“a juror’s bias or prejudice is not the type of ‘extraneous’ information or ‘outside influence’ within the rule’s exception to juror testimonial-incompetence because the rule forbids ‘an inquiry by the court into a juror’s subjective motives for voting’ on the verdict”
How later courts described this case
- “a juror’s bias or prejudice is not the type of ‘extraneous’ information or ‘outside influence’ within the rule’s exception to juror testimonial-incompetence because the rule forbids ‘an inquiry by the court into a juror’s subjective motives for voting’ on the verdict”
- WIS. STAT. § 906.06(2) reconciles "competing interests" by carving out an exception to the general rule against allowing the use of juror testimony to challenge verdicts for extraneous prejudicial information
- "Information upon which a trial court bases a sentencing-decision, as opposed to a finding of guilt, need not, of course, be established beyond a reasonable doubt." Thus, "a sentencing court may consider conduct for which the defendant has been acquitted."
- “A challenge to a judge’s right to adjudicate a matter must be made as soon as the alleged infirmity is known and prior to the judge’s decision on a contested matter.”
Written by the judges who cited it.
The opinion
SCHUDSON, J.
(concurring). While I agree that the trial court did not consider the juror's comments in any improper way, and that the trial court did not abuse its discretion in denying an adjournment to allow the defense to produce other jurors to offer their recommendations, I write separately to express my concerns about two very significant implications that, for some, may seem to flow all too freely from our decision.
*508 I.
In this case, we have affirmed the decision of the trial court that allowed and then circumscribed its consideration of a juror's comments. This is not to suggest, however, that appellate courts approve juror participation in sentencing (with the exception of decisions from states where statutory authority provides for juror involvement in sentencing capital and some other offenses). United States v. Rogers, 422 U.S. 35 (1975), and United States v. Smith, 433 F.2d 1266 (5th Cir. 1970), cert. denied, 401 U.S. 977 (1971), cited in footnote seven, do support a trial court's discretion to receive and consider sentencing recommendations from jurors. However, Rogers, Smith, and almost all other cases regarding juror sentencing recommendations, deal with written or oral comments that accompany verdicts, not prepared recommendations at a sentencing hearing. Needless to say, trial courts necessarily do receive these unavoidable and relatively spontaneous comments from jurors. I would emphasize, therefore, that these cases do not promote juror participation in sentencing.
In this case, we have not analyzed the propriety — constitutional, statutory, or practical — of allowing jurors to make prepared recommendations at sentencing hearings. I note, however, that the only two decisions that addressed the issue disapproved the practice. In State v. Byer, 394 N.E.2d 632 (Ill. Ct. App. 1979), a robbery case, the court found "no merit" in the contention "that jurors are proper witnesses at a sentencing hearing." Id., 394 N.E.2d at 642-643 . In Parker v. State, 577 S.W.2d 414 (Ark. 1979), a case in which the trial judge requested a probation officer to interview the jurors about what they thought would be a proper sentence, the Arkansas Supreme Court was "unanimously of the opinion that the jurors should not have been ques *509 tioned about their views [about what they thought to be a proper sentence], especially after they had separated." Id., 577 S.W.2d at 414 .
Whether juror participation in sentencing is good or proper is not the issue before us. However, it is important to understand that if jurors assumed, as a matter of course, that they would be able to offer recommendations at sentencings, that could influence the manner in which they would deliberate and render verdicts, resulting in potential unfairness for both prosecution and defense. For example, in a case charging multiple counts, a jury might be more inclined to render unjust "not guilty" verdicts on some, counts if jurors expected to balance that with their tough sentencing recommendations on a "guilty" count. In another case, a jury might be more inclined to render an unjust "guilty" verdict if jurors expected to balance that with their soft sentencing recommendations. In either case, a jury's understandable anticipation of its role at sentencing would be inconsistent with its required fact-finding function.
Finally, adherence to Rule 906.06(2)'s prohibition against attempting to impeach a verdict by inquiring into the nature of a jury's deliberations would be undermined by any anticipated allowance for routine juror participation in sentencing hearings. Inevitably, sentence recommendations by jurors would relate to the deliberative process. As the court in Parker warned:
the secrecy and freedom of the jury's deliberations would be jeopardized if the jurors knew in advance that they might be questioned about their reasons for their decision. There would also be the possibility, if the practice were approved, that the counsel on both sides might think it proper and advisable for them to see the individual jurors in an effort to win a favorable recommendation.
*510 Id., 577 S.W.2d at 414-415 .
Therefore, our holding today should not be interpreted as one that approves or encourages juror participation in sentencing.
HH HH
Our decision also discusses an issue that is not squarely before us when it states that "even if the trial court did consider at sentencing whether Marhal was culpable of first-degree intentional homicide although the jury returned a verdict finding him guilty of the lesser-included offense, there was no error." See maj. op. at 501 (emphasis added). While perhaps we should be more tentative in addressing a complex issue barely addressed by the parties, I would at least hasten to add that here, the terms "guilty" and "culpable" are not interchangeable. As we explain, sentencing courts quite appropriately can consider all the facts and circumstances surrounding an offense, established in the course of a trial, even when individual elements may not have been proven beyond a reasonable doubt. A court may not, however, sentence according to its desire to replace a jury's conclusion with its own, a risk that may be most serious within the context of a lesser-included offense case.
Where, as we have here, a jury returns a verdict of "guilty" on a lesser-included offense, a trial court must accept that conclusion. Not knowing the exact basis for the jury's verdict, and not knowing the exact reason for the jury's "not guilty" conclusion on the greater offense, a court must be very careful not to sentence on the basis of "facts that have been rejected by a jury's not guilty verdict" on the greater offense. U.S. v. Brady, 928 F.2d 844 , 851 nn. 11 & 12 (9th Cir. 1991). Although, as we have noted, that concept from Brady has not received *511 wide support when sentencing courts have considered conduct stemming from acquitted counts of a multi-count case, see U.S. v. Lawrence, 934 F.2d 868, 873-875 , cert. denied, 116 L.Ed.2d 323 (1991), I believe the concept still offers particularly valid caution for sentencing a lesser-included offense.
With that in mind, I would also caution sentencing courts to carefully consider the differences between two groups of conduct that, at first glance, may seem all too easily folded together in the references to State v. McQuay, 154 Wis. 2d 116 , 452 N.W.2d 377 (1990), and State v. Whitaker, 167 Wis. 2d 247 , 481 N.W.2d 649 (Ct. App. 1992). See maj. op. at 502.
McQuay stated that a sentencing court could evaluate a defendant's character in light of "evidence of unproven offenses" stemming from circumstances of dismissed counts and uncharged acts. See McQuay, 154 Wis. 2d at 126 , 452 N.W.2d at 381 . Although in some cases "unproven offenses" may be closely connected to offenses being sentenced, in other cases they may have no connection at all. Therefore, they may present a very different situation from the one in Whitaker , which allowed a sentencing court to evaluate character in light of proven conduct established in the course of the trial. See Whitaker, 167 Wis. 2d at 265 , 481 N.W.2d at 656 . Apples and oranges? Perhaps not, but to a careful sentencing court, it is at least the difference between a Cortland and a McIntosh.