State v. Franklin

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 28. (dissenting). How a court states the question presented in a case often determines the response. But in the present cases, no matter how the question is stated, the response is the same.

¶ 29. The majority opinion states the question presented in these cases as follows: Did the defendants receive ineffective assistance of counsel because their trial attorneys failed to object to six-person juries, even though around the time of their trials this court had accepted certification of State v. Hansford,1 challenging the constitutionality of the statute authorizing six-person juries? The majority opinion responds "no." *598Why? Because, according to the majority opinion, the defendants failed to show prejudice: the defendants received a fair, impartial trial by a jury of six persons.

¶ 30. However, I respond "yes." Why? Because, according to our past cases, when a criminal accused requests a jury trial, a jury of any number other than 12 persons is a denial of a fundamental right guaranteed by the Wisconsin Constitution.2 Failure to accord an accused a jury of 12 persons is prejudicial per se.3 According to Wis. Stat. § 972.02(1) (1999-2000), only the defendant can waive a 12-person jury and only by a personal and affirmative statement in open court. Because the defendants in the present cases did not waive their right to a 12-person jury in the manner set forth in § 972.02(1), the defendants are entitled to a new trial even when they did not preserve the error by objecting in the circuit court.

¶ 31. As I see it, here are the top 20 relevant questions to be asked and answered in the present cases.

¶ 32. Question 1: Did each defendant in the present cases demand a jury trial?

¶ 33. Answer: Yes.

¶ 34. Question 2: How many jurors sat on each jury?

¶ 35. Answer: Six.

¶ 36. Question 3: Did the defendants in the present cases personally and affirmatively agree to a jury of fewer than 12 persons?

¶ 37. Answer: No.

*599¶ 38. Question 4: Did defense counsel in the present cases personally and affirmatively agree to a jury of fewer than 12 persons?

¶ 39. Answer: No.

¶ 40. Question 5: Did defense counsel or the defendants in the present cases object at trial to a jury of fewer than 12 persons?

¶ 41. Answer: No.

¶ 42. Question 6: Why was a six-person jury used in each of the present cases?

¶ 43. Answer: Both counsel and the circuit courts assumed that the statute authorizing a six-person jury was constitutional and in effect.4

¶ 44. Question 7: Does a jury of fewer than 12 persons in a criminal case satisfy the right to jury trial guaranteed by the Wisconsin Constitution?

¶ 45. Answer: No. According to State v. Hansford, 219 Wis. 2d 226, 241, 580 N.W.2d 171 (1998), "a criminal defendant's right to a trial by jury as guaranteed by art. I, § 7 of the Wisconsin Constitution, is the right to a jury of 12 persons."

¶ 46. Question 8: Does the state constitutional right to trial by jury in a criminal case mean only a jury of 12 persons, not a lesser or greater number?

¶ 47. Answer: Yes. See the Hansford case cited in the answer to question 7 and the cases cited in answer to question 13.

¶ 48. Question 9: Can a jury of any number other than 12 persons ever render a valid verdict in a criminal case in Wisconsin?

¶ 49. Answer: Yes.

¶ 50. Question 10: When?

*600¶ 51. Answer: When an accused agrees personally and affirmatively on the record in accordance with Wis. Stat. § 972.02(1) to a jury of a number other than 12 persons.5

¶ 52. Question 11: Can an accused be deemed to agree to a jury of any number other than 12 persons by silence or by inference from the record?

¶ 53. Answer: No. A waiver of a 12-person jury must be by the accused personally and on the record. Waiver will not be presumed.6 "Neither circumstantial evidence nor reasonable inference will support a waiver."7

*601¶ 54. Question 12: If defense counsel agrees to a jury of fewer than or more than 12 persons, is that good enough to waive a 12-person jury?

¶ 55. Answer: No. This court has held that neither counsel nor the court nor any other entity can act in any way or to any degree so as to waive on the accused's behalf his or her right to trial by a jury of 12 persons.8 "[T]he defendant's personal waiver. . .may not be inferred or presumed."9

¶ 56. Question 13: What remedy is afforded a criminal accused who asks for á jury trial and then is tried, without objection by the accused or defense counsel, by a jury of other than 12 persons or is tried by the court without a jury?

