State v. Nathaniel A. Lindell

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals affirming a judgment of the circuit court for La Crosse County, John J. Perlich, Judge.[1] The defendant, Nathaniel A. Lindell, was convicted in a jury trial of first-degree intentional homicide, arson, and burglary.

¶2 After his conviction, Lindell moved the circuit court to vacate the judgment and grant him a new trial on grounds that (1) the circuit court failed to strike a prospective juror for cause, forcing him to use one of his peremptory strikes to remove the juror from the venire, and (2) he received ineffective assistance of counsel when his trial attorney failed to present certain impeachment evidence.

¶3 The circuit court denied the defendant's motion and Lindell appealed. The court of appeals affirmed. The court of appeals applied the analysis on juror bias recently developed in this court and ruled that the challenged juror was neither objectively nor subjectively biased. The court of appeals also ruled that the defendant was not prejudiced by any alleged ineffective assistance of counsel. We granted the defendant's petition for review.

¶4 In this case, we have considered three issues and reach the following conclusions: First, under the juror bias standards promulgated by this court, juror D.F. was objectively biased as a matter of law and should have been removed for cause. The circuit court erred when it failed to remove juror D.F. for cause.

¶5 Second, under the facts of this case, the circuit court's error did not affect the substantial rights of the defendant. Lindell used the first of seven peremptory strikes to remove the prospective juror who should have been struck for cause, and the juror did not participate in the trial. Because our decision to affirm Lindell's conviction is at odds with State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), which would have required an automatic reversal in any situation where the defendant used a peremptory strike to remove a prospective juror who should have been excused for cause, we overrule Ramos and announce a new standard to protect defendants.

¶6 Third, we conclude that the defendant was not prejudiced by any alleged deficient performance of trial counsel.

¶7 Accordingly, the decision of the court of appeals is affirmed.

I. UNDERLYING FACTS

¶8 Donald Harmacek, a La Crosse resident in his mid-60s, was killed in his home on November 25, 1996. Nathaniel Lindell, the defendant in this case, was convicted by a jury of first-degree intentional homicide in violation of Wis. Stat. § 940.01(1) (1997-98)[2] for causing Harmacek's death. Lindell was also convicted of burglary in violation of Wis. Stat. § 943.10(1)(a) and (2)(d), and arson in violation of Wis. Stat. § 943.02(1)(a), for burglarizing and torching Harmacek's home as part of the incident that caused Harmacek's death. Lindell was convicted of all these charges as a party to the crime, pursuant to Wis. Stat. § 939.05(1).

¶9 In the early morning hours of November 25, 1996, three men went to Harmacek's home with the intention of committing a burglary. The three men were Nathaniel Lindell, 21, his brother Joshua Lindell, 19, and Marcus Mitchell, 26. The men traveled in Joshua Lindell's car with Mitchell as the driver. The Lindells wore dark clothing and all three men carried two-way radios.

¶10 Nathaniel Lindell had burglarized Harmacek's home in the past; Harmacek kept a large coin collection in his house.

¶11 When the men arrived at a point near Harmacek's residence, Mitchell remained with the vehicle. The Lindells entered the residence by duct-taping a basement window and breaking it with a miniature Louisville Slugger bat. While they were in the basement, the Lindells found a small amount of money, and then Joshua Lindell picked up a wrench at Nathaniel Lindell's direction.

¶12 The men proceeded upstairs to the main level of the home where they observed Harmacek apparently sleeping on the floor. When Harmacek moved, Joshua Lindell, who was walking ahead of his brother, "freaked and knocked him on the head with the wrench." After this blow, Joshua Lindell asked his brother what they should do. Nathaniel Lindell responded by hitting Harmacek with a small hammer, causing significant injury and gruesome results. According to testimony by an expert in bloodstain-pattern analysis, Harmacek received at least three blows to the head. Joshua Lindell testified that "blood squirted up" when his brother hit the victim. Later Nathaniel Lindell took Harmacek's wallet from a nearby table and the men took $90 from it. Both Lindells proceeded to search the house for valuables.

¶13 The Lindells found alcohol in the house and they spread it about the main level and the basement. Nathaniel Lindell then lit fires in the house. The two men crawled back out the window through which they entered and returned to Mitchell who was at the waiting car. Harmacek died as a result of the trauma to his head and the fire.

¶14 Joshua Lindell pleaded guilty to first-degree intentional homicide as a party to the crime. He did so in exchange for (1) the State recommending that the judge give him parole eligibility after 25 years imprisonment, and (2) the State dismissing the arson and burglary charges against him. Joshua Lindell testified in his brother's trial. Mitchell, meanwhile, was granted complete immunity in exchange for his testimony in the trial of Nathaniel Lindell.

