“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.”
Justice N. Patrick Crooks
The ability of all jurors to understand English is necessary to satisfy the requirements of secs. 756.02 and 756.04, and reversal is required when a juror could not do that, the Wisconsin Supreme Court held on May 13.
Michael W. Carlson was charged with second-degree sexual assault as a repeater. One of the jurors, Tony Vera, had indicated on his juror qualification questionnaire that he was unable to understand the English language.
Despite his response concerning the English language, he was not disqualified by the clerk of court, as required by sec. 756.04(9). Instead, he re-mained on the panel for Carlsons case, and nothing during voir dire caused the court or the parties to question his understanding of English. Vera was not removed or struck, and sat on the jury during the trial.
During jury deliberations, however, the jurors sent a note to the judge, stating that they did not believe that Vera understood the trial proceedings.
The court decided to do nothing, and the jury ultimately returned a verdict of guilty. Carlson subsequently moved for postconviction relief. At the hearing, Vera testified that he did not understand English, and that he tried to alert the bailiff to that, but was not able to communicate.
Vera immigrated from Laos twenty years ago and became a citizen eight years ago.
During the hearing, he was able to respond in English without an interpreter, but was able to answer confusing questions only when rephrased. Vera also testified that he could not understand people who speak to him on the street, or his teachers, and could only understand some television. Vera could not describe his typical day, explain what he did at his job, or describe any television show he recently saw. Vera testified that he did not understand the witnesses or judge at trial, and was confused.
However, Vera had passed the written and oral citizenship test, obtained a drivers license, which has a written exam, could understand the Discovery Channel and football, had filled out the jury questionnaire himself, and could order off of menus written in English.
Veras supervisor at work testified that Vera often had to be shown how to perform a task, rather than just told how to do it, and he had to talk slowly, using small words, when speaking to Vera.
Other jurors testified that Vera did not understand when offered a cigarette, had difficulty ordering a sub sandwich on one occasion, and did not participate in the deliberations on any level.
“Reviewing only a printed record, the majority declares itself to be in a better position to evaluate juror Vera’s understanding of English than the circuit court judge who actually listened to, spoke with, and observed this juror during the course of the postconviction hearing.”
Justice Diane S. Sykes
Brown County Circuit Court Judge Mark A. Warpinski denied the postconviction motion, emphasizing that Vera had passed the citizenship test, and finding that Vera sufficiently understood English. Carlson appealed, but the court of appeals affirmed in a published decision, State v. Carlson, 2001 WI App 296, 249 Wis.2d 264, 638 N.W.2d 646.
The Supreme Court accepted review and reversed in a decision by Justice N. Patrick Crooks. Chief Justice Shirley S. Abrahamson wrote a concurring opinion joined by Justice Ann Walsh Bradley, and Justice Diane S. Sykes dissented.
Section 756.04(9) requires the clerk of courts to strike the name of a
ny person … whose returned juror qualification form shows that the person is not qualified for jury service under sec. 756.02. In order to satisfy sec. 756.02, a juror must understand the English language.
The court concluded that the trial court failed to ensure that the statutory requirements were followed, and failed to apply those provisions to the facts.
Dismissing reliance on the citizenship test that the lower courts emphasized, the court stated, There is no evidence in the record as to what this citizenship test actually involved. Vera also testified that the test was very easy.
The court concluded, 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.
The court then rejected the States argument that Carlson was not prejudiced by Veras presence on the jury, and therefore any error was harmless. The court concluded, 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.
What the court held
Case: State of Wisconsin v. Michael W. Carlson, No. 01-1136-CR.
Issue: Is it error to fail to remove a juror who states on the juror questionnaire that he cannot understand English?
Is the error grounds for reversal per se or subject to harmless error analysis?
Holding: Yes. Sections 756.02 and 756.04 require that such a juror be struck from the panel. The error is subject to harmless error analysis, but where the juror could not understand English, a new trial is required.
Counsel: Steven L. Miller, River Falls, for appellant; Eileen W. Pray, James E. Doyle, Madison, for respondent.
Applying the harmless error analysis adopted last term 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, the court held the error was not harmless because, 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.
Accordingly, the court reversed and remanded for a new trial.
