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Postconviction Proceedings – Expiration of Deadline for Ruling; Ineffective Assistance of Counsel – Voir Dire – Juror Bias

State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11

court of appeals decision (1-judge, not for publication); pro se; case activity

Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.

¶6        Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i).  The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension, namely, the circuit court and the defendant.[3]  Nothing in the new provision places an affirmative duty on the circuit court to request an extension or inform a party of the need for an extension.  Thus, Scherreiks and Deer still control, and the circuit court’s failure to decide the postconviction motion within the period prescribed by statute is not grounds for a remand.  See Scherreiks, 153 Wis. 2d at 516.  Accordingly, we conclude Beck’s due process rights were not violated when the trial court did not request an extension pursuant to § 809.30(2)(i).

Section 809.30(2)(i) says, “Unless an extension is requested by a party or the circuit court and granted by the court of appeals,” the circuit court’s failure to decide the motion within 60 days of filing results in its being “considered to be denied.” According to State v. Scherreiks, 153 Wis. 2d 510, 516, 451 N.W.2d 759 (Ct. App. 1989), when this 60-day limitation period lapses, the circuit court loses competency to rule on the motion. Here, the circuit court invoked this “deemed-denied” principle and refused to rule, because more than 60 days had passed since the motion was filed. Beck then asked the court of appeals to extend the deadline retroactively, but the court refused, “on the basis that he failed to provide an adequate explanation for his failure to request an extension in a timely manner,” ¶4. Lesson? Doesn’t matter that the statute authorizes the circuit court to seek the extension; the burden’s on you to get the extension, which is best sought before its expiration. On the other hand, the court ends up ordering remand anyway, on a Brady claim, so Beck in effect gets the extension anyway.

Trial counsel performed deficiently in failing to move strike 2 different jurors on account of their objective bias. One juror had served in Iraq with the prosecutor, which is alone enough:

¶15      We conclude, based on our reading of Newsome’s voir dire, that counsel performed deficiently by not moving to strike this potential juror for cause.  We note that the circuit court did not address the question of whether Newsome was objectively biased.  Once the court was satisfied with the juror’s assurances that he would be impartial and thereby determined that he was not subjectively biased, it ended the inquiry.  We conclude that the only outcome a reasonable judge could reach is that this prospective juror was objectively biased.  Although we have not found any cases of alleged juror bias where the prosecutor had recently served as the juror’s commanding officer in an armed conflict, we conclude that this relationship is among those that is “so fraught with the possibility of bias that we must find objective bias regardless of the surrounding facts and circumstances and the particular juror’s assurances of impartiality.”  State v. Faucher, 227 Wis. 2d 700, 724, 596 N.W.2d 770 (1999).  The prospective juror may have formed a close bond with the district attorney in Iraq, and the fact that the prosecutor was the prospective juror’s commanding officer raises serious concerns about whether he would be able to independently evaluate the evidence and not be unduly influenced, whether consciously or unconsciously, by his former commanding officer at trial.

The other juror had both an employment and (otherwise undefined) “social” relationship with the prosecution. Employment alone doesn’t establish objective bias, State v. Smith, 2006 WI 74, ¶3, 291 Wis. 2d 569, 716 N.W.2d 482, but counsel failed to delve into the extent of the jurors connections to the district attorney and police, so the court can’t determine on this record whether the juror was objectively biased, ¶17. Still, the court can conclude that counsel’s failure to explore the relationship more fully was a function of deficient performance:

¶18      However, we conclude defense counsel was deficient in not seeking permission from the court to probe more deeply into the relationship between Gross and the prosecutors.  For example, once it was learned that Gross had a social relationship with the assistant district attorney, a reasonable defense attorney would have probed the nature of that relationship to determine whether their relationship was such that it rendered Gross objectively biased.

(Postconviction challenge to a third juror falls short: the juror gave one ambiguous answer as to whether he could be impartial, followed by an explicit assertion that he could, and the trial court’s finding that the juror was not subjectively biased isn’t clearly erroneous, ¶¶19-20.)

Notwithstanding juror bias as discussed above, Beck can’t show prejudice (the second component to an ineffective-assistance claim). For one thing, Beck didn’t exhaust all his peremptories, ¶22, citing State v. Lindell, 2001 WI 108, ¶¶35-38, 245 Wis. 2d 689, 629 N.W.2d 223. For another, none of the ultimately impaneled jurors was biased, ¶¶23-29.

Beck, a prison inmate, was convicted of disorderly conduct for a violent encounter with a guard, who indicated that she had been treated at a hospital for a resultant injury. Because there were very different versions of what had occurred, a security video of the event as it occurred would be material within the meaning of Brady. “Under these circumstances, we conclude that Beck’s allegation that additional video evidence exists is sufficient to warrant a remand for an evidentiary hearing to determine whether such evidence exists and whether it is exculpatory,” ¶38. Similarly, any medical records relating to the alleged injury would be material, and potentially subject to disclosure:

¶41      We conclude, based on Officer Schultz’s statement to the court that she went to the hospital on the night of the incident because of her shoulder problems, that it is highly probable that medical records exist concerning injuries Officer Schultz allegedly sustained during the incident.  If the medical records exist and if the records support Beck’s testimony that he did not throw Officer Schultz against the railing, they would be material, exculpatory, and impeaching.  That is, as with the video evidence, the records would undermine Officer Schultz’s testimony that Beck acted violently, and would negatively affect her credibility as a witness.  In short, assuming the medical records support Beck’s version of what happened during the incident, there is a reasonable probability that the jury would not have concluded that Beck engaged in disorderly conduct.  Thus, Beck’s allegation that medical records exist is sufficient to warrant an evidentiary hearing to determine whether they exist and, if so, whether the records are exculpatory.

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