Criminal Procedure — right to jury trial

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — right to jury trial

Where the prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument, that elicited promise did not deny the defendant’s right to a jury trial.

“A jury convicted Frank Zdzieblowski of operating a vehicle with a prohibited blood alcohol concentration as a sixth offense and felony bail jumping. Zdzieblowski argues on appeal, as he did before the circuit court after trial, that he is entitled to a new trial based on plain error or in the interest of justice, because improper questioning of prospective jurors by the prosecutor during voir dire compromised his constitutional right to a jury trial. Specifically, Zdzieblowski argues that when the prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument, that elicited promise diminished Zdzieblowski’s constitutional right to a jury trial by eliminating the jury’s power to exercise its nullification authority. We conclude that in the circumstances of this case, and consistent with Wisconsin precedent pertaining to jury nullification, the prosecutor’s unobjected to questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice. Therefore, we affirm.”

Affirmed.

Recommended for publication in the official reports.

2014AP619-CR State v. Zdzieblowski

Dist. IV, Portage County, Flugaur, J., Kloppenburg, J.

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Remington, Christine A., Madison; Cousins, Cass, Stevens Point