State v. Huebner

2000 WI 59, 611 N.W.2d 727, 235 Wis. 2d 486, 2000 Wisc. LEXIS 400

• Court: Wisconsin Supreme Court
• Decided: June 20, 2000
• Docket: 98-2470-CR
• Status: Published

Opinions

JON P. WILCOX, J.

¶ 1. The issue in this case, is whether a defendant who did not object to the use of a six-person jury at his misdemeanor trial, as authorized by Wis. Stat. § 756.096(3)(am), may obtain a new trial in reliance on State v. Hansford's holding that § 756.096(3)(am) is unconstitutional. We conclude that he may not.

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¶ 2. On February 18, 1998, the defendant Juergen Huebner was tried and convicted of two misdemeanors in the Circuit Court for Milwaukee County, Clare L. Fiorenza, Judge. The verdict in Huebner's case was rendered by a six-person jury, under the authority of Wis. Stat. § 756.096(3)(am)(l995-96).¹

¶ 3. At the time of Huebner's trial, this court had accepted the court of appeals' certification of State v. Hansford, No. 97-0885-CR, on the question of whether the six-person jury authorized by Wis. Stat. § 756.096(3)(am) violated art. I, § 7 of the Wisconsin Constitution. Huebner acknowledges that although Hansford was pending before this court at the time of his trial, he did not object to the use of a six-person jury at his trial.

¶ 4. On June 19, 1998, this court released its decision in State v. Hansford holding that the six-person jury authorized by Wis. Stat. § 756.096(3)(am) violated the jury trial guarantee of art. I, § 7 of the Wisconsin Constitution. State v. Hansford, 219 Wis. 2d 226, 243, 580 N.W.2d 171 (1998).

¶ 5. On August 25, 1998, Huebner filed a notice of appeal. Huebner's sole argument on appeal is that even though he did not object to the six-person jury at the time of his trial, Hansford applies retroactively to invalidate his conviction by a six-person jury. Huebner raises no other challenge to his conviction.

¶ 6. In an unpublished opinion, the court of appeals rejected Huebner's request for a new trial. State v. Huebner, No. 98-2470-CR, unpublished slip, op. (Wis. Ct. App. Dec. 22, 1998). The court of appeals concluded that Hansford only applies retroactively to cases in which the defendant objected to his trial by a six-person jury. Id. at 3. The court reasoned that although an increased number of jurors provides some numerical advantage to a defendant, that advantage did not warrant overturning an otherwise error-free trial when the defendant never objected to the six-person jury. Id. The court also rejected Huebner's argument that he had received ineffective assistance of counsel, because the court found no reasonable probability that a twelve-person jury, would have produced a different outcome in Huebner's case. Id. at 3 and n.2.

¶ 7. This court granted Huebner's petition for review.

II

¶ 8. Huebner concedes that he made no objection to the use of a six-person jury at his trial. Furthermore, Huebner has abandoned any claim that he received ineffective assistance of counsel. Instead, Huebner now asserts that his trial counsel's assistance was neither incompetent nor deficient. Nonetheless, Huebner claims that this court should grant him a new trial under Hansford.

¶ 9. To support this argument, Huebner relies primarily on the retroactivity analysis set forth in State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993). In Koch, this court adopted the retroactivity analysis that the United States Supreme Court applies to cases on direct appeal. Under this approach,

'[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break"'with the past.'

Koch, 175 Wis. 2d at 694 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). According to Huebner, this rule means that Hansford applies retroactively to his case.

¶ 10. The flaw in Huebner's reasoning is that unlike the defendants in Koch, Griffith, and Hansford, Huebner made no constitutional objection at the trial court level. It is a fundamental principle of appellate review that issues must be preserved at the circuit court. Issues that are not preserved at the circuit court, even alleged constitutional errors, generally will not be considered on appeal. State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997). The party who raises an issue on appeal bears the burden of showing that the issue was raised before the circuit court. Id. at 604.

