptory challenges."15
¶18
The
Lindell
court
also
referred
to
two
situations
posed by the State in which the State asserted that a trial
court's
error
of
failing
to
excuse
a
juror
for
cause
might
justify a new trial: "[W]hen a circuit court judge repeatedly
and deliberately misapplies the law to force a defendant to use
peremptory challenges or when the court makes errors that force
a
defendant
to
use
most
or
all
of
his
or
her
referred
to
peremptory
in
strikes."16
¶19
None
of
exceptions to
the
the
scenarios
rule that a
peremptory
strike
Lindell
"cures"
as
the
circuit court's error of failing to excuse a juror for cause
occurred in the instant case.
squarely
within
exception.
the
holding
The present case seems to fall
of
Lindell,
not
any
referenced
We acknowledge, however, that the Lindell court's
examples of exceptions to the rule are obviously intended as
illustrative, not exhaustive.
¶20
In
an
effort
to
distinguish
the
present
case
from
Lindell, the defendant relies on what she labels "the path this
15
Pool, 94 Wis. at 453.
16
Lindell, 245 Wis. 2d 689, ¶119.
9
No.
Court charted in Tody."
2010AP445-CR
Thus, we turn to the Tody case for
guidance.
¶21
Tody, 316 Wis. 2d 689, presented a very different fact
situation than the instant case.
In Tody, the defense counsel
moved to strike the circuit court judge's mother from the pool
of potential jurors for cause; the circuit court judge denied
the motion.17
to
remove
the
Neither party in Tody used a peremptory challenge
mother
from
the
jury,
and
the
circuit
court
judge's mother sat on the jury that convicted Tody.
¶22
Tody.
Two key differences exist between the present case and
First, in the present case, unlike in Tody, neither the
State nor the defendant moved to excuse the daughter-in-law for
cause and the circuit court judge did not rule on a motion
involving
his
family
member.
Second,
in
the
present
case,
unlike in Tody, the defendant exercised a peremptory strike and
the challenged juror did not sit on the jury.18
¶23
test
does
The defendant contends that the Lindell harmless error
not
apply
in
the
present
case.
She
makes
three
arguments in support of her claim that her use of a peremptory
17
The Tody circuit court, like the circuit court in the
present case, believed it had no legal basis for excusing the
juror.
18
Although the court of appeals suggested otherwise, see
Sellhausen, 330 Wis. 2d 778, ¶22, neither the Tody concurrences
nor the Tody lead opinion rested on this court's inherent powers
regarding jury selection.
We need not and do not address the
State's argument that only this court, not the court of appeals,
has the constitutional superintending authority to declare that
presiding judges must sua sponte remove their immediate family
members from the panel of potential jurors.
10
No.
2010AP445-CR
challenge did not cure the harm caused by the circuit court's
failure to strike the challenged juror sua sponte:
from
failing
to
strike
the
juror
sua
sponte
"The harm
stemmed
from
a
combination of factors: the appearance of judicial impropriety
in not dealing with the situation clearly and decisively, the
risk that counsel or the judge will behave differently during
the
trial
judge's
due
family
to
antagonism
member,
and
caused
the
by
counsel
unfairness
of
striking
the
the
defendant
having to use a peremptory challenge on a juror who cannot be
subjected to aggressive voir dire."19
¶24
First,
the
defendant
argues
that
the
circuit
court
created an appearance of impropriety when it failed to swiftly
and decisively remove the challenged juror from the jury pool.
The defendant cites several cases for the proposition that a
harmless
error
analysis
is
inappropriate
when
an
error
implicates or imperils public confidence in the integrity of the
courts, judges, or juries.20
19
Response
Brief
of
Defendant-Appellant
Sellhausen at 21-22 (emphasis in original).
20
Sharon
A.
See, e.g., Young v. United States ex rel. Vuitton et Fils
S.A., 481 U.S. 787, 811 (1987) ("[A]ppointment of an interested
prosecutor creates an appearance of impropriety that diminishes
faith in the fairness of the criminal justice system in general.
