PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
June 15,
2000
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If
published, the official version will
appear in the bound volume of the Official
Reports.
A party may file
with
the Supreme Court a petition to review an adverse decision by the
Court of Appeals.
See
Wis. Stat.
§808.10
and Rule 809.62.
No. 99-1262-CR
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
I
State of Wisconsin,
Plaintiff-Respondent,
v.
Marquis O.
Gilliam,
Defendant-Appellant
APPEAL from a judgment of the circuit court for
Milwaukee
County: LAURENCE GRAM, Judge. Affirmed .
Before Eich, Vergeront and Roggensack, JJ.
¶1. VERGERONT, J.This appeal raises a single issue:
whether the circuit court
erred in denying defense counsel's motion to remove a juror for
cause on the ground of
subjective bias. Marquis Gilliam seeks reversal of the judgment
of conviction for
first-degree intentional homicide while using a dangerous weapon
in violation of Wis. Stat.
§§940.01(1) and 939.63(3), contending that he should
not have had to use a
peremptory strike to remove Juror Marc Hagen from the jury,
because Hagen's answer to
defense counsel's question showed manifest bias. We conclude the
trial court's finding that
defense counsel failed to establish that Hagen was subjectively
biased is not clearly
erroneous, and we therefore affirm.
BACKGROUND
¶2. After the prospective jurors were sworn and each had
given personal
background information, the court informed them of the charge
against Gilliam: causing
death with intent to kill while armed with a dangerous weapon.
The court questioned the
jurors on their ability to understand and follow various
instructions and explained the law on
the rights of the accused. The court also inquired into the
jurors' acquaintance with persons
involved in the trial and their familiarity with the case.
Following the prosecutor's
questioning, the defense counsel began his voir dire, which
included explaining to the jury
that the case involved an incident at an after-hours club; the
man who died was a bouncer; he
died from gunshot wounds, having been shot four times; and
self-defense was an issue in the
case. This exchange then occurred:
[DEFENSE COUNSEL]: You're going to obviously
find out
something based on what I just told you. That Marquis Gilliam
had a gun. Is there anyone
on the jury panel who feels that the fact that he had a gun with
him when this happened
means that he must be guilty of some sort of criminal
offense?
[DEFENSE COUNSEL]: Yes? Yes, Mr. Peritz. You think the
fact that he had a
gun makes him guilty of a crime?
JUROR PERITZ: Yes, I do.
[DEFENSE COUNSEL]: The crime is -- I just have to follow
up. Given that
that's how you feel and recognizing that the charge here is a
homicide charge, first degree
intentional homicide, do you -- And that's the only charge.
You're only going to be talking
about a homicide charge in this case.
Do you feel that you shouldn't be sitting as a juror in
this case and do you think
that you can listen to the evidence on that charge, a homicide
charge, and put aside your
feelings on the [sic] whether he's guilty of a gun offense just
for having a gun? It's a
difficult question?
JUROR PERITZ: I'm not sure because of the fact that he
wasn't protecting
himself. I'm assuming he did not live there.
[DEFENSE COUNSEL]: It's an after hours club. Nobody
lived there.
JUROR PERITZ: Right.
[DEFENSE COUNSEL]: Okay.
JUROR PERITZ: I'd be apprehensive to answer yes to
that.
[DEFENSE COUNSEL]: All right. The question is -- And I
appreciate your
honesty because that's the purpose of this is to, you know -- Do
you think -- and I can't
answer this for you. You're the only one who can answer for
yourself. Do you -- Does that
fact by itself mean that you then would have difficulty following
the judge's instruction
saying the State has to prove the elements of this offense beyond
a reasonable doubt? Could
you fairly do that, or does your honest feeling, just the fact
that he was there with the gun,
create in your mind a presumption of guilt or --
JUROR PERITZ: I believe I'd find him guilty.
[DEFENSE COUNSEL]: Is there anyone on the jury panel that
feels the same
way?
....
[DEFENSE COUNSEL]: ... Mr. Hagen ... You would answer the
question the
same way as Mr. Peritz?
JUROR HAGEN: You shouldn't carry a gun in your pocket
anyway. It's illegal.
I own guns. I own a whole collection, but I don't carry
them.
[DEFENSE COUNSEL]: So your answer would be the same as
Mr. Peritz?
JUROR HAGEN: Probably.
[DEFENSE COUNSEL]: Anyone else? Mr. Vogel?
JUROR VOGEL: If he had a license to carry a concealed
weapon --
[DEFENSE COUNSEL]: There are no such licenses in
Wisconsin. It's agreed he
did not have a license.
JUROR VOGEL: Then he shouldn't have been carrying a
gun.
