State v. Nicholas J. Bergner, 2024AP1875, District I, 6/3/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed the circuit court’s order denying Nicolas Bergner’s postconviction motion for a new trial. Although the circuit court did not follow the procedure required by SCOW in Tucker for using a numbers-only jury selection process, to which trial counsel did not object, Bergner was not prejudiced.
Bergner was charged with one count of operating a motor vehicle while under the influence as a third offense (OWI) and one count of operating with a prohibited alcohol concentration as a third offense (PAC). The case proceeded to a jury trial. Before jury selection, the circuit court instructed the jurors to refer to themselves by their juror numbers rather than their names; the court did not make a factual finding to support using a numbers-only jury selection procedure. (¶¶ 2-3). The jury found Bergner guilty of the PAC charge and not guilty of the OWI charge. (¶ 5).
Bergner filed a postconviction motion for a new trial, arguing that trial counsel was ineffective for not objecting to the numbers-only jury selection process. The circuit court denied the motion without holding a hearing. (¶ 5).
On appeal, he renewed his claim for ineffective assistance and argued that the circuit court was required by Tucker, before using a numbers-only jury selection process, to make a factual finding that jurors need protection and take reasonable precautions to minimize the prejudicial impact to the defendant. (¶¶ 8-9). Because the circuit court did not make any factual finding, and trial counsel did not object, Bergner claimed trial counsel’s performance was deficient.
The Court assumed, without deciding, that the trial court erred when it used a numbers-only jury selection process without making an individualized determination that the jury needed protection and without taking any reasonable precautions to minimize potential prejudice to Bergner. (¶ 10). However, the Court did not address whether counsel’s performance was deficient for failing to object because it found that Bergner was not prejudiced by the jury selection procedure. (¶ 13).
Regarding prejudice, Bergner maintained that the evidence against him was minimal and there was a reasonable probability that the jury would have acquitted him of both counts had it not “been sent the message that Bergner is a dangerous person from whom the jury needs protection.” (¶ 15).
The Court noted that the jury heard testimony from competing experts regarding the accuracy of field sobriety tests and the Intoximeter breath test, and “it was entirely within the jury’s purview to weigh the competing testimony of expert witnesses.” (¶ 16). Notably, the jury acquitted Bergner of OWI, which the Court found “undermines any claim that the jury found him dangerous by virtue of referring to the jurors by their numbers. As such, it is impossible to conclude that the jury was prejudiced to believe Bergner was dangerous when they convicted him of PAC, but not dangerous when they acquitted him of OWI.” (¶ 16).
