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Date: 03-31-2017
Case Style:
State of Wisconsin v. Jeffrey P. Lepsch
|
Jeffrey Lepsch convicted of homicide
Case Number: 2014AP2813-CR
Judge: Shirley Abrahamson
Court: SUPREME COURT OF WISCONSIN
Plaintiff's Attorney:
Lynn Shaeffer, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general
Defendant's Attorney: Steven W. Zaleski
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A jury found Lepsch guilty of killing two individuals
during an armed robbery in La Crosse, Wisconsin.2 Lepsch was
sentenced to consecutive life terms in prison. Before this
court, Lepsch argues he is entitled to a new trial due to
alleged errors pertaining to jury selection and the jury Lepsch
received.
¶3 More specifically, Lepsch presents the following
arguments: (1) Lepsch's right to a trial by an impartial jury
was violated because certain of the jurors in his case were
subjectively and objectively biased; (2) Lepsch's right to due
process of law was violated because of circumstances that
created the likelihood or appearance of bias and because of
alleged deficiencies in the circuit court's investigation into
and mitigation of these circumstances; (3) Lepsch's right to be
present at a critical stage of his proceedings, right to a
public trial, and right to a jury properly sworn to be impartial
were violated because the La Crosse County Clerk of Courts
administered the oath to the prospective jurors in Lepsch's case
outside of Lepsch's presence;3 and (4) Lepsch's right to receive
the proper number of peremptory strikes, to full use of those
strikes, and to have biased jurors removed for cause was
violated by the circuit court. Lepsch explains that "all of the
issues litigated in this appeal have been raised via a claim of
ineffective assistance of counsel."4
¶4 We conclude that each of Lepsch's claims fails, and
that he is not entitled to a new trial. Consequently, we affirm
the decision of the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶5 On September 15, 2012, police were dispatched to a
store in La Crosse, WI. The bodies of P.P. and A.P had been
discovered by a family member at the store; each had been shot
in the head. There were also signs of a robbery.
¶6 On October 10, 2012, Lepsch was charged with two
counts of first-degree intentional homicide, contrary to Wis.
Stat. § 940.01(1)(a). The following day, an amended complaint
was filed additionally charging Lepsch with armed robbery with
use of force, contrary to Wis. Stat. § 943.32(1)(a) and (2), and 3 As will be explained, this oath should not be confused with the oath administered to the jury Lepsch ultimately received prior to the commencement of his trial. That is, Lepsch is challenging the administration of the oath to the prospective jurors prior to questioning of the prospective jurors by the court, the State, and Lepsch's counsel; he does not dispute that the jury chosen was thereafter properly sworn by a clerk in Lepsch's presence in court at the start of his trial.
4 But see infra n.5.
No. 2014AP2813-CR
4
possession of a firearm by a felon, contrary to 941.29(2)(a).
On October 25, 2012, at Lepsch's arraignment, Lepsch stood mute
and the circuit court entered pleas of not guilty on his behalf.
A few months later, the case was set for a jury trial.
¶7 Jury selection in this case proceeded as follows.
Prior to the date of jury selection, prospective jurors
completed paper questionnaires asking dozens of questions on
subjects ranging from the jurors' favorite television shows to
the jurors' views on various legal propositions. These
questionnaires required a signature under the following
statement: "I affirm, under penalty of perjury, that I have
given complete and honest answers to all of the questions
above." The parties agreed to excuse about two dozen
prospective jurors at least in part on the basis of the answers
provided. On July 23, 2013, jury selection itself occurred.
Prospective jurors gathered in the "jury assembly room," where
they were sworn by the La Crosse County Clerk of Courts. The
parties seem to agree that neither Lepsch nor his attorneys were
present when the oath was administered.
¶8 Certain prospective jurors were then brought into the
courtroom for individual questioning in the presence of the
court, Lepsch, and his attorneys. A number of prospective
jurors were excused. Next, remaining prospective jurors were
brought into the courtroom as a group and questioned in the
presence of the court, Lepsch, and his attorneys. Finally,
Lepsch and the State were each given six peremptory strikes and
a panel of 15 jurors was selected.
No. 2014AP2813-CR
5
¶9 From Wednesday, July 24, 2013, to Friday, July 26,
2013, and from Monday, July 29, 2013, to Tuesday, July 30, 2013,
Lepsch was tried before the jury. There is no dispute that this
jury was properly sworn by a clerk in Lepsch's presence in court
at the start of his trial. On July 30, 2013, the jury returned
a verdict of guilty as to all counts charged. On September 3,
2013, the circuit court sentenced Lepsch to two life sentences
without extended supervision for the homicide charges, a 40-year
term of imprisonment for the armed robbery charge, and a 10-year
term of imprisonment for the possession of a firearm by a felon
charge, all to be served consecutively. On September 4, 2013,
the judgment of conviction was entered.
¶10 On November 25, 2013, Lepsch filed a notice of intent
to seek postconviction relief, and on July 15, 2014, Lepsch
filed a postconviction motion for a new trial. In his motion he
challenged the convictions asserting that he received
ineffective assistance of counsel. On September 4, 2014, the
circuit court held a Machner hearing on Lepsch's motion. See
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979). On November 14, 2014, the circuit court denied Lepsch's
motion.
¶11 On December 2, 2014, Lepsch filed a notice of appeal.
On November 19, 2015, the court of appeals affirmed the circuit
court's judgment of conviction and order denying postconviction
relief in an unpublished, per curiam opinion. Lepsch,
unpublished slip op., ¶1.
No. 2014AP2813-CR
6
¶12 On December 4, 2015, Lepsch filed a petition for
review in this court. On May 11, 2016, this court granted the
petition.
II. STANDARD OF REVIEW
¶13 "A claim of ineffective assistance of counsel is a
mixed question of fact and law." State v. Ortiz-Mondragon, 2015
WI 73, ¶30, 364 Wis. 2d 1, 866 N.W.2d 717 (quoting State v.
Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695). We
review the circuit court's findings of fact under a clearly
erroneous standard, but independently determine the legal
question of whether counsel's assistance was ineffective. Id.
(quoting Carter, 324 Wis. 2d 640, ¶19).
