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Effective Assistance – Jury Selection – Objective Bias; Failure to Object to State’s Voir Dire

State v. Stephen R. Jones, 2011AP864-CR, District 3, 8/30/11

court of appeals decision (1-judge, not for publication; for Jones: Brian P. Dimmer; case activity)

Failure to move to strike juror wasn’t deficient performance. Juror’s public support of election of the presiding judge and the district attorney (who was not herself prosecuting this case) didn’t establish a significant relationship with either individual to establish “objective bias.” State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999) (objective bias where juror was  next-door neighbor of witness and considered latter truthful); and State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223 (objective bias where juror had had close, long-standing relationship to homicide victim); State v. Tody, 2009 WI 31, ¶36, 316 Wis. 2d 689, 764 N.W.2d 737 (objective bias where juror was judge’s mother), all distinguished. State v. Smith, 2006 WI 74, 291 Wis. 2d 569, 716 N.W.2d 482 (mere acquaintance with participant in trial not enough), followed.

And, because counsel could have reasonably concluded that this juror could be impartial, failure to strike him with a peremptory wasn’t deficient performance.

Objection to a line of questioning by the State during voir dire would have been futile, therefore couldn’t establish deficient performance:

¶21      Wisconsin Stat. § 805.08(1) states that examination of jurors “shall not be repetitious or based upon hypothetical questions.” However, as the Trial Handbook for Wisconsin Lawyers explains, there is a fine line between direct and hypothetical questions, and it is within the trial court’s discretion to decide whether to allow a particular question …

¶23      At the postconviction hearing, the trial court determined that the State’s voir dire questions were “proper question[s] given the nature of the case [and] the theories of the case.”  The court stated, “[I]f an objection would have been made, it would have been overruled.”  We agree that this would have been a proper exercise of discretion.  The State’s questions did not ask the potential jurors to assume any facts as true. The questions merely explored the jurors’ feelings about two different scenarios, both of which were relevant to the facts of the case.  There is no meaningful difference between the questions the State asked—for instance, “[Can you] imagine a situation where a victim of domestic violence or domestic abuse does not want the police involved?”—and Jones’s suggested rephrasing of those questions—for example, “Do any of you assume that no domestic abuse or domestic violence incidents go unreported?”  Given the fine line between direct and hypothetical questions, we conclude it was within the trial court’s discretion to allow the State’s questions about domestic violence.

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