State v. Carlson , 261 Wis. 2d 97 ( 2003 )

N. PATRICK CROOKS, J.

¶ 1. We reverse the court of appeals' decision, which affirmed an order by the Brown County Circuit Court, which denied a motion for a new trial. The motion claimed that one of the jurors could not understand English sufficiently to serve as a juror.

¶ 2. We hold that an ability to understand the English language is necessary in order to satisfy the requirements Wis. Stat. § 756.02 and § 756.04 (1999-2000).¹ If a potential juror indicates on the juror questionnaire that he or she is unable to understand English, his or her name shall be struck from the juror pool. If a juror who does not meet the statutory requirements of Wis. Stat. § 756.02 is impaneled, then the entire trial process may be nothing more than an "exercise in futility." State v. Coble, 100 Wis. 2d 179, 216, 301 N.W.2d 221 (1981) (Coffey, J., concurring).

¶ 3. It is clear here that juror Tony Vera (Vera) did not understand English, indicated that on the Juror Questionnaire, and yet his name was not struck as required. We hold that the circuit court failed to follow the statutory requirements, in regard to juror Vera, and failed to apply those requirements to the evidence presented at the postconviction motion hearing, thus reversal of Michael Carlson's conviction is necessary, and there must be a remand for a new trial.

¶ 4. Michael Carlson was convicted of second-degree sexual assault as a repeater in violation of Wis. Stat. §§ 940.225(2)(a) and 939.62(l)(c).

¶ 5. Following trial, Carlson moved for postcon-viction relief, seeking a new trial on the grounds that one of the jurors could not understand English sufficiently to serve as a juror. The court of appeals concluded that the circuit court decision, finding that the juror sufficiently understood English, was not clearly erroneous and affirmed. We granted the petition for review and now reverse and remand for a new trial, since the statutory requirements of Wis. Stat. §§ 756.02 and 756.04 were not followed.

¶ 6. Prior to jury duty, all potential jurors receive a "Juror Qualification Questionnaire."² This is an official form mandated by Wis. Stat. § 758.18, which contains questions and answers relating to the statutory qualifications set forth in Wis. Stat. § 756.02. The prospective jurors return these forms to the clerk of courts office, where the clerk or a deputy clerk reviews the questionnaires to determine whether any potential juror answered a question in a way that would disqualify that potential juror from jury duty. See Wis. Stat. § 756.04(9).³ Pursuant to Wis. Stat. § 756.04(9), the name of a person found to be not qualified for jury service shall be struck.

¶ 7. In addition, the juror questionnaire form contains a declaration by the potential juror that indicates that the "responses are true to the best of his or her knowledge." See Wis. Stat. § 756.04(6)(c). A forfeiture of up to $500 may be imposed upon a willful misrepresentation of "any material fact or failure to return the completed qualification form within 10 days after receipt. . .." Wis. Stat. § 756.30(1). See also Wis. Stat. § 756.04(7).

I. FACTS ESTABLISHED AT POSTCONVICTION HEARING

A. The Following Facts Were Presented Without Objection.

¶ 8. Tony Vera is an immigrant from Laos. He became a United States citizen approximately eight years ago, and has been in the United States for 20 years.

¶ 9. In early 2000, Vera received the juror questionnaire and checked "no" where the form asked if he could "understand the English language." The clerk of courts or deputy clerk did not disqualify Vera as required by Wis. Stat. § 756.04(9), and a computer randomly placed him on the jury panel for Carlson's trial.

¶ 10. During voir dire, questions were addressed to the panel generally, and follow-up questions were asked only of a potential juror who raised his or her hand. Neither counsel, nor the circuit court judge, the Honorable Michael G. Grzeca, asked the panel about understanding English. Vera never raised his hand and never displayed any behavior that caused counsel or the judge to question his understanding of English.

¶ 11. The trial began on March 1, 2000. During deliberations, the jury sent a note to the judge that stated: "Dear sir, we believe that you need to talk to Tony. It is our belief that he did not understand most of the trial proceedings." A long discussion took place at which various options were discussed with the Court. A concern was raised whether individual questioning of Vera would be viewed as pressuring him to change his vote. Ultimately, the circuit court judge decided not to take any action.

