State v. Carlson

DIANE S. SYKES, J.

¶ 66. (dissenting). The defendant raises claims of statutory and constitutional error in the empanelment of Tony Vera as a juror on his case. English is a second language for Vera; his native language is Lao.

¶ 67. The majority opinion and the concurrence resolve the case on statutory grounds, concluding that the procedures prescribed in Wis. Stat. §§ 756.02 and 756.04 for the certification and empanelment of qualified jurors were violated. Vera had answered "no" to the question on his juror qualification form asking whether he could understand English. Wisconsin Statutes § 756.04(9) requires the clerk of circuit court to strike from the jury master list any juror whose qualification form indicates that he or she is not qualified to serve. Juror qualifications are specified in Wis. Stat. § 756.02, which requires, among other things, that jurors be "able to understand the English language."

¶ 68. The State and the defendant agree that the clerk's failure to strike Vera from the jury master list, based upon his "no" answer to the juror qualification form's question about his ability to understand English, violated the procedural requirements of Wis. Stat. *126§ 756.04(9). They disagree about remedy.1 The defendant acknowledges that a new trial is warranted only if *127this error is prejudicial or harmful; the parties disagree about whether prejudice or harmfulness has been shown.

¶ 69. The majority and the concurrence both conclude that reversal and remand for a new trial is required. The majority initially appears to conclude that allowing Vera to serve on the defendant's jury when the statute dictated that he be struck was per se reversible. Majority op., ¶ 38. The majority nevertheless proceeds to hold that the statutory error is not harmless. Majority op., ¶ 46. The concurrence reaches the same conclusion by a different analysis. Concurrence, ¶¶ 63-64.

¶ 70. I agree with the parties that the statutory error in this case is subject to harmless error analysis. The harmless error statute, Wis. Stat. § 805.18(2), explicitly encompasses errors in the "selection or misdirection of the jury," and this court specifically held in State v. Coble, 100 Wis. 2d 179, 301 N.W.2d 221 (1981), that the failure to comply with the jury selection procedures of Chapter 756 is subject to harmless error analysis.

¶ 71. In Coble, as the majority notes, the error in question was the use of a jury questionnaire that asked prospective jurors whether they could read and write English, even though the juror qualification statute does not require the ability to write English. Applying the harmless error statute, Wis. Stat. § 805.18, this court held that "[t]he legislature obviously did not *128intend that all deviations from the statutory jury selection procedure would justify setting aside a verdict. The legislature intended the doctrine of harmless error to apply to jury selection." Coble, 100 Wis. 2d at 210-11.

¶ 72. The court in Coble further held that whether the error was harmless or prejudicial depended upon whether there was " 'substantial compliance' with the jury selection statute." Id. at 211. "Substantial compliance," the court said, is evaluated by reference to the underlying purposes of Chapter 756: "the test for determining whether the [challenged] 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." Id. at 212. The court stated that the purposes and objectives of Chapter 756 "are that all qualified citizens have the opportunity and the obligation to serve as jurors"; that "juries be selected from a broad cross-section of the community"; and that "juror qualifications are based largely on objective, rather than subjective, criteria." Id. at 212-13.

¶ 73. The error in Coble had the effect of excluding qualified jurors from jury duty, but the court ultimately concluded that it did not require reversal, i.e., that it was harmless, because the particular legislative purpose that was implicated — obtaining qualified jurors from "a broad cross-section of the community" — had not been frustrated. Id. at 213-14. Here, the error in question would be an error of inclusion, not exclusion: the clerk's failure to strike Vera based on his juror qualification form may have resulted in an unqualified juror being seated on the defendant's jury. Coble held that one of the purposes of Chapter 756 is to ensure *129that juries are composed of citizens who are objectively qualified to serve. Accordingly, whether the clerk's statutory error in failing to strike Vera was harmless depends upon whether it actually resulted in the em-panelment of an unqualified juror, here, a juror who in fact could not understand English.

