State v. Carlson

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 49. (concurring). I agree with the majority that the decision of the court of appeals must be reversed, the defendant's conviction vacated, and the case remanded to the circuit court for a new trial. I disagree, however, with the reasoning underlying the court's decision.

*119¶ 50. I write separately for two reasons. First, I conclude that this case presents a straightforward example of error for failure to comply with a clear, mandatory statute that can be decided without resort to setting a statutory threshold for English language comprehension or second-guessing the factual findings of the circuit court judge.

¶ 51. Second, I conclude that the harmless error test set forth in State v. Coble, 100 Wis. 2d 179, 301 N.W.2d 221 (1981), is the proper test to apply in this case.1 The majority opinion's Harvey2 harmless error analysis is in error.

*120HH

¶ 52. The circuit court in the present case failed to comply with a clear, mandatory statute. Wisconsin Stat. § 756.04(9) (1999-2000) requires, in no uncertain terms, that any name randomly selected for jury duty whose returned questionnaire indicates that he or she is not qualified for jury service under Wis. Stat. § 756.02 must be struck. Section 756.04(9) reads in relevant part:

The clerk shall randomly select names from the department list or master list and strike the name of any person randomly selected whose returned juror qualification form shows that the person is not qualified for jury service under s. 756.02. The clerk shall certify that the names were selected in strict conformity with this chapter.3

¶ 53. Wisconsin Stat. § 756.02, governing juror qualifications, provides that a person is qualified to serve as a juror if he or she is "at least 18 years of age, a U.S. citizen and able to understand the English language."4

¶ 54. As the majority opinion explains, it is undisputed that (1) Vera returned his juror questionnaire having marked "no" in response to the question, "Can you understand the English language?"; (2) the clerk *121did not disqualify Vera as required by Wis. Stat. § 756.04(9); and (3) a computer randomly placed Vera on the jury panel for the defendant's case. In short, § 756.04(9) was not followed. The failure to apply the clear statutory requirements of Wis. Stat. § 756.04(9) is an error of law.

II

¶ 55. The only issue is whether the error of law in failing to follow Wis. Stat. § 756.04(9), resulting in Vera's placement on the jury, requires reversal under Wisconsin's harmless error statute.5 On this point as well, I agree with the majority opinion's bottom line that the error requires reversal, but again I disagree with the majority's reasoning and legal analysis.

¶ 56. The majority opinion ultimately concludes that a circuit court's erroneous decision to seat a juror who does not understand the English language is subject to the harmless error analysis established in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d *122189.6 Despite this conclusion, the majority opinion does not apply the Harvey test. The majority opinion simply states that it "cannot conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error."7

¶ 57. The reason the majority opinion does not actually apply the Harvey harmless error test to the facts of this case is that it cannot be applied to the facts of this case. In short, the Harvey test is not applicable in the present case because it assesses for a harm unrelated to the alleged error in the present case.8

¶ 58. The Harvey decision holds that an error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.9 Yet the inquiry in the present case is, simply stated, whether the jury was "rational" — that is, whether all members of the jury were competent to sit.10 Here, I agree with the dissenting opinion.11

¶ 59. A finding of guilt by a jury that is not competent to sit is a "defect affecting the framework *123within which the trial proceeds, rather than simply an error in the trial process itself."12 Consequently, we assess the error in the present case for "harm" by determining whether, in fact, the failure to comply with Wis. Stat. § 756.04(9) led to the seating of a juror not competent to sit.13

¶ 60. This court has set forth the appropriate framework for gauging an error in complying with the statutes governing jury selection in State v. Coble. The Coble court held that "irregularities" in the jury selection process are evaluated to determine whether there has been "substantial compliance" with the statutory requirements set forth for the preparation of the jury list.14 "[T]he test for determining whether the jury selection procedure substantially complies with the statutes is to measure the procedure used against the jury selection statute and against the objectives of the statute and the objectives of the statutory provisions which have been violated."15 If there has been substantial compliance with the statute, the error does not require reversal of the judgment.16 If there is not substantial compliance with the statute, the error "hás *124affected the substantial rights of the party seeking to reverse or set aside the judgment."17

¶ 61. I conclude that the jury selection process in the present case, because of the circuit court's error, was not in substantial compliance with the statute. The procedure employed by the circuit court in this case directly contravened Wis. Stat. §§ 756.02 and 756.04(9). The statutes require that any person who submits a juror qualification form that indicates he or she is unqualified to sit as a juror be struck. Nevertheless, in this case, a juror was impaneled who submitted his form indicating an inability to understand English.

