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Any error in excusing juror or allowing notes during closing harmless

State v. Jesus C. Gonzalez, 2015AP784-CR, 3/8/16, District 1 (not recommended for publication); case activity (including briefs)

Gonzalez raises two challenges to his conviction, at jury trial, of reckless homicide and reckless endangerment. The court of appeals finds any error harmless.

Gonzalez first takes issue with the trial court’s dismissal of one of the jurors after the close of evidence. The trial had proceeded with 13 jurors, so one alternate needed to be let go before deliberations. One of the jurors, number 24, had volunteered to the bailiff after being selected that he had prior criminal convictions. The court and parties agreed to wait until the end of trial to decide whether Juror 24 should be that alternate. (¶5).

When the end of trial came, the court inquired of the parties about Juror 24, but also about Juror 9, who had been asleep during portions of the trial. (¶6). The state requested that Juror 24 be dismissed, saying it would have struck him had it known of his convictions during voir dire. Gonzalez requested that Juror 9 be the alternate. The trial court sided with the state. (¶¶7-11).

Gonzalez argues on appeal, as he did in his postconviction motion, that the court violated his due process rights by not following Wis. Stat. § 972.10(7), which requires that alternate jurors be chosen by lot, and Wis. Stat. § 972.03, which governs peremptory strikes. The court of appeals first concludes that Gonzalez “waived” any objections to the court’s procedure because, while he did fight the dismissal of Juror 24, his argument was not that the court’s general approach of selecting a particular alternate was unlawful, but that the particular alternate selected should be Juror 9. (¶18).

Despite the finding of waiver, the court of appeals goes on to address the merits. It first decides that, though it discussed both peremptory strikes and the selection of alternate jurors, what the circuit court actually did was dismiss Juror 24 for cause. (¶¶22-27). And that, it turns out, was in error: the court failed to conduct the analysis required by State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999). (¶¶29-30).

(Beyond this, the evidence for the circuit court’s stated rationale for striking Juror 24–“incomplete candor”–is remarkably thin.) (¶¶4-5).

But no matter; under State v. Mendoza, 227 Wis. 2d 838, 863 596 N.W.2d 736 (1999), which stated that “a defendant’s rights go to those [jurors] who serve, not to those who are excused,” any error is harmless. (¶32).

The court also erred by permitting, over the objection of both parties, note taking by jurors during closing arguments, a practice squarely prohibited by Wis. Stat. § 972.10(1)(a)1. But, for a variety of fact-specific reasons that do not merit discussion here, the court finds the error harmless. (¶¶39-44). A concurrence by Judge Kessler takes the trial court to task for deciding it had “discretion” to do what the statute forbids, observing that “[w]hen a court deliberately disregards a specific procedural policy of the legislature because the court believes it has a better view of public policy, the entire judicial system is diminished in the public perception.”(¶52).

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