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SVP – Trial – Jury Selection – Failure to Strike Juror – Reviewability

State v. Richard A. Brown (II), 2002 WI App 260, PFR filed 10/22/02
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶16. Brown next argues that the trial court erred in failing to strike a prospective juror for cause and that he was prejudiced by being forced to use one of his peremptory strikes to remove him. Although a few years ago, when the parties first briefed this issue, a more thorough analysis would have been required, we now need do no more than recognize that, under the supreme court’s recent decision in State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223 (overruling State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997)), Brown’s argument fails.¶17. Brown used a peremptory strike to remove the prospective juror he challenged. He does not argue that any biased jurors actually served on the jury in his case. Thus, under Lindell, even if the trial court erred in failing to strike the prospective juror, Brown “received that which he was entitled to under state law when he used a peremptory challenge.” Id. at ¶131. He was tried by a fair and impartial jury and is not entitled to a new trial. See id. at ¶¶90-91, 113, 118.

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