author: LUNDSTEN, J. ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Corey J. Hampton, Defendant-Appellant.
    Court of Appeals

      No. 01-0509-CR.

      Submitted on briefs September 12, 2001.—

      Decided November 27, 2002.

    2002 WI App 293
    (Also reported in 655 N.W.2d 131.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Melinda A. Swartz, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joanne F. Kloppenburg, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review granted 2-19-03.

   LUNDSTEN, J.

¶ 1. Corey Hampton appeals orders denying his motion for plea withdrawal. Hampton contends his plea colloquy was defective because the circuit court failed to personally inform him that the court was not bound by the terms of a plea agreement. Hampton asserts he made a prima facie showing under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and was entitled to an evidentiary hearing on his plea withdrawal motion. He contends the circuit court improperly denied that motion without an evidentiary hearing. We conclude that Hampton made a prima facie showing and that his motion should not have been denied without an evidentiary hearing. We reverse and remand for further proceedings.

Background

¶ 2. Corey Hampton was charged with second-degree sexual assault of a child. Among other things, it was alleged that Hampton penetrated his fifteen-year-old cousin's vagina with his finger and had oral contact with her vagina. This charge carried a potential prison term of twenty years. See Wis. Stat. §§ 939.50(3)(bc) and 948.02(2) (1997-98). Hampton entered an Alford plea pursuant to an agreement in which the State agreed (1) to recommend an imposed and stayed prison term of seven years, and (2) to recommend seven years' probation with nine to twelve months' jail time as a condition.

¶ 3. Hampton is an educated man. He has completed six years of education at "UW-M" and has two college degrees. Prior to the plea hearing, Hampton's attorney reviewed a two-page plea questionnaire with Hampton. Item ten on that questionnaire states:

I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the following . .. maximum possible penalties in this case.

Immediately below this language the questionnaire identifies Hampton's crime and states: "Years: 20" and "Fine: $10,000."

¶ 4. Item fifteen of the plea questionnaire states: "I have read (or have had read to me) this entire questionnaire, and I understand its contents." Item fifteen is followed by a handwritten date and Hampton's signature. In response to questions from the circuit court, Hampton agreed that his counsel read the information in the plea questionnaire to him and that he, Hampton, signed both sides of the form. Hampton's trial counsel signed the questionnaire, attesting that "the defendant acknowledged his understanding of each item in this questionnaire." Although the circuit court engaged in a lengthy plea colloquy, the court did not in any manner personally tell Hampton that it was not bound by the plea agreement.

¶ 5. At Hampton's later sentencing hearing, the circuit court rejected the State's recommended disposition. The court placed Hampton on probation and ordered twelve months' jail time as a condition, in keeping with the agreement. However, instead of an imposed and stayed seven-year prison term, as recommended by the State pursuant to the plea agreement, the court imposed and stayed a twelve-year term. Also, the probationary period imposed was twelve years, rather than the recommended seven-year period.

¶ 6. Hampton later filed a plea withdrawal motion asserting that the circuit court failed to personally advise him it was not bound by the plea agreement sentencing recommendation. The motion also asserted that Hampton did not, at the time of his plea, understand that the court was not bound by the plea agreement sentencing recommendation. Hampton requested an evidentiary hearing to resolve any factual dispute raised by his motion. The circuit court denied the motion without an evidentiary hearing.

Discussion

¶ 7. The instant case involves an exemplary plea colloquy, with one exception: the circuit court failed to personally inform Hampton that it was not bound by the terms of the negotiated plea agreement. Hampton contends that under State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973), and the procedure set forth in Bangert, 131 Wis. 2d 246, this omission was error. Hampton asserts he made a prima facie showing under Bangert, because he alleged the error and also alleged he did not understand that the circuit court was not bound by the plea agreement. Hampton contends that once he made this prima facie showing, he was entitled to an evidentiary hearing. He asserts the circuit court improperly denied his plea withdrawal motion without a hearing. We conclude that Hampton made a prima facie showing and that he was entitled to an evidentiary hearing on his motion.

A. Whether Hampton Made a Prima Facie Showing

¶ 8. Under the burden-shifting framework set forth in Bangert, defendants must make a. prima facie showing that their guilty or no contest pleas were accepted without compliance with Wis. Stat. § 971.08 or another court-mandated duty. Such defendants must also allege that they did not know or understand the information at issue. Bangert, 131 Wis. 2d at 274. Whether a defendant has established a prima facie case presents a question of law, which we review without deference to the trial court's determination. State v. Hansen, 168 Wis. 2d 749, 754-55, 485 N.W.2d 74 (Ct. App. 1992). If a defendant makes this initial showing, the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered. Bangert, 131 Wis. 2d at 274-75.