¶ 11. We have described this rule as the "waiver rule,"² in the sense that issues that are not preserved are deemed waived. See id.; State v. Erickson, 221 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). The waiver rule is not merely a technicality or a rule of convenience; it is an essential principle of the orderly administration of justice. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 894-95 (1991) (Scalia, J., concur-ringXciting 9 C. Wright and A. Miller, Federal Practice and Procedure § 2472 at 455 (1971)). The rule promotes both efficiency and fairness, and "go[es] to the heart of the common law tradition and the adversary system." Caban, 210 Wis. 2d at 604-05; see also Erickson, 227 Wis. 2d at 766.

¶ 12. The waiver rule serves several important objectives. Raising issues at the trial court level allows the trial court to correct or avoid the alleged error in the first place, eliminating the need for appeal. Erickson, 227 Wis. 2d at 766. It also gives both parties and the trial judge notice of the issue and a fair opportunity to address the objection. Erickson, 227 Wis. 2d at 766. Furthermore, the waiver rule encourages attorneys to diligently prepare for and conduct trials. Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). Finally, the rule prevents attorneys from "sandbagging" errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal. Freytag, 501 U.S. at 895; see also Vollmer, 156 Wis. 2d at 11. For all of these reasons, the waiver rule is essential to the efficient and fair conduct of our adversary system of justice.

¶ 13. Huebner does not attempt to show that the constitutional issue he raises on appeal was raised below. He concedes that at the trial court level he acquiesced in the application of Wis. Stat. § 756.096(3)(am) to his case.

¶ 14. Instead, Huebner argues that he can circumvent the waiver rule because of constitutional considerations. Although the waiver rule is an important principle of judicial administration, it does not apply to all defects in trial court proceedings. Huebner points out that a criminal defendant has certain fundamental constitutional rights that may only be waived personally and expressly. State v. Albright, 96 Wis. 2d 122, 129-30, 291 N.W.2d 487 (1980). These fundamental rights include the right to the assistance of counsel, the right to refrain from self-incrimination, and the right to have a trial by jury. Id. at 130 (citations omitted). Such rights cannot be forfeited by mere failure to object.

¶ 15. Huebner argues that his right to a twelve-member jury falls within this category of rights. He cites Albright's statement that "the decision whether to request a trial by jury" is a fundamental, personal right. See Albright, 96 Wis. 2d at 130. Equating the right to a jury of twelve members with the right to a trial by jury, Huebner argues that he could not forfeit his right to a twelve-member jury in the absence of an express, personal waiver.

¶ 16. Whether Huebner's waiver of his right to a twelve- member jury could only be made expressly and personally is a question that requires the application of constitutional principles. We review such questions independently. State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999).

¶ 17. As Albright states, the right to a jury trial is a fundamental constitutional right that may only be waived personally and expressly. However, Huebner has not lost his right to a jury trial. A trial by six jurors is not equivalent to no jury trial at all. Huebner received an otherwise fair and error-free trial by six jurors.

¶ 18. Nothing in Hansford suggests that having a six-person jury trial is equivalent to having no jury trial at all. Hansford did not state that a six-person jury is procedurally unfair or that it is an inherently invalid factfinding mechanism. Hansford only held that a six-person jury trial is not consistent with the historical meaning of the right to a jury trial under art. I, § 7 of the Wisconsin Constitution. Hansford, 219 Wis. 2d at 249. The court reached this conclusion based on a careful examination of the history of the Wisconsin Constitution and this court's longstanding interpretation of the right to trial by jury in art. I, §§ 5 and 7. Id. at 242-43.

¶ 19. We find nothing in Hansford to support the conclusion that the difference between a six-person jury trial and a twelve-person jury trial is so fundamental that a six-person jury trial, which was conducted without objection under the express authority of a statute, is automatically invalid.

¶ 20. Our conclusion on this point may appear to conflict with State v. Cooley, 105 Wis. 2d 642, 645-46, 315 N.W.2d 369 (Ct. App. 1981). See also State v. Wingo, 2000 WI 31, ¶ 16, 233 Wis. 2d 467, 609 N.W.2d 162 (discussing Cooley). However, we conclude that Cooley does not apply to Huebner's case.