Justice Abrahamson wrote a concurring opinion, noting that sec. 756.04(9) provides that the clerk of court shall … strike the name of any person … whose returned juror qualification form shows that the person is not qualified for jury service under sec. 756.02.
Turning to the remedy, Abrahamson wrote, The only issue is whether the error of law in failing to follow Wis. Stat. sec. 756.04(9), resulting in Veras placement on the jury, requires reversal under Wisconsins harmless error statute. On this point as well, I agree with the majority opinions bottom line that the error requires reversal, but … I disagree with the majoritys reasoning and legal analysis.
Discussing the majoritys harmless error analysis, Abrahamson noted, the majority opinion does not apply the Harvey test. The majority opinion simply states that it cannot conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.
Performing an independent harmless error analysis, Abrahamson wrote, A finding of guilt by a jury that is not competent to sit is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Consequently, we assess the error in the present case for harm by determining whether, in fact, the failure to comply with Wis. Stat. sec. 756.04(9) led to the seating of a juror not competent to sit.
Because Vera sat on the jury, even though he should have been removed pursuant to statutory mandate, the concurrence concluded that the error affected Carlsons substantial rights, was not harmless, and a new trial was required.
Justice Sykes agreed that the statutory error is subject to harmless error analysis, citing the harmless error statute, sec. 805.18(2), which explicitly encompasses errors in the selection or misdirection of the jury, and the Supreme Courts holding in State v. Coble, 100 Wis. 2d 179, 301 N.W.2d 221 (1981), that the failure to comply with the jury selection procedures of Chapter 756 is subject to harmless error analysis.
The question for the court to consider, Sykes concluded, is, whether [the error] actually resulted in the empanelment of an unqualified juror, here, a juror who in fact could not understand English.
Sykes classified this as a factual question, to be reviewed deferentially, and overturned only if the trial courts findings are clearly erroneous.
Rejecting the majoritys decision, Sykes wrote, reviewing only a printed record, the majority declares itself to be in a better position to evaluate juror Veras understanding of English than the circuit court judge who actually listened to, spoke with, and observed this juror during the course of the postconviction hearing.
Sykes added, More particularly, the majority does not hold that the circuit courts factual findings are clearly erroneous, yet it overturns them based upon its own evaluation of the evidentiary record. In addition, although it generally asserts that the circuit courts conclusion regarding Veras English language competence constituted an error of law, the majority does not identify any specific legal mistake committed by the circuit court. The only error identified is the clerks failure to strike Vera from the jury master list as required by Wis. Stat. sec. 756.04(9). But this was a clerical error; it was not a legal error by the circuit court, nor can it be viewed as an unsupported factual finding or an erroneous exercise of discretion on the part of the circuit court. Everyone agrees that there was a statutory error in procedure committed by the clerk; the point of the postconviction motion hearing (in addition to adjudicating the claimed constitutional violation), was to determine the effect of the conceded clerical error for purposes of determining remedy, that is, to determine whether the error was harmful because it resulted in an unqualified juror actually being seated on the defendants case.
Of the majoritys approach, Sykes concluded it was legally circular and ignores the applicable standard of review by failing to defer as required to the circuit courts factual findings.
Of the harmless error analysis, Sykes wrote, Having concluded that the circuit court erroneously exercised its discretion in denying the postconviction motion, it is not entirely clear why the majority proceeds to harmless error analysis. If the majority has already concluded, before conducting any analysis of the errors harmlessness, that a new trial should have been granted, then the majority has necessarily concluded that the error in question is per se prejudicial.
Sykes continued, Finally, the majority applies [Harvey and Tomlinson] in a conclusory fashion, without analysis or discussion of the nature of the error in question and the harm it is alleged to have caused. Perhaps this is because, as noted above, the majority has actually concluded that the statutory error is per se prejudicial. If that is what the majority means, then it should say so (although this would run up against the holding in Coble); if not, then there should be at least some discussion of how the harmless error rule applies to the error in question here.
In conclusion, Sykes wrote, The circuit court held that Vera understood English sufficiently to fairly and impartially hear the case, that is, that Vera was not, in fact, an unqualified juror, despite his answer on the juror qualification form. … We are required, then, to defer to the circuit courts factual findings regarding Veras English-language competence. Because the statutory error did not result in an unqualified juror being empaneled on the defendants case, it appears beyond a reasonable doubt that the error did not contribute to the verdict.
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