¶14 We "review[] constitutional questions, both state and
federal, de novo." State v. Lagrone, 2016 WI 26, ¶18, 368
Wis. 2d 1, 878 N.W.2d 636 (quoting State v. Schaefer,
2008 WI 25, ¶17, 308 Wis. 2d 279, 746 N.W.2d 457).
¶15 Other applicable standards will be discussed below.
III. ANALYSIS
¶16 Lepsch's appeal focuses on his ineffective assistance
of counsel claim.5 Lepsch possesses state and federal 5 The nature of the arguments Lepsch raises on appeal is often unclear. Although Lepsch raises numerous constitutional claims in his brief, it is not until page 48 of that brief that Lepsch states, "Due to trial counsel's failure to preserve the issues at trial, all of the issues litigated in this appeal have been raised via a claim of ineffective assistance of counsel." Elsewhere in his brief, however, Lepsch appears to discuss issues outside of the ineffective-assistance framework. "We cannot serve as both advocate and court," and we will not develop Lepsch's claims for him. Cemetery Servs., Inc. v. (continued)
No. 2014AP2813-CR
7
constitutional rights to the effective assistance of counsel.
U.S. Const. amends. VI, XIV; Wis. Const. art. I, § 7;6 Strickland
Wisconsin Dep't of Regulation & Licensing, 221 Wis. 2d 817, 831, 586 N.W.2d 191 (Ct. App. 1998). Except where otherwise noted—— namely, where Lepsch has developed an independent claim with sufficient clarity——we do not address claims arising outside of the ineffective assistance context.
6 The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI. The Fourteenth Amendment to the United States Constitution provides in part:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1. Article I, section 7 of the Wisconsin Constitution provides:
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 (continued)
No. 2014AP2813-CR
8
v. Washington, 466 U.S. 668, 686 (1984); State v. Starks, 2013
WI 69, ¶54, 349 Wis. 2d 274, 833 N.W.2d 146. "The standard for
determining whether counsel's assistance is effective under the
Wisconsin Constitution is identical to that under the federal
Constitution." State v. Thiel, 2003 WI 111, ¶18 n.7, 264
Wis. 2d 571, 665 N.W.2d 305. "First, the defendant must prove
that counsel's performance was deficient. Second, if counsel's
performance was deficient, the defendant must prove that the
deficiency prejudiced the defense." Carter, 324 Wis. 2d 640,
¶21 (citation omitted). With regard to the first part of this
test, "[c]ounsel's conduct is constitutionally deficient if it
falls below an objective standard of reasonableness." Thiel,
264 Wis. 2d 571, ¶19 (citing Strickland, 466 U.S. at 688). With
regard to the second part of this test, "the defendant must show
that 'there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.'" Id., ¶20
(quoting Strickland, 466 U.S. at 694).
A. Impartial Jury
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.
Wis. Const. art. I, § 7.
No. 2014AP2813-CR
9
¶17 In Lepsch's first ineffective assistance of counsel
claim, Lepsch argues his attorneys were ineffective in failing
to raise jury bias issues during jury selection. As a result,
he claims nine of the jurors in his case were biased, which
denied him his right to an impartial jury under the Wisconsin
and federal constitutions. Lepsch bases this challenge on
various answers given in response to four questions on the pre
trial questionnaires completed by the prospective jurors. He
argues that his attorneys were ineffective for "failing to
sufficiently examine and challenge prospective jurors for
cause."
¶18 We now present the four questions at issue. Question
30 of the questionnaire reads as follows: "You will be hearing
testimony from several police officers in this case. Do you
think you would give police officers more credibility, less
credibility or the same amount of credibility as other witnesses
who were not police officers?" The question contained spaces
for the prospective juror to check "more credibility," "less
credibility," or "the same credibility," and asked the
prospective juror to explain his or her answer. Seven of the
twelve jurors who sat on Lepsch's case answered "more
credibility."7
¶19 Question 35 of the questionnaire contained the
following questions, among others: (1) "Have you ever expressed 7 These seven jurors were C.R., N.N., J.A., P.H., L.K., D.M., and R.F.
No. 2014AP2813-CR
10
the opinion that Mr. Lepsch was guilty?"; (2) "Do you have any
feelings at this time that you have made up your mind as to
Mr. Lepsch's guilt?"; and (3) "IF YES, would you have any
difficulty putting these feelings out of your mind if you were
chosen to be a juror?". Each question was followed by spaces
for the prospective juror to check "Yes" or "No." Four of the
twelve jurors on Lepsch's jury answered that they had expressed
the opinion that Mr. Lepsch was guilty.8 Three of these same
four jurors answered that they "ha[d] . . . feelings" that they
had made up their mind as to Lepsch's guilt.9 Each of these
three then answered that they would not have any difficulty
putting the feelings out of their mind if they were chosen to be
a juror.
¶20 Question 32 asked, "Do you have any problem with the
legal proposition that a defendant must be presumed innocent
unless and until the prosecution can prove he or she is guilty?"
And Question 34 asked a related question: "Do you think if the
state goes to the trouble of bringing someone to trial, the
person is probably guilty?" Both questions left spaces for the
prospective juror to check "Yes" or "No," and both questions
asked for the prospective juror to explain his or her answer.
One juror answered "No" to Question 32 (regarding the
presumption of innocence) but then explained his answer as
8 These four jurors were J.T., J.A., M.F., and L.K.
9 These three jurors were J.T., J.A., and M.F.
No. 2014AP2813-CR
11
follows: "In general, no. But I do not believe that this should
be the case 100% of the time. I believe that there are cases in
which there is immediate & overwhelming evidence (i.e. physical
evidence, audio/video evidence, confessions, etc.) should be
presumed guilty until trial [sic]." The same juror answered
Question 34 (relating to whether a person brought to trial is
probably guilty) as follows: "Probably? Yes. Definitely? Not
necessarily. I would hope that the courts would not bring
someone in just so they have someone to try. I would hope there
would at least be a fair amount of evidence or cause before
bringing someone in."10
¶21 Before addressing the deficiency and prejudice prongs
of Lepsch's ineffective assistance of counsel claim, we set
forth the law governing juror bias. "The United States
Constitution and Wisconsin's Constitution guarantee an accused
an impartial jury." State v. Mendoza, 227 Wis. 2d 838, 847, 596
N.W.2d 736 (1999) (citing U.S. Const. amends. VI and XIV; Wis.