¶ 74. On this point, the circuit court heard evidence, made detailed findings, concluded that Vera had an adequate understanding of the English language sufficient to allow him to fairly and impartially hear the case, and denied the defendant's motion for a new trial. The circuit court's factual findings are reviewed deferentially, and are overturned "only if they are clearly erroneous." State v. Turner, 186 Wis. 2d 277, 284, 521 N.W.2d 148 (Ct. App. 1994). Furthermore, a circuit court's decision on a motion for a new trial is reviewed deferentially, and is reversed only where there has been an erroneous exercise of discretion. State v. Wyss, 124 Wis. 2d 681, 717-18, 370 N.W.2d 745 (1985).

¶ 75. The majority opinion substitutes its own view of the facts regarding Vera's English-language competence for that of the circuit court, concluding that Vera did not have sufficient English language comprehension to be qualified as a juror. Majority op., ¶¶ 3, 26, 37. In so doing, the majority asserts that on this factual matter, the circuit court committed an error of law: "because we hold that the admitted evidence convincingly demonstrates Vera's inadequate English comprehension and, thus, his lack of qualification to serve as a juror, it is clear that the circuit court erred as a matter of law in finding that Vera's English comprehension was statutorily sufficient."2 Majority op., ¶ 26.

*130¶ 76. Thus, reviewing only a printed record, the majority declares itself to be in a better position to evaluate juror Vera's understanding of English than the circuit court judge who actually listened to, spoke with, and observed this juror during the course of the post-conviction hearing. In the analogous context of assessing a defendant's competence to stand trial, this court has noted the rationale for deferring to the circuit court:

The circuit judge has a unique vantage point from which to make a competency determination because the judge has significant personal exposure to the defendant. The judge is better able to assess a defendant's orientation to time, place, and persons than an appellate court reviewing a paper record. Only the judge can evaluate whether the defendant answers a question quickly or haltingly, thereby showing whether the defendant grasps the inquiry. Only the judge can hear the inflection and volume of the defendant's voice and observe the defendant's posture, attention span, eye contact, and focus []. Only the judge can watch the defendant's reaction, including body language, to events in the courtroom.

State v. Byrge, 2000 WI 101, ¶ 44 n.18, 237 Wis. 2d 197, 226-27, 614 N.W.2d 477. These "compelling and familiar justifications for leaving the process of applying law to fact to the trial court" apply equally in this situation. Id. at ¶ 45 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)).

*131¶ 77. More particularly, the majority does not hold that the circuit court's factual findings are clearly erroneous, yet it overturns them based upon its own evaluation of the evidentiary record. In addition, although it generally asserts that the circuit court's conclusion regarding Vera's English language competence constituted an error of law, the majority does not identify any specific legal mistake committed by the circuit court. The only error identified is the clerk's failure to strike Vera from the jury master list as required by Wis. Stat. § 756.04(9). But this was a clerical error; it was not a legal error by the circuit court, nor can it be viewed as an unsupported factual finding or an erroneous exercise of discretion on the part of the circuit court. Everyone agrees that there was a statutory error in procedure committed by the clerk; the point of the postconviction motion hearing (in addition to adjudicating the claimed constitutional violation), was to determine the effect of the conceded clerical error for purposes of determining remedy, that is, to determine whether the error was harmful because it resulted in an unqualified juror actually being seated on the defendant's case.

¶ 78. The majority also does not hold that the circuit court applied an erroneous English-language standard to evaluate whether Vera was actually unqualified to sit on the defendant's jury. Rather, the majority simply disagrees with the circuit court's factual findings regarding Vera's English-language competence, and returns to the original statutory error on the part of the clerk to find an erroneous exercise of discretion on the part of the circuit court: "In failing to apply the clear statutory requirements, by allowing Vera to serve on the jury, when he clearly stated on the jury questionnaire that he did not understand English, *132and in denying the posteonviction motion, the circuit court erroneously exercised its discretion." Majority op., ¶ 38. This approach is legally circular and ignores the applicable standard of review by failing to defer as required to the circuit court's factual findings.

