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Waiver of Issue: Jury Polling: Response Indicating Non-Unanimous Verdict

State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough

Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the purported guilty verdict.


¶29 Ultimately, however, we need not determine whether to apply the waiver rule because we view the motion as timely made. Admittedly, Raye’s counsel did not make a formal objection during the approximately five-minute period when Clark was alone with the court and counsel. However, after the third time that Clark disavowed the verdict, Raye’s counsel stated, “I think that’s enough.” Shortly thereafter a recess was taken. Upon going back on the record after recess, Raye’s counsel made a motion for a mistrial on the ground that the verdict was not unanimous. Given the circumstances, we conclude that the motion was timely and that it was not waived. Accordingly, we will reach the merits of Raye’s claim.

Although finding the issue properly preserved, the court all but says (albeit in dicta) that such an issue is reviewable anyway, ¶¶26-27, citing the “analogous” instance of “propriety of a [trial] court’s inquiry into the numerical division of a stalled jury,” embodied by Brasfield v. U.S., 272 U.S. 448 (1926) and State v. McMahon, 186 Wis. 2d 68, 89, 519 N.W.2d 621 (Ct. App. 1994).


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