[DEFENSE COUNSEL]: I understand that. Mr. Peritz was
very honest, and he
said that fact would cause him to think that Mr. Gilliam was
guilty of a crime and, therefore,
he'd be more likely to vote guilty in this case. Do you feel the
same way?
JUROR VOGEL: I don't know. I think I'd have to hear the
evidence.
[DEFENSE COUNSEL]: Okay.
JUROR SIMONS: It was like a two-part question. You asked
if I thought it was
illegal for him to be carrying a gun. Yes, I do. But I think I
could listen to the evidence
that's applied and reason from that. Follow the judge's
order.
[DEFENSE COUNSEL]: Okay. We agree that, yeah, he
committed that crime.
Now, we are here to try the homicide. You'll listen to the
evidence and the law on the
homicide charge?
JUROR SIMONS: Okay.
[DEFENSE COUNSEL]: Who on the jury panel agrees with Ms.
Simons?
JUROR HARPER: What was the question?
[DEFENSE COUNSEL]: Ms. Simons said she may think he's
guilty of a crime for
having the gun, but she'd view the facts and the evidence on a
homicide case independently.
One doesn't make him being guilty of -- One doesn't make him
being guilty of the
other.
JUROR HARPER: May I ask a question of you?
[DEFENSE COUNSEL]: Sure.
JUROR HARPER: If it's not a crime to carry a gun -- Are
you asking us do we
think he's wrong to carry a gun? Is that leading us to say he's
doing something wrong when
it's wrong?
[DEFENSE COUNSEL]: I can't instruct you on the law.
JUROR HARPER: Well, you just did.
[DEFENSE COUNSEL]: All right. If it was a crime to carry
a gun --
JUROR HARPER: That's hypothetical. Is it or is it
not?
[DEFENSE COUNSEL]: Well, the judge -- It depends on the
circumstances. That
case isn't here.
JUROR HARPER: I said "if." Is it the law or
not in
Wisconsin?
[DEFENSE COUNSEL]: It's illegal to carry a concealed
weapon, but not to have
one. But I'm -- What my concern is, is somebody on the jury
panel who thinks that,
"Hey, he had a gun and he shouldn't have had the gun and
it's probably illegal for him
to have a gun; therefore, he must be guilty of the
homicide."
JUROR HARPER: Those are two different questions. If
you're nesting one inside
the other, you're leading us to give you an answer, one, and
extrapolating from that and
asking us both. I think I --
[DEFENSE COUNSEL]: I think I follow. You're being very
precise. I
appreciate that. If he committed a gun -- Let's say we agree he
committed a gun offense by
having the gun, whatever the circumstances were. And if you
believe that's true -- We don't
dispute that. Is that -- Does that in your mind make him guilty
of the homicide?
JUROR HARPER: Have to listen to the evidence on the
homicide. Those are two
different questions. They may be somewhat related, except that
it isn't a law in Wisconsin,
about carrying a gun, unless it's concealed.
[DEFENSE COUNSEL]: What if it was concealed? If it was
concealed so,
therefore, it was a law violation.
JUROR HARPER: That's a different law. That's a homicide.
This is carrying a
gun.
[DEFENSE COUNSEL]: Exactly. That's your view of what
your job is here,
right? Who agrees with Harper? Okay. A lot of people, but not
everyone. Who doesn't
agree with Harper? Now, nobody wants to take -- Who doesn't
understand? All right, all
right. Let's -- We need to end here. Is there anybody on this
jury panel that thinks they
understand the law of self-defense?
(No response)
[DEFENSE COUNSEL]: Good. You'll follow the laws of
whatever the judge tells
you?
(No response)
¶3. Defense counsel continued with voir
dire on
other issues, and, at the completion of the questioning, the
court held a hearing in chambers
to take up motions to strike jurors for cause, including the
defense motions to remove Peritz
and Hagen. Defense counsel argued that Peritz said he was
predisposed to convict Gilliam
of homicide and Hagen agreed with Peritz. The prosecutor
responded that he was concerned
about Peritz's hearing and that defense counsel's question was
confusing and he did not think
the jurors understood. The court granted the motion as to Peritz
but denied it as to
Hagen:
THE COURT: See, I don't think that's what he
said, and I
think that's where [the prosecutor] is coming from. I think that
-- I really think that those
jurors got very confused until the one juror, I think,
straightened some people out.
However, I would grant the request. Peritz. That is the
name?
[DEFENSE COUNSEL]: Number 15. Ferd Peritz, Number
15.
THE COURT: I would grant the request. And part of it is
that I'm watching him
when some general questions were asked that might have
rehabilitated him, and he just
wasn't responding. Maybe he has a hearing problem. But I think
that, based on the record
that's been made, there is a basis for striking him for
cause.
[DEFENSE COUNSEL]: Then the same argument with Mr. Hagen,
who agreed
with --
THE COURT: Well, I don't know that it is exactly the same
argument, but I'll
listen closely to what the attorneys have to say.