¶ 79. Having concluded that the circuit court erroneously exercised its discretion in denying the post-conviction motion, it is not entirely clear why the fhajority proceeds to harmless error analysis. If the majority has already concluded, before conducting any analysis of the error's harmlessness, that a new trial should have been granted, then the majority has necessarily concluded that the error in question is per se prejudicial. In any event, the majority opinion goes on to conclude that the violation of Wis. Stat. § 756.04(9) was not harmless, and that reversal for a new trial is required.

¶ 80. The majority cites United States v. Okiyama, 521 F.2d 601 (9th Cir. 1975), and United States v. Silverman, 449 F.2d 1341 (2d Cir. 1971), as support for this conclusion. Okiyama involved the application of 28 U.S.C. § 1867, which provides a statutory remedy for substantial noncompliance with the federal statutes governing selection of grand and petit juries. The federal statutory scheme requires the motion alleging statutory noncompliance to be made before voir dire begins, or within seven days after the defendant discovered or could have discovered the noncompliance. See, 28 U.S.C. § 1867(a); Okiyama, 521 F.2d at 603. If on a timely motion "the court determines that there has been a substantial failure to comply" with the statutory requirements, "the court shall stay the proceedings pending the selection of a grand jury in conformity with *133this title or dismiss the indictment, whichever is appropriate." 28 U.S.C. § 1867(d)(emphasis added); Okiyama, 621 F.2d at 603 n.1.

¶ 81. Wisconsin's statute, Wis. Stat. § 756.04, differs from 28 U.S.C. § 1867 in that if does not prescribe any remedial procedure or statutory remedy for a lapse in jury selection procedure. Okiyama, therefore, does not support the majority's conclusion here.

¶ 82. The defendant in Silverman brought his motion alleging a violation of juror qualification procedure postconviction, and therefore could not invoke the statutory remedy contained in 28 U.S.C. § 1867. Silverman, 449 F.2d at 1343-44. Under these circumstances, the court held that "[t]he inclusion in the panel of a disqualified juror does not require reversal of a conviction unless there is a showing of actual prejudice." Id. The juror in question in Silverman had answered "no" to the question on her juror qualification form asking whether she could read, write, speak, and understand the English language. Id. at 1343. The postconviction motion hearing had established to the district court's satisfaction that the juror could adequately understand and speak English, even though she could not adequately read or write it. Id. at 1342.

¶ 83. The Second Circuit affirmed the defendant's conviction, deferring to the district court's conclusion that the juror could adequately understand English, although stating in dicta that if the juror "had been unable to understand English, clearly the verdict could not stand." Id. at 1344. Given the district court's findings regarding the adequacy of the juror's English language comprehension, the appellate court concluded that the juror's inability to adequately read and write English was harmless. Id. Thus, Silverman supports the majority's conclusion only to the extent that it held *134that reversal is not required absent actual prejudice (again, assuming that this is the majority's holding). The case does not, however, support the majority's conclusion regarding the existence of prejudice here, inasmuch as the majority has substituted its view of the evidence for that of the circuit court on the question of Vera's ability to understand English.

¶ 84. Finally, the majority applies State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, and State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, in a conclusory fashion, without analysis or discussion of the nature of the error in question and the harm it is alleged to have caused. Perhaps this is because, as noted above, the majority has actually concluded that the statutory error is per se prejudicial. If that is what the majority means, then it should say so (although this would run up against the holding in Coble)-, if not, then there should be at least some discussion of how the harmless error rule applies to the error in question here.

¶ 85. In Harvey, this court adopted and applied Neder v. United States, 527 U.S. 1 (1999), in which the United States Supreme Court reaffirmed and refined the harmless error test of Chapman v. California, 386 U.S. 18 (1967). We noted that the Supreme Court in Neder restated the principle that although a "limited class of errors" are viewed as "structural" and require automatic reversal regardless of effect on the outcome (e.g., complete deprivation of counsel, trial before a biased judge), most errors, including constitutional ones, can be harmless. Harvey, 2002 WI 93, ¶ 37. We further noted that Neder reaffirmed the vitality of Chapman's basic test for harmless error:" 'That test, we said, is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the *135verdict obtained."'" Id., ¶ 44 (quoting Neder, 527 U.S. at 15-16, quoting in turn Chapman, 386 U.S. at 24).