The narrow focus of harmless-error analysis is not sensitive to
this underlying concern."); Ballard v. United States, 329 U.S.
187, 195 (1946) (when women are systematically excluded from the
jury, "[t]he injury is not limited to the defendant——there is
injury to the jury system, to the law as an institution, to the
community at large, and to the democratic ideal reflected in the
processes of our courts.").
11
No.
¶25
2010AP445-CR
According to the defendant, the circuit court judge's
reference to his conversation with his daughter-in-law the night
before trial, the judge's leading questions to his daughter-inlaw at voir dire, and the judge's off-the-record conversation in
which he offered to excuse his daughter-in-law each demonstrate
that
he
handled
the
situation
casually
and
without
enough
attention to appearances of propriety.
¶26
It seems to us, however, that the defendant overstates
the appearance of impropriety in the present case.
¶27
The
circuit
court
appearance of impropriety
appearance.
and
was
aware
took
of
steps
the
to
risk
prevent
of
an
such
an
The circuit court displayed its concern that all
jurors, including the challenged juror, be fair and impartial.
The circuit court judge
mentioned
that
he
had
only
recently
learned his daughter-in-law would be in the jury pool and that
they had no discussions about the case.
¶28
Nothing in the record suggests that the circuit court
judge was unconcerned with or indifferent to the appearance of
propriety or the integrity of the courts.
Indeed, the record
shows that the circuit court judge was acutely aware of these
concerns and that his decision to allow his daughter-in-law to
remain in the pool of potential jurors may have been motivated
by a misunderstanding of the scope of the circuit court's power
to remove a family member juror who asserts she can be fair and
impartial.
¶29
We agree with the court of appeals that "it is much
cleaner when a judge removes the immediate family member sua
12
No.
sponte."21
2010AP445-CR
We have urged circuit courts on several occasions "to
err on the side of striking prospective jurors who appear to be
biased"
bias,
because
and
run."22
may
"[s]uch
save
action
judicial
will
time
avoid
and
the
appearance
resources
in
the
of
long
The circuit judge in the instant case did not heed this
recommendation.
¶30
Nevertheless we are not persuaded that in the present
case an appearance of impropriety exists warranting reversal of
the conviction and a new trial.
The daughter-in-law did not sit
on the jury, and as the court of appeals stated, "the presiding
judge in this case genuinely attempted to alleviate potential
problems."23
¶31
Second,
peremptory
defense
challenge
counsel
harmed
the
argues
that
defendant
the
because
use
it
of
a
forced
defense counsel to adopt an adversarial stance to the presiding
judge.
The particular concern seems to be that this adversarial
stance is likely to affect the behavior of the circuit court and
defense counsel during the trial.
¶32
court
Defense counsel fears that he may offend the circuit
judge
immediate
21
when
family
counsel
member
removes
from
the
the
jury,
circuit
court
especially
judge's
after
the
Sellhausen, 330 Wis. 2d 778, ¶16.
22
State v. Ferron, 219 Wis. 2d 481, 503, 579 N.W.2d 654
(1998) (citing Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis.
621, 627, 79 N.W.2d 249 (1957)).
See also Lindell, 245
Wis. 2d 689, ¶49.
23
Sellhausen, 330 Wis. 2d 778, ¶15.
13
No.
2010AP445-CR
judge has taken pains to show (and has determined) that the
family member could be a fair and impartial juror.
Defense
counsel argues that a circuit court judge might, consciously or
unconsciously,
harbor
counsel's client.
resentment
toward
defense
counsel
and
Defense counsel also claims that he (or other
counsel in a similar position) may be hesitant to aggressively
challenge the presiding judge's other rulings in the proceedings
for
fear
of
exacerbating
the
problem
and
further
alienating
counsel from the judge.
¶33
Defense
present case.
judges.
counsel's
concerns
seem
overstated
in
the
We understand that attorneys fear antagonizing
This fear is part of the legal lore and legal culture.
