State v. Ramos , 211 Wis. 2d 12 ( 1997 )

DONALD W. STEINMETZ, J.

¶1. The issue in this case is whether the trial court's failure to remove a juror for cause constitutes reversible error when a defendant is forced to correct the trial court's error by using one of his or her statutorily provided peremptory challenges. We hold that the use of a peremptory challenge to correct a trial court error is adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right.

¶ 2. The facts leading up to this case are tragic. On the evening of November 15, 1993, the defendant, Edward Ramos, suffocated Brandon Webster, his girlfriend's two-year-old child. Ramos was subsequently arrested and was charged with first-degree intentional homicide in violation of Wis. Stat. § 940.01(1). Ramos never denied killing the child, but he argued that he acted recklessly, not intentionally. As such, Ramos opted for a jury trial to determine whether he acted intentionally. The trial was held before the Milwaukee County Circuit Court, Judge Patricia D. McMahon.

¶ 3. Due to the nature of the crime with which Ramos was charged, potential jurors underwent extensive voir dire. The panel faced questions from the trial court, the prosecutor, and defense counsel in an attempt to impanel an unbiased, impartial jury. During defense counsel's questioning of one prospective juror, the juror indicated that it was possible that she could not be a fair or impartial juror. When pressed, the juror stated: "Just knowing that the child was suffocated, I guess I couldn't be fair." The defense attorney asked her: "So you could not be fair to this man?" The juror replied with an unequivocal "No."

¶ 4. During a conference in the judge's chambers, Ramos' counsel moved to strike the juror for cause, arguing that the juror stated that she could not be fair and impartial. After both the prosecutor and the judge said that they did not recall the juror saying that she could not be fair, defense counsel asked that the reporter read back the juror's responses to clear up any confusion. The court declined to have the answers read back. Twice more, Ramos' counsel asked the court to ask the reporter to read back the juror's answers because the defense attorney was "still of the mind that she [the prospective juror] said she could not be fair, impartial in this case." Both times, the requests of Ramos' counsel were not met, and the court did not strike the juror for cause.

¶ 5. Ramos subsequently removed the juror through the use of his first statutorily granted peremptory challenge. Consequently, the juror did not participate in the final adjudication of Ramos' guilt or innocence. On April 7,1994, a jury found Ramos guilty of first-degree intentional homicide.

¶ 6. Ramos appealed to the court of appeals. The court of appeals decided that a trial court's erroneous refusal to remove a potential juror for cause, which effectively forced the defendant to use a peremptory challenge to remove the juror, violated the defendant's right to due process as defined by state law. The court of appeals remanded the case to the trial court for a new trial. State v. Ramos, No. 94—3036-CR, unpublished slip op. (Wis. Ct. App. Sept. 12, 1996). The State appealed to this court, and we now affirm the decision by the court of appeals.

¶ 7. "The question of whether a prospective juror is biased and should be dismissed from the jury panel for cause is a matter of the circuit court's discretion." State v. Gesch, 167 Wis. 2d 660, 666, 482 N.W.2d 99 (1992), citing State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990), cert. denied, 498 U.S. 1122 (1991) (citations omitted). This court will find an erroneous exercise of discretion if a circuit court's discretionary decision is based on an error of law. See id., citing In re Marriage of Schulz v. Ystad, 155 Wis. 2d 574, 599, 456 N.W.2d 312 (1990).

¶ 8. In Wisconsin, a juror who "has expressed or formed any opinion, or is aware of any bias or prejudice in the case" should be removed from the panel. Wis. Stat. § 805.08(1). Additionally, "[i]f a juror is not indifferent in the case, the juror shall be excused." Id.

¶ 9. In the case at bar, the challenged prospective juror should have been removed for cause. She clearly expressed that she could not be a fair and impartial juror in the case. The Wisconsin Statutes provide that "[a]ny party objecting for cause to a juror may introduce evidence in support of the objection." Id. Ramos' attorney attempted three times to introduce such evidence by having the reporter read back the challenged jurors' answers. Unfortunately, the trial court prohibited him from doing so. We conclude that the trial court should have allowed the reporter to read back the responses and should have dismissed the challenged juror for cause. Therefore, we find that the failure to dismiss the challenged juror for cause was an erroneous exercise of discretion by the trial court.