II. LITIGATION FACTS

¶15 Nathaniel Lindell was charged with homicide and other crimes on March 5, 1997. The circuit court conducted numerous motion hearings in the case throughout the latter half of 1997 and January 1998.

¶16 Harmacek's murder received significant news media attention in the La Crosse area. In fact, months before trial, the parties and the circuit court were concerned with issues relating to media publicity and the future venire, particularly when Joshua Lindell pleaded guilty, and the parties had a dispute over the extent of media coverage about the case and Joshua Lindell's guilty plea. Nathaniel Lindell moved the circuit court to issue a protective order to prevent discussion of the case with members of the news media, but the circuit court denied the motion.

¶17 In addition, when a mental examination was done to assess Nathaniel Lindell's competency, the media requested access to the report and it became the subject of two motions by the defendant. In both instances, the circuit court declined to keep the report under seal.

¶18 Nathaniel Lindell also moved the circuit court to allow individual voir dire of prospective jurors and to mail prospective jurors a lengthy questionnaire before they arrived for jury service. Both of these motions related to the defendant's concerns over pretrial publicity. The circuit court allowed individual voir dire, but it apparently did not approve any of the questionnaires that the defendant proffered to the court.

¶19 The motions noted above were made in the last half of 1997. In January 1998, just weeks before trial, the defendant moved the circuit court for change of venue "because an impartial trial [could] not be had in La Crosse County." Counsel for Lindell argued that a fair trial could not take place in the county "because of the nature and the amount, the overwhelming amount, of pretrial publicity." The circuit court denied this motion.

¶20 On the morning of January 26, 1998, jury selection began in the State's case against Nathaniel Lindell. District Attorney Scott Horne represented the State and Assistant State Public Defenders Christine Clair and Keith Belzer represented the defendant. The circuit court noted that it would begin with a venire of 50 prospective jurors but that initially only 28 would be brought into the courtroom.

¶21 The clerk called the first 28 prospective jurors. Prospective juror D.F. was not among these 28. She became, however, the 30th prospective juror called when the circuit court excused several of the first 28 candidates for lack of availability and called in 4 additional prospective jurors.

¶22 The circuit court asked whether anyone in the venire had heard of the facts of the case. So many people raised their hand in response to this inquiry that the circuit court decided to ask who had not heard about the case. The court then asked the venire whether anyone had decided about the guilt or innocence of those accused in the case. The circuit court excused one juror who had already made a decision as to the guilt of those accused. The court also engaged in colloquies with a number of other prospective jurors who indicated they might have an opinion about the guilt or innocence of Nathaniel Lindell, but the court did not excuse any more prospective jurors once the court made a determination that each person could be impartial. D.F. did not indicate that she had already made up her mind about the guilt or innocence of the accused.

¶23 The circuit court then allowed the parties to read their witness lists to the venire to examine the extent of any relationships between the venire and witnesses, attorneys, and the defendant. When the State read the name of Shirley Otto, a long-time companion of Harmacek, D.F. indicated that she knew Otto. The following exchange then occurred between the circuit judge and D.F.:

The Court: Miss [F.], how do you know Shirley?

Prospective Juror [D.F.]: I've known Shirley and Donny for about twenty years. Our place of business, Donny was our Pabst distributor.

The Court: Okay. Was the relationship such that you would have difficulty --

Prospective Juror [D.F.]: No.

The Court: Okay.

Prospective Juror [D.F.]: Close friends, just friends, you know, over the years.

The Court: Okay. Can you judge the credibility of her the same way you judge the credibility of any other witnesses?

Prospective Juror [D.F.]: Yeah.

The State proceeded to read the names of more of its potential witnesses aloud. After further questioning of the venire by the attorneys, the circuit court asked: "The alleged victim in this case is Mr. Donald Harmacek. Is anyone acquainted with, related to by blood or marriage, or had any business dealings with Mr. Harmacek?" The transcript of the voir dire does not indicate that D.F. or any prospective juror raised a hand in response to this question.

¶24 The circuit court then moved on to questioning the venire about their criminal histories, among other things. The court dismissed one juror for cause because she was being prosecuted by the district attorney's office.

¶25 The jury selection began at about 9:20 a.m. and at around 10:45 a.m. the circuit court gave the venire a break. Out of the presence of the jury, the first words on the record went as follows:

Ms. Clair: I'm going to ask that Miss [F.], who knows both Mr. Harmacek and Miss Otto, be struck for cause. It's not that she just knows him casually, this was a business acquaintance. And because she knows both of them -- she said that she didn't think it would bother her. I just, you know, somebody that got murdered, and you know that person's girlfriend, you're going to have an emotional, feeling about that, and I think it's very difficult.