¶ 12. The jury found the defendant, Carlson, guilty. After the jury returned a guilty verdict, the judge polled the jury and Vera, along with the other jurors, responded "yes" to the question: "[I]s that your verdict?"

¶ 13. Carlson's trial attorney testified he had no knowledge that Vera, or any other juror, had a problem understanding the English language. That attorney stated that had he known about Vera's lack of English language comprehension he would have asked that he be removed for cause.

¶ 14. Vera later asserted at the postconviction hearing, the Honorable Mark A. Warpinski presiding, that he had attempted to alert the bailiff prior to trial that he did not understand English, but his concerns were not addressed. Vera testified about his inability to communicate in English. He stated that he could not understand people speaking English on the street, that his roommate did not speak English, and that he only regularly conversed in English with his boss and a co-worker. It was necessary that H & R Block prepare his tax returns for him, and that he did not need English to perform his job. While testifying at the motion hearing, defense counsel and the prosecutor questioned Vera in English, and he was able to respond in English without the aid of an interpreter. He was able to answer confusing questions only when they were rephrased. In his brief, counsel for Carlson argues from the evidence permitted at the postconviction hearing as follows:

Looking only at the uncontested testimony, Vera clearly lacked an ability to understand English in a narrative form. He admitted this. When asked if he understood spoken English, he answered: "Just a little bit." (R 100:42). He admitted he could not understand people who speak to him on the street. (R 100:45). He admitted he could not understand his "teachers." (R100:). He admitted he only understood "some" television. (R 100:52). He did not understand when someone verbally offered him a cigarette. (R 100:57). While Vera did answer some simple and primarily leading questions during the postconviction hearing, any question which called for even the slightest complexity of English comprehension or articulation stumped him. He could not, for example: "describe his typical day;" explain what he did for his job; or describe any television show he recently saw. (R 100:45, 46, 55). Whatever else the record may show, Vera cannot possibly be held to understand trial testimony when he is unable to comprehend a simple exchange of words on the street, (footnotes omitted).

Def.-Appellant-Pet'r's Br. at 18-19.

¶ 15. At the postconviction motion hearing, Vera testified that he has lived in the United States for twenty years, the last eight as a citizen. As part of his citizenship test, he responded to one written and one oral question in English. He obtained a fishing license and a driver's license, the latter requiring him to pass a written exam in English. Vera could understand television somewhat, and enjoyed watching the Discovery Channel and football, which he understood. Although he had only studied English as a second language for a limited time in Green Bay, he testified that he read and filled out the jury questionnaire himself. He was also capable of ordering off of a menu written in English when he went out to eat.

¶ 16. At the time of this trial, Vera worked at Krueger International on the assembly line. His boss, Chad Watermolen, testified that Vera only spoke English when spoken to in English, and had difficulty understanding things at work. Krueger International offered English classes, but to Watermolen's knowledge, Vera never attended them. His lack of understanding of the English language led to poor reviews, and required Watermolen to speak slowly to him using small words. Watermolen testified that he often had to show Vera how to perform a task, not just tell him how to do it, before Vera understood.

B. Facts Presented Through Offer of Proof at Postcon-viction Hearing.

¶ 17. The State objected to some evidence offered at the postconviction motion hearing as violating Wis. Stat. § 906.06(2).⁴ Carlson presented this evidence in the form of an offer of proof. In the offer of proof, Vera stated that he did not understand the witnesses or the judge at trial. He also said that he was "confused" during the trial.

¶ 18. Because of Vera's silence, the other jurors were not immediately aware of his difficulty with the English language. One juror stated that when she asked if Vera would like a cigarette, he just smiled and did not seem to understand. Another juror stated, in the offer of proof, that when the jurors went out for a meal, Vera had difficulty ordering a sub sandwich. In addition, one of the jurors confirmed that Vera did not participate in the deliberations at any level. She testified that it was obvious that Vera did not understand the trial testimony, did not understand the juror discussions, and did not understand what the jury was supposed to be doing. The jurors were so concerned over Vera's lack of understanding that they requested an interpreter from the bailiff, but were told that none was available.⁵

¶ 19. As noted above, we must address whether the circuit court failed under the circumstances presented here, to comply with the statutory provisions of Wis. Stat. § 756.02 and § 756.04, and to apply those provisions to the facts established at the postconviction motion hearing.

