State v. Sellhausen , 338 Wis. 2d 286 ( 2012 )

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published opinion of the court of appeals.¹ The court of appeals reversed the judgment of conviction of Sharon A. Sellhausen, the defendant, and the order denying post-conviction relief of the circuit court for Sheboygan County, L. Edward Stengel, Judge.

¶ 2. The dispositive issue before this court is whether the defendant is entitled to a new trial even though she used a peremptory challenge to remove the judge's daughter-in-law from the jury.

¶ 3. The circuit court denied the defendant's motion for a new trial, noting that neither party moved to strike the daughter-in-law for cause and neither the State nor the defendant suggested that the daughter-in-law was not a suitable juror. The circuit court concluded that it did not believe it "would have been within its appropriate discretion just to automatically exclude a juror that had otherwise been legally selected."

¶ 4. The court of appeals reversed the judgment of conviction of the circuit court and the order denying post-conviction relief.

¶ 5. "[I]nterstitially applying the underlying rationale of [State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737],"² the court of appeals held that "presiding judges must sua sponte remove their immediate family members from the panel of potential jurors."³

¶ 6. Distinguishing State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, the court of appeals further held that "the Lindell holding is not applicable to this case or others like it because [the defendant's] use of a peremptory challenge did not adequately correct a trial court error."⁴ The court of appeals concluded that "a bright-line rule [that a circuit .court must remove an immediate family member sua sponte] is far more efficient than a case-by-case analysis of whether the presence of a prospective juror on the voir dire panel might have affected the outcome of a trial."⁵

¶ 7. We conclude that the present case is governed by State v. Lindell.⁶ We conclude that because the defendant exercised a peremptory strike to remove the circuit court judge's daughter-in-law from the jury, and because the defendant does not claim the jury was unfair or partial, a new trial is not required under the circumstances of the present case.⁷ The defendant has not shown that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. Accordingly, we reverse the decision of the court of appeals ordering a new trial.

¶ 8. Because the defendant asserts that the judgment of conviction should be reversed on the additional ground of ineffective assistance of tried counsel, we remand the cause to the court of appeals to decide this issue.⁸

I

¶ 9. The facts relating to the issue before this court are not in dispute. The jury, which did not include the presiding circuit court judge's daughter-in-law as a member, convicted the defendant of battery to a law enforcement officer and disorderly conduct.

¶ 10. The circuit court judge's daughter-in-law was, however, in the pool of potential jurors. During voir dire, the circuit court judge and his daughter-in-law had the following exchange:

THE COURT: All right. Nikki, you're my daughter-in-law. All right. I've told the attorneys that you and I have had no discussions about the case, correct?

JUROR STENGEL: Correct.

THE COURT: As a matter of fact, I didn't know until last night that you were coming in as a juror in this matter, right?

JUROR STENGEL: Correct.

THE COURT: Very good. You didn't ask and I wouldn't have excused you anyways so. But you're competent, you can be fair and impartial?

JUROR STENGEL: Uh-huh.

THE COURT: The fact that I'm the judge wouldn't affect your ability in this matter at all?

JUROR STENGEL: No.

THE COURT: Listen to all the evidence and decide the case, correct?

JUROR STENGEL: Correct.

THE COURT: And if we see you after the case, you wouldn't be at all hesitant as to how you decide the case, right?

JUROR STENGEL: Correct.

THE COURT: Very good. And I have told the lawyers about this, so they understand that as well.

¶ 11. Shortly after this exchange, defense counsel questioned the circuit court judge's daughter-in-law as follows:

[DEFENSE COUNSEL]: I guess I have to ask you, Ms. Stengel, since you're related to the judge. If you would have any preference over any law enforcement officials of any kind over a private citizen?

JUROR STENGEL: No.

[DEFENSE COUNSEL]: No preference whatsoever?

JUROR STENGEL: No preference.

THE COURT: You're not talking about judges, are you?

[DEFENSE COUNSEL]: Oh, absolutely, that's included.

THE COURT: All right.

[DEFENSE COUNSEL]: I think that's all I need to ask. Thank you.