¶ 9. Neither Bangert nor Wis. Stat. § 971.08 says that a court must personally inform a defendant entering a plea that the court is not bound by the terms of á plea agreement. Nonetheless, this task was judicially mandated in Gray, a seminal Wisconsin case requiring that plea agreements be put on the record. In Gray, the court adopted language in the ABA Standards Relating to Pleas of Guilty, stating: " 'If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court.'" Gray, 57 Wis. 2d at 24 (quoting ABA Standards Relating to Pleas of Guilty, Approved Draft 1968, § 1.5, at 29 (emphasis added)).

¶ 10. It can be argued that because the Gray "personally inform" requirement is a duty neither imposed by Wis. Stat. § 971.08, nor expressly imposed by Bangert, the failure to comply with Gray does not fall under the Bangert methodology. The proposition is debatable, but ultimately unpersuasive.

¶ 11. In Bangert, the supreme court states: "Nor do we discard the general duties of the trial court prior to accepting a plea of guilty or no contest." Bangert, 131 Wis. 2d at 261. The court goes on to say "[t]hose duties are" and then lists duties found in Ernst v. State, 43 Wis. 2d 661, 674, 170 N.W.2d 713 (1969). Bangert, 131 Wis. 2d at 261-62. Later, the Bangert court specifies requirements: "(a) the procedures set forth in sec. 971.08(1); (b) the additional procedures which we now make mandatory; and (c) those procedures already enumerated and mandated in Ernst." Id. at 272-73. Because the Bangert decision lists required duties and does not mention the Gray requirement, the question arises whether the supreme court intended to abandon the Gray requirement. We conclude the answer is no because the supreme court has reiterated the Gray requirement in at least two post Bangert decisions: State v. McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377 (1990) ("[Wlhen a plea agreement contemplates charge or sentence concessions which must be approved by the court, the court must personally advise the defendant that the agreement is in no way binding on the court." (Emphasis added.)), and State v. Comstock, 168 Wis. 2d 915, 928 n.11, 485 N.W.2d 354 (1992) ("The court must personally advise the defendant that the [plea] agreement is in no way binding on the court." (Emphasis added.)). Accordingly, we conclude that circuit courts must personally inform defendants that courts are not bound by plea agreement terms, and further conclude that this requirement is subject to review under the Bangert analysis.

¶ 12. It appears the State agrees with the general notion that the Gray requirement survives and is enforced by Bangert. In the context of discussing Bangert requirements, the State's brief says: "The Wisconsin Supreme Court has imposed additional duties on the court, including [duties specified in Bangert and] that the [plea] agreement is not binding on the court." As support for this legal proposition the State cites to Bangert and that part oí McQuay which relies on Gray. See McQuay, 154 Wis. 2d. at 128.

¶ 13. What the State, does dispute is whether a court must personally inform a defendant that it is not bound by the terms of a plea agreement. However, the State's view that a court need not personally provide this information runs contrary to the plain language of Gray, McQuay, and Comstock. Each of these cases unambiguously specifies that a court must "personally" provide this information.

¶ 14. We observe that the requirement that courts "personally" provide the information at issue here stands in contrast to other plea colloquy duties which specify that courts must "personally" make a determination or make an inquiry. E.g., Bangert, 131 Wis. 2d at 262 ("personally ascertain whether a factual basis exists to support the plea"). Bangert and subsequent cases explain that the method of complying with requirements to "personally" make determinations and inquiries varies from case to case and may include reliance on documents or portions of the record predating the plea hearing. See id. at 267-69; State v. Moederndorfer, 141 Wis. 2d 823, 826-27, 416 N.W.2d 627 (Ct. App. 1987). Similarly, we observe that the "personally inform" requirement at issue here is an exception, not the rule. In general, a circuit court may ascertain a defendant's knowledge through a combination of questions and reference to the record or to a prior communication. See Bangert, 131 Wis. 2d at 267-68; see also State v. Brandt, 226 Wis. 2d 610, 619-20, 594 N.W.2d 759 (1999); Hansen, 168 Wis. 2d at 754; Moederndorfer, 141 Wis. 2d at 827-28. Indeed, our research discloses just one other decision plainly stating that a court must personally provide particular information to a defendant during a plea colloquy. See State v. Douangmala, 2002 WI 62, ¶ 31, 253 Wis. 2d 173, 646 N.W.2d 1 (construing the directive in Wis. Stat. § 971.08(l)(c) to advise of deportation consequences).