Const., art. I, § 7).11 "To be impartial, a juror must be
indifferent and capable of basing his or her verdict upon the
evidence developed at trial." State v. Faucher, 227
Wis. 2d 700, 715, 596 N.W.2d 770 (1999) (citing Irvin v. Dowd,
366 U.S. 717, 722 (1961)).
10 This juror was C.R.
11 See supra n.6.
No. 2014AP2813-CR
12
¶22 "Reviewing courts are properly resistant to second
guessing the trial judge's estimation of a juror's impartiality,
for that judge's appraisal is ordinarily influenced by a host of
factors impossible to capture fully in the record——among them,
the prospective juror's inflection, sincerity, demeanor, candor,
body language, and apprehension of duty." Skilling v. United
States, 561 U.S. 358, 386 (2010). "Prospective jurors are
presumed impartial" and Lepsch "bears the burden of rebutting
this presumption and proving bias." State v. Funk, 2011 WI 62,
¶31, 335 Wis. 2d 369, 799 N.W.2d 421 (quoting State v. Louis,
156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990)). "We have
recognized three types of bias: (1) statutory bias; (2)
subjective bias; and (3) objective bias." State v. Smith, 2006
WI 74, ¶19, 291 Wis. 2d 569, 716 N.W.2d 482 (citing Faucher, 227
Wis. 2d at 716). Lepsch argues that the jurors he challenged
were subjectively and objectively biased.
¶23 Subjective bias refers to "bias that is revealed
through the words and the demeanor of the prospective juror."
Faucher, 227 Wis. 2d at 717. "[T]he circuit court sits in a
superior position to assess the demeanor and disposition of
prospective jurors, and thus, whether they are subjectively
biased." Id. at 718. Accordingly, "we will uphold the circuit
court's factual finding that a prospective juror is or is not
subjectively biased unless it is clearly erroneous." Id.
¶24 The concept of objective bias relates to the question
of "whether [a] reasonable person in the individual prospective
juror's position could be impartial." Id.
No. 2014AP2813-CR
13
Objective bias . . . is a mixed question of fact and law. "[A] circuit court's findings regarding the facts and circumstances surrounding voir dire and the case will be upheld unless they are clearly erroneous. Whether those facts fulfill the legal standard of objective bias is a question of law." Although we do not defer to a circuit court's decision on a question of law, where the factual and legal determinations are intertwined as they are in determining objective bias, we give weight to the circuit court's legal conclusion. We have said that we will reverse a circuit court's determination in regard to objective bias "only if as a matter of law a reasonable judge could not have reached such a conclusion."
Funk, 335 Wis. 2d 369, ¶30 (citations omitted) (quoting Faucher,
227 Wis. 2d at 720-21).
¶25 In order to succeed on his ineffective assistance of
counsel claim, Lepsch must prove that his attorneys acted
deficiently during jury selection and that he was prejudiced by
this performance. Our review demonstrates that none of the
jurors who sat on Lepsch's case were biased, either subjectively
or objectively, and that Lepsch was therefore not prejudiced by
the performance of his attorneys, even if the performance was
deficient in some respect (a question we need not decide).
¶26 The circuit court below explained, in denying Lepsch's
postconviction motion:
From the court's position of being able to best determine juror bias, the court is absolutely convinced that each juror was able to put any potential biases out of their minds. The court is absolutely certain that Lepsch was tried by a fair and impartial jury who decided the case based solely on the evidence before them. The court is unequivocally convinced that the jury agonized over its decision and gave Lepsch every benefit of the doubt.
No. 2014AP2813-CR
14
¶27 Lepsch cannot establish ineffective assistance because
he cannot prove either objective or subjective bias. Seven of
Lepsch's jurors stated in the questionnaire that they would give
police officers more credibility than witnesses who were not
police officers.12 Five of these jurors, however, were
specifically questioned on that answer, and the lawyers and/or
the court examined this belief and ensured that the jurors could
decide the case impartially. To take just one example,13 the
court asked R.F. the following with regard to law enforcement
officers:
[T]he question is, once they are sitting in the seat you're sitting in and they are a witness, can you judge them, the credibility, what they say based upon those things that we as human beings use as intangibles to determine people's credibility and not just cut them slack because they happen to be law enforcement?
R.F. responded, "Yes, Your Honor." The court then confirmed,
"So you can -- you can look at them as you would any other
witness?" R.F. responded, "Yes." Given our deference to the
circuit court on these types of questions, we will not displace
12 Lepsch argues that law enforcement testimony was a central part of the State's case against him. We can assume that this is true for purposes of this appeal.
13 We do not provide transcript excerpts for the questioning of each juror. However, questioning regarding the jurors' views on police credibility and the jurors' answers to the questions asked were substantially similar for purposes relevant to the issues in this case.
No. 2014AP2813-CR
15
the circuit court's conclusion that these jurors were not biased
when they sat on Lepsch's case.
¶28 J.A. and D.M. are the two jurors who were not
specifically questioned on this point. However, other aspects
of the jury selection process provide support for the circuit
court's rejection of Lepsch's claims of bias. Both J.A. and
D.M. checked "No" on their questionnaires next to the question,
"Is there any reason why you could not be impartial in this
case?" And D.M. stated elsewhere on his questionnaire, "I
believe in facts, not people." See, e.g., Griffin v. Bell, 694
F.3d 817, 823-24) (7th Cir. 2012) ("[Juror] Carel, of course,
never said that she could not be fair. At most, she indicated
that her first inclination, if faced with conflicting stories
from a police officer and a fourteen-year-old boy, would 'most
likely' be to believe the officer. . . . In this case, although
[juror] Carel expressed an initial inclination that police
officers are more credible than teenagers, she never expressed
an irrational or unshakeable bias that indicated an inability or
unwillingness to faithfully and impartially apply the law.");
United States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998)
("In the abstract, it is certainly not unreasonable for an
ordinary person to say she would generally tend to believe a
prison guard over a prison inmate. But that certainly doesn't
mean that in a given case, after hearing sworn testimony under
oath and considering all the facts and circumstances, that that
same juror would automatically believe a given guard over a
No. 2014AP2813-CR
16
given inmate. Generalized questions of the sort asked here are a
slim basis upon which to base a challenge for cause.").