¶ 12. Defense counsel did not move to strike the daughter-in-law for cause. Defense counsel did, however, use a peremptory challenge to remove the daughter-in-law from the jury. At the hearing on the defendant's post-conviction motion, defense counsel testified that he did not believe he had specific grounds to strike the judge's daughter-in-law for cause because the circuit court had established that the daughter-in-law could be impartial. Nonetheless, defense counsel used a peremptory challenge because he "thought that there might be some prejudice there and it's just better safe than sorry."

¶ 13. Also at the post-conviction motion hearing, the circuit court judge stated that before voir dire, he had spoken with both parties' attorneys off the record to tell them that his daughter-in-law would be one of the potential jurors. The judge also recalled telling counsel that he would be glad to excuse the juror if either party so requested. Defense counsel could not recall this conversation clearly enough to confirm or deny its substance.

II

¶ 14. This case requires us to determine the application of the Lindell and Tody cases to the present case. The interpretation and application of prior cases to a new set of facts is a question of law, which this court decides independently of the circuit court or court of appeals but benefiting from their analyses.

Ill

¶ 15. We turn first to the Lindell case.

¶ 16. Lindell overruled State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), "which would have required an automatic reversal in any situation where the defendant used a peremptory strike to remove a prospective juror who should have been excused for cause. . . ."⁹ The Lindell court, applying a harmless error analysis based on the harmless error statute, Wis. Stat. § 805.18(2) (2009-10),¹⁰ concluded that because Lindell exercised a peremptory strike against the challenged juror, "the circuit court's error did not affect the substantial rights of the defendant."¹¹ Thus, under Lindell, reversal of the conviction is not automatically required when a peremptory strike removes the challenged juror from the jury.

¶ 17. The Lindell court acknowledged, however, that although "[t]he substantial rights of a party are not affected or impaired when a defendant chooses to exercise a single peremptory strike to correct a circuit court error," situations might arise when the exercise of a peremptory challenge does not cure the trial court's error of failing to excuse a juror for cause.¹² Although the Lindell court declined "to evaluate other situations,"¹³ it referred to Pool v. Milwaukee Mechanics' Ins. Co., 94 Wis. 447, 453, 69 N.W. 65 (1896), in which the court had commented that "if, by the erroneous ruling [of the trial court], the party is obliged to exhaust all his peremptory challenges, the error is harmful."¹⁴ The Pool court explained: "The true rule, we hold, is ... to the effect that it is not prejudicial error to overrule a challenge for cause, unless it is shown that an objectionable juror was forced upon the party, and sat upon the case after such party had exhausted his peremptory challenges."¹⁵

¶ 18. The Lindell court also referred to two situations posed by the State in which the State asserted that a trial court's error of failing to excuse a juror for cause might justify a new trial: "[W]hen a circuit court judge repeatedly and deliberately misapplies the law to force a defendant to use peremptory challenges or when the court makes errors that force a defendant to use most or all of his or her peremptory strikes."¹⁶

¶ 19. None of the scenarios referred to in Lindell as exceptions to the rule that a peremptory strike "cures" the circuit court's error of failing to excuse a juror for cause occurred in the instant case. The present case seems to fall squarely within the holding of Lindell, not any referenced exception. We acknowledge, however, that the Lindell court's examples of exceptions to the rule are obviously intended as illustrative, not exhaustive.

¶ 20. In an effort to distinguish the present case from Lindell, the defendant relies on what she labels "the path this Court charted in Tody." Thus, we turn to the Tody case for guidance.

¶ 21. Tody, 316 Wis. 2d 689, presented a very different fact situation than the instant case. In Tody, the defense counsel moved to strike the circuit court judge's mother from the pool of potential jurors for cause; the circuit court judge denied the motion.¹⁷ Neither party in Tody used a peremptory challenge to remove the mother from the jury, and the circuit court judge's mother sat on the jury that convicted Tody.