II. STATUTORY REQUIREMENTS

¶ 20. As noted previously, Wis. Stat. § 756.04(9) requires the clerk of courts to "strike the name of any person randomly selected whose returned juror qualification form shows that the person is not qualified for jury service under § 756.02." It is undisputed that Vera checked "no" on the jury qualification questionnaire in response to the question, "Can you understand the English language?" It is also undisputed that it is the clerk of court's practice, in compliance with Wis. Stat. § 756.04(9), to disqualify a person from jury duty, if the person answers "no" to the English comprehension question.

¶ 21. In this case, the clerk of courts did not disqualify Vera and his name was entered into the computer for random jury selection.

¶ 22. It is clear from the facts permitted in evidence at the postconviction motion hearing that Vera did not meet the statutory qualifications for jury service pursuant to Wis. Stat. § 756.02. First, Vera unequivocally stated on his Juror Qualification Questionnaire he could not understand English. Second, Carlson maintains, and we agree, that the evidence permitted at the postconviction motion hearing illustrates that Vera was unable to meet the statutory requirements to understand the English language. Carlson's attorney argues that Vera did not "comprehend the evidence and arguments presented at trial."⁶ As noted above, Vera testified about his inability to communicate in English. He stated that he could not understand people speaking English on the street, that his roommate did not speak English, and that he only regularly conversed in English with his boss and a co-worker. Further, he stated that it was necessary that H & R Block prepare his tax return forms for him, and that his job required no English. In addition, Vera's boss, Watermolen, testified that Vera's comprehension of the English language led to Vera's poor reviews, and required Watermolen to speak slowly using small words. Watermolen also testified that he often had to show Vera how to perform a task, not just tell him how to do it, before Vera understood. The note sent to the circuit judge from the jurors themselves, along with the contact with the bailiff by Vera, also demonstrate that Vera had significant language difficulties in understanding the trial proceedings.

III. CIRCUIT COURT DECISION ON NEW TRIAL

¶ 23. Next, we must address whether the circuit court erred as a matter of law in failing to apply the statutory standards for a qualified juror.

¶ 24. A trial court's findings of fact will be upheld unless clearly erroneous. State v. Broomfield, 223 Wis. 2d 465, 481, 589 N.W.2d 225 (1999). Whether the facts amount to prejudice requiring a new trial is a matter of law. Id. at 480. However, the decision to grant or deny a new trial generally lies within the discretion of the trial court. State v. Wyss, 124 Wis. 2d 681, 717-18, 370 N.W.2d 745 (1985). Nonetheless, an exercise of discretion based on an erroneous application of the law is an erroneous exercise of discretion. State v. Martinez, 150 Wis. 2d 62, 71, 440 N.W.2d 783 (1989).

¶ 25. According to the rules set forth above, in order to overturn the circuit court's decision that Vera had sufficient English comprehension necessary to be a qualified juror, this court must find that the circuit court's decision on the postconviction motion was clearly erroneous. See Wis. Stat. § 805.18(2). A holding of "clearly erroneous" often involves an erroneous application of law.

¶ 26. In this case, at the postconviction motion hearing, both admitted evidence, and evidence presented only through an offer of proof were before the circuit court judge. However, 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. In fact, the clear dictates of the statutes were not followed. We need not, therefore, engage in an analysis of whether the evidence, which was not permitted to be offered, should have been considered under Wis. Stat. § 906.06(2).

¶ 27. In order to satisfy Wis. Stat. § 756.02, a juror must "understand the English language."

¶ 28. This court has recognized the potential problems with regard to non-English speaking jurors:

The increasing complexity of the issues presented to juries ... requires more than a minimum "understanding" of the English language on the part of potential jurors. Jurors today must decide cases raising difficult and complicated questions... It makes no sense to argue about the nuances of complicated instructions, if we have no assurance that the jurors sitting in the case have the linguistic ability to recognize, comprehend, analyze or understand the same. If they do not, the instructions are an exercise in futility and the parties litigant are not receiving due process of law.

State v. Coble, 100 Wis. 2d 179, 216, 301 N.W.2d 221 (1981) (Coffey, J., concurring).