Lawyers fear that judges, like other persons, may harbor ill
will to the messenger when they dislike or are bothered by the
message.
by
As judges ourselves, we tend to view any such concerns
lawyers
as
exaggerated,
but
perceptions may be different.
perform
their
duties
we
appreciate
that
lawyers'
Although judges are expected to
objectively,
impartially,
and
unemotionally, lawyers and non-lawyers alike must concede that
judges are not immune to human emotions.
¶34
We are not persuaded, however, that the risk of an
adversarial relationship developing between the presiding judge
and defense counsel in the circumstances of the present case is
great enough to warrant automatic reversal absent evidence that
a party's substantial rights were actually impaired.
¶35
changed
Nothing in the record suggests that defense counsel
trial
strategy
because
14
he
feared
antagonizing
the
No.
circuit court judge.
circuit
court
judge
2010AP445-CR
Nothing in the record suggests that the
harbored
any
resentment
toward
defense
counsel for using a peremptory strike to remove the daughter-inlaw from the jury.
The potential chilling effect that concerned
the court in Tody does not appear to be present in the instant
case.
¶36
The defendant's third argument is the argument that
the court of appeals found most compelling.
As the court of
appeals put it, "when a presiding judge does not remove his or
her
family
member
sua
sponte,
the
defendant
is
essentially
robbed of the right to aggressively question a juror related to
the presiding judge."24
Lindell
is
In other words, the argument is that
distinguishable
because
in
Lindell
the
challenged
juror was not an immediate relative of the circuit court judge
and the
lawyer conducted full,
challenged juror.
uninhibited
voir
dire
of the
Defense counsel in Lindell was able to decide
that the potential juror at issue was biased and to conclude
that a peremptory strike was warranted.
¶37
In contrast, in the present case, according to the
court of appeals, defense counsel was unable to explore fully in
voir dire whether the challenged juror (a member of the judge's
immediate
family)
was
biased
for
fear
of
antagonizing
the
circuit court judge, and defense counsel was forced to use a
peremptory
24
challenge
without
determining
Id., ¶20.
15
whether
it
was
No.
2010AP445-CR
necessary to strike the juror or whether the defendant might
have preferred that the person remain in the jury pool.
¶38
present
We are not persuaded that the distinctions between the
case
and
Lindell
warrant
a
deviation
from
Lindell's
general rule.
That defense counsel in the present case may have
been
to
exercise
exploring
the
forced
thoroughly
a
peremptory
possible
bias
challenge
of
without
one
is
juror
not
sufficient to render Lindell inapplicable.
¶39
Lindell held that a circuit court's failure to excuse
a juror who should have been excused is harmless error if the
defendant uses a peremptory challenge to remove that juror and
ends up with a fair, impartial jury.
In the instant case, the
defendant used a peremptory strike and ended up with a fair,
impartial
jury.
The
defendant's
substantial
right
we
are
concerned with is the defendant's right to a fair, impartial
jury,
not
the
defendant's
right
to
the
exact
jury
that
the
defendant prefers.25
25
See Lindell, 245 Wis. 2d 689, ¶115 ("A defendant is
entitled to a jury which will insure him [or her] a fair and
impartial trial, but not to an unlimited choice in an attempt to
secure a jury which will acquit him [or her]." (quoting Pollack
v. State, 215 Wis. 200, 207-08, 253 N.W. 560 (1934), overruled
in part by State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133
N.W.2d 753 (1965)).
See also State v. Ramos, 211 Wis. 2d 12,
33,
564
N.W.2d 328
(1997)
(Crooks,
J.,
dissenting)
("[P]eremptory challenges are not intended to enable the state
or the defendant to select particular jurors who they think may
be more favorable to their side; rather, peremptory challenges
are intended to be a means to the end of ensuring the selection
of an unbiased jury.").
16
No.
¶40
2010AP445-CR
The defendant does not claim that the jury was biased,
unfair, or partial.