¶ 15. The parties' arguments regarding whether Hampton made a prima facie showing include discussions about the plea questionnaire and whether Hampton's signature on it shows that Hampton understood the circuit court was not bound by the plea agreement. This discussion is beside the point because the prima facie issue is not whether Hampton actually understood the information. A defendant's actual understanding is addressed, if at all, after the burden shifts to the State. See Bangert, 131 Wis. 2d at 275 ("In essence, the state will be required to show that the defendant in fact possessed the constitutionally required understanding and knowledge ...."); State v. Mohr, 201 Wis. 2d 693, 701, 549 N.W.2d 497 (Ct. App. 1996) ("second prong" asks whether defendant "indeed knew"). The issue here is whether the circuit court met its obligation under Gray to personally inform Hampton that it was not bound by the plea agreement.

¶ 16. As an alternative argument, the State contends that the circuit court met its duty to personally inform Hampton that it was not bound by the negotiated recommendation when the court informed Hampton that the potential maximum penalty for his crime was twenty years. We agree with Hampton, however, that the maximum penalty information could be understood to simply mean that Hampton faced a potential twenty-year sentence if he did not follow through with the plea agreement. To the extent the State is arguing that Gray and subsequent cases do not require magic words, we agree. Nonetheless, the problem here is that the circuit court did not personally convey to Hampton in any manner that it could reject the plea agreement sentencing recommendation. In the context of the plea colloquy before us, personally providing maximum penalty information was insufficient to satisfy Gray.

¶ 17. Applying the above principles here, we conclude that Hampton made a prima facie showing. Hampton asserted in his plea withdrawal motion that the "trial court failed to inform him that it was not bound by the State's recommendation," and the plea colloquy supports that assertion. Hampton also alleged that he was actually unaware that the court could deviate from the plea agreement sentencing recommendation.

B. Whether the Circuit Court Properly Denied

Hampton's Plea Withdrawal Motion Without an Evidentiary Hearing

¶ 18. The circuit court did not address whether Hampton made a prima facie showing. Indeed, as discussed below, the circuit court's reason for denying Hampton's plea withdrawal motion is not transparent. Regardless, it is Hampton's contention that the circuit court could not deny his motion without an evidentiary hearing because he presented a prima facie case under Bangert and he requested a hearing. We agree.

¶ 19. The State asks us to apply State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). We understand the State to be arguing that, under the approach used in Bentley, Hampton was not entitled to a hearing because the record conclusively demonstrated that Hampton was not entitled to relief. The State contends that the allegations in Hampton's plea withdrawal motion are conclusory and the record shows (1) that the disputed information was read to Hampton by his attorney, (2) that Hampton attested to his understanding of the information by signing the plea questionnaire form, and (3) that the information at issue is relatively easy to understand, especially for a person with Hampton's level of education.

¶ 20. Hampton responds that Bentley does not apply because the defendant in Bentley sought plea withdrawal based on ineffective assistance of counsel and, therefore, bore the burden of showing both ineffective assistance and the need for an evidentiary hearing. See id. at 311-12. In contrast, under Bangert, once a defendant makes a prima facie showing, the burden shifts to the State. See Bangert, 131 Wis. 2d at 274. Hampton contends that once he made a prima facie showing of a deficient colloquy, he was entitled to an evidentiary hearing on the issue of his actual understanding, regardless whether he made any additional factual allegations and regardless whether there was evidence in the existing record tending to show that he did understand.

¶ 21. We agree with Hampton's description of the differing burdens and conclude that the burden-shifting scheme imposed by Bangert is inconsistent with the State's proposal that we apply Bentley. In effect, the State argues that Hampton not only had the burden of presenting a prima facie case, but also had the burden of making non-conclusory assertions about the evidence he would present at a hearing and why, if believed, his evidence would entitle him to relief. Cf. Bentley, 201 Wis. 2d at 313-18; State v. Washington, 176 Wis. 2d 205, 216, 500 N.W.2d 331 (Ct. App. 1993) ("[T]he motion must contain at least enough facts to lead the trial court to conclude that an evidentiary hearing is necessary"). Regardless whether the imposition of this additional burden makes sense in some Bangert situations, it is for the supreme court, not this court, to impose a different burden-shifting framework than the one set forth in Bangert.

¶ 22. It is understandable that the State, and perhaps some circuit courts, are inclined to apply Bentley to plea withdrawal cases such as this. In Bentley, the defendant alleged that his trial counsel gave him wrong information and that, absent this wrong information, he would have pled differently. Bentley, 201 Wis. 2d at 316. The Bentley court held that in order for defendant Bentley to earn the right to an evidentiary hearing, he needed to allege facts which, if true, would entitle him to relief. Id. at 313-18. Under Bentley, a circuit court has discretion to deny a postconviction motion without an evidentiary hearing "if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief." Id. at 309-10 (citation omitted). In effect, Bentley requires written