¶ 22. Two key differences exist between the present case and Tody. First, in the present case, unlike in Tody, neither the State nor the defendant moved to excuse the daughter-in-law for cause and the circuit court judge did not rule on a motion involving his family member. Second, in the present case, unlike in Tody, the defendant exercised a peremptory strike and the challenged juror did not sit on the jury.¹⁸

¶ 23. The defendant contends that the Lindell harmless error test does not apply in the present case. She makes three arguments in support of her claim that her use of a peremptory challenge did not cure the harm caused by the circuit court's failure to strike the challenged juror sua sponte: "The harm from failing to strike the juror sua sponte stemmed from a combination of factors: the appearance of judicial impropriety in not dealing with the situation clearly and decisively, the risk that counsel or the judge will behave differently during the trial due to antagonism caused by counsel striking the judge's family member, and the unfairness of the defendant having to use a peremptory challenge on a juror who cannot be subjected to aggressive voir dire.'¹⁹

¶ 24. First, the defendant argues that the circuit court created an appearance of impropriety when it failed to swiftly and decisively remove the challenged juror from the jury pool. The defendant cites several cases for the proposition that a harmless error analysis is inappropriate when an error implicates or imperils public confidence in the integrity of the courts, judges, or juries.²⁰

¶ 25. According to the defendant, the circuit court judge's reference to his conversation with his daughter-in-law the night before trial, the judge's leading questions to his daughter-in-law at voir dire, and the judge's off-the-record conversation in which he offered to excuse his daughter-in-law each demonstrate that he handled the situation casually and without enough attention to appearances of propriety.

¶ 26. It seems to us, however, that the defendant overstates the appearance of impropriety in the present case.

¶ 27. The circuit court was aware of the risk of an appearance of impropriety and took steps to prevent such an appearance. The circuit court displayed its concern that all jurors, including the challenged juror, be fair and impartial. The circuit court judge mentioned that he had only recently learned his daughter-in-law would be in the jury pool and that they had no discussions about the case.

¶ 28. Nothing in the record suggests that the circuit court judge was unconcerned with or indifferent to the appearance of propriety or the integrity of the courts. Indeed, the record shows that the circuit court judge was acutely aware of these concerns and that his decision to allow his daughter-in-law to remain in the pool of potential jurors may have been motivated by a misunderstanding of the scope of the circuit court's power to remove a family member juror who asserts she can be fair and impartial.

¶ 29. We agree with the court of appeals that "it is much cleaner when a judge removes the immediate family member sua sponte."²¹ We have urged circuit courts on several occasions "to err on the side of striking prospective jurors who appear to be biased" because "[s]uch action will avoid the appearance of bias, and may save judicial time and resources in the long run."²² The circuit judge in the instant case did not heed this recommendation.

¶ 30. Nevertheless we are not persuaded that in the present case an appearance of impropriety exists warranting reversal of the conviction and a new trial. The daughter-in-law did not sit on the jury, and as the court of appeals stated, "the presiding judge in this case genuinely attempted to alleviate potential problems."²³

¶ 31. Second, defense counsel argues that the use of a peremptory challenge harmed the defendant because it forced defense counsel to adopt an adversarial stance to the presiding judge. The particular concern seems to be that this adversarial stance is likely to affect the behavior of the circuit court and defense counsel during the trial.

¶ 32. Defense counsel fears that he may offend the circuit court judge when counsel removes the circuit court judge's immediate family member from the jury, especially after the judge has taken pains to show (and has determined) that the family member could be a fair and impartial juror. Defense counsel argues that a circuit court judge might, consciously or unconsciously, harbor resentment toward defense counsel and counsel's client. Defense counsel also claims that he (or other counsel in a similar position) may be hesitant to aggressively challenge the presiding judge's other rulings in the proceedings for fear of exacerbating the problem and further alienating counsel from the judge.

¶ 33. Defense counsel's concerns seem overstated in the present case. We understand that attorneys fear antagonizing judges. This fear is part of the legal lore and legal culture. Lawyers fear that judges, like other persons, may harbor ill will to the messenger when they dislike or are bothered by the message. As judges ourselves, we tend to view any such concerns by lawyers as exaggerated, but we appreciate that lawyers' perceptions may be different. Although judges are expected to perform their duties objectively, impartially, and unemotionally, lawyers and non-lawyers alike must concede that judges are not immune to human emotions.

¶ 34. We are not persuaded, however, that the risk of an adversarial relationship developing between the presiding judge and defense counsel in the circumstances of the present case is great enough to warrant automatic reversal absent evidence that a party's substantial rights were actually impaired.