Nor does the defendant claim that she falls
within any of the situations set forth in Lindell that might
justify a new trial even when a defendant receives a fair and
jury.26
impartial
defense
counsel
There
was
is
no
evidence
in
stifled
in
questioning
the
other
record
that
prospective
jurors as a result of his experience with the challenged juror;
that defense counsel was forced to exhaust all of the peremptory
challenges without conducting adequate voir dire; or that the
circuit court acted in bad faith.
¶41
to
In sum, the defendant exercised her peremptory right
remove
the
judge's
daughter-in-law
from
the
jury.
The
defendant agrees that she was tried by a fair, impartial jury.
The defendant has not demonstrated harm.
Thus, we hold that the
defendant's substantial rights were not impaired.
case governs the instant case.
a
new
trial
on
the
ground
The Lindell
The defendant is not entitled to
that
the
circuit
court
erred
in
failing to excuse the juror sua sponte for cause.
¶42
For the reasons stated above, we reverse the decision
of the court of appeals and remand the cause to the court of
appeals
for
consideration
of
the
defendant's
ineffective
assistance of counsel claim.
By
the
Court.—The
decision
of
the
court
of
appeals
reversed and the cause is remanded to the court of appeals.
26
See ¶¶16-17, supra.
17
is
No.
¶43
SHIRLEY S. ABRAHAMSON, C.J.
2010AP445-CR.ssa
(concurring).
I write
to discuss Justice Ziegler's concurrence in the present case.
The concurrence contains many uncontroversial statements, which
all the Justices can support.
¶44
inherent
We
can
all
authority"
agree
to
administer justice."1
that
"fairly,
a
circuit
efficiently,
court
"has
and
broad
effectively
We can all agree that in accordance with
this authority, a circuit court has discretion to remove jurors
who are biased.
We can all agree that it is preferable that
immediate family members of a presiding circuit court judge not
sit on the jury.2
We can all agree that a close relative as a
juror is a problem waiting to happen.
We can all agree that a
circuit court judge should not be ruling on matters affecting
members of his or her immediate family.
¶45
I do not, however, join Justice Ziegler's concurrence
in the present case to "adopt in full" her concurrence in State
v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737.
concurrence
situations
becomes
in
the
law
future
today
when
that
will
neither
govern
party
The Tody
Tody-like
strikes
the
challenged family-member juror and Lindell's harmless error rule
does not apply.
¶46
Justice Ziegler's Tody concurrence was flawed in 2009
and remains so today.
1
State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544, 787
N.W.2d 350 (citation omitted).
2
State v. Tody, 2009 WI 31, ¶4, 316 Wis. 2d 689, 764
N.W.2d 737 (lead op.); Tody, 316 Wis. 2d 689, ¶63 (Ziegler, J.,
concurring).
1
No.
¶47
2010AP445-CR.ssa
In Tody, the presiding judge's mother sat on the jury
that convicted the defendant.
The Tody lead opinion and Justice
Ziegler's
that
concurrence
agreed
the
conviction
had
to
be
reversed because the mother sat on the jury.
¶48
The Tody lead opinion explained the flaw in Justice
Ziegler's
Tody
concurrence,
which
was
joined
by
two
other
justices, as follows:
[The concurring Justices] reach the same ultimate
conclusion that we do, namely that the circuit court
judge erred in permitting his mother to serve on a
jury in a case in which the judge presided and that
the defendant is entitled to a new trial as a result
of this error.
They do not, however, identify the
authority they rely upon in concluding that the
circuit court erred or in concluding that the circuit
court's error warrants a new trial for the defendant.
Their concurrence explains that it would have been
within the circuit court judge's discretion to strike
his mother as a prospective juror or to recuse himself
from the case. But their concurrence does not explain
why the circuit court judge not only was permitted but
also was required, on pain of reversal by this court,
to exercise his discretion in this manner.3
¶49
In other words, in joining a decision reversing the
conviction,
Justice
concluded
that
discretion
by
the
Ziegler's
circuit
failing
Tody
court
to
use
concurrence
erroneously
its
is
that
determining
that
the
discretion.
case,
the
it
does
circuit
not
court
exercised
discretionary
authority to remove the judge's mother.
concurrence
must
have
its
inherent
The flaw in the Tody
explain
the
erroneously
basis
exercised
for
its
As the court of appeals explained in the present
Tody
concurrence
"stopped
3
short
of
saying
that
a
Tody, 316 Wis. 2d 689, ¶6 (lead op.) (footnotes omitted,
emphasis added).