¶ 10. Under the statutes, Ramos was entitled to seven peremptory challenges to strike potential jurors from the panel. Wis. Stat. §§ 972.03¹ and 972.04(1).² The statutes provide that a defendant "is entitled to" and "shall be allowed" the stated number of peremptory challenges. The word "shall" is presumed to be mandatory when it appears in a statute. Wagner v. State Medical Examining Bd., 181 Wis. 2d 633, 643, 511 N.W.2d 874 (1994). Therefore, we find that Ramos had a right to the maximum amount of peremptory challenges prescribed by the statute.

¶ 11. Ramos contends that the failure to dismiss the juror for cause forced him to spend one of his peremptory challenges to correct the trial court error, thereby depriving him of his statutorily guaranteed right to a full complement of peremptory challenges. The State, relying largely on the United States Supreme Court decision in Ross v. Oklahoma, 487 U.S. 81 (1988), contends that despite the trial court error, Ramos is not entitled to a new trial because the jury that ultimately decided Ramos' case was impartial.

¶ 12. In Ross, the United States Supreme Court considered the issue of when a trial court's erroneous refusal to strike a juror for cause constitutes reversible error. Ross, a capital case, involved a prospective juror who had stated that he would vote to impose the death penalty automatically if the jury found the defendant guilty. Based on this statement, the defendant moved to have the juror struck for cause. The trial court refused this request. However, the defendant struck the juror using one of his peremptory challenges. On appeal, the defendant asserted that the trial court's error in failing to remove the juror for cause violated "both his Sixth and Fourteenth Amendment right to an impartial jury, and his Fourteenth Amendment right to due process." Id. at 85.

¶ 13. In the first part of the opinion, the United States Supreme Court held that requiring a defendant to use a peremptory challenge to remove a juror who should have been removed for cause did not violate the defendant's Sixth Amendment right to an impartial jury. Id. at 88. The Court also stated that peremptory strikes were not of a constitutional dimension and that they are merely a means to achieving an impartial jury. Id. As long as the jury was impartial, the fact that the defendant had to use a peremptory challenge to achieve the result did not mean that the Sixth Amendment was violated. Id.

¶ 14. In the second part of the opinion, the Court considered the defendant's claim that the trial court's failure to remove the juror for cause violated his Fourteenth Amendment right to due process by arbitrarily depriving him of the full complement of peremptory strikes allowed under Oklahoma law. In discussing this issue, the Court noted "that the right to exercise peremptory challenges is 'one of the most important of the rights secured to the accused.'" Id. at 89, quoting Swain v. Alabama, 380 U.S. 202, 212 (1965). The Court also stated that "[t]he denial or impairment of the right is reversible error without a showing of prejudice." Id. at 89.

¶ 15. In analyzing whether the defendant's right to exercise peremptory challenges was denied or impaired, the Court ruled that these challenges were creatures of state law and that it was "for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise." Id. Thus, the Supreme Court reasoned that "the 'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which state law provides." Id.

¶ 16. Oklahoma law requires that a defendant who disagrees with the trial court's ruling on a for-cause challenge must use his or her peremptory challenges to remedy trial court errors in order to preserve the claim that the ruling deprived him or her of a fair trial. See id. The Court in Ross found that the defendant received all that Oklahoma law allowed when he was forced to use a peremptory challenge to remedy the trial court's erroneous failure to remove the juror for cause. Therefore, the defendant in Ross was not denied his due process right under the Fourteenth Amendment to the United States Constitution.

¶ 17. Wisconsin Statutes do not suggest that a defendant should be required to use a peremptory challenge against a juror who should have been removed for cause; neither does Wisconsin case law. In fact, this court found exactly the opposite in State v. Gesch, 167 Wis. 2d 660, 482 N.W.2d 99 (1992). In Gesch, we held that prospective jurors who are related to a state witness by blood or marriage in the third degree must be struck from the jury panel on the basis of implied bias. This court rejected the State's argument in Gesch that the failure to exercise a peremptory challenge to the questionable juror resulted in a waiver of the defendant's right to raise the issue of whether the juror should have been struck for cause. Id. at 671. The court declined to require that a defendant use a peremptory challenge to correct the errors of the trial court, noting that "[t]he peremptory challenge is one of the most important of the rights secured to the accused." Id.