¶ 57. Answer: A new trial. Thus when defense counsel in the Cooley case agreed to proceed in a criminal trial with an 11-member jury, the court of appeals concluded that because the accused did not personally and affirmatively agree to a jury of fewer than 12 persons, a new trial must be ordered.10

¶ 58. In the Cleveland case, when an accused demanded a jury trial and was then tried by the court (a "zero-person" jury) without any objection by the accused, the supreme court held that the right to a jury trial was violated and "there must be an automatic reversal of conviction."11

*602¶ 59. In a third case, Wingo,12 the accused was tried by a six-person jury because counsel and the circuit court mistakenly believed that Wis. Stat. § 756.096(3)(am) (1995-96) authorizing a six-person jury was in effect. Neither the defendant nor defense counsel objected to the six-person jury. Neither the defendant nor defense counsel personally and affirmatively waived the accused's right to trial by a 12-person jury. The accused asserted ineffective assistance of counsel. Ignoring the ineffective assistance of counsel argument, the court concluded that the parties' failure to comply with the statutory requirements of waiving a 12-person jury denied the accused a jury of 12 persons guaranteed under Wisconsin law. The Wingo court reversed the conviction and ordered a new trial because the accused had been denied a trial by a jury of 12 persons.

¶ 60. Thus, to answer question 13, the proper remedy when an accused has not personally and affirmatively waived a trial by a 12-person jury is a "reversal and remand for a new trial," even when the defendant does not raise the issue until after the trial.13

¶ 61. Although the defendants in the three cases described above received a fair and impartial trial by a jury of 11 persons, by the court, or by a jury of six persons, respectively, the appellate court ordered a new trial in each instance on the ground that the defen*603dant did not personally and affirmatively waive a jury of 12 persons.

¶ 62. Question 14: Why did defense counsel and counsel for the State in the present cases debate the validity of the convictions on the basis of ineffective assistance of counsel when none of the above cases was decided on that basis?

¶ 63. Answer: Because, as defense counsel and counsel for the State explained at oral argument, counsel concluded that the ineffective assistance of counsel argument was the only route available after State v. Huebner, 2000 WI 59, 235 Wis. 2d 486, 611 N.W.2d 727, by which to challenge a six-person jury.14 Counsel had concluded that it was useless for them to argue to this court the merits of reversing the Huebner decision, which was less than a year old. Thus counsel for both the defense and state framed this case as presenting the question of ineffective assistance of counsel.

¶ 64. Question 15: What does the Huebner decision hold?

¶ 65. Answer: The only Huebner holding is that Huebner's conviction was affirmed. In concluding that Huebner stands for any rule of law, counsel erred in counting the justices' votes. Huebner was a 4-to-3 decision on the mandate, but it was a 1-3-3 decision on the reasoning.

¶ 66. In Huebner, four justices agreed to affirm the conviction rendered by a six-person jury. One of the four justices, Justice Prosser, asserted that a six-person jury was constitutional. Three of the four justices agreed that a six-person jury was unconstitutional, but they concluded that a defendant who did not object to *604the use of a six-person jury at a misdemeanor trial, as authorized by Wis. Stat. § 756.096(3)(am) (1995-96) (declared unconstitutional in Hansford), may not obtain a new trial. Three other justices agreed that a six-person jury was unconstitutional, but they concluded that a verdict rendered by a six-person jury to which Huebner did not consent was invalid and that a new trial should be ordered.

¶ 67. Although only a careful reader would spot it, when the majority opinion in the present case refers to the Huebner opinion,15 the majority opinion is referring to what three justices of the court opined in Huebner. Huebner is not precedent.

¶ 68. Question 16: Was there ineffective assistance of counsel in the present cases?

¶ 69. Answer: There is no need to ask or answer this question in light of Wis. Stat. § 972.02(1) (1999-2000) and the case law. For example, in Wingo, after trial the accused sought a new trial, arguing his trial counsel was ineffective in failing to challenge the six-person jury. Ignoring the ineffective assistance of counsel argument, the Wingo court concluded that the parties' failure to comply with the statutory requirements of Wis. Stat. § 972.02(1) governing waiving a 12-person jury required a reversal of the conviction and a new trial.16

¶ 70. Question 17: Let's test out the ineffective assistance of counsel argument anyway. What about the prejudice prong of the Striekland'17 test for ineffective assistance of counsel?

*605¶ 71. Answer: This court has consistently held that it is prejudicial per se for an accused to be denied a trial by jury. That the accused had a fair and impartial trial by fewer than 12 persons18 or by a court without a jury is irrelevant.19 The accused did not get his constitutionally guaranteed right of a 12-person jury. Denial of this constitutionally guaranteed right is not harmless error.