2
No.
2010AP445-CR.ssa
presiding judge must remove his or her immediate family members
sua
sponte
determined,
in
case . . . ."4
every
however,
that
"[t]he
The
court
logic
of
behind
appeals
the
Tody
concurrence is in harmony with the proposition that judges must
act sua sponte to remove immediate family members from the panel
of potential jurors in each case."5
¶50
In contrast, Justice Ziegler explained her concurrence
and vote that a new trial was required in Tody as follows:
"I
believe the judge should have either stricken his mother from
the jury or recused himself from the case. . . . Within their
inherent
authority,
select a
fair
and
appellate issues."6
I
would
impartial
merely
jury
call
and
upon
avoid
our
such
judges
to
foreseeable
Yet the concurrence declares that the mother
is not a biased juror.7
¶51
This
court
cannot
find
an
erroneous
exercise
of
discretion and reverse a circuit court simply because a Justice
(or four justices of the supreme court) would have exercised his
or
her
or
their
discretionary
inherent
authority
differently
were he, she, or they sitting on the bench wearing the robe of a
circuit court judge.
¶52
A
circuit
court's
discretionary
decision
will
be
sustained if the circuit court:
4
State
v.
Sellhausen,
Wis. 2d 778, 794 N.W.2d 793.
2010
WI
App
175,
¶12,
5
Id., ¶13.
6
Tody, 316 Wis. 2d 689, ¶67 (Ziegler, J., concurring).
7
Id., ¶66 (Ziegler, J., concurring).
3
330
No.
2010AP445-CR.ssa
(1) examined the relevant facts,
(2) applied a proper standard of law, and
(3)
used
a
demonstrably
rational
process
to
reach
a
conclusion a reasonable circuit court could reach.8
¶53
It is unclear from Justice Ziegler's Tody concurrence
which of the three grounds for not sustaining a circuit court's
discretionary decision applied in Tody.
¶54
As to the first ground, the circuit court judge in
Tody clearly considered the relevant facts, which were simply
that his mother was going to be a juror.
¶55
As
to
the
second
ground,
Justice
Ziegler
does
not
explain the proper standard of law the circuit court should have
applied in Tody in exercising its discretion or the improper
standard of law that the circuit court did apply.
A circuit
court's inherent power to disqualify a juror is a discretionary
power that must be exercised within defined parameters.9
The
thrust of the Tody concurrence was that the case was not about
juror
bias,
so
that
area
of
the
law
could
not
provide
the
parameters.
¶56
read
as
Perhaps Justice Ziegler's Tody concurrence should be
reversing
the
conviction
because
the
circuit
court
erroneously exercised its discretion by reaching a conclusion
that no reasonable circuit court could reach.
In other words,
8
Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175
(1982).
9
State v. Crochiere, 2004 WI 78, ¶12, 273 Wis. 2d 57, 681
N.W.2d 377 (addressing a circuit court's inherent authority to
modify sentences).
4
No.
Justice
Ziegler's
Tody
concurrence
might
2010AP445-CR.ssa
stand
for
the
proposition that no reasonable circuit court could choose not to
invoke its inherent authority to remove the judge's mother from
the jury.
¶57
Even if this is what was intended by Justice Ziegler's
Tody concurrence, the reasoning would circle back to the problem
that the concurrence provides no legal standard for a circuit
court to apply in exercising its discretion in disqualifying a
presiding judge's family-member juror.
explain
why
the
circuit
court
was
The concurrence fails to
subject
to
reversal
for
erroneously exercising its discretionary authority in Tody in
not removing the challenged juror.