¶ 86. The Court in Neder went on to restate the Chapman test in what we noted in Harvey was "somewhat different language": " 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'" Id., ¶ 46 (quoting Neder, 527 U.S. at 18). This difference in language, we said, did not constitute an abandonment of the Chapman test (to the contrary, Neder plainly reaffirmed Chapman), but, rather, a clarification by the Court of "what it takes to meet the test; that is, that in order to conclude that an error 'did not contribute to the verdict' within the meaning of Chapman, a court must be able to conclude 'beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Id., ¶ 48 n.14 (quoting Neder, 527 U.S. at 18).

¶ 87. The Neder/Chapman harmless error test, adopted in Harvey, is necessarily quite broadly and generally stated, for use across a wide array of possible constitutional and statutory errors, whether eviden-tiary, procedural, or substantive. Its application must begin, however, with an evaluation of the error in question and the harm it is alleged to have caused. When applied to an error in the admission of evidence or an omitted or mistaken jury instruction, for example, it is appropriate to ask the Neder question regarding whether it is "clear beyond a reasonable doubt that a rational jury would have convicted absent the error" to determine whether the error contributed to the verdict within the meaning of Chapman; the focus is on the effect of the evidentiary or legal mistake on the case as a whole, presupposing a rational jury.

¶ 88. However, where, as here, the error in question pertains to the procedures employed in the selec*136tion of the jury, any inquiry into "whether a rational jury would have convicted" breaks down before it begins, because the error pertains to the jury itself, and the manner in which it was empanelled, rather than the evidence, trial procedure, or the substantive law. In these circumstances, whether it appears beyond a reasonable doubt that the error in question did not contribute to the verdict within the meaning of Chapman, Neder and Harvey depends upon an evaluation of the nature of the error that occurred in the jury selection process and the harm it is alleged to have caused.

¶ 89. Applied in this way, the very broad Harvey ¡NederI Chapman test is not much different than the more specific articulation of harmless error analysis in Coble for violations of the juror qualification statutes. The latter assesses harmlessness by measuring the nature of the jury selection statutory violation in question against the objectives and purposes of the statute, which is essentially the same as assessing the nature of the jury selection error and the harm it is alleged to have caused, in order to determine if it appears beyond a reasonable doubt that the error "did not contribute to the verdict" within the meaning of Harvey, Neder and Chapman. Here, the error in question is a violation of the statute that requires the clerk to strike from the jury master list those jurors who declare themselves unqualified to serve. As noted above, the statute seeks to ensure that only qualified jurors are empanelled. Accordingly, in order to determine whether it appears beyond a reasonable doubt that the error did not contribute to the verdict, we must determine whether the statutory violation in fact resulted in an unqualified juror being empanelled.

¶ 90. The circuit court held that Vera understood English sufficiently to fairly and impartially hear the *137case, that is, that Vera was not, in fact, an unqualified juror, despite his answer on the juror qualification form. As noted above, the majority does not hold that the circuit court applied an incorrect standard of English language competence, as a statutory or constitutional matter, and neither do I. We are required, then, to defer to the circuit court's factual findings regarding Vera's English-language competence.3 Because the statutory error did not result, in an unqualified juror being empanelled on the defendant's case, it appears beyond a reasonable doubt that the error did not contribute to the verdict within the meaning of Harvey/Neder/Chap-man. For the same reason — because an unqualified juror did not sit on the defendant's jury — there was no violation of the defendant's jury trial or due process rights under the federal or state constitutions.