¶ 62. The objective of Wis. Stat. ch. 756 is to obtain "jurors on the basis of objective qualifications set forth in the statutes, selected at random, and from a broad cross-section of the community."18 Section 756.04(6) sets forth "a juror qualification form" as the method by which "information necessary to determine if [a] person is qualified to serve as a juror" will be obtained. Section 756.04(9) states that a clerk shall strike the names of those persons whose juror qualification forms indicate that they are not qualified. The juror form in this case indicated that Vera was not qualified. Thus the failure to strike Vera's name frustrates the goal of relying on objective qualifications in obtaining jurors and contravenes the procedure set forth in § 756.04(9).

¶ 63. The error in seating Vera cannot be viewed as "substantial compliance" with either the procedure set forth in the statutes or the objective of the statutes. Consequently, the error of law "affected the substantial *125rights" of the defendant and a new trial is required. The weight of the evidence supporting the conviction is irrelevant.

¶ 64. For the foregoing reasons, I concur in reversing the decision of the court of appeals and remanding the cause to the circuit court.

¶ 65. I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence.

1 agree with the dissenting opinion of Justice Sykes, the author of State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, that Wisconsin case law — including Harvey— should not he interpreted as abandoning the Chapman v. California, 386 U.S. 18 (1967), harmless error test in favor of a test that weighs the sufficiency of the evidence. See State v. Harvey, 254 Wis. 2d 442, ¶¶ 68-76 (Abrahamson, C.J., dissenting). It remains true in Wisconsin that an error is prejudicial when it appears beyond a reasonable doubt that the error complained of "contribute[d] to the verdict obtained," see dissent, ¶ 85. An error is harmless beyond a reasonable doubt if it is clear "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24. A mere weighing of the evidence is insufficient to reach this conclusion. See State v. Tucker, 2003 WI 12, ¶ 37, 259 Wis. 2d 484, 657 N.W.2d 374 (Abrahamson, C.J., concurring) (criticizing the majority's conclusion in a case addressing the harm of erroneously empanelling an anonymous jury that "in light of the overwhelming evidence in his case, it is clear beyond a reasonable doubt that a rational jury would have found [the defendant] guilty notwithstanding" the circuit court's error in em-panelling ah anonymous jury).

See State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189.

Wis. Stat. § 756.04(9) (emphasis added). All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

Wisconsin Stat. § 756.02 reads in full:

Every resident of the area served by a circuit court who is at least 18 years of age, a U.S. citizen and able to understand the English language is qualified to serve as a juror in that circuit unless that resident has been convicted of a felony and has not had his or her civil rights restored.

Wisconsin Stat. § 805.18 sets forth the test for harmless error as follows:

(1) The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.
(2) No judgment shall he reversed or set aside or new trial granted in any action or proceeding on the ground of selection or misdirection of the jury, or 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.

Majority op., ¶ 46.

Id.

There may he several harmless error tests depending on the nature of the right violated. In re Jayton S., 2001 WI 110, ¶ 40, 246 Wis. 2d 1, 629 N.W.2d 768 (Abrahamson, C.J., concurring) (quoting 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b), at 9398-39 (2d ed. 1999)). See also dissent, ¶ 88.

Harvey, 254 Wis. 2d 442, ¶ 49.

See Tucker, 259 Wis. 2d 484, ¶ 40 (Abrahamson, C.J., concurring) ("The Harvey standard ... is inapplicable because our inquiry is whether the jury was rational, that is, whether the jury was impartial and unbiased, not whether an error during trial was harmless.").

Dissent, ¶ 88.

Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

See State v. Lindell, 2001 WI 108, ¶¶ 69-82, 245 Wis. 2d 689, 629 N.W.2d 223 (holding that whether a conviction will be reversed on an alleged error in jury selection focuses on whether the jury that actually sat on the case is impartial).

State v. Coble, 100 Wis. 2d 179, 212, 301 N.W.2d 221 (1981).

Id.

The dissent and I both agree that Coble is the appropriate test.

Wis. Stat. § 805.18(2).

Coble, 100 Wis. 2d at 213.