¶58
Justice Ziegler's Tody concurrence apparently stands
for the proposition that a circuit court will be reversed when
it fails to exercise its "broad inherent powers . . . to fairly,
efficiently, and effectively administer justice;"10
when it does
not "make every attempt to avoid foreseeable problems,"11 and
when it does not "avoid appellate issues."12
concurrence
in
the
instant
case
instructs
Justice Ziegler's
circuit
courts
in
deciding whether to disqualify a judge's family-member juror to
give
"serious
consideration"
to
"the
potential
for
foreseeable and unforeseeable problems."13
10
Tody, 316 Wis. 2d 689, ¶62 (Ziegler, J., concurring).
11
Id., ¶64 (Ziegler, J., concurring).
12
Id., ¶65 (Ziegler, J., concurring).
13
Justice Ziegler's concurrence, ¶75.
5
both
No.
¶59
2010AP445-CR.ssa
These concepts are too broad for circuit courts to
apply in a meaningful way in determining whether to disqualify a
challenged
juror.
If
a
circuit
court's
judgment
is
to
be
reversed by an appellate court when the circuit court does not
exercise its discretion to remove a juror in a particular case,
that reversal must be based on an articulated legal standard
governing the circuit court's exercise of discretion.
No such
articulated legal standard is set forth in Justice Ziegler's
concurrences.
¶60
Thus, with regard to the third ground, because Justice
Ziegler's Tody concurrence does not establish a legal standard
for
a
circuit
court
to
apply,
an
appellate
court
cannot
determine whether the circuit court used a demonstrably rational
process to reach a conclusion a reasonable circuit court could
reach.
¶61
The
concurrence
confusion
is
clearly
engendered
by
Justice
on
in
the
opinion in the present case.
display
Ziegler's
court
of
Tody
appeals'
The court of appeals struggled to
make sense of Justice Ziegler's concurrence when it interpreted
the Tody concurrence as ruling that a circuit court should sua
sponte disqualify a judge's immediate family members from the
jury
and
stated,
"We
understand
the
concurrence
to
have
concluded, within the inherent power of the supreme court, that
this rule is necessary . . . ."14
The court of appeals cited
Article VII, Section 3 of the Wisconsin Constitution, making it
clear
that
14
it
interpreted
Justice
Ziegler's
concurrence
Sellhausen, 330 Wis. 2d 778, ¶22 (emphasis added).
6
to
No.
invoke
the
supreme
court's
2010AP445-CR.ssa
constitutional
superintending
authority.
¶62
The court of appeals' effort is commendable.
One way
to make sense of Justice Ziegler's Tody concurrence is to infer
that it invoked this court's constitutional superintending and
administrative
authority
to
establish
a
rule
or
standard
governing a circuit court's disqualifying a presiding judge's
family-member
authority,
juror.15
while
The
not
supreme
"invoked
court's
lightly,"
constitutional
is
"broad
and
flexible."16
¶63
This court could rely on its superintending authority
to create
a bright-line
rule
governing
when
a
circuit court
judge should exercise his or her discretion to remove sua sponte
a juror who has a familial relationship with the circuit court
judge or to recuse himself or herself from presiding over the
case.
However,
concurrence
did
Justice
not
Ziegler
invoke
makes
this
clear
court's
that
the
Tody
superintending
authority.
¶64
Justice Ziegler praises the court of appeals in the
present case for relying on her Tody concurrence but shoots down
its
attempt
to
make
sense
of
her
prior
writing.
Justice
Ziegler's concurrence, ¶75.
15
See Wis. Const. art. VII, § 3 ("The supreme court shall
have superintending and administrative authority over all
courts.").
16
See In re Jerrell
Wis. 2d 145, 699 N.W.2d 110.
C.J.,
7
2005
WI
105,
¶41,
283
No.
¶65
As
a
result
of
Justice
2010AP445-CR.ssa
Ziegler's
concurrences,
appellate courts are left to wonder, as the court of appeals in
the present case wondered, what legal authority they can rely on
to review a circuit court if a case like Tody arises in the
future.