¶29 Further, both J.A. and D.M. were present during
questioning of the jurors as a group. Given the general tenor
of voir dire, the prospective jurors could not have "fail[ed] to
recognize that bias in favor of law enforcement officials was
inappropriate." United States v. Lancaster, 96 F.3d 734, 742-43
(4th Cir. 1996) (reaching this conclusion in part because the
court had inquired about "bias in favor of law enforcement
officials resulting from a relationship with a relative or
friend in law enforcement"). The defense informed the
prospective jurors, "[T]here's no wrong answers, and I want you
guys to talk to me. We're after an unbiased jury here, and it's
okay to have biases. We all have them." Topics touched on
during questioning by the defense were whether the police can
make mistakes, whether it is important that law enforcement
follow procedures, whether police "ever let bias get in the way
of what they're looking for," whether "we tend to trust
professionals [including police] a little more than we should
sometimes," and how to determine whether a professional such as
a policeman "has the right training or experience."
¶30 Moreover, earlier in voir dire, the State explained to
the prospective jurors, "both sides want people who are fair,
objective," later adding:
[B]y now you've gotten some pretty good ideas through the questionnaires and all the questioning of the kind of things we want to know about people. Is there anything that anybody hasn't asked and you've just
No. 2014AP2813-CR
17
been sitting here waiting, why don't they ask me this because I really shouldn't be on this jury, but nobody's asked me why? Is there anything that we haven't asked at this point, anyone who says, I should not be here; I can't be fair; and we just haven't asked the right question yet?
There was no response. See Lancaster, 96 F.3d at 743 ("Under
these circumstances, the district court's final voir dire
question——'Ladies and Gentlemen, do you know of any reason, is
there anything at all any of you know of that would make it
difficult for you to sit as an impartial juror in this case?'——
could not have failed to elicit an affirmative response from any
member of the venire harboring a bias in favor of law
enforcement officials." (citation omitted)). Again, given the
standard of review, we are not in a position to disturb the
circuit court's judgment that no bias existed on Lepsch's jury
in this regard. Thus, even assuming Lepsch's attorneys should
have examined this matter further during jury selection in some
way, Lepsch has not proven that he was prejudiced by the
performance.
¶31 Lepsch's claims of bias regarding jurors who said they
had expressed an opinion on Lepsch's guilt or had made up their
mind as to Lepsch's guilt are also unpersuasive. Each of the
three jurors who stated "Yes" on their questionnaires when
asked, "Do you have any feelings at this time that you have made
up your mind as to Mr. Lepsch's guilt?" also stated "No" in
response to the question of whether they would have any
difficulty putting these feelings out of their minds as jurors.
All four who stated they had "ever expressed the opinion that
No. 2014AP2813-CR
18
Mr. Lepsch was guilty" were individually questioned in some
manner as to whether they could base their decisions on the
evidence; each juror verified that he or she could do so.
Lepsch has not demonstrated that the circuit court's findings
regarding bias should be overturned as to these jurors, and he
has not shown prejudice with respect to his attorneys'
questioning of these jurors.
¶32 Finally, the juror who qualified his agreement with
the presumption of innocence and who agreed that if the State
goes to the trouble of bringing someone to trial, the person is
probably guilty, was informed that he would be instructed about
the presumption of innocence and that he had to "start out with
looking as Mr. Lepsch as he is innocent," that he is "innocent
as he sits here today." The juror was asked if he was "okay
with that principle," and the juror affirmed that he was.
Again, we see no prejudice resulting from the questioning of
this juror.
¶33 Before proceeding further, we note that Lepsch takes
issue with our discussion of the law on juror impartiality,
contending that it is contrary to federal law insofar as it does
not require a "final, unequivocal" swearing by a juror that he
or she can set aside his or her beliefs and opinions and decide
the case solely on the evidence. Lepsch relies predominantly on
Patton v. Yount, 467 U.S. 1025 (1984), citing a passage
explaining that in a "federal habeas corpus case in which the
partiality of an individual juror is placed in issue," the
question before the reviewing court "is plainly one of
No. 2014AP2813-CR
19
historical fact: did a juror swear that he could set aside any
opinion he might hold and decide the case on the evidence, and
should the juror's protestation of impartiality have been
believed." Yount, 467 U.S. at 1036.
¶34 We disagree with Lepsch that Supreme Court case law14
dictates that a bright-line rule be applied in cases involving a
defendant's claim he did not receive an impartial jury. First,
it is important to consider the context of the single line in
Yount cited by Lepsch. The Supreme Court was rejecting, on
federal habeas review, the view of the court of appeals below it
that "the question whether jurors have opinions that disqualify
them is a mixed question of law and fact" such that "the
presumption of correctness due a state court's factual findings
under" federal habeas review was inapplicable. Id. at 1028-31,
1036. Its focus in that passage was not the definition of the
substantive standard, but instead the notion that application of
the relevant standard was "not one of mixed law and fact" and
that "the statutory presumption of correctness" thus applied to
the trial court's determinations. See id. at 1036-38.
14 Lepsch also cites a number of decisions issued by lower federal courts. We are not bound by these decisions. See, e.g., Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶68, 358 Wis. 2d 1, 851 N.W.2d 337 (explaining that the Seventh Circuit's constitutional analysis was not binding on this court); cf. Johnson v. Williams, 568 U.S. ___, 133 S. Ct. 1088, 1098 (2013) ("[T]he views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law.").
No. 2014AP2813-CR
20
¶35 And indeed, the Yount Court later restated the
applicable inquiry on habeas review as "whether there is fair
support in the record for the state courts' conclusion that the
jurors here would be impartial," adding,
Jurors . . . cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.