[DEFENSE COUNSEL]: I reiterate the argument I made,
because I think it's the
same issue.
[PROSECUTOR]: I believe that he did not respond in a
fashion consistent with
having his mind made up and unwilling to listen to the
instruction. He was giving a
hypothetical, which is interestingly --
....
[PROSECUTOR]: Interestingly, we've been discussing with
them whether carrying
a gun is illegal, but he is charged with a crime while possessing
a dangerous weapon, which
makes it illegal. So we've actually debated something they're
not going to be instructed on
yet. We were going to instruct to a corollary on that
hypothetical. I think the whole process
has been confusing, and I'm sorry it took up as much time as he
did. I don't think Mr.
Hagen answered in a fashion in which he should be excused for
cause, and I think the Court
should deny that request.
THE COURT: Denied.
¶4. Gilliam used one of his seven
peremptory
strikes to remove Hagen, and he was not a member of the jury that
heard the case against
Gilliam and returned a guilty verdict.
DISCUSSION
¶5. A defendant's right to receive a fair trial by a
panel of impartial jurors is
guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution, and
Art. I, §7 of the Wisconsin Constitution, as well as
principles of due process.
State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770
(1999). To be
impartial, a juror must be indifferent and capable of basing his
or her verdict upon the
evidence developed at trial. Id. The requirement
that a juror be
indifferent is codified in Wis. Stat. §805.08(1).1 The statute directs that
"[i]f a juror is
not indifferent in the case, the juror shall be excused."
Id. Jurors
are presumed impartial, and the challenger to that presumption
bears the burden of proving
bias. See State v. Louis, 156 Wis. 2d 470, 478, 457
N.W.2d 484 (1990).
If the circuit court errs in failing to dismiss a challenged
juror for cause and as a result the
defendant uses a peremptory strike to remove that juror, the
defendant is entitled to a
reversal and a new trial. See State v. Ramos, 211
Wis. 2d 12, 24-45,
564 N.W.2d 328 (1997); see also State v. Ferron, 219
Wis. 2d 481,
504-05, 579 N.W.2d 654 (1998) (declining State's request to
overrule
Ramos).
¶6. The supreme court recently categorized and defined
the three types of juror
bias: subjective, objective and statutory. See
Faucher, 227 Wis. 2d at
716. The parties agree that this case presents a question of
subjective bias.
"Subjective bias" refers to the prospective juror's
state of mind and is "bias
that is revealed through the words and the demeanor of the
prospective juror."
Id. at 717. A trial court's factual finding that a
prospective juror is or is
not subjectively biased will be upheld unless it is clearly
erroneous. See
id. at 718.
¶7. Gilliam contends the record demonstrates that Hagen
is subjectively biased
because he stated he would probably find Gilliam guilty of
homicide based on the fact that he
was in possession of a gun at the time of the victim's death.
The State responds that it is not
clear from a complete reading of the record what Hagen's response
of "Probably"
means, and that, given this ambiguity and our standard of review,
we must affirm the circuit
court's decision.2
¶8. Because we are to affirm the circuit court's ruling
on subjective bias unless
it is clearly erroneous, we look first to the court's explanation
for its ruling. Although the
court denied the motion on Hagen immediately following the
prosecutor's argument without
an explanation at that time, the court's earlier comments reveal
its view that the jurors were
confused by defense counsel's questions until "the one juror
... straightened some
people out." We treat this as a finding of fact and we
conclude it is supported by the
record. We cannot agree with Gilliam that the record supports
only one reasonable
inference-that Hagen understood defense counsel intended to ask
him whether he would find
Gilliam guilty of homicide simply because he possessed a
gun.3
¶9. Defense counsel's first question to which Peritz
responded asked whether
any juror felt the fact that Gilliam had a gun meant he was
guilty of "some sort of
offense," instead of specifically referring to the
first-degree intentional homicide charge
in this case. His follow-up questions to Peritz were compound,
used shifting phraseology,
and contained digressions. He then asked Hagen whether he agreed
with Peritz only by
referring to Peritz's answer, without repeating a specific
question. Hagen's first comments
to defense counsel had to do with the illegality of carrying a
gun in one's pocket, which was
not something Peritz had mentioned; Hagen was apparently picking
up on defense counsel's
reference, in an earlier question to Peritz, to a "gun
offense just for having a
gun."
¶10. Defense counsel did not question Hagen further after
Hagen answered
"probably" to the question whether he would answer an
unspecified question the
same as Peritz did. We therefore we have no explanation from
Hagen of what he understood
defense counsel to be asking, or what he meant by his answer.