¶66
of
The instant case does not call for further discussion
Tody-like
situations
in
which
the
circuit
immediate family member sits on the jury.
Ziegler,
joined
by
three
of
our
court
judge's
Nevertheless, Justice
colleagues,
uses
this
opportunity to re-open the book and to close it by adopting her
Tody concurrence, rather than by taking a different path, which
would
be
more
coherent
and
would
provide
better
guidance
to
circuit and appellate courts.
¶67
to
One option would be to hold that the legal authority
reverse a
circuit
court
for
allowing
a
judge's
immediate
family member to sit on the jury can be grounded in the concept
of bias, either by the juror or the circuit court judge.
that
reasoning
commanded
a majority
of
the
court,
If
the court
could take the additional step and define what categories of
family members of the circuit court judge must be excluded from
the
jury.
The
parties
in
second degree of kinship.17
opted
to
without
exclude
further
the
the
present
case
recommended
the
In contrast, the court of appeals
category
definition.
"immediate
Declaring
17
family
that
members,"
it
was
The court might also be guided by SCR 60.04(4)(e), which
requires a judge to recuse himself or herself if a party,
lawyer, interested person, or material witness is within the
third degree of kinship of the judge or the judge's spouse.
8
No.
2010AP445-CR.ssa
"interstitially applying the underlying rationale of" the Tody
concurring opinion,18 the court of appeals held "that presiding
judges must sua sponte remove their immediate family members
from the panel of potential jurors."19
¶68
invoke
Another option would be for this court to explicitly
its
superintending
and
administrative
authority
to
require circuit courts to ensure that members of a specified
category of family members of the presiding circuit court judge
do not sit on juries.
Again, if that reasoning commanded a
majority of the court, the court could take the additional step
and define
what categories
of
family
members
of
the
circuit
court judge are excluded from the jury.
¶69
Because Justice Ziegler's concurrence in the present
case rejected the court of appeals' effort to make sense of her
Tody concurrence and again explained that these cases are not
about jury or judge bias, Wisconsin circuit and appellate courts
will be, I think, left scratching their heads looking for legal
principles to apply to the facts presented.
¶70
For the reasons set forth, I write separately.
¶71
I
am
authorized
to
state
that
BRADLEY joins this opinion.
18
Sellhausen, 330 Wis. 2d 778, ¶23.
19
Id., ¶14.
9
Justice
ANN
WALSH
No.
¶72
ANNETTE KINGSLAND ZIEGLER, J.
2010AP445-CR.akz
(concurring).
I join
the majority's holding and its application of State v. Lindell,
2001
WI
108,
245
Wis. 2d 689,
circumstances of this case.
that
Sellhausen
exercised
a
is
not
peremptory
629
N.W.2d 223,
to
the
That is, I agree with the majority
entitled
strike
to
to
a
new
trial
remove
the
because
circuit
she
court
judge's daughter-in-law from the jury and because she has not
demonstrated
majority
that
op.,
reversal
¶7;
is
otherwise
Lindell,
245
appropriate.
Wis. 2d 689,
See
¶¶113,
119
(concluding that "[t]he substantial rights of a party are not
affected
or impaired
when
a defendant
chooses
to
exercise
a
single peremptory strike to correct a circuit court error" but
acknowledging that
if,
for
reversal
example,
deliberately
"a
might
circuit
misapplies the
nevertheless
court
law
to
judge
force
a
be
appropriate
repeatedly
defendant
to
and
use
peremptory challenges or when the court makes errors that force
a
defendant
to
use
most
or
all
of
his
or
her
peremptory
strikes").
¶73
Still, I write separately and concur because, unlike
the majority, I would discuss this court's decision in State v.
Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737.
To be clear,
I do not adopt the Tody lead opinion and its conclusion that a
presiding judge's immediate family member, when serving as a
juror, is per se objectively biased.
adopt
in
full
my
concurrence
in
See id., ¶5.
Tody
that
notes
court's inherent authority to strike such a juror.
¶¶59-68 (Ziegler, J., concurring).