¶ 72. As early as 1971 in Cleveland, this court stated that "[t]he right to a jury trial is fundamental. Sound public policy demands that when that right is violated [by the defendant's failure to waive the right to a jury trial on the record] there must be an automatic reversal of conviction."20

¶ 73. In Hansford the accused had a six-person jury to which he objected. The supreme court held that the circuit court erred in not granting the accused a 12-person jury. The Hansford court did not apply the harmless error test to hold that the accused had a fair trial with a six-person jury. Rather the Hansford court stated emphatically that "[b]ecause the defendant was not afforded the right to a jury of 12 persons, as guaranteed by art. I, § 7 of the Wisconsin Constitution, his conviction for obstructing an officer must be reversed and the cause remanded to the circuit court."21

¶ 74. Ignoring the Hansford case (and the prior cases), the majority opinion now applies a harmless error test to a six-person jury but fails to explain why *606Hansford, reversed a conviction if the error of a trial by a six-person jury was harmless.22

¶ 75. Question 18: What about the deficient performance prong of the Strickland test for ineffective assistance of counsel?

¶ 76. Answer: Because the error in conducting a trial with a jury of fewer than 12 persons without an accused's personal and affirmative consent is prejudicial per se under our case law, there is no need to analyze the deficient performance prong.

¶ 77. Question 19: What is the proper remedy in this case?

¶ 78. Answer: A new trial. In each of the cases described above, when the accused did not receive a jury of 12 persons and did not personally and affirmatively agree to a trial conducted without a jury of 12 persons, the accused got a new trial.

¶ 79. Question 20: Which justices are joining this dissent?

¶ 80. Answer: I am authorized to state that Justices ANN WALSH BRADLEY and DIANE S. SYKES join this dissent.

¶ 81. For the reasons set forth, I dissent.

State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).

Hansford, 219 Wis. 2d at 230.

State v. Wingo, 2000 WI 31, ¶¶ 2,18, 233 Wis. 2d 467, 609 N.W.2d 162; Hansford, 219 Wis. 2d at 243; State v. Cooley, 105 Wis. 2d 642, 645-46, 315 N.W.2d 369 (Ct. App. 1981).

Wis. Stat. § 756.096(3)(am) (1995-96).

Wisconsin Stat. §972.02(1) (1999-2000) provides that "[e]xcept as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state."

In State v. Albright, 96 Wis. 2d 122, 129 — 30, 291 N.W.2d 487 (1980), the court concluded that "certain constitutional rights of a criminal defendant are so fundamental that they are deemed to be personal rights which must be waived personally by the defendant. In this category of personal rights is found the decision. . .whether to request a trial by jury. . . " (citation omitted).

In the Ledger case, the prosecutor and defense counsel mutually agreed to allow a 13-person jury to deliberate and render a verdict. The accused agreed to this arrangement in person and affirmatively on the record; on appellate review he did not challenge the sufficiency of the colloquy or the waiver. The court of appeals concluded that no constitutional impediment existed. State v. Ledger, 175 Wis. 2d 116, 126, 499 N.W.2d 198 (Ct. App. 1993).

State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971).

State v. Cleveland, 50 Wis. 2d at 670.

State v. Livingston, 159 Wis. 2d 561, 569, 464 N.W.2d 839 (1991).

State v. Livingston, 159 Wis. 2d at 569-70.

State v. Cooley, 105 Wis. 2d at 645-46 (cited with approval State v. Livingston, 159 Wis. 2d at 569, 574).

State v. Cleveland, 50 Wis. 2d at 670 (a jury waiver must be on the record; it will not be presumed).

State v. Wingo, 2000 WI 31, 233 Wis. 2d 467, 609 N.W.2d 162.

"[W]here the defendant has been denied the right to a jury trial or an appropriate personal waiver thereof, we have no alternative other than to remand for a new jury trial or the personal, informed waiver by the defendant of such right." State v. Livingston, 159 Wis. 2d at 575.

The court explicitly stated in Huebner that it was not addressing the issue of ineffective assistance of counsel. State v. Huebner, 2000 WI 59, ¶ 18, 235 Wis. 2d 486, 611 N.W.2d 727.

See majority op. at ¶ 15.

See State v. Wingo, 2001 WI 31 at ¶¶ 2, 18; see also State v. Livingston, 159 Wis. 2d at 573; State v. Cooley, 105 Wis. 2d at 645-46.

Strickland v. Washington, 466 U.S. 668 (1984).

State v. Wingo, 2000 WI 31; State v. Cooley, 105 Wis. 2d at 642.

State v. Cleveland, 50 Wis. 2d 666.

State v. Cleveland, 50 Wis. 2d at 670.

Hansford, 219 Wis. 2d at 243 (emphasis added).

See majority op. at ¶ 15.