And if I ask more specific questions about it, and then she gets struck, it's like I'm trying not to -- I don't want somebody that knows him.

The Court: She has assured us she can fairly and impartially judge this case. As long as she makes that assurance, I don't think I can strike her for cause. You can ask her some questions and we'll play it by ear, but I won't strike her at this time.

Ms. Clair: If after I ask her some questions -- I don't want to ask you directly when I'm asking, because I don't want it --

The Court: You can ask then, or I will strike her on my own if, in fact, I find that that's necessary.

The parties and the court recessed at this point.

¶26 When the voir dire continued after the recess, the circuit court dismissed a number of prospective jurors for cause: two people because they had strong feelings about the general credibility of witnesses who testify pursuant to an immunity agreement; one man because he had strong feelings about the incident in the case, which occurred in his neighborhood; one woman because she felt she could not be fair to the defendant because she treated crime victims in her work as a nurse.

¶27 Counsel for the defendant, Clair, questioned jurors after the State had asked many questions. When Clair came to prospective juror D.F., the following exchange occurred:

Ms. Clair: Okay. Now, you had stated before that you knew Mr. Harmacek and you know Miss Otto.

Prospective Juror [D.F.]: Um-hum.

Ms. Clair: Was that from working at [a local store] or previous employment?

Prospective Juror [D.F.]: The previous. My parents used to own and operate [a La Crosse bar/restaurant], and Donny was our distributor.

Ms. Clair: Okay. How much contact did you have with either him or Miss Otto?

Prospective Juror [D.F.]: None really with Shirley other than knowing her. Donny, you know, when he made our deliveries three times a week.

Ms. Clair: Other than when he would make deliveries, did you ever socialize with him or did your family?

Prospective Juror [D.F.]: My parents knew him real well.

Ms. Clair: Your parents did?

Prospective Juror [D.F.]: Yeah.

Ms. Clair: Did you and your family talk of -- about what had happened after, after his death?

Prospective Juror [D.F.]: Yes.

Ms. Clair: And how was that?

Prospective Juror [D.F.]: Hard. We knew Donny for quite a few years.

Ms. Clair: Was it very difficult on your parents?

Prospective Juror [D.F.]: Yeah. I had the loss of my dad the year before this happened to Donny, so prior to that. It was hard, yes.

Ms. Clair: Okay. Knowing that you had known him, and that your parents knew him even more so, and that he was the victim on the charges in this case, how does that make you feel right now sitting on this jury?

Prospective Juror [D.F.]: Okay. I think I could -- I think I could go along with it and make my, you know, decision.

Ms. Clair: Do you think that you could listen to the evidence and look at the case without being -- having an emotional reaction because of your relationship and your family's relationship with him?

Prospective Juror [D.F.]: Yes, because I worked part-time for my parents other than working at [a local store]. So I wasn't [sic] on a daily basis. I mean he'd come in for breakfast every morning, but I wasn't there every day. I worked like -- I went to school and worked afternoons, so I would meet him like when he would bring the deliveries that afternoon. But as far as an everyday basis, no, I didn't deal with Donny every day.

Ms. Clair: So do you think that if you were chosen to be on the jury, you would be able to listen to all the evidence and make a fair determination?

Prospective Juror [D.F.]: Yes, I think I could.

Ms. Clair: Okay. Thank you. I really appreciate that.

Counsel for the defendant went on to ask many questions of the venire and counsel for the State followed up with additional questions.

¶28 Individual voir dire of the prospective jurors then began in the nearby jury room. When D.F. entered the jury room for individual voir dire, defense counsel Belzer questioned her:

Mr. Belzer: Obviously you have told us previously that you knew something about this case before getting here today?

Prospective Juror [D.F.]: Um-hum.

Mr. Belzer: Had you also seen information in the newspaper or television?

Prospective Juror [D.F.]: Just other than what we've been reading in the paper and the TV has had prior to, you know, when this happened.

Mr. Belzer: Do you receive the daily newspaper?

Prospective Juror [D.F.]: Um-hum.

Mr. Belzer: You have read all the articles about the case?

Prospective Juror [D.F.]: Um-hum. Well, I can't say all of them. When I get time to read the paper, I do, yeah.

Mr. Belzer: What do you recall hearing about Mr. Lindell, about Nathan Lindell?

Prospective Juror [D.F.]: Well, just what had happened that night. I mean Donny, Donny lived like about six blocks from us --

Mr. Belzer: Um-hum.

Prospective Juror [D.F.]: -- in the neighborhood. . . . So other than what had happened that evening, other than what I've read in the paper, that's, you know.

Mr. Belzer: Okay. Do you remember specific things from the paper about Nathan?