¶ 29. In arriving at a decision, the circuit court here failed to require that the statutory requirements set forth in Wis. Stat. § 756.02 and § 756.04 be followed, and failed to apply those statutory provisions to the facts established at the postconviction motion hearing. The circuit court judge that decided the motion stated:

I think it's very difficult to ask a court to establish a test that would screen out people as participants in the jury system.

... I think this is a very dangerous area in which to venture to say that because someone has less of an understanding of the English language than someone else that that automatically disqualifies them.

¶ 30. Instead, the circuit court, attempted to evaluate the facts presented during Vera's testimony at the motion hearing to illustrate that Vera's level of English comprehension was satisfactory. In reaching its decision, the circuit court appeared to emphasize Vera's citizenship status and his presumptive ability to understand at least a survival level of English in order to become a citizen:

What I know is this: That our government has constructed an admissions test to this country which is a citizenship test which is the bedrock of the person's ability to serve on a jury. If you are not a citizen you can't serve. So the government has conducted, for those people not born in this country, a screening mechanism and [Vera] participated through that screening mechanism and was certified by the United States government as a person who could be a citizen of this country.

The court went on to note:

The indicia that we have here and objective test, if you will, is that this man took a test to become a citizen of this country and he passed that test. And he responded that there was a written question and an oral question that he passed the test. And if that's the only objective standard we have I think it's a helpful one. It's one that most of us don't have to go through.

Recognizing the need for a clear standard, the circuit court judge stated:

And maybe some other mechanism has to be established, but I'm going to find that [Vera] has a sufficient understanding of the English language to serve as a juror based upon the record that was made here.

¶ 31. In addition to the circuit court's decision, the court of appeals held that the circuit court had not erroneously exercised its discretion, and found that Vera's English was "sufficient[ ] to fairly and completely try the case." State v. Carlson, 2001 WI App 296, 249 Wis. 2d 264, 638 N.W.2d 646.

¶ 32. The State agrees with the court of appeals, and adds that all that is required under the federal standard for English comprehension for jury service is simply the ability to read and fill out the jury qualification questionnaire. Resp't's Br. at 15 (citing 28 U.S.C. §1865(b)(2) and (3)). The State maintains that it is sufficient if that standard is met, and that the federal standard for English comprehension was purposefully set low in order to ensure that juries represent a fair cross section of the community. Id. at 15-16 (citing United States v. Pellegrini, 441 F.Supp. 1367, 1371 (E.D. Pa. 1977), aff'd, 586 F.2d 836 (3rd Cir.) cert. denied, 439 U.S. 1050 (1978)).

¶ 33. While we recognize the merits of a jury that represents a fair cross section of the community, we, nevertheless, agree with the argument set forth by Carlson that Vera did not understand English, indicated that on the Juror Questionnaire, did not have his name struck, and, therefore, failed to satisfy the statutory requirements for a qualified juror. On the one hand, it is important to ensure that jurors represent a fair cross section of the community, but on the other hand, it is important to make sure that a juror meets the statutory qualifications regarding English comprehension.⁷

¶ 34. The State conceded before the court of appeals that a juror must be able to "comprehend testimony." (State's court of appeals Br. at 9). In fact, the State cited State v. Turner, 186 Wis. 2d 277, 284, 521 N.W.2d 148 (Ct. App. 1994), in which the court of appeals held that constitutional guarantees of an " 'impartial jury' and 'due process of law,' require that a criminal defendant not be tried by a juror who cannot comprehend testimony." The State also acknowledged the concurrence in Coble, which requires "more than a minimum 'understanding' of the English language on the part of potential jurors." State v. Coble, 100 Wis. 2d 179, 216, 301 N.W.2d 221 (1981).

¶ 35. Although the court of appeals also seemed to emphasize Vera's citizenship test, as well as other evidence previously noted, as proof of his English comprehension, we agree with Carlson that passage of that test is insufficient to prove Vera's ability to understand English.

¶ 36. There is no evidence in the record as to what this citizenship test actually involved. Vera also testified that the test was "very easy." More importantly, United States citizenship and the ability to understand English are independent statutory qualifications. Wis. Stat. § 756.02 ("Every resident.. . who is at least 18 years of age, a U.S. citizen and able to understand the English language is qualified ...."). Without more in the record, the circuit court erred by seeming to assume that U.S. citizenship equated with an understanding of English.