¶ 18. While the analysis provided by the Court in Ross is applicable in the case at bar, the ultimate result in Ross does not dictate the ultimate result in this case because, as demonstrated, Oklahoma law and Wisconsin law differ regarding the use of peremptory challenges. Oklahoma law requires a party to use peremptory challenges to correct trial court errors; Wisconsin law does not.

¶ 19. As demonstrated by the decision in Ross, there is a clear distinction between the right to a fair and impartial jury as found in the Sixth Amendment to the United States Constitution and the right to due process of law as defined by state law or by statute. See Ross, 487 U.S. at 89. Unlike the defendant in Ross, Ramos makes no claims that his constitutional right to a fair and impartial jury has been violated.³ In fact, the right to peremptory challenges has no basis in the Constitution. See id. at 88. Several cases, both federal and state, rely on this distinction in analyzing whether a defendant's rights have been violated.

¶ 20. The Seventh Circuit Court opinion in United States v. Beasley, 48 F.3d 262 (7th Cir. 1995) is instructive on the issue. Beasley involved a Sixth Amendment challenge by a defendant who claimed that a trial court's failure to strike for cause a juror whose brother was a police chief and whose son was a police officer violated the defendant's right to an impartial jury. Although the court rejected the defendant's constitutional argument, it made the following observation:

Beasley [the defendant] could have made another argument. Although peremptory challenges are not of a constitutional dimension, see Ross, 487 U.S. at 88, 108 S.Ct. at 2278, it could be argued that the designation of ten peremptory challenges under Fed.R.Crim.P. 24 is a matter of federal law. A district court error, hence, in refusing to strike a juror for cause would deprive the defendant of a federally granted peremptory challenge. . . .However, Beasley does not make this argument.

Id. at 268, note 5.⁴ While the defendant in Beasley did not make a statutory claim, the argument described by the court therein is precisely that made by Ramos in the instant case. We embrace this argument.

¶ 21. Several other states have adopted this approach and held that reversal is required when a trial court erroneously refuses to dismiss a juror for cause, even if the challenged juror does not participate in the final decision. See, e.g., People v. Prator, 856 P.2d 837 (Colo. 1993); Thomas v. Commonwealth, 864 S.W.2d 252 (Ky. 1993), cert. denied, 510 U.S. 1177 (1994); State v. Cross, 658 So. 2d 683 (La. 1995); State v. Phillips, 461 S.E.2d 75 (W.Va. 1995); State v. Bingham, 859 P.2d 769 (Ariz. Ct. App. 1993). Because Kentucky law and Wisconsin law are similar with respect to peremptory challenges,⁵ we look to the Kentucky Supreme Court case of Thomas v. Commonwealth for instruction.

¶ 22. Like Wisconsin law as established in Gesch, Kentucky law does not require that a defendant use his or her peremptory challenges on jurors who should have been excused for cause. See Thomas, 864 S.W.2d at 259. In Thomas, the court held, in relevant part, that the failure to sustain challenges for cause deprived the defendant of his peremptory challenges. Therefore, his conviction had to be overturned regardless of whether any juror proved to be disqualified on voir dire actually sat on the panel. The court explained its holding in the following manner:

The object of voir dire is to start the trial on a level playing field; it is not a level playing field if there are jurors on the panel who are predisposed to decide one way or the other. A defendant has been denied the number of peremptory challenges procedurally allotted to him when forced to use peremptory challenges on jurors who should have been excused for cause.

Id. Finally, the court notes that "[t]he rules specifying the number of peremptory challenges are not mere technicalities, they are substantial rights and are to be fully enforced." Id.

