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Counsel wasn’t ineffective for failing to object to taking of partial verdict

State v. Michael T. Grant, 2013AP515-CR, District 2, 1/15/14; court of appeals decision (not recommended for publication); case activity

Grant was on trial for two counts of sexual assault involving two different victims. (¶¶1, 4-6). During deliberations the jury advised the court it had reached a verdict on one count but could not agree on the other. (¶8). In response the judge suggested taking the verdict the jury reached on the one count, announce it in open court, and send the jury back to deliberate on the remaining count. Trial counsel didn’t object. (¶8). The verdict was “not guilty” and that verdict, according to the defense investigator, caused an outburst in the court that visibly affected the jury. (¶¶8-9). The jury resumed deliberations and soon returned a guilty verdict on the second count. (¶9).

The court of appeals holds trial counsel wasn’t ineffective for failing to object to the taking of the partial verdict. Counsel cannot be expected to object to and argue an issue of law that is not settled, State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), and the law on partial verdicts in unsettled. There is no Wisconsin authority or precedent prohibiting the taking of partial verdicts, and the law in other jurisdictions is not clear enough that counsel should have taken notice and objected. (¶¶12-18).

As the court explains, some jurisdictions permit taking partial verdicts, though at least one court–while not holding the practice impermissible–reversed a conviction because it concluded taking a partial verdict likely prompted the jury to reweigh the evidence on the charges on which verdicts had been taken. United States v. Benedict, 95 F.3d 17 (8th Cir. 1996). The court does not, however, mention United States v. LaVallee, 439 F.3d 670, 691 (10th Cir. 2006), which criticized a trial court that directed the jury to return any partial verdicts it had reached because that “had the potential to infringe on the jury’s discretion to decide for itself what deliberative process to utilize and undoubtedly infringed on the jury’s discretion to decide when, if at all, to report a partial verdict.” If juries should have latitude to decide for themselves how to reach a verdict, jury here didn’t have that latitude, as the trial court effectively took over sua sponte the process of deciding how the jury should proceed and when to report a verdict.

For future reference, though, practitioners should note the court of appeals also quotes State v. Shomo, 609 A.2d 394, 398-99 (N.J. 1992), which held that even though partial verdicts are permissible, they are not a good idea:

Because of the potential compromise to either a defendant’s or the government’s interests, and the risk of interfering with jury deliberations, we strongly discourage routine use of partial verdicts. Nevertheless, trial courts possess the discretion to accept such verdicts absent a showing of prejudice to the defendant. Interim partial verdicts may be warranted, for example, when the jury has deliberated at length, when the charges against a defendant are rooted in unrelated facts, when the court has reason to be concerned that a juror may become ill before deliberations conclude, when there is risk of taint to the jury’s decision-making process, or when the State has indicated its intention to dismiss the unresolved counts.

The court says it “tend[s] to agree with the New Jersey Supreme Court that partial verdicts present an inherent risk of implying to the jury that the facts found in one count are correct, which it then may apply in its consideration of other counts where the facts are interlocking. When the underlying facts of the charges are interlocking, e.g., Benedict, 95 F.3d at 20, then the partial verdict is dangerous because the court is essentially involving itself in the jury’s deliberation process by accepting still-to-be deliberative facts as the foundation of a verdict in another charge.” (¶19). When the facts are not interlocking, on the other hand, as in this case, “we simply do not see the prejudice.” (¶20). Still, “since there is really very little value in announcing a partial verdict, it might be wise to heed the suggestion of the New Jersey Supreme Court and avoid partial verdicts altogether.” (¶20).

The court also concludes that the alleged “outburst” following the not guilty verdict did not constitute extraneous information that affected the jury’s verdict on the second count because the record doesn’t establish the outburst happened. The trial transcript does not note the event, the defense investigator’s description of the event was not corroborated by any other witness beyond trial counsel’s statement he heard a “shriek” or “outcry” or “outburst,” and the trial judge saw nothing out of the ordinary. (¶¶9, 10, 23-26).

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