¶ 37. Consistent with what Vera stated on his Juror Qualification Questionnaire, the evidence presented at the postconviction hearing demonstrates that he could not understand English.

¶ 38. 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, and in denying the postconviction motion, the circuit court erroneously exercised its discretion. In accord with Wisconsin statutes, Vera should have been struck from the list as being unqualified. See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707, 710 (1997) (failure to apply the proper legal standard constitutes an erroneous exercise of discretion).

IV HARMLESS ERROR

¶ 39. The State claims that any statutory error in impaneling Carlson's jury was harmless. In support of its position, the State maintains that "[a] technical violation of the jury qualification statute does not warrant reversal, unless a party has been prejudiced." Resp't's Br. at 33 (citing Coble, 100 Wis. 2d at 211). The State asserts that Carlson was not prejudiced by the inclusion of Vera on the jury, and therefore, any error was harmless.

¶ 40. Carlson, however, argues that the error was not harmless, since it involved substantial rights, and that the clerk should have stricken Vera's name from the jury pool as required by Wis. Stat. § 756.04(9).

¶ 41. As noted previously, Wis. Stat. § 756.04(9) provides in pertinent part that:

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. (Emphasis added.)

¶ 42. It is clear that the error of allowing Vera to serve as a juror contrary to the statutes was not harmless, because his stated inability to understand English prevented him from meaningful participation in the trial process. See Wis. Stat. § 805.18. See also, e.g., United States v. Okiyama, 521 F.2d 601 (9th Cir. 1975) (failure to substantially comply with jury impan-elment statutes warranted dismissal of federal indictment, regardless of prejudice showing, especially where the selection process created serious risks that those selected were not sufficiently proficient in English to understand the proceedings in which they were to participate). We agree with the holding in United States v. Silverman, 449 F.2d 1341 (2d Cir. 1971), that a showing of actual prejudice is established if a juror "had been unable to understand English." Id. at 1344. Here the jury impanelment statutes were not followed, and, in addition, it is clear that Vera really did not have sufficient understanding of English so that he could meaningfully participate in the trial process.

¶ 43. In State v. Coble, 100 Wis. 2d 179, 210-212, 301 N.W.2d 221 (1981), we were presented with the issue of whether the Milwaukee county jury selection procedure for preparing the jury list complied with the statutory requirements of chapter 756, Wis. Stats. Id. at 182. In particular, question 3 of the Milwaukee Juror Qualification Form asked: "3. Can you read and write the English language?" Id. at 191. In looking at question 3, we reasoned that it was in contravention of Wis. Stat. § 756.01(1), which, at the time, provided that persons "who are able to read and understand the English language are qualified to be drawn as jurors." Id. In 1977, the legislature amended the statute, and no longer required that a person be able to write the English language to qualify as a juror. Id. at 192. Because of the legislature's omission of the requirement to be able to write the English language in the statute, we concluded that the wording of question 3 of the Milwaukee County Juror Qualification Questionnaire did not meet the statutory requirements of Wis. Stat. § 756.01, and should be modified. Id. at 193.

¶ 44. In Coble, we held that while the harmless error doctrine applies to statutory irregularities involving jury selection, substantial rights of a party are affected when the jury selection procedure "fails to insure, as does the statutory procedure, that a jury composed of persons qualified under the statutes is selected at random from a broad cross-section of the community." Id. at 212.

¶ 45. While Coble is similar to the present case in that it discusses the statutory requirements of chapter 756, Wis. Stats., it is nevertheless distinguishable. Unlike Coble, we are only concerned with the requirement that a juror such as Vera be able to understand the English language. Consequently, while some of the language and reasoning in Coble is helpful, it is not controlling in this case.