Prospective Juror [D.F.]: No. Huh-uh.

Mr. Belzer: Okay.

Prospective Juror [D.F.]: Not pinpoint anything, you know.

Mr. Belzer: You have discussed this case based on media reports with your family I assume?

Prospective Juror [D.F.]: My mom. I live with my mom since I lost my dad, yes.

Mr. Belzer: Sure.

Prospective Juror [D.F.]: So we've talked about it, yeah. We've known Donny. He was our beer driver for 47 years my parents were in business, so --

Mr. Belzer: When you discussed it with your mom, did either of you offer an opinion about whether you thought --

Prospective Juror [D.F.]: No.

Mr. Belzer: -- anybody was guilty in the case?

Prospective Juror [D.F.]: No, huh-uh.

Mr. Belzer: Okay. Have you discussed the case with Ms. Otto at all?

Prospective Juror [D.F.]: No. We run [sic] into her a couple weeks ago on the elevator, and that's the first we'd seen her since this happened other than the funeral home that night.

Mr. Belzer: Earlier when you were answering questions, clearly you were very emotional, and it seemed like you were about to start crying. Are you sure you feel okay about sitting on this jury?

Prospective Juror [D.F.]: I feel very confident. Like I say, I knew him, but as far as personal, I think my parents knew him more personal than I did.

Mr. Belzer: Okay. Thank you.

¶29 After the attorneys had questioned all the prospective jurors individually, the circuit court judge asked the parties if they were "[r]eady for strikes." Belzer immediately renewed Lindell's request that D.F. be removed from the venire for cause. He noted that during the initial questioning of D.F. earlier in the day, D.F. had to stop talking because she was going to cry. He also stressed D.F.'s familiarity with Harmacek, a man D.F. repeatedly referred to as "Donny." The circuit court judge replied that he did not notice D.F. "looking like she was ready to cry," that D.F.'s relationship with Harmacek was minimal, and that D.F. had "repeatedly" maintained she could be impartial. Thus, the circuit court denied the defendant's request to strike D.F. for cause.

¶30 The defendant struck D.F. from the panel with his first peremptory challenge and therefore D.F. did not sit on the jury. At trial, the jury found the defendant guilty of homicide, arson, and burglary. The circuit court judge sentenced Nathaniel Lindell to prison on all three sentences, most important of which was the sentence on the first-degree intentional homicide conviction: life in prison with parole eligibility after 50 years.

III. LEGAL FRAMEWORK FOR JUROR AND VENIRE BIAS

¶31 Cases concerning juror bias present difficult legal questions for this court. This is another such case.

¶32 In 1997, this court decided State v. Ramos, 211 Wis. 2d 12. The main issue in Ramos was identical to the principal issue here: What is the appropriate remedy when a defendant uses one of his or her peremptory challenges to remove a prospective juror who should have been struck for cause? In Ramos, we "[held] that the use of a peremptory challenge to correct a trial court error is adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right," even though the defendant is found guilty by a fair and impartial jury. 211 Wis. 2d at 24-25.

¶33 Since Ramos, we have confronted a number of cases relating to juror bias. State v. Ferron, 219 Wis. 2d 481, 579 N.W.2d 654 (1998); State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999); State v. Broomfield, 223 Wis. 2d 465, 589 N.W.2d 225 (1999); State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999); State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999); State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999); State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (1999). In several of these cases, the principal issue involved the alleged bias of prospective jurors who never served. In these cases, the principal issue was not whether a defendant received a fair and impartial jury but whether the circuit court committed reversible error in jury selection by making an allegedly incorrect ruling on "cause."[3]

¶34 In analyzing these cases, we have recognized three types of bias in examining whether a prospective juror or juror is impartial. Faucher, 227 Wis. 2d at 716.

¶35 The first type of bias is "statutory bias." Wisconsin Stat. § 805.08(1) provides that a person meeting certain statutory criteria shall not be allowed to serve as a juror in a case regardless of his or her ability to be impartial. Id. at 717. This rule applies to a prospective juror who is "related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case." Wis. Stat. § 805.08(1).[4] When a party alleges this type of bias, a question of law is presented and we review the decision by the circuit court de novo. See Kiernan, 227 Wis. 2d at 744. Prospective juror D.F. did not fit within any of the categories constituting statutory bias.

¶36 The second type of bias is "subjective bias." This type of bias "is revealed through the words and the demeanor of the prospective juror" and "refers to the prospective juror's state of mind." Faucher, 227 Wis. 2d at 717. "Discerning whether a juror exhibits this type of bias depends upon that juror's verbal responses to questions at voir dire, as well as that juror's demeanor in giving those responses." Kiernan, 227 Wis. 2d at 745. We recognize that the circuit court sits in the best position to judge this type of bias. Id. Thus, we will uphold the circuit court's factual finding that a prospective juror is or is not subjectively biased unless it is clearly erroneous. Id.