¶ 21. The defendant in Cooley was on trial for second-degree sexual assault. Cooley, 105 Wis. 2d at 643. During the trial, one of the jurors announced that she knew the victim's mother, who was a witness in the case. Id. at 644. The judge examined the juror and concluded that the juror was not biased. Id. The judge therefore denied the defendant's motion to strike the juror and grant a mistrial. Id. However, the court gave the defendant's attorney the option of removing the allegedly biased juror and proceeding with an eleven-member jury. Id. Faced with these options, the defendant's attorney chose to proceed with the eleven-member jury. Id.

¶ 22. On appeal, the defendant argued that because he did not personally and expressly waive his right to a full jury of twelve members, the eleven-member jury violated his constitutional right to a jury trial. Id. The court of appeals agreed and concluded that the procedural safeguards for waiver of a trial by jury apply equally to waiver of a full jury of twelve members. Cooley, 105 Wis. 2d at 645-46. Because the defendant did not personally waive his right to a twelve-member jury, the court of appeals reversed the defendant's conviction. Id. at 646.

¶ 23. Unlike the six-person jury in Huebner's case, the eleven-member jury in Cooley was not authorized by any statute. Instead, Cooley involved a statutorily deficient trial to which the defendant's attorney agreed in order to avoid an allegedly biased juror.

¶ 24. We agree with Cooley's holding that when the trial court itself has induced a defendant to give up his statutory and constitutional right to a twelve-member jury, the defendant's waiver must be made personally and expressly. See also Wingo, 2000 WI 31 at ¶ 17. However, we do not think that the same procedure must be followed when a statute authorizes a jury of fewer than twelve members. In Huebner's case, a recently enacted statute expressly authorized a six-person jury. We conclude that under these limited circumstances, Huebner's failure to object to the use of a six-person jury can function as a waiver of his constitutional objection.

¶ 25. We also reject Huebner's undeveloped argument that his trial by a six-person jury violated the procedural due process guarantees of the United States and Wisconsin Constitutions. As Hansford noted, a six-person jury trial is entirely consistent with the United States Constitution. Hansford, 219 Wis. 2d at 241-42 and n.14 (citing Williams v. Florida, 399 (1970)). In addition, Hansford's invalidation of Wis. Stat. § 756.096(3)(am) was not based on the procedural due process guarantee of the Wisconsin Constitution. Huebner has not established that his six-person jury trial provided him with insufficient due process under the federal or state constitutions.

¶ 26. We hold that the waiver rule applies to Huebner's constitutional objection to the use of a six-person jury at his trial. By failing to raise his objection to the use of a six-person jury, Huebner forfeited his right to a twelve-person jury.

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¶ 27. Of course, even when- the waiver rule applies, this court may nevertheless exercise its discretionary power to reverse the judgment and grant a new trial in the interests of justice. Huebner urges this court to exercise its discretionary power to reverse his conviction and apply Hansford to his case retroactively.

¶ 28. Appellate courts have the power to consider issues raised for the first time on appeal. See Vollmer, 156 Wis. 2d at 13; Caban, 210 Wis. 2d at 609. Under Wis. Stat. § 751.06, this court may exercise its discretion to reverse a circuit court judgment (1) whenever it is probable that justice has for any reason miscarried, or (2) whenever the real controversy has not been fully tried.

¶ 29. Huebner argues that we should reverse his conviction because his case is analogous to State v. Benzel, in which the court of appeals applied a decision of this court retroactively to reverse a defendant's conviction. State v. Benzel, 220 Wis. 2d 588, 583 N.W.2d 434 (Ct. App. 1998).