¶ 46. The harmless error rule adopted last term by this court in 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, is one that is applicable for evaluating an error's harmlessness, whether the error is constitutional, statutory, or otherwise. Harvey, ¶ 40; State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). Application of that rule here does not change our conclusion in this case, since we cannot conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. The circumstances here preclude such a conclusion.⁸

¶ 47. An ability to understand the English language is necessary in order to satisfy the statutory requirements of Wis. Stat. § 756.02 and § 756.04. If a juror cannot meet the statutory requirements, then the entire trial process may be nothing more than an "exercise in futility." Coble, 100 Wis. 2d at 216. It is clear that Vera did not meet those requirements and, therefore, he was not qualified to serve as a juror. The error here in failing to follow the statutory provisions and to apply them to the facts established at the postconviction motion hearing was not harmless. Here Carlson was prejudiced when a juror who was not qualified under the statutes, and who did not have sufficient understanding of English so that he could meaningfully participate in the trial process, was allowed to serve as a juror.

¶ 48. Accordingly, we reverse the decision of the court of appeals and Carlson's conviction, and remand this matter to the circuit court for a new trial.

By the Court. — The decision of the Court of Appeals is reversed, and the cause is remanded to the circuit court.

1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wis. Stat. § 756.02 states:

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.

2 The facts of the underlying offense are not relevant to our discussion or analysis.

3 Wis. Stat. § 756.04(9):

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. 766.02. The clerk shall certify that the names were selected in strict conformity with this chapter.... (Emphasis added.)

4 Wis. Stat. §906.06(2): INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

5 The following is the exchange that took place between a juror and the judge at the end of the postconviction hearing:

Ms. Ceceo: Your Honor, may I say something?

The Court: No, I'm sorry ma'am, Miss Ceceo, I have been watching—

Ms. Ceceo: He did not understand.

The Court: That's enough.

Ms. Ceceo: I believe in this system and it's not working here.

The Court: I'm going to tell you this so you have an understanding because I appreciate the fact that you appeared as a juror. There are two different issues here. We couldn't get to the second one for the reasons I found. If I'm wrong the Appellate Court will reverse this and the [sic] come back here and there will be a new trial. So this isn't the final word in this matter. Ma'am, that's all we can really say at this point and I appreciate the part of this, the fact that—

Ms. Ceceo: It's very difficult to live with.

The Court: Then you shouldn't have voted for the decision. That's all. Thank you.

6 Pet. Br. at 14 (citing State v. Gallegos, 88 N.M. 487, 489, 542 P2d 832, 834 (N.M. Ct. App. 1975) ("... a juror who does not possess a working knowledge of English would be unable to serve because he cannot possibly understand the issues or evaluate the evidence to arrive at an independent judgment as to the guilt or innocence of the accused").

7 It is important to note, since it may be important for future cases, that Wis. Stat. Ann. § 885.38(l)(b) (West 2002) requires the use of an interpreter in circuit and appellate courts when a person has "Limited English proficiency." The statute states:

"Limited English proficiency" means any of the following:

1. The inability, because of the use of a «language other than English, to adequately understand or communicate effectively in English in a court proceeding.

2. The inability, due to a speech impairment, hearing loss, deafness, deaf-blindness, or other disability, to adequately hear, understand, or communicate effectively in English in a court proceeding.

See also Wis. Stat. Ann. § 885.38(3)(a) and (c) (West 2002). The statute states:

(3)(a) In criminal proceedings and in proceedings under ch. 48, 51, 55, or 938, if the court determines that the person has limited English proficiency and that an interpreter is necessary, the court shall advise the person that he or she has the right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided at the public's expense if the person is one of the following:

1. A party in interest.

2. A witness, while testifying in a court proceeding.

3. An alleged victim, as defined in s. 950.02(4).

4. A parent or legal guardian of a minor party in interest or the legal guardian of a party in interest.

5. Another person affected by the proceedings, if the court determines that the appointment is necessary and appropriate.

(c) If a person with limited English proficiency, as defined in sub. (l)(b)2., is part of a jury panel in a court proceeding, the court shall appoint a qualified interpreter for that person.

8 Our decision in State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), discussed statutory bias in regard to juror selection. That analysis was based on this court's review of Wis. Stat. § 805.08(1). We concluded that a person who is statutorily biased "may not serve on a jury regardless of his or her ability to be impartial." Faucher at 717. While not directly on point in regard to the circumstances presented here, that case lends further support to our conclusion that Vera should not have served as a juror given his inability to understand English.