Opinion
No. 99-2762-CR.
Opinion Released: November 28, 2000. Opinion Filed: November 28, 2000. This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: KITTY K. BRENNAN and MAXINE A. WHITE, Judges. Affirmed.
Charles Jones appeals from the judgment of conviction for violation of a domestic violence injunction, following a six-person jury trial, and from the order denying his postconviction motion for a new trial. He argues: (1) his conviction was obtained in violation of art. I, § 7 of the Wisconsin Constitution, because his trial was before a six-person jury under the statute subsequently declared unconstitutional in State v. Hansford , 219 Wis.2d 226, 580 N.W.2d 171 (1998); (2) Hansford should apply retroactively to provide him a new trial with twelve jurors; and (3) because he did not personally waive his right to a twelve-person jury trial, and because he challenged the six-person jury in his postconviction motion, his failure to object to a six-person jury before his trial should not be deemed a waiver of his challenge to the six-person jury.
Article I, § 7 of the Wisconsin Constitution states:
In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
(Emphasis added.)
The supreme court explained that, at the time it decided State v. Hansford , 219 Wis.2d 226, 580 N.W.2d 171 (1998), the statutory status was as follows:
Wisconsin Stat. § 756.096(3)(am) [1995-96] states: "A jury in misdemeanor case[s] shall consist of 6 persons."
The legislature enacted Wis. Stat. § 756.096(3)(am) pursuant to 1995 Wisconsin Act 427. Although § 756.096(3)(am) has been repealed, the language providing for six-person juries in misdemeanor cases is still in effect and is now codified in Wis. Stat. § 756.06(2)[(am)] (1997-98).
Id. at 229 n. 2.
¶ 2. This court concludes that the recent supreme court decision in State v. Huebner , 2000 WI 59, 235 Wis.2d 486, 611 N.W.2d 727, controls. Because the supreme court rejected the very arguments Jones now presents, this court affirms.
I. BACKGROUND
¶ 3. The facts relevant to resolution of this appeal are not in dispute. Jones was convicted in a trial before a six-person jury, under the statute mandating six-person juries in misdemeanor cases. He did not object to being tried by a six-person jury. In Hansford , however, the supreme court concluded that, under art. I, § 7 of the Wisconsin Constitution and four Wisconsin Supreme Court decisions, "the right to a 12-person jury extends to all criminal defendants, regardless of whether they are charged with misdemeanor or felony offenses." Hansford , 219 Wis.2d at 241.
¶ 4. Recently, in Huebner , the supreme court addressed the primary issue underlying Jones's appeal: whether, in the absence of an objection to a six-person jury, Hansford applies retroactively to invalidate a conviction by a six-person jury. Based on Huebner , this court concludes that because Jones did not make a constitutional objection to the six-person jury before his trial, Hansford does not invalidate his conviction.
II. DISCUSSION
¶ 5. In Hansford , the defendant had objected to the six-person jury in his case, specifically contending that the six-person misdemeanor jury statute was unconstitutional under art. I, § 7 of the Wisconsin Constitution. Hansford , 219 Wis.2d at 232. Concluding that the defendant was correct, the supreme court reversed his conviction. Id. at 243. In Huebner , however, the defendant, Huebner, did not object to the six-person jury before trial. Huebner , 2000 WI 59 at ¶ 3. Thus, in Huebner , the supreme court addressed whether Hansford applied retroactively to invalidate the conviction by a six-person jury in the absence of a defense objection to the six-person jury. Huebner , 2000 WI 59 at ¶ 5.
¶ 6. Concluding that retroactive application of Hansford was not required, the supreme court declared:
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.
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. . . .
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.
Id. at ¶¶ 17-19.
¶ 7. Huebner, like Jones in the instant case, conceded that he had made no objection to the six-person jury before trial. Id. at ¶ 8. On appeal, however, he argued that under the retroactivity analysis of the United States Supreme Court's decision in Griffith v. Kentucky , 479 U.S. 314, 328 (1987), adopted by the Wisconsin Supreme Court in State v. Koch , 175 Wis.2d 684, 694, 499 N.W.2d 152 (1993), Hansford should apply to invalidate his conviction, despite his failure to object. Huebner , 2000 WI 59 at ¶ 9. The supreme court disagreed, concluding that because Huebner had "made no constitutional objection at the trial court level," he had waived or forfeited his constitutional claim. Id. at ¶¶ 10-11.
¶ 8. Jones argues, however, that his case is distinguishable from Huebner . Jones explains that he, unlike Huebner, challenged the six-person jury in his postconviction motion. Further, Jones notes, the three-justice dissent in Huebner deemed Huebner's "objection before the circuit court, in a motion for post-conviction relief" to be sufficient to preserve the issue for appeal. Id. at ¶ 83 (Abrahamson, C.J., Bradley and Sykes, JJ., dissenting). The dissent, however, is a statement of what the law is not. State v. Perry , 181 Wis.2d 43, 49, 510 N.W.2d 722 (Ct.App. 1993). Indeed, in Huebner , the majority explicitly applied the waiver rule in rejecting Huebner's argument that it should "overturn his conviction because of a procedural defect to which he did not object at the time of trial." Huebner , 2000 WI 59 at ¶¶ 30-32 (emphasis added).
¶ 9. Still, Jones argues that because he did not personally enter a knowing, intelligent, and voluntary waiver of his right to a twelve-person jury, his conviction must be reversed. Once again, he points to the Huebner dissent, this time for its observation that "the right to trial by a twelve-person jury is a right that cannot be waived except by a defendant's personal oral or written waiver on the record." Id. at ¶ 84 (Abrahamson, C.J., Bradley and Sykes, JJ., dissenting). He maintains that "[t]he reasoning of the three dissenting justices in Huebner is a sounder expression of the law as it applies to the facts of the case at bar than the reasoning of the three-justice majority in Huebner ." Once again, however, the dissenting opinion is not a statement of the law. Perry , 181 Wis.2d at 49. And once again, the Huebner majority explicitly addressed the issue Jones now presents; it rejected Huebner's challenge "that he could not forfeit his right to a twelve-member jury in the absence of an express, personal waiver." Huebner , 2000 WI 59 at ¶¶ 15-26 (emphasis added).
By the Court. — Judgment and order affirmed.
This court acknowledges that two of the issues Jones presents — whether, in the absence of an objection before trial, a postconviction motion challenging a six-person jury preserves the issue for appeal, and whether, in the context of a challenge to a six-person jury, a personal waiver of a twelve-person jury is required to constitute waiver — were decided by a 3-1-3 divided supreme court. State v. Huebner , 2000 WI 59, 235 Wis.2d 486, 611 N.W.2d 727. This court also acknowledges that neither of those issues was addressed in the concurring opinion. Id. at ¶¶ 37-73 (Prosser, J., concurring). Accordingly, this court appreciates that the instant appeal may merit further review.