¶ 23. Much like the Kentucky Supreme Court, this court has opined that if a defendant is deprived of the right to exercise the full complement of his or her peremptory challenges, the defendant is entitled to a new trial. See State v. Wyss, 124 Wis. 2d 681, 724, 370 N.W.2d 745 (1985) ("[t]here is little doubt that if the trial court or the prosecution had deprived [the defendant] of his right to the effective exercise of his peremptory challenges it would have provided grounds for a new trial"), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 505-06, 451 N.W.2d 752 (1990). In the instant case, only the state received that to which it was entitled under state law. Ramos was denied his right to exercise all of the peremptory challenges to which he was entitled as a result of the trial court's error. The juror in this case clearly indicated to everyone in the courtroom that she could not be fair to the appellant. Yet, the juror remained on the jury panel (until the defendant used a peremptory challenge to strike her) only because the trial court was steadfast and arbitrary in its refusal to take the seconds necessary to have the court reporter read back the juror's statement.

¶ 24. The State relies on several cases in support of its proposition that the erroneous exercise of the trial court in refusing to strike the challenged juror for cause resulted in nothing more than a harmless error. Relying on Carthaus v. State, 78 Wis. 560, 47 N.W. 629 (1891) and other 19th Century cases, the State asserts that nothing else matters if the defendant received a trial by a fair and impartial jury. Without any analysis, this court in the Carthaus case quipped: "A fair and impartial jury was impaneled, and what more could the defendants ask for?" Id. at 568.

¶ 25. If Ramos were making a claim that his Sixth Amendment right to a fair and impartial jury had been violated, then Carthaus would control. However, the Carthaus court did not address the underlying statute at issue and came to no decision as to whether the defendants' statutory rights were violated, presumably because no such argument was presented by the parties. As previously demonstrated, the issue in this case is not whether a fair and impartial jury was impaneled, but whether Ramos' statutory rights were violated. Therefore, we find that Carthaus is not controlling here.

¶ 26. The State also relies on the Wisconsin Court of Appeals case of State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992). In Traylor, the court held that where a fair and impartial jury was impaneled, the defendant could not complain that his trial counsel was ineffective for failing to move to have the juror removed for cause. The Traylor court relied on two cases from the 19th Century which reasoned that a defendant's right to a fair trial and impartial jury was not violated unless a biased juror actually served on the jury. For the same reason that we find that Carthaus is not controlling, we also distinguish Traylor.

¶ 27. In the case at bar, even if a fair and impartial jury was impaneled, the trial court's failure to dismiss the challenged juror for cause effectively deprived Ramos of the right to exercise all seven of his statutorily granted peremptory challenges. Although it is a shame to have a new trial in this tragic first-degree murder case when a fair and impartial jury made the final decision, the error by the trial court requires that the defendant receive a new trial. We hold that the use of a peremptory challenge to correct a trial court error is adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right. Therefore, the decision of the court of appeals is affirmed.

By the Court. — The decision of the court of appeals is affirmed.

1 Wis. Stat. § 972.03 provides in relevant part:

When the crime charged is punishable by life imprisonment the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. . . .Each side shall be allowed one additional peremptory challenge if additional jurors are to be impaneled under s. 972.04(1).

2 Wis. Stat. § 972.04(1) provides, in part, that "[t]he number of jurors impaneled shall be prescribed in s. 756.096(3)(a) or (am), whichever is applicable unless. . .the court orders that additional jurors be impaneled."

3 Because the juror who was challenged for cause was eventually struck from the panel, Ramos concedes that the impaneled jury was impartial. Therefore, he further concedes, Article I, section 7 of the Wisconsin Constitution and the Sixth Amendment to the United States Constitution have not been violated.

4 The Third Circuit opinion in Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995) also demonstrates the difference between an analysis focused on the Sixth Amendment versus an analysis based on a party's right to due process of law as defined by statute. The Kirk court held a "showing of prejudice is not required to reverse a verdict after demonstrating that a statutorily-mandated, peremptory challenge was impaired." Id. at 160.

5 The Kentucky statute at issue in Thomas v. Commonwealth, 864 S.W.2d 252 (Ky. 1993), provides in pertinent part that "[i]f the offense charged is a felony. . .the defendant [is entitled to] eight (8) peremptory challenges," and if "additional jurors [alternates] are called, the number of peremptory challenges allowed each side and each defendant shall be increased by one (1)." Id. at 258-59.