Yount, 467 U.S. at 1038-39 (emphasis added). This suggests an
amount of leeway inconsistent with the rigid rule proposed by
Lepsch. See also id. at 1039-40 ("[I]n the case of alternate
juror Pyott, we cannot fault the trial judge for crediting her
earliest testimony, in which she said that she could put her
opinion aside '[i]f [she] had to,' rather than the later
testimony in which defense counsel persuaded her that logically
she would need evidence to discard any opinion she might
have."); id. at 1039 ("We think that the trial judge's decision
to seat [juror] Hrin, despite early ambiguity in his testimony,
was confirmed after he initially denied the challenge. Defense
counsel sought and obtained permission to resume cross
examination. In response to a question whether [juror] Hrin
could set his opinion aside before entering the jury box or
would need evidence to change his mind, the juror clearly and
forthrightly stated: 'I think I could enter it [the jury box]
with a very open mind. I think I could . . . very easily. To
No. 2014AP2813-CR
21
say this is a requirement for some of the things you have to do
every day.'").
¶36 Recent Supreme Court case law supports our
understanding of Yount. In Skilling the Supreme Court explained
that "[n]o hard-and-fast formula dictates the necessary depth or
breadth of voir dire," following that statement with a quotation
from one of its earlier cases: "Impartiality is not a technical
conception. It is a state of mind. For the ascertainment of
this mental attitude of appropriate indifference, the
Constitution lays down no particular tests and procedure is not
chained to any ancient and artificial formula." Skilling, 561
U.S. at 386 (emphasis added) (quoting United States v. Wood, 299
U.S. 123, 145-46 (1936)). Finally, Lepsch does not direct us to
any Supreme Court cases explicitly applying his interpretation
of the putative test from Yount. We agree with Lepsch that a
prospective juror must be able to "set aside any opinion he
might hold and decide the case on the evidence." Yount, 467
U.S. at 1036. But, as a general matter, a circuit court need
not use or obtain any magic words in determining whether this
requirement has been met.
¶37 In sum, Lepsch has not provided sufficient reason to
upset the circuit court's determination that none of the jurors
who sat on Lepsch's case were biased, either subjectively or
objectively. Thus, even assuming that Lepsch's counsel
performed deficiently at voir dire, Lepsch has failed to
demonstrate that he was prejudiced by this performance and his
ineffective assistance of counsel claim must be rejected. C.f.,
No. 2014AP2813-CR
22
e.g., Peterson v. State, 154 So.3d 275, 282 (Fla. 2014) (per
curiam) ("Peterson cannot demonstrate prejudice because no
biased juror sat on his jury."); State v. Erickson, 227
Wis. 2d 758, 774, 596 N.W.2d 749 (1999) ("more than rank
speculation" is needed "to satisfy the prejudice prong").
¶38 Lepsch also maintains that his right to due process of
law was denied because of "circumstances that create[d] the
'likelihood or the appearance of bias,'" Peters v. Kiff, 407
U.S. 493, 502 (1972) (plurality opinion), and because the
circuit court "fail[ed] to conduct a sufficient inquiry
regarding such circumstances." Lepsch's claim is stated in
broad terms and without adequate legal development, and we
reject it. As the circuit court explained:
The court and both parties were aware that this case was going to be well-known in the community long before the trial ever began. For that exact reason, the court took extra precaution to ensure an impartial jury, beyond what it would do for most jury trials. The extensive questionnaire sent out to the jurors was used to eliminate 24 jurors who exhibited a bias indicating they could not sit as objective jurors, before they ever reported for jury duty and by the agreement of both parties. After those potential jurors had been eliminated, the potential jurors who reported were brought into the courtroom one at a time. They were questioned by the court and both parties regarding pretrial publicity, their ability to decide the case only on the evidence presented, and about any potentially problematic answers on their questionnaire. More jurors were excused during this process. Then voir dire began as it normally would.
(Footnote omitted) (citations omitted.) The circuit court's
careful administration of jury selection and the verbal in
person questioning that took place cured any possibility of the
No. 2014AP2813-CR
23
"likelihood or the appearance of bias" at least as outlined in
the arguments Lepsch has made.15 We conclude that he was not
denied due process.16
B. Administration of the Oath to the Prospective Jurors
¶39 Next, Lepsch argues that the swearing of prospective
jurors outside of his presence by the La Crosse County Clerk of
Courts violated his rights to be present at all critical stages
of a criminal proceeding, to receive a public trial, and to
receive a trial by an impartial jury. He contends that his
trial attorneys were ineffective in failing "to ensure that the
15 Lepsch makes passing reference to certain answers given by his alternate jurors. These jurors were excused prior to deliberation. Lepsch does not explain why these jurors are relevant to the inquiry, and we will not construct an argument for him. See Cemetery Servs., Inc., 221 Wis. 2d at 831.
16 It is unclear whether Lepsch means to discuss this claim in the context of ineffective assistance of counsel. He does not specifically do so (except for his general statement near the end of his brief that "all of the issues litigated in this appeal have been raised via a claim of ineffective assistance of counsel"). For example, Lepsch states, "[I]rrespective of trial counsel's performance and obligations, the trial court had an independent obligation to ensure that the voir dire in the case was conducted according to 6th Amendment principles . . . ." In any event, if Lepsch is arguing his lawyers should have objected and raised the arguments Lepsch raises now, we conclude that, even assuming deficient performance of some kind, Lepsch was not prejudiced by it because there was no denial of due process.
No. 2014AP2813-CR
24
trial court properly administered the oath to the jury venire in
Lepsch's presence."17
¶40 To be clear, Lepsch does not dispute that the jury he
ultimately received was properly sworn by a clerk in Lepsch's
presence in court at the start of his trial. See Wis. Stat.
§ 756.08 (2013-14). Instead, he is asserting alleged
deficiencies with regard to the administration of the oath to
the prospective jurors prior to questioning of the prospective
jurors by the court, the State, and Lepsch's counsel.
¶41 Lepsch's briefing essentially discusses his
constitutional rights at voir dire. We are thus able to
immediately dismiss most of Lepsch's argument because he was, in
fact, present at voir dire. Black's Law Dictionary defines
"voir dire" as "[a] preliminary examination of a prospective
juror by a judge or lawyer to decide whether the prospect is
qualified and suitable to serve on a jury," adding that
"[l]oosely, the term refers to the jury-selection phase of
trial." Voir dire, Black's Law Dictionary 1805 (10th ed. 2014).
We decline to adopt Lepsch's more expansive conception of voir
dire, according to which proceedings involving management of the 17 Other than a cursory reference to his right to be present "with counsel," Lepsch does not brief a distinct claim that he was denied the right to counsel when the prospective jurors were sworn, see, e.g. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004), or explain how we should analyze such a claim. Instead, he repeatedly focuses on his own right to be present. Thus, we do not address the question. See State v. Gracia, 2013 WI 15, ¶28 n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("[W]e do not usually address undeveloped arguments.").