However, we can tell from
the record that at least three other jurors had questions about
what defense counsel was
asking. The next juror who spoke after Hagen commented initially
on the legality of
carrying a gun, and it was not until after Simmons said that
defense counsel was
"asking a two part question" and after Harper asked a
series of questions in an
attempt to understand what question defense counsel was posing,
that defense counsel framed
the question in a precise, complete way. We reject Gilliam's
contention that, in evaluating
the record, it is irrelevant how jurors after Hagen responded to
defense counsel's questioning
on the same topic. If other jurors had trouble understanding
what defense counsel was
getting at, it is reasonable to infer that Hagen had difficulty
as well.
¶11. After defense counsel received an answer from Harper
that showed that
Harper understood the question and could separate for himself the
issue of whether Gilliam
should have been carrying a gun from the issue whether Gilliam
committed homicide with
the gun, defense counsel asked the jurors if they agreed with
Harper. Defense counsel
observed "A lot of people, but not everyone," then
asked "Who doesn't
agree with Harper?" However, he did not indicate for the
record who was not in
agreement with Harper, although it appears from defense counsel's
immediate shift to
another topic that no one raised a hand signifying
disagreement.
¶12. We recognize that in the published cases concerning
subjective bias,
typically a juror has expressed a prejudice or predilection, and
the issue is whether the
juror's answers to follow-up questions show the juror is able and
willing to set that aside and
listen to the evidence and the instructions of the court.
See, e.g., Ferron,
219 Wis. 2d at 487-89, 498. The circuit court's superior ability
to judge the demeanor and
credibility of jurors in answering the questions is the basis for
the very deferential standard
of review of determinations of subjective bias. See
Faucher, 227 Wis. 2d
at 718. In this case the issue is different-whether the juror
has expressed a prejudice or
predilection in the first instance. However, on this issue as
well, the circuit court has a
better ability than this court to assess the juror's response.
With the complete transcript
before us and the leisure to study defense counsel's questions
and the jurors' answers, we
can understand the question defense counsel intended to
pose to the jurors.
However, the circuit court, who was there at the time and heard
defense counsel and saw and
heard the jurors, has a better vantage point than this court from
which to judge if and how
defense counsel's questions were understood by the jurors,
which is the critical
issue. In addition, the court saw which jurors raised their
hands to the questions about who
did and who did not agree with Harper, something we cannot tell
from the
record.4
¶13. We do not agree with Gilliam that because the
circuit court granted the
motion to remove Peritz, it erred in not doing the same for
Hagen. The court's comments
indicate that, while it did view the questions to Peritz as well
as to Hagen confusing, it did
not view the questioning of the two the same in all respects, and
that is supported by the
record. Defense counsel asked Peritz several questions, and
received answers from him that
gave more information about his thinking than defense counsel
received from Hagen. In
addition, the record shows the court was concerned about Peritz's
hearing, based on the
court's own observations.
¶14. Gilliam points out that the prosecutor did not
object to defense counsel's
confusing or ambiguous questions. However, the burden of
establishing a juror's bias is on
the party moving to remove a juror because of bias. See
Louis, 156 Wis.
2d at 478. In order to establish bias, the questions to the
jurors must be precise, and
ambiguities must be clarified with follow-up questions. That did
not happen with respect to
Hagen. Accordingly, we conclude the circuit court did not err in
finding that Gilliam had
not established Hagen was subjectively biased.
By the Court.-Judgment affirmed.
Recommended for publication in the official
reports.
1 Wis. Stat. §805.08(1) provides as follows:
Jurors. (1) Qualifications, examination.
The court shall
examine on oath each person who is called as a juror to discover
whether the juror is related
by blood or marriage to any party or to any attorney appearing in
the case, or has any
financial interest in the case, or has expressed or formed any
opinion, or is aware of any bias
or prejudice in the case. If a juror is not indifferent in the
case, the juror shall be excused.
Any party objecting for cause to a juror may introduce evidence
in support of the objection.
This section shall not be construed as abridging in any manner
the right of either party to
supplement the court's examination of any person as to
qualifications, but such examination
shall not be repetitious or based upon hypothetical
questions.
2 The State presents alternative arguments, but it is
unnecessary to address them.
3 We emphasize here the importance of the circuit court clearly
and fully explaining its
reasoning for finding that a juror is or is not subjectively or
objectively biased, since the
appellate court has a deferential standard of review with respect
to both these categories of
bias. See State v. Faucher, 227 Wis. 2d 700, 718-21,
596 N.W.2d 770
(1999), discussing the standard of review for each. Such an
explanation by the circuit court
may avoid appeals on the issue, will facilitate our review if
there is an appeal, and will avoid
reversals because we are unable to understand why the trial court
did what it did.
4 The court indicated it was watching Peritz when "general
questions" were
asked, and we presume it was watching the other jurors as
well.
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