# State v. Eckert

> Court of Appeals of Wisconsin · July 23, 1996 · 203 Wis. 2d 497

URL: https://www.frixlaw.com/law-library/cases/9689396

## Case

- **Full name:** State of Wisconsin, Plaintiff-Respondent, v. Thomas E. Eckert, Defendant-Appellant
- **Court:** Court of Appeals of Wisconsin
- **Decided:** July 23, 1996
- **Citations:** 203 Wis. 2d 497; 553 N.W.2d 539; 1996 Wisc. App. LEXIS 916
- **Precedential status:** Published
- **Opinion:** Dissent by Schudson
- **Judges:** Wedemeyer, Sullivan, Schudson
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689396

## How later opinions describe it (automated extraction)

- holding that the "right to request a lesser-included offense instruction is neither a constitutional nor a fundamental right," and the "decision of whether to request a lesser-included offense instruction is a complicated one involving legal expertise and trial strategy"
- holding that client “does not receive ineffective assistance where defense counsel has discussed with the client the general theory of defense” and makes strategic decisions in furtherance of that strategy
- noting that the proposition contained within the 1980 ABA commentary does not contain any citation to authority and observing that the decision whether to request lesser included instruction is “a complicated one involving legal expertise and trial strategy”
- holding that a newly discovered evidence claim fails unless it meets all of the requirements
- holding that all five elements are required

## Opinion text

SCHUDSON, J.
(dissenting). We need only reach the issue of jury polling because, under this court's recent decision in State v. Yang, 201 Wis. 2d 721 , 549 N.W.2d 769 (Ct. App. 1996), counsel's performance was deficient and requires a new trial.
In Yang, this court "decline [d] to hold that counsel's failure to inform a defendant of the right to an individual polling is, in itself, deficient performance." Yang, 201 Wis. 2d at 740-741 , 549 N.W.2d at 776-777 (emphasis added). This court explained:
When the trial court reads the verdict, it may ask the jurors as a group, as it did in this case, if it is the verdict of each one.
*522 We conclude the better rule is that when defense counsel is present at the return of the jury verdict and does not request an individual polling, whether counsel's performance is deficient depends on all the circumstances, not simply on whether counsel explained to the defendant the right to an individual polling.
The relevant circumstances in this case are that the court read the standard jury instruction on a unanimous verdict before the jury began its deliberations. The jurors answered affirmatively when the court read their verdict and asked if it was their verdict by raising their hands to so indicate.
Id., 201 Wis. 2d at 741-742 , 549 N.W.2d at 777 . Thus, in Yang, because the trial court collectively polled the jury, counsel's failure either to inform his client of the right to individual polling or to request individual polling did not require a new trial.
Under Yang, what are "[t]he relevant circumstances" in this case? — (1) an uninformed defendant; (2) no individual polling; and (3) no collective polling. That's all. Although Yang and the majority in this case also mention that the respective trial courts provided the standard jury instruction on unanimity, neither Yang nor the majority suggests that this instruction somehow salvages what otherwise would be counsel's deficient performance. Indeed, were that so, virtually all jury polling issues would vanish simply because the standard unanimity instruction is given in every criminal case. Under Yang, the unanimous verdict jury instruction, standing alone, does not trump the other circumstances.
Citing State v. Behnke, 155 Wis. 2d 796 , 456 N.W.2d 610 (1990), Yang reiterates that "[t]he right to an individual polling of the jury is a significant right because it is a means to test the uncoerced unanimity *523 of the verdict." Yang, 201 Wis. 2d at 741 , 549 N.W.2d at 777 . Yang may have somewhat softened the protection of that right by allowing collective polling to substitute for individual polling. Yang, however, does not retreat from the settled proposition that a defendant's right to poll the jury, if not waived, is absolute and its denial requires reversal. State v. Wojtalewicz, 127 Wis. 2d 344, 346 , 379 N.W.2d 338, 339 (Ct. App. 1985); Behnke, 155 Wis. 2d at 802-803 , 456 N.W.2d at 612-613 . Indeed, Yang solidifies that proposition by applying Behnke , where counsel was not present when the jury returned its verdict, to a case where counsel was in court.
Defense counsel neither informed Eckert of his right to poll the jury nor requested that the jury be polled. It is undisputed that had Eckert known of his right to poll the jury, he would have requested jury polling. It is undisputed that the jury was not polled, individually or collectively. It is inescapable, therefore, that if we apply Behnke and Yang, a new trial is required. It is equally inescapable that the majority's spin of Yang turns away the right to jury polling. Accordingly, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689396. Public record. Not legal advice.