¶ 35. Nothing in the record suggests that defense counsel changed trial strategy because he feared antagonizing the circuit court judge. Nothing in the record suggests that the circuit court judge harbored any resentment toward defense counsel for using a peremptory strike to remove the daughter-in-law from the jury. The potential chilling effect that concerned the court in Tody does not appear to be present in the instant case.

¶ 36. The defendant's third argument is the argument that the court of appeals found most compelling. As the court of appeals put it, "when a presiding judge does not remove his or her family member sua sponte, the defendant is essentially robbed of the right to aggressively question a juror related to the presiding judge."²⁴ In other words, the argument is that Lindell is distinguishable because in Lindell the challenged juror was not an immediate relative of the circuit court judge and the lawyer conducted full, uninhibited voir dire of the challenged juror. Defense counsel in Lindell was able to decide that the potential juror at issue was biased and to conclude that a peremptory strike was warranted.

¶ 37. In contrast, in the present case, according to the court of appeals, defense counsel was unable to explore fully in voir dire whether the challenged juror (a member of the judge's immediate family) was biased for fear of antagonizing the circuit court judge, and defense counsel was forced to use a peremptory challenge without determining whether it was necessary to strike the juror or whether the defendant might have preferred that the person remain in the jury pool.

¶ 38. We are not persuaded that the distinctions between the present case and Lindell warrant a deviation from Lindell's general rule. That defense counsel in the present case may have been forced to exercise a peremptory challenge without thoroughly exploring the possible bias of one juror is not sufficient to render Lindell inapplicable.

¶ 39. Lindell held that a circuit court's failure to excuse a juror who should have been excused is harmless error if the defendant uses a peremptory challenge to remove that juror and ends up with a fair, impartial jury. In the instant case, the defendant used a peremptory strike and ended up with a fair, impartial jury. The defendant's substantial right we are concerned with is the defendant's right to a fair, impartial jury, not the defendant's right to the exact jury that the defendant prefers.²⁵

¶ 40. The defendant does not claim that the jury was biased, unfair, or partial. Nor does the defendant claim that she falls within any of the situations set forth in Lindell that might justify a new trial even when a defendant receives a fair and impartial jury.²⁶ There is no evidence in the record that defense counsel was stifled in questioning other prospective jurors as a result of his experience with the challenged juror; that defense counsel was forced to exhaust all of the peremptory challenges without conducting adequate voir dire; or that the circuit court acted in bad faith.

¶ 41. In sum, the defendant exercised her peremptory right to remove the judge's daughter-in-law from the jury. The defendant agrees that she was tried by a fair, impartial jury. The defendant has not demonstrated harm. Thus, we hold that the defendant's substantial rights were not impaired. The Lindell case governs the instant case. The defendant is not entitled to a new trial on the ground that the circuit court erred in failing to excuse the juror sua sponte for cause.

¶ 42. For the reasons stated above, we reverse the decision of the court of appeals and remand the cause to the court of appeals for consideration of the defendant's ineffective assistance of counsel claim.

By the Court.

The decision of the court of appeals is reversed and the cause is remanded to the court of appeals.

1 State v. Sellhausen, 2010 WI App 175, 330 Wis. 2d 778, 794 N.W.2d 793.

2 Sellhausen, 330 Wis. 2d 778, ¶ 23. The decision in State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, was released approximately three weeks before the defendant's trial; neither the circuit court nor the parties were aware of the Tody decision during the trial in the present case.

3 Sellhausen, 330 Wis. 2d 778, ¶ 14.

4 Id.,¶ 21.

5 Id., ¶ 23.

6 In State v. Lindell, 2001 WI 108, 238 Wis. 2d 422, 617 N.W.2d 500, the court overruled State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997). The Lindell court held that when a peremptory challenge is used to strike a juror, reversal of a conviction and a new trial are not required in light of the Wisconsin law on peremptory challenges and harmless error, United States v. Martinez-Salazar, 598 U.S. 304 (2000), the systemic problems resulting from the Ramos decision, and the significant steps the court has taken to address the issue of juror bias. See Lindell, 245 Wis. 2d 689, ¶ 53.