No. 2014AP2813-CR
25
jury pool occurring prior to the entry of the prospective jurors
into the courtroom are given constitutional significance.
Lepsch has not sufficiently explained why voir dire encompasses
the administration of the oath to the prospective jurors any
more than it encompasses the completion of the questionnaires by
the prospective jurors prior to the start of trial.
¶42 Similarly, we reject as meritless Lepsch's contention
that the circuit court, not a clerk, was required by statute to
administer the oath. Lepsch cites Wis. Stat. § 805.08(1) (2013
14), which states that:
The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood, marriage or adoption 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.
Wis. Stat. § 805.08(1) (2013-14). In response, the State cites
Wis. Stat. § 756.001(5) (2013-14), which states that "[t]he
clerk of circuit court, if delegated by and under the
supervision of the judge responsible for administering the jury
system, may select and manage juries under policies and rules
established by the judges in that circuit court." Lepsch does
not appear to have much of a reply to this argument. Nor does
Lepsch explain how he was harmed by the putative error, other
than to point to his other constitutional claims. We dismiss
Lepsch's argument regarding the identity of the administrator of
the oath as undeveloped. See State v. Gracia, 2013 WI 15, ¶28
No. 2014AP2813-CR
26
n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("[W]e do not usually
address undeveloped arguments.").
¶43 More generally, however, Lepsch's line of argument
relating to the administration of the oath to the prospective
jurors "ignores the[] day-to-day realities of courtroom life and
undermines society's interest in the administration of criminal
justice." Rushen v. Spain, 464 U.S. 114, 119 (1983) (per
curiam). Clerks play a critical role in the daily functioning
of our court systems, and the procedures challenged by Lepsch
doubtlessly occur in courthouses throughout the State. Were we
to accept Lepsch's arguments, we would be casting doubt on the
clerks' capacity to act, as clerks routinely do, in the
summoning and preparing of prospective jurors for the circuit
courts of the State. See, e.g., Wis. Stat. § 756.04(9)(a)
(2013-14) ("Prospective juror lists; number; how
compiled. . . . During each year, the clerk of circuit court
shall provide the court with a sufficient number of names of
prospective jurors to meet the needs of the court."); § 756.05
(2013-14) ("Jury summons, when and how issued. At least 12 days
before the first day on which a jury is required to be present,
to create the jury venire, the clerk of circuit court shall
randomly select a sufficient number of prospective jurors from
the jury array created under s. 756.04 (9) who shall be summoned
to appear before the court at an appropriate time for jury
service."); § 756.06(1) (2013-14) ("Jury selection.
(1) Whenever an issue is to be tried before a jury, the clerk of
circuit court shall randomly select names from the jury venire
No. 2014AP2813-CR
27
until the desired number is obtained to create the jury
panel."); § 756.07 (2013-14) ("Insufficient jurors. When a
sufficient number of jurors cannot be obtained for a trial from
the jury venire supplied by the clerk of circuit court, the
court may order the sheriff to bring before the court persons in
the vicinity for determination by the court of their
qualification and ability to serve as jurors for the particular
trial."). We decline to do so today.
¶44 Even assuming for the sake of argument that error
existed, Lepsch still cannot succeed. We first address Lepsch's
putative right to be present. Although he does not cite any
applicable constitutional provisions, Lepsch includes a pair of
court of appeals decisions in his brief containing the
proposition that "[t]he right to be present at jury selection
is . . . protected by the Sixth and Fourteenth Amendments of the
United States Constitution and Article I, Section 7 of the
Wisconsin Constitution."18 State v. Harris, 229 Wis. 2d 832,
839, 601 N.W.2d 682 (Ct. App. 1999); see State v. Tulley, 2001
18 See supra n.6.
No. 2014AP2813-CR
28
WI App 236, ¶6, 248 Wis. 2d 505, 635 N.W.2d 807.19 Additionally,
Wis. Stat. § 971.04(1)(c) (2013-14) states that, subject to
certain exceptions, "the defendant shall be present: . . .
During voir dire of the trial jury." Wis. Stat. § 971.04(1)(c)
(2013-14).
¶45 We observe that the parties at times discuss this
claim in terms of harmless error analysis. And indeed, there is
case law supporting such an approach. See, e.g., Tulley, 248
Wis. 2d 505, ¶7 ("[D]eprivation of . . . the defendant's right
to be present . . . during voir dire is reviewed on appeal for
harmless error." (citing Harris, 229 Wis. 2d at 839-40)); Spain,
464 U.S. at 117-18 n.2 ("right to be present during all critical
stages of the proceedings" is "subject to harmless-error
analysis"). Yet, without much explanation, the parties also
address the claim as one of ineffective assistance of counsel.
¶46 We note that under a harmless error analysis, the
State would bear the burden of establishing that any error was
harmless because it stands to benefit from such an error. See,
e.g., State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816 19 The Supreme Court has explained, "The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him." United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (citation omitted); see also State v. Alexander, 2013 WI 70, ¶26, 349 Wis. 2d 327, 833 N.W.2d 126. The parties do not address this important distinction, but we need not apply it to the facts of this case given our holding.
No. 2014AP2813-CR
29
N.W.2d 270. Conversely, pursuant to an ineffective assistance
of counsel analysis, the burden would be on Lepsch to establish
ineffective assistance of counsel. See Carter, 324 Wis. 2d 640,
¶21. Nevertheless, whether the claim is addressed under
harmless error review or under the rubric of ineffective
assistance of counsel, Lepsch is not entitled to relief.
¶47 Even if Lepsch had statutory and constitutional rights
to be present at the swearing of the prospective jurors, any
error stemming from Lepsch's absence was harmless. The
La Crosse County Clerk of Courts swore in an affidavit:
I was present with prospective jurors on July 23, 2013 in the matter of State v. Lepsch . . . in the jury assembly room for jury selection. . . . Prior to having the jurors transported to the courtroom via elevator to be individually questioned, I performed the oath as required with all prospective jurors.
