Addressing an unusual set of facts, the court of appeals holds Turner’s constitutional rights to an impartial jury and due process were not violated by the seating of a juror who had not been summoned for service and who did not disclose that to the court.
A summons for jury duty was sent to “John P. Smith” (a court-supplied pseudonym). The summons did not include any other identifying information. But there were two John P. Smiths—father and son—at the address the summons was sent to. Because the father had recently served jury duty, they assumed the summons was for the son. To confirm their assumption they tried calling a phone number on the summons but got only an automated recording. Accordingly, the son reported to court and served on the jury that convicted Turner. The summons, unbeknownst to the Smiths, was for the father. (¶¶1, 3-4). Though the son was not the summoned juror, he still met the requirements for serving on a jury. He was unbiased, qualified for service under Wis. Stat. § 756.02, and survived voir dire. (¶7).
The court rejects Turner’s claim that the son was not the “true” John P. Smith” to whom the summons was directed and that he lacked candor because he did not voluntarily disclose his doubts about whether he was the “John P. Smith” who was summoned: “The fact is that ‘John P. Smith’ who lived at the address listed in the summons appeared for jury duty and never misrepresented who he was. The fact that the clerk’s office meant to summon a different ‘John P. Smith’ at the same address does not make the son an improper juror.” (¶7). Moreover, there is no indication the son tried to conceal any information or give incorrect answers during voir dire and no showing that questions relating to the summons—or answers the son might have given—were material to jury selection. (¶10). Finally, there is nothing to show that impaneling the son instead of the father affected the trial:
¶8 To uphold Turner’s conviction, we must find that the circuit court made an error in determining beyond a reasonable doubt that, absent the son innocently and unknowingly serving in the place of his father in the jury selection process, a rational jury would have convicted Turner. See Carlson, 261 Wis. 2d 97, ¶46. Turner argues that the confidential nature of jury deliberations prevents a court from reaching a level of certainty “beyond a reasonable doubt” as to what the son’s impact was on the jury verdict. Turner’s proffer suffers a fatal flaw: He did not have the father or son testify at the postconviction hearing to show how or why he would have struck the son from the panel had he known the father was the true “summoned” juror. Turner chose not to explore this issue as he had presumably read the transcript from the court’s hearing, which showed no bias or prejudice on the part of either. We uphold Turner’s conviction.
¶9 Like the circuit court, we do not see what difference the innocent error of the son serving instead of his father would have made on the outcome of this case. Turner may not rely on “merely speculative or hypothetical” theories of how he might have been harmed by the error in seeking a new trial. See State v. Mills, 107 Wis. 2d 368, 372, 320 N.W.2d 38 (Ct. App. 1982). The circuit court did not err in finding that the “innocent” error did not affect the outcome of Turner’s case.
The court also rejects Turner’s claim that his right to be present was violated when, upon learning of the error, the court held a hearing without notifying either the State or Turner, took testimony from the father and son, and concluded that it thought the error was “an honest mistake. (¶4). The court then notified both the state and Turner of the issue after the hearing and said it would take no further action unless either party requested a hearing. This procedure did not violate Turner’s right to be present:
¶12 ….Turner theorizes he might have uncovered additional evidence if he had been able to question the father and son at the court hearing, but he does not explain why he did not summon the father and son to his later motion hearing. A transcript of the court’s hearing was made available to the parties and was relied upon by Turner at his motion hearing. Turner was given an opportunity at his motion hearing to present evidence but he chose only argument. We find that the error by the court in holding the evidentiary hearing without the presence of the State and the defendant was harmless.
As already noted, an unusual set of facts addressing an issue that should not arise often–and could have been avoided here. The opinion doesn’t spell out how the court learned the wrong juror was seated, but Turner’s brief (at pp. 4-7) says a bailiff suspected the wrong juror had reported because when prospective jurors check in the bailiff verifies their date of birth; however, the bailiff but did not bring the matter to the judge’s attention until after the trial.