7 The court unanimously agrees that Lindell governs the present case and a new trial is not warranted.

Justice Ziegler's concurrence is the majority opinion on the issue addressed in Tody, namely, whether a circuit court has inherent authority to strike his or her immediate family member from the panel of potential jurors. Thus, Justice Ziegler's concurrence in Tody and Justice Ziegler's concurrence in the present case now represent the opinion of the majority of this court.

8 The circuit court rejected the defendant's claim of ineffective assistance of trial counsel; the court of appeals did not reach this issue. The parties stipulated, and the court agreed, that if the court of appeals' decision on the juror issue were reversed, this court would remand the claim of ineffective assistance of trial counsel to the court of appeals.

9 Lindell, 245 Wis. 2d 689, ¶ 5.

10 Wisconsin Stat. § 805.18(2) (2009-10) provides:

No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of selection or misdirection of the jury, or the 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.

All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

11 Lindell, 245 Wis. 2d 689, ¶ 5.

The court has rejected the State's argument, which has been made in prior cases. The State argues that a defendant's failure to exercise a peremptory challenge to a juror who was challenged for cause but not excused results in a waiver of the defendant's right to raise the issue of whether the juror should have been struck for cause. See, e.g., Lindell, 245 Wis. 2d 689, ¶ 117; State v. Faucher, 227 Wis. 2d 700, 569 N.W.2d 770 (1999); State v. Gesch, 167 Wis. 2d 660, 482 N.W.2d 99 (1992). Under Wisconsin case law, if a juror who should have been removed for cause is erroneously allowed to be a member of the jury, the conviction must be reversed without inquiry into harmless error even if the defendant declined an opportunity to remove the juror with a peremptory challenge. Gesch, 167 Wis. 2d at 671.

12 Lindell, 245 Wis. 2d 689, ¶ 113.

13 Id.

14 Lindell, 245 Wis. 2d 689, ¶ 113 (quoting Pool v. Milwaukee Mechanics' Ins. Co., 94 Wis. 447, 453, 69 N.W. 65 (1896)).

15 Pool, 94 Wis. at 453.

16 Lindell, 245 Wis. 2d 689, ¶ 119.

17 The Tody circuit court, like the circuit court in the present case, believed it had no legal basis for excusing the juror.

18 Although the court of appeals suggested otherwise, see Sellhausen, 330 Wis. 2d 778, ¶ 22, neither the Tody concurrences nor the Tody lead opinion rested on this court's inherent powers regarding jury selection. We need not and do not address the State's argument that only this court, not the court of appeals, has the constitutional superintending authority to declare that presiding judges must sua sponte remove their immediate family members from the panel of potential jurors.

19 Response Brief of Defendant-Appellant Sharon A. Sellhausen at 21-22 (emphasis in original).

20 See, e.g., Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 811 (1987) ("[Appointment of an interested prosecutor creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general. The narrow focus of harmless-error analysis is not sensitive to this underlying concern."); Ballard v. United States, 329 U.S. 187, 195 (1946) (when women are systematically excluded from the jury, "[t]he injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.").

21 Sellhausen, 330 Wis. 2d 778, ¶ 16.

22 State v. Ferron, 219 Wis. 2d 481, 503, 579 N.W.2d 654 (1998) (citing Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1957)). See also Lindell, 245 Wis. 2d 689, ¶ 49.

23 Sellhausen, 330 Wis. 2d 778, ¶ 15.

24 Id., ¶ 20.

25 See Lindell, 245 Wis. 2d 689, ¶ 115 ("A defendant is entitled to a jury which will insure him [or her] a fair and impartial trial, but not to an unlimited choice in an attempt to secure a jury which will acquit him [or her]." (quoting Pollack v. State, 215 Wis. 200, 207-08, 253 N.W. 560 (1934), overruled in part by State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965)). See also State v. Ramos, 211 Wis. 2d 12, 33, 564 N.W.2d 328 (1997) (Crooks, J., dissenting) ("[Peremptory challenges are not intended to enable the state or the defendant to select particular jurors who they think may be more favorable to their side; rather, peremptory challenges are intended to be a means to the end of ensuring the selection of an unbiased jury.").

26 See ¶¶ 16-17, supra.