¶37 Subjective bias is not the primary type of bias at issue in this case; D.F. steadfastly maintained that she would be impartial and the circuit court believed her.

¶38 The third type of bias is "objective bias." This is the type of bias central to this case.[5] The category of "objective bias" recognizes that in some cases bias can be detected "from the facts and circumstances surrounding the prospective juror's answers" even though he or she pledges impartiality. Delgado, 223 Wis. 2d at 283. Specifically:

[T]he focus of the inquiry into "objective bias" is not upon the individual prospective juror's state of mind, but rather upon whether the reasonable person in the individual prospective juror's position could be impartial. When assessing whether a juror is objectively biased, a circuit court must consider the facts and circumstances surrounding the voir dire and the facts involved in the case. However, the emphasis of this assessment remains on the reasonable person in light of those facts and circumstances. . . . [W]hen a prospective juror is challenged on voir dire because there was some evidence demonstrating that the prospective juror had formed an opinion or prior knowledge, . . . whether the juror should be removed for cause turns on whether a reasonable person in the prospective juror's position could set aside the opinion or prior knowledge.

Faucher, 227 Wis. 2d at 718-19. The standard of review in objective bias cases is somewhat more intricate than for the other two types of bias.

¶39 Whether a juror is objectively biased is a mixed question of fact and law. Id. at 720. The circuit court's factual findings will be upheld unless they are clearly erroneous. Id. Whether those facts fulfill the legal standard of objective bias is a question of law. Id. In addition, as we further explained in Faucher:

This court does not ordinarily defer to the circuit court's determination of a question of law. However, a circuit court's conclusion on objective bias is intertwined with factual findings supporting that conclusion. Therefore, it is appropriate that this court give weight to the circuit court's conclusion on that question.

The circuit court is particularly well-positioned to make a determination of objective bias, and it has special competence in this area. It is intimately familiar with the voir dire proceeding, and is best situated to reflect upon the prospective juror's subjective state of mind which is relevant as well to the determination of objective bias. We therefore give weight to the court's conclusion that a prospective juror is or is not objectively biased. We will reverse its conclusion only if as a matter of law a reasonable judge could not have reached such a conclusion.

Faucher, 227 Wis. 2d at 720-21 (citations and parenthetical information omitted). This case requires that we employ this latter standard of review in evaluating the circuit court's decision not to strike D.F. from the jury.

¶40 We note in passing that this court has been very hesitant to find that a category of persons is per se biased. State v. Louis, 156 Wis. 2d 470, 479, 457 N.W.2d 484 (1990), cited with approval in Mendoza, 227 Wis. 2d at 851.

IV. OBJECTIVE BIAS

¶41 Applying the standards above, we conclude that prospective juror D.F. was objectively biased and should have been struck for cause. The totality of circumstances demonstrates that a reasonable person in D.F.'s position could not have remained fair and impartial.

¶42 Prospective juror D.F.'s familiarity with the victim plays a major role in our finding of objective bias, though it is not the only factor. See Faucher, 227 Wis. 2d at 735; State v. Zurfluh, 134 Wis. 2d 436, 438, 397 N.W.2d 154 (Ct. App. 1986). D.F. knew the victim for a long period of time——about 20 years——and her parents knew the victim for an even longer period of time——47 years. There was particularly strong indicia of objective bias when the juror said that she was "[c]lose friends, just friends, you know, over the years" with the victim. Her use of the name "Donny" for the victim further evinces a close personal relationship with the victim.

¶43 We also find it significant that the victim, Donald Harmacek, had a long-standing business relationship with D.F. and her parents. D.F. stated that she worked at her parents' establishment, which evidently was a bar/restaurant. Although D.F.'s parents no longer owned and operated the bar/restaurant (her father had recently died), it cannot be overlooked that D.F. said that the victim was the distributor for "our place of business." Coupled with the fact that D.F. said she was "close friends" with the victim, this strong business relationship weighs heavily in our determination that D.F. was objectively biased.

¶44 D.F. also stated that she had last seen witness Shirley Otto, Harmacek's long-time companion, a few weeks earlier but had not otherwise seen her since Harmacek's death, except at "the funeral home that night." We take this reference to mean that D.F. and her mother attended Harmacek's visitation or funeral. D.F.'s presence at the funeral home is powerful evidence that D.F. and her family were close to the victim.

¶45 It is also relevant that D.F. discussed the death of Harmacek with her mother. She moved in with her mother after her father's death, the year before Harmacek was murdered. She indicated that Harmacek's death was "hard" on her mother. Such an environment might lead to sympathy for the victim because D.F. indicated that her parents were closer to Harmacek than she was.