1
Instead, I
a
circuit
See id.,
Today, three justices join
No.
me.
2010AP445-CR.akz
Accordingly, this concurrence is the majority opinion on
the issue of Tody's application to this case.
Therefore, my
concurrence
represent
in
Tody
and
this
concurrence
now
the
opinion of the majority of this court.
¶74
lengths
The
to
declaring
court
of
interpret
that
appeals
and
"[t]he
in
apply
issue
in
this
Tody,
this
requires a new trial for Sellhausen."
case
even
went
to
appeal
is
the
to
great
point
whether
of
Tody
State v. Sellhausen, 2010
WI App 175, ¶7, 330 Wis. 2d 778, 794 N.W.2d 793.
The court of
appeals' reliance on Tody deserves our attention.
¶75
Relying
on
my
concurrence
in
Tody,
the
court
of
appeals concluded that efficient and effective operation of the
court
system
requires
presiding
judges
to
sua
sponte
remove
their immediate family members from a panel of potential jurors.
See id., ¶¶11, 22-23.
I part ways with the court of appeals'
decision to impose a duty upon circuit court judges to always
sua sponte remove their immediate family members from a panel of
potential jurors.
Parties may very well receive a fair and
impartial jury even if the jury includes a member of the judge's
family.
Still, in such circumstances, the potential for both
foreseeable
serious
and
unforeseeable
consideration.
problems
Accordingly,
warrants
the
consistent
judge's
with
my
concurrence in Tody, I continue to urge circuit court judges to
exercise their inherent authority to ensure the fair, efficient,
and effective administration of justice by considering whether
the removal of their immediate family members from a panel of
potential jurors or whether recusal from the case would avoid
2
No.
such problems.
2010AP445-CR.akz
Tody, 316 Wis. 2d 689, ¶¶60, 67 (Ziegler, J.,
concurring).
¶76
As the court of appeals acknowledged, this case, like
Tody, does not present a question of juror bias or a criminal
defendant's Sixth Amendment right to be tried by an impartial
jury.
Sellhausen,
Wis. 2d 689,
¶61
330
Wis. 2d 778,
(Ziegler,
J.,
¶22
(citing
concurring)).
Tody,
A
316
reasonable
person in the juror's position may be quite able to base her
decision
solely
on
the
evidence
presented
and
the
law
as
instructed, without regard to the fact that the neutral, nonfact-finding judge is her relative.
¶66 (Ziegler, J., concurring).
See Tody, 316 Wis. 2d 689,
Rather, this case is about a
circuit court judge's inherent authority to fairly, efficiently,
and effectively administer justice through the process of jury
selection.
See Sellhausen, 330 Wis. 2d 778, ¶22 ("This is a
question of how courts will administer justice.").
Permitting
the presiding judge's immediate family member to remain on a
jury
has
the
potential
to
create
problems,
including
the
possibility that the judge may be called upon to rule on an
issue
in
inquiry.
never
which
or
her
family
See SCR 60.04(4)(e)4.
surface.
effective
his
However,
administration
to
of
member
is
the
subject
of
Of course, such problems may
ensure
the
justice,
fair,
judges
efficient,
should
and
consider
whether they can avoid foreseeable problems by removing their
immediate family members from a panel of potential jurors or
recusing themselves from the case.
this
case
removed
his
Indeed, had the judge in
daughter-in-law
3
from
the
panel
of
No.
2010AP445-CR.akz
potential jurors, and had the judge in Tody removed his mother
from the panel of potential jurors, see 316 Wis. 2d 689, ¶¶1718, this very issue probably would not have come before us.
¶77
In summary, I, unlike the majority, agree with the
court of appeals that Tody is worthy of discussion in this case.
For the reasons stated in my concurrence in Tody and adopted in
full today, I respectfully concur.
¶78
I
am
authorized
to
state
that
Justices
DAVID
T.
PROSSER, PATIENCE DRAKE ROGGENSACK, and MICHAEL J. GABLEMAN join
this concurrence.
4
No.
1
2010AP445-CR.akz
]]>