The circuit court below found that the prospective jurors were
indeed given the oath. Further, as discussed, Lepsch has not
demonstrated that his jury was anything less than impartial. We
agree with the State that any error was harmless, and Lepsch
does not give us reason to conclude otherwise. See, e.g., State
v. Deadwiller, 2013 WI 75, ¶41, 350 Wis. 2d 138, 834 N.W.2d 362
(quoting Martin, 343 Wis. 2d 278, ¶45) ("[A]n error is harmless
if the beneficiary of the error proves beyond a reasonable doubt
No. 2014AP2813-CR
30
that the error complained of did not contribute to the verdict
obtained.").20
¶48 For similar reasons, under an ineffective assistance
of counsel analysis, we conclude that Lepsch's attorneys'
failure to object to Lepsch's absence at the swearing of the
prospective jurors did not prejudice21 Lepsch even if this
failure constituted deficient performance. Thiel, 264
Wis. 2d 571, ¶20 ("In order to demonstrate that counsel's
deficient performance is constitutionally prejudicial, the
defendant must show that 'there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
20 With regard to this harmless error analysis, on the last page of his reply brief Lepsch directs the court to his discussion of "actual prejudice" on page 43 of his brief-inchief. However, page 43 of his brief-in-chief discusses "actual prejudice" with regard to his public trial argument. As will be shown, these claims of prejudice fail. They likewise do not establish that reversal is required under a harmless error analysis. State v. Deadwiller, 2013 WI 75, ¶41, 350 Wis. 2d 138, 834 N.W.2d 362 (quoting State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270).
21 Although Lepsch combines all of his constitutional claims relating to administration of the oath together for purposes of his argument pertaining to ineffective assistance of counsel and argues that "the failure to properly administer the oath to prospective jurors amounted to structural error," he does not argue that we should presume prejudice with regard to this specific error. Instead, we understand Lepsch to argue that structural error arose with regard to violations of his rights to an impartial jury and to a public trial. We discuss these claims elsewhere in this opinion.
No. 2014AP2813-CR
31
is a probability sufficient to undermine confidence in the
outcome.'" (quoting Strickland, 466 U.S. at 694)).22
¶49 Second, we conclude that, contrary to Lepsch's
contention, Lepsch has forfeited his claim that the swearing of
prospective jurors outside of his presence violated his right to
receive a public trial by failing to raise an objection below.
"The Sixth Amendment to the United States Constitution provides
an accused the right to a public trial . . . . The Supreme Court
has determined that the public trial right is applicable to the
states based on its incorporation into the Fourteenth
Amendment."23 State v. Pinno, 2014 WI 74, ¶40, 356 Wis. 2d 106,
850 N.W.2d 207 (citing Presley v. Georgia, 558 U.S. 209, 211-12
(2010) (per curiam)). In Pinno we "decline[d] to allow
defendants who failed to object to the closure of a courtroom to
raise that issue for the first time after the trial is over,"
and concluded that "the Sixth Amendment right to a public trial
may be forfeited when a defendant knows that the judge has
ordered the public to leave the courtroom but does not object."
Pinno, 356 Wis. 2d 106, ¶63.
¶50 Lepsch argues Pinno is inapposite because "[a]t no
time during the proceedings did the trial court inform Lepsch
that the oath to the prospective jurors would be administered in 22 We decline to address, as undeveloped, Lepsch's aside that the administration of the oath violated SCR ch. 71 ("Required Court Reporting"). See Gracia, 345 Wis. 2d 488, ¶28 n.13.
23 See supra n.6.
No. 2014AP2813-CR
32
the 'jury assembly room' by the clerk rather than the judge in
open court." We agree with the statement of the court of
appeals: "Clearly, Lepsch was aware at the time of the jury voir
dire that the oath had not been administered to the jury venire
in his presence in open court. Lepsch has not provided any
support for his assertion that he was unaware of the manner in
which the oath had been administered to the jury venire at the
time of voir dire." Lepsch, unpublished slip op., ¶7.24
¶51 Lepsch argues Pinno should not be applied because
"Lepsch can show actual prejudice." Lepsch argues that "[t]o
the extent that the administration of the oath was defective,
which Lepsch maintains it was, it precluded him from receiving a
trial by an impartial jury." It is not clear what Lepsch means
by this line of reasoning given that Pinno's discussion of
prejudice occurred in the ineffective assistance of counsel
context, see Pinno, 356 Wis. 2d 106, ¶¶81-91, and Lepsch
seemingly makes this argument independent of any ineffective
assistance of counsel claim.
¶52 In any event, the argument cannot succeed because the
manner of the administration of the oath did not "preclude[]
[Lepsch] from receiving a trial by an impartial jury." Lepsch
states that "[i]f a juror is not sworn or not sworn properly,
then that juror cannot be deemed to be an 'impartial' juror for 24 In fact, at least before this court, Lepsch does not appear to specifically assert that he was unaware of the manner in which the oath had been administered——he simply states he should have been provided notice.
No. 2014AP2813-CR
33
the 6th Amendment or Article 1, Section 7 [of the Wisconsin
Constitution]." But this case does not involve prospective
jurors who were not sworn, as the affidavit of the La Crosse
County Clerk of Courts confirms. And Lepsch does not explain
why the two potential defects he identifies——that the oath was
administered by a clerk rather than the circuit court and that
Lepsch was absent at the administration of the oath——means that
the jury was not "sworn properly" for purposes that would be
relevant to the impartiality of his jury. In other words,
Lepsch's statement that the manner of administration of the oath
meant that his jury was not impartial is simply conclusory.25
Without more, we are unable to conclude that Lepsch's jury was
not impartial. Accordingly, we apply Pinno and conclude that
Lepsch's claim is forfeited.26 25 If Lepsch means to suggest that other defects existed, he does not identify them.
26 Lepsch adds, at the end of his argument, that "[I]n addition to the prejudice caused immediately to Lepsch by the public trial violation, prejudice also existed as to the public at large and the media, both of which had an obvious and compelling interest in maintaining an open court." This is an argument that implicates the First Amendment, among other sources of law, see State v. Pinno, 2014 WI 74, ¶70, 356 Wis. 2d 106, 850 N.W.2d 207, and requires greater development before we will consider it. It is unclear, for instance, how Lepsch's statement fits into his general argument and why the proposition he recites would require us to determine that he had not forfeited his claim. We do not address it further. Cemetery Servs., Inc., 221 Wis. 2d at 831 ("Constitutional claims are very complicated from an analytic perspective, both to brief and to decide. A one or two paragraph statement that raises the specter of such claims is insufficient to constitute a valid appeal of these constitutional issues to this court.").