¶ 30. Benzel is not analogous to Huebner's case. Benzel was "convicted of a charge based on a statute that has been found constitutionally invalid," the drug tax stamp law. Benzel, 220 Wis. 2d at 591. Thus, Benzel's conviction represented a miscarriage of justice; his conviction was based on conduct that could not constitutionally be punished. Id. at 592. In contrast, Huebner does not challenge the statutes under which he was convicted. He asks us to overturn his conviction because of a procedural defect to which he did not object at the time of trial.

¶ 31. We agree with the court of appeals that the procedural defect that Huebner complains of does not warrant reversal of his conviction. The use of a six-person jury rather than a twelve-person jury did not undermine the fundamental integrity of Huebner's trial. See Huebner, unpublished slip op. at 3 n.l. Rather, "this case concerns the application of a constitutional principle that 'does not affect the basic accuracy of the factfinding process at trial.'" Id. (quoting Benzel, 220 Wis. 2d at 592). We conclude that the interests of justice do not require us to exercise our discretionary power to reverse Huebner's conviction.

¶ 32. Instead, the interests of justice in this case demand adherence to the rule that objections that are not raised at the trial court will not be considered on appeal. This case demonstrates why the waiver rule is essential to the efficiency and fairness of the judicial process.

¶ 33. Wisconsin Stat. § 756.096(3)(am), the statute that authorized six-person jury trials in misdemeanor cases, was enacted on June 7,1996.1995 Wis. Act 427. Thus, the statute had been in effect for only 20 months at the time of Huebner's trial. As Hans-ford explained, the statute directly contradicted this court's long-standing interpretation of the Wisconsin Constitution. See Hansford, 219 Wis. 2d at 237-241. Hansford and other defendants challenged the constitutionality of the statute, and the court of appeals certified the question in Hansford to this court on December 11,1997. This court accepted certification of Hansford certification on January 23, 1998, approximately one month before Huebner's trial.

¶ 34. Under these circumstances, Huebner had a strong basis for objecting to the constitutionality of bis trial by a six-person jury under Wis. Stat. § 756.096(3)(am). If Huebner had raised such an objection before his trial, the trial judge easily could have decided to empanel a twelve-person jury and obviate the risk that the six-person jury's verdict would be invalidated on appeal. Huebner's failure to object deprived the trial court of the opportunity to avoid this error. Proceeding on the reasonable assumption that Huebner did not object to the use of a six-person jury in his case, the trial court provided Huebner with a full, fair, and otherwise error-free trial by a six-person jury.

¶ 35. To invalidate Huebner's trial, and the trials of all those other defendants who were convicted by six-person juries under the authority of Wis. Stat. § 756.096(3)(am) without objection, would result in a tremendous waste of judicial resources. Because Hueb-ner has not established that a miscarriage of justice has occurred or that the real controversy in his case was not tried, we decline to exercise our discretionary power to reverse his conviction by a six-person jury.

IV

¶ 36. In conclusion, we hold that Huebner forfeited his right to a twelve-person jury when he failed to object to the use of a six-person jury at his misdemeanor trial. We also decline to exercise our discretionary power to reverse Huebner's conviction. We therefore affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 Wisconsin Stat. § 756.096(3)(am)(1995 — 96) provided, "[a] jury in misdemeanor cases shall consist of 6 persons." Section 756.096 has subsequently been repealed. Essentially the same language has been reenacted as § 756.06(2)(am)(1997-98). See Hansford, 219 Wis. 2d at 229 n.2 (citing WI Order 97-2 (S. Ct. Order 96-08), 207 Wis. 2d xv).

All subsequent references to the Wisconsin Statutes are to the 1995-96 volumes unless otherwise indicated.

2 We recognize that labeling this rule the "waiver rale" is imprecise. It might be better to label the rale requiring issue preservation as the "forfeiture rule," because it refers to the forfeiture of a right by silence rather than the intentional relinquishment of a known right. See United States v. Olano, 507 U.S. 725, 733 (1993); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 894-95 n.2 (1991) (Scalia, J., concurring). However, we have often referred to the issue preservation rule as the "waiver rule" in the past, and we do so here.