*138¶ 91. For its part, the concurrence stops short of addressing the "threshold for English language comprehension" and avoids "second-guessing the factual findings of the circuit court judge" by concluding that the statutory error in this case is essentially per se prejudicial. Concurrence, ¶¶ 50, 63-64. This conflicts directly with Coble's holding that this sort of statutory jury selection error is subject to harmless error analysis. See Coble, 100 Wis. 2d at 210-11.

¶ 92. For the foregoing reasons, I would affirm the court of appeals, and therefore respectfully dissent.

The parties also disagree about the standard for evaluating a juror's English language competence for purposes of right-to-jury-trial and due process analysis under the Sixth and Fourteenth Amendments and their state constitutional counterparts. In addition, the parties disagree about the admissibility of certain evidence at the postconviction motion hearing under Wis. Stat. § 906.06(2), which generally prohibits impeachment of a jury verdict based upon juror testimony regarding the mental or deliberative processes of the jurors. See Tanner v. United States, 483 U.S. 107 (1987).

The prohibition against the admission of juror testimony to impeach a verdict has been recognized by the United States Supreme Court as a "near-universal and firmly established" rule; the only exception is juror testimony regarding an extraneous or outside influence that is alleged to have improperly affected the jury. Id. at 117. Whether an influence is considered extraneous of internal is "not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather the distinction [is] based on the nature of the allegation," and "[c]ourts wisely have treated allegations of a juror's inability to hear or comprehend [testimony] at trial as an internal matter." Id. at 117-18. More specifically, "whether [a] juror sufficiently understood English [ ] [is] not a question of 'extraneous influence1". Id. at 119 (citing United States v. Pellegrini, 441 F.Supp. 1367 (E.D. Pa. 1977), aff'd, 586 F.2d 836 (3d Cir.), cert. denied, 439 U.S. 1050 (1978)).

Neither the majority nor the concurrence reaches the constitutional or evidentiary issues presented in this case, although the majority refers at length to the statutorily incompetent evidence that was testified to by way of offer of proof after the State lodged its Wis. Stat. § 906.06(2) objection. Majority op., ¶¶ 17-18. The defendant's postconviction counsel conceded that some of this "offer of proof' evidence was incompetent under the statute, acknowledging that the State is on "solid ground in terms of 906.06 with regard to [juror] Sandra Cecco's testimony and certainly any testimony that happened in *127the jury room." Although the majority declines to analyze the verdict impeachment issue under Wis. Stat. § 906.06(2), the evidence incompetent under that statute (including an exchange between the circuit court and juror Ceceo) is included in and therefore apparently influences the majority opinion. Majority op., ¶¶ 14, 17, 18 n.5, 22, 33, 37, 42, 47.

As noted above, the parties dispute, under Wis. Stat. § 906.06(2), the competence of much of the evidence at the *130postconviction hearing; some of it was submitted by offer of proof, and some of the admitted evidence may in fact fall within the statute's prohibition. Because the majority does not address the verdict impeachment issue under Wis. Stat. § 906.06(2), it is not entirely clear what evidence the majority relies upon to support its conclusion that Vera did not adequately understand English.

The evidence supporting the circuit court's ruling includes the following: Vera has lived in the United States for almost 20 years and passed a citizenship test eight years ago; he obtained a valid driver's license; he is gainfully employed, working third shift at Kriger International, making $10.50 per hour; he participated in (but did not complete) instruction in English as a second language; he goes to the casino and plays blackjack; he watches television, especially the Discovery Channel and football, which he understands; when he eats at restaurants he orders off the menu in English; he has a fishing license; he filled out the juror questionnaire without need of assistance; he testified appropriately without the assistance of an interpreter; and he removed himself from the courtroom promptly when asked to do so. True, there is some countervailing evidence in the record (excluding the evidence that is incompetent under Wis. Stat. § 906.06(2)); a reviewing court, however, is not permitted to reweigh the evidence, but must uphold a circuit court's factual findings unless they are clearly erroneous. State v. Turner, 186 Wis. 2d 277, 284, 521 N.W.2d 148 (Ct. App. 1994).