¶46 The nature of the crimes also plays a role in our decision. Harmacek was brutally murdered and his house was torched; we should not expect a person in D.F.'s situation to be indifferent in judging the guilt or innocence of a person charged with committing those acts.

¶47 During the individual voir dire of D.F., defense counsel mentioned that D.F. had appeared to start crying during the earlier general voir dire. D.F. did not deny counsel's statement but instead replied: "I feel very confident. Like I say, I knew him, but as far as personal, I think my parents knew him more personal than I did." After the individual voir dire, defense counsel argued to the court that he noticed D.F. starting to cry earlier that day. The circuit court judge said that he did not notice such a reaction. We find it significant that D.F. did not deny crying nor respond to counsel's observation in any direct way. According to our reading of the voir dire record, D.F. was normally quite assertive in her responses, frequently interrupting counsel. The circuit court should have explored through questioning whether counsel's observations of D.F. were correct.

¶48 It is not always enough that a prospective juror assures counsel or the court that he or she will be impartial. Circuit courts are often in a better position to judge whether a prospective juror is biased, or potentially biased, than is the prospective juror. For example, the circuit court will almost always have a better appreciation for the evidence that is going to be presented in the trial than the prospective juror. As the defendant points out, the relationship of D.F. to the victim——as opposed to a witness——meant that D.F. would confront a great deal of evidence concerning Harmacek's death. This evidence was likely to include testimony from a forensic expert, photos of the crime scene, and autopsy photos of the victim. The circuit court was in a better position than D.F. to judge the likely effect of this evidence on her because of her relationship to the victim.

¶49 We take this opportunity to restate that "we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts 'reasonably suspect' that juror bias exists." Ferron, 219 Wis. 2d at 495-96. This is a decades-old standard, Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956), that encourages circuit courts "to err on the side of striking prospective jurors who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run." Ferron, 219 Wis. 2d at 503 (emphasis added). As Justice William A. Bablitch said in dissent in State v. Louis, 156 Wis. 2d at 486: "It is the appearance of partiality that gives great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality."[6]

¶50 Prospective juror D.F. was objectively biased and should have been struck for cause. The facts show that a reasonable person in D.F.'s position could not have remained fair and impartial.

V. REMEDY

¶51 Now that we have determined that D.F. should have been struck for cause, we consider the proper remedy for this error. This court's decision in State v. Ramos would require that we reverse Lindell's conviction and remand his case for a new trial. Yet, there is no serious argument that the defendant did not commit the offenses of which he was convicted, or that he did not receive a fair trial by an impartial jury. Hence, reversal of Lindell's conviction is counterintuitive and would certainly lead to a costly and time-consuming new trial.

¶52 The harsh reality of this option forces us to reexamine whether the result dictated by the Ramos decision makes sense for our system of justice on an ongoing basis. We conclude that it does not. Consequently, the Ramos decision is overruled.

¶53 We base our decision to overrule Ramos on several factors. First, the Ramos decision neglected to fully describe and analyze long-standing Wisconsin law on peremptory challenges and harmless error. Second, the court read too much into the Supreme Court's decision in Ross v. Oklahoma, 487 U.S. 81 (1988), and did not anticipate the decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000). Third, the court has recognized some disturbing systemic problems that came out of the Ramos decision. Finally, the court has taken significant steps to address the issue of juror bias.

A. State v. Ramos

¶54 The rule in Ramos is that: "[T]he use of a peremptory challenge to correct a trial court error is adequate grounds for reversal because it arbitrarily deprives the defendant of a statutorily granted right." 211 Wis. 2d at 14. We revisit the case to understand how the court made this ruling.

¶55 Edward Ramos was convicted of first-degree intentional homicide in the death of his girlfriend's two-year-old son. Id. at 15. There was an extensive voir dire of prospective jurors before his trial. Because of the nature of the case, one prospective juror expressed doubt whether she could be fair. When she was pressed on the subject, she said: "Just knowing that the child was suffocated, I guess I couldn't be fair." The defense attorney followed up: "So you could not be fair to this man?" The prospective juror replied: "No." Id.

¶56 In chambers, Ramos's counsel moved to strike the juror for cause. The circuit court refused to strike the juror for cause. When the judge and the prosecutor said they did not recall the prospective juror saying that she could not be fair, defense counsel asked that the reporter read back the prospective juror's responses. Three times counsel asked that the prospective juror's responses be read back and three times he was denied, and the court refused to strike the juror for cause. As a result, Ramos exercised the first of his seven peremptory challenges to remove the prospective juror and she did not sit at the trial. Id. at 14-15.

