Criminal Procedure — jurors

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — jurors

A defendant is not entitled to a new trial, even though one of the jurors who served had not been summoned but mistakenly appeared for his father who shared the same name and address.

“To uphold Turner’s conviction, we must find that the circuit court made an error in determining beyond a reasonable doubt that, absent the son innocently and unknowingly serving in the place of his father in the jury selection process, a rational jury would have convicted Turner. See Carlson, 261 Wis. 2d 97, ¶46. Turner argues that the confidential nature of jury deliberations prevents a court from reaching a level of certainty ‘beyond a reasonable doubt’ as to what the son’s impact was on the jury verdict. Turner’s proffer suffers a fatal flaw: He did not have the father or son testify at the postconviction hearing to show how or why he would have struck the son from the panel had he known the father was the true ‘summoned’ juror. Turner chose not to explore this issue as he had presumably read the transcript from the court’s hearing, which showed no bias or prejudice on the part of either. We uphold Turner’s conviction.”

“Like the circuit court, we do not see what difference the innocent error of the son serving instead of his father would have made on the outcome of this case. Turner may not rely on ‘merely speculative or hypothetical’ theories of how he might have been harmed by the error in seeking a new trial. See State v. Mills, 107 Wis. 2d 368, 372, 320 N.W.2d 38 (Ct. App. 1982). The circuit court did not err in finding that the ‘innocent’ error did not affect the outcome of Turner’s case.”

Affirmed.

Recommended for publication in the official reports.

2012AP297-CR State v. Turner

Dist. II, Walworth County, Carlson, J., Reilly, J.

Attorneys: For Appellant: Lindgren, Kathleen A., West Allis; For Respondent: Whelan, Maura F.J., Madison; Necci, Daniel A., Elkhorn