No. 2014AP2813-CR
34
¶53 Having concluded that Lepsch's claim is indeed
forfeited, we proceed to Lepsch's contention that his attorneys'
failure to "ensure that the trial court properly administered
the oath to the jury venire in Lepsch's presence constituted
ineffective assistance of counsel." With regard to the
prejudice prong of the analysis, Lepsch's argument consists of
two sentences. First, "In terms of prejudice, Lepsch suffered
actual prejudice in that an improperly sworn jury did not and
could not constitute an impartial jury." We have already
rejected this argument. Second, "In the alternative, this Court
should presume prejudice given that the failure to properly
administer the oath to prospective jurors amounted to structural
error." We read this vague argument to refer back to Lepsch's
earlier argument: "[T]he improper administration of the oath
created two different structural errors. The first directly
pertained to Lepsch's right to a public trial and the second
pertained to Lepsch's right to an impartial jury." Because we
have concluded that Lepsch's right to an impartial jury was not
violated by the administration of the oath by the clerk outside
of his presence, we need only address ineffective assistance as
it pertains to Lepsch's first claim related to his right to a
public trial.
¶54 In Pinno we concluded that a presumption of prejudice
was not appropriate in cases involving "the denial of the right
to a public voir dire." Pinno, 356 Wis. 2d 106, ¶85. Below,
the court of appeals remarked that Lepsch had "not developed an
argument distinguishing the claimed structural errors in this
No. 2014AP2813-CR
35
case from the errors in Pinno, id., ¶¶83–86, which were deemed
not to give rise to a presumption of prejudice." Lepsch,
unpublished slip op., ¶8. Lepsch has not altered his approach
before this court. Therefore, we reject his argument. Finally,
we note that Lepsch has not demonstrated that he was prejudiced
in any other way by his attorneys' failure to object to the
manner of the administration of the oath. We conclude that he
was not denied the effective assistance of counsel with regard
to this claim.27
C. Peremptory Strikes
¶55 Finally, Lepsch argues that the circuit court's
failure to award him the proper number of peremptory strikes,
along with its failure to strike certain jurors for cause,
violated his rights to due process of law and to an impartial
jury. Lepsch argues that he was given six peremptory strikes
rather than the seven to which he was entitled, and that he was
forced to exhaust his strikes on jurors who should have been
dismissed for cause, such that he was unable to dismiss the
jurors who actually sat on his jury. He contends that his
attorneys were ineffective in failing to object to receiving an
27 Additionally, we reiterate our earlier rejection of Lepsch's argument that voir dire encompasses the administration of the oath to the prospective jurors in the first place. He has not adequately explained why the administration of the oath to the prospective jurors in the jury assembly room, if not part of voir dire, would nevertheless violate his right to a public trial.
No. 2014AP2813-CR
36
incorrect number of peremptory strikes and in failing to
challenge certain jurors for cause.
¶56 There seems to be no dispute that both Lepsch and the
State were entitled to seven peremptory strikes under the law
but were only given six each. See Wis. Stat. § 972.03 (2013
14). Nevertheless, we conclude, again, that even if Lepsch's
attorneys performed deficiently in not raising the appropriate
objections and challenges, Lepsch was not prejudiced by the
performance.
¶57 As has been stated, Lepsch has not shown that any of
his jurors were biased. With regard to Lepsch's complaint that
he was entitled to an additional peremptory strike, this case is
therefore not unlike Erickson, where both the State and the
defendant were granted four peremptory strikes rather than the
seven to which they were entitled. Erickson, 227 Wis. 2d at
762. Analyzing the defendant's ineffective assistance of
counsel claim, we "decline[d] to presume prejudice every time
there [was] a denial of an equal number of peremptory strikes to
both the defense and the prosecution" and where "[t]here [was]
little doubt that [the defendant] was judged by an impartial
jury." Id. at 761, 777. We then concluded that a determination
that actual prejudice existed was inappropriate: "In the end, we
can do no better than speculate on what would have been the
result of [the defendant's] trial had the circuit court not
erred, which is also the best that Erickson can offer." Id at
774. The same analysis applies in this case.
No. 2014AP2813-CR
37
¶58 Second, assuming Lepsch was forced to use peremptory
strikes on jurors who should have been challenged for cause, the
error did not in fact result in a biased juror sitting on
Lepsch's jury. Consequently, the ineffective assistance claim
Lepsch has made28 fails. See State v. Traylor, 170 Wis. 2d 393,
28 For the most part, Lepsch's argument hinges on his belief that biased jurors sat on his jury. However, Lepsch summarily remarks, citing State v. Sellhausen, 2012 WI 5, 338 Wis. 2d 286, 809 N.W.2d 14, that "[w]here a defendant is forced to use most or all of his peremptory strikes to strike jurors who should have been properly excused by the trial court for cause, the error is harmful." Sellhausen's discussion of this point in turn cited to State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223. See Sellhausen, 338 Wis. 2d 286, ¶¶17-18. However, Lepsch fails to note that Lindell examined whether "[t]he substantial rights of a party are . . . affected or impaired when a defendant chooses to exercise a single peremptory strike to correct a circuit court error," and stated it was "not called upon here to evaluate other situations." Lindell, 245 Wis. 2d 689, ¶113 (emphasis added); see also id., ¶119 (noting the State's concession that "reversal might be appropriate when a circuit court judge . . . makes errors that force a defendant to use most or all of his or her peremptory strikes" (emphasis added)). In other words, the extent to which the propositio of law cited by Lepsch is settled is not at all clear.
Traylor cannot prove prejudice unless he can show that the exhaustion of peremptory
challenges left him with a jury that included an objectionable
or incompetent member. Wisconsin's longstanding rule is that
where a fair and impartial jury is impaneled, there is no basis
for concluding that a defendant was wrongly required to use
peremptory challenges." (citation omitted)).
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