¶57 When the case came to this court after Ramos's conviction, we noted that the circuit court's action violated Wis. Stat. § 805.08(1) in two respects: (1) a prospective juror who is not indifferent in a case "shall be excused," but this prospective juror was not; and (2) any party objecting for cause to a prospective juror may introduce evidence in support of the objection, but three times Ramos was denied that right. This court concluded that the failure to excuse the suspect juror was an erroneous exercise of discretion by the circuit court. Id. at 16.

¶58 This court structured its analysis of constitutional questions to conform to our understanding of Ross, 487 U.S. 81. It acknowledged that a defendant's right to a full complement of peremptory strikes was not grounded in the Sixth Amendment but rather in state law. Citing Ross, we stated that peremptory challenges are "creatures of state law" and that it is "'for the state to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise.'" Ramos, 211 Wis. 2d at 18 (quoting Ross, 487 U.S. at 89). Thus, "'the 'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which state law provides.'" Id. at 18-19 (quoting Ross, 487 U.S. at 89). In short, we concluded that our task was to configure the peremptory rights of a criminal defendant in Wisconsin on the basis of Wisconsin law.

¶59 The court then concluded that Wisconsin gives a criminal defendant a mandatory right to a specific number of peremptory challenges. It does not, we said, require the defendant to use peremptory challenges against a prospective juror who should have been removed for cause. Ramos, 211 Wis. 2d at 19 (citing State v. Gesch, 167 Wis. 2d 660, 671, 482 N.W.2d 99 (1992)). The court recognized the importance that has been accorded to peremptory challenges over our history and formulated the rule of automatic reversal. Id.

¶60 Two members of the court, Justice N. Patrick Crooks and Justice Ann Walsh Bradley, strongly disagreed with the court's decision. Justice Crooks wrote:

I dissent because I conclude that the circuit court did not deprive Edward Ramos of his right to the effective exercise of a peremptory challenge under Wisconsin law. Instead, I conclude that by using a peremptory challenge to strike a juror who should have been excused for cause, Ramos effectively exercised this challenge for the purpose it is intended——to impanel an impartial jury. Further, I conclude that Ramos is not entitled to automatic reversal of his conviction because it is well established that, in cases like this, the defendant is not entitled to a new trial unless a biased juror actually sat on the jury. Consequently, I conclude that Ramos' challenge under the Fourteenth Amendment to the United States Constitution must fail because he was not deprived of any right to which he was entitled under Wisconsin law.

Id. at 30-31 (Crooks, J., dissenting).

¶61 Justice Crooks argued that it was not improper for a defendant to use a peremptory strike to cure a circuit court error.

The majority essentially concludes that, under Wisconsin law, if a defendant uses a peremptory challenge to strike a "for cause" juror, the defendant is thereby deprived of the effective exercise of that challenge because he or she did not use it to strike a juror for "no cause," i.e., based on a hunch or intuition.

Id. at 33 (Crooks, J., dissenting). He cited four Wisconsin cases including Carthaus v. State, 78 Wis. 560, 47 N.W. 629 (1891), which reached conclusions contrary to the majority opinion.

¶62 Justice Bradley reiterated her concern with the Ramos decision the following year in State v. Ferron:

As the dissent in Ramos succinctly noted, statutory peremptory challenges exist not to allow defendants to randomly shuffle a jury pool in their favor, but rather to ensure the impaneling of an impartial jury as a component of our constitutional guarantee of a fair trial. When a defendant exercises a peremptory challenge to strike a juror who should have been excused by the court for cause, the defendant also acts to ensure that an unbiased trier of fact considers the case.

. . . .

Although Ramos is a recent decision of this court, its rationale is no more correct today than it was one year ago when it was decided. While I agree that the doctrine of stare decisis deserves great weight in our jurisprudence, it seems incongruous to refuse to reconsider the decision solely on stare decisis grounds when . . . Ramos itself disregarded a line of precedent spanning over a century in reaching its conclusion.

Ferron, 219 Wis. 2d at 514-15 (Bradley, J., dissenting).

¶63 For this court, time and events have put the Ramos decision in a new light. We have reexamined our premises, and conclude that Ramos should be overruled.

B. State Law on Peremptory Challenges and Harmless Error

¶64 The Ramos decision did not fully describe and analyze long-standing Wisconsin law on peremptory challenges and harmless error. As a result, it presented a distorted view of Wisconsin law.

¶65 The Wisconsin Statutes have long given peremptory challenges to criminal defendants. For instance, Wis. Stat. Ch. 148, §§ 3, 5 (1849) provided:

Sec. 3. Every person indicted for any offence, shall, when the jury is impannelled for his trial, be entitled to the same challenges that are allowed by law to defendants in civil causes.

