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No error to empanel juror who had been on similar case week before

State v. Brad L. Conger, 2017AP860-CR, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Brad Conger went on trial for an OWI and the associated PAC. His defense was an “alcohol curve” theory that the breath tests result did not reflect his true BAC at the time he was driving. His attorney moved to strike a juror who sat on another OWI/PAC case the preceding week–one featuring the same defense attorney, where the jury convicted on the PAC and apparently rejected the offered alcohol curve defense. The circuit court found the juror unbiased; the court of appeals now affirms.

Before so doing, the court faults Conger for failing to provide record support for his claim that the previous week’s trial was “very similar”:

His appeal fails right out of the gate because by failing to provide us with any evidence related to the facts and theory of defense presented in the earlier trial, he has afforded us no way of determining the extent to which the trials are supposedly “similar.”

Based upon the particular nature of this appeal, we see no way Conger can meet his appellate burden without evidence related to the facts and theory of defense actually presented to the jurors, including Suzanne, in that prior trial. The transcript from Conger’s trial indicates that the trial judge presiding over his trial was not the same judge who presided over the trial the week prior. Before the trial court and us on appeal, the State has disputed the extent to which the facts and theory of defense in Conger’s trial were “similar” to those in the trial the week prior. So, on what basis was the trial court or are we to determine that the facts and theory of defense in the prior trial were so similar to those that would be presented in Conger’s trial that Suzanne should have been barred from sitting on his jury? Solely based upon the arguments of Conger’s counsel, which were and are disputed by counsel for the State? Conger has provided us with no record from which we can determine how similar the facts and theory of defense of his trial were to those of the trial the week before. Of note, the trial court’s ultimate finding, as best it could make one, as to the proposed similarity between the facts of the prior trial and those proposed to be introduced in Conger’s trial was that “the facts in this case are different from the facts last week, as I understand them, because we had a lot more testimony for the analyst to calculate actual absorption based upon what was consumed and when consumption stopped. I don’t know as though we’ll have that [in this case].”

(¶¶12-13 (citations omitted)).

After this we get a lengthy recitation of the voir dire of Barbara and some discussion of the two types of bias Conger alleges: subjective and objective. On the former, we learn that, while perhaps not “unequivocal declarations of impartiality,” State v. Oswald, 232 Wis. 2d 103, 112, 606 N.W.2d 238 (Ct. App. 1999), Barbara’s answers were enough to convince both the circuit court and court of appeals that she could be evenhanded. (Learn here about the dispute as to whether “unequivocal declarations” are constitutionally required.) As to objective bias, the court cites State v. Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1999), for the proposition that “[V]eteran jurors need not be removed for cause when called to decide multiple cases with similar issues and identical witnesses… circuit courts are obligated to remove for cause only those [veteran] jurors who are indeed biased.” (¶13).

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