. . . .

Sec. 5. Any person who is put on trial for an offence punishable with death, shall be allowed to challenge peremptorily twenty-four of the persons returned as jurors and no more.

See also Wis. Stat. Ch. 191, § 4689 (1889); Wis. Stat. Ch. 191, § 4690 (1889); Wis. Stat. § 357.03 (1925); Wis. Stat. § 957.03 (1955); Wis. Stat. § 957.03 (1967); Wis. Stat. § 972.03 (1999-2000).

¶66 At the same time, from statehood until 1976, there was always a specific statute protecting the verdict from challenges for irregularity in impaneling jurors, except in certain situations. For instance, Wis. Stat. Ch. 97, § 29 (1849) provided:

Sec. 29. No irregularity in any writ of venire facias, or in the drawing, summoning, returning or empanelling of petit jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict.

See also Wis. Stat. Ch. 118, § 30 (1858); Wis. Stat. Ch. 128, § 2881 (1898); Wis. Stat. § 270.52 (1925); Wis. Stat. § 270.52 (1973); Judicial Council Committee Note, 1974, Wisconsin Rules of Civil Procedure, 67 Wis. 2d 585, 715 (1976).

¶67 The two exceptions listed in these statutes were (1) when the party making the objection was injured by the irregularity, or (2) when the objection was made before the returning of the verdict.

¶68 The second exception in these statutes, that objection must be made before the returning of the verdict, was consistently interpreted in light of another statute that dates from the early years of the state's history. Wisconsin's general harmless error statute has been in effect since Chapter 120, Laws of 1856 set out to establish "an uniform course of proceeding, in all cases (emphasis added)." Section 84 of the Chapter provided:

Sec. 84. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

This statute has appeared in substantially the same form since 1856. See Wis. Stat. Ch. 125, § 40 (1858); Wis. Stat. Ch. 127, § 2829 (1878); Wis. Stat. Ch. 127, § 2829 (1898); Wis. Stat. § 269.43 (1925); Wis. Stat. § 269.43 (1973); Wisconsin Rules of Civil Procedure, 67 Wis. 2d 585, 714 (1976); Wis. Stat. § 805.18(2) (1999-2000).[7]

¶69 This general prohibition against reversal of a judgment for error or defect in proceedings unless the error affects substantial rights now appears in Wis. Stat. § 805.18(2), our "harmless error" statute. This statute applies to criminal cases. State v. Dyess, 124 Wis. 2d 525, 547, 370 N.W.2d 222 (1985). Wisconsin Stat. § 805.18 is especially pertinent to this case because it is "substantially equivalent to ss. 269.43 and 270.52," the general harmless error statute and the specific "irregularities in venires" statute that were replaced when this court issued the order creating § 805.18. See Judicial Council Committee's Note, 1974, Wisconsin Rules of Civil Procedure, 67 Wis. 2d 585, 714 (1976).

¶70 The Ramos majority neglected to discuss this statute that specifically mentions errors in the selection of a jury:

No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of selection or misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

Wis. Stat. § 805.18(2) (emphasis added). Moreover, when the court brushed aside two "19th century" cases cited in the Ramos dissent, Pool v. Milwaukee Mechanics Ins. Co., 94 Wis. 447, 453, 69 N.W. 65 (1896), and Bergman v. Hendrickson, 106 Wis. 434, 82 N.W. 304 (1900), it was brushing aside cases that made explicit or implicit references to the harmless error statutes.

¶71 The best discussion of the point appears in Pool:

[T]here is also presented the question whether the court erred in overruling a challenge of a juror for cause, and, if so, whether that is reversible error, in view of the fact that the objectionable juror did not sit upon trial of the case. On this point, People v. Casey, 96 N. Y. 115, is confidently relied upon. That is to the effect that if, by the erroneous ruling, the party is obliged to exhaust all his peremptory challenges, the error is harmful. The record here does not show such a case. It shows that all the peremptory challenges were exhausted, but not that the last challenge was used in striking from the panel the objectionable juror, or that the ruling was the cause which compelled such exhaustion of the challenges. The true rule, we hold, is laid down in Spies v. People, 122 Ill. 1, to the effect that it is not prejudicial error to overrule a challenge for cause, unless it is shown that an objectionable juror was forced upon the party, and sat upon the case after such party had exhausted his peremptory challenges. This court substantially adopted that view in Grace v. Dempsey, 75 Wis. 313, where it is said in the opinion by Mr. Justice Cassoday, discussing a similar subject, "The statute expressly precludes this court from reversing any judgment for any error not affecting the substantial right of the appellant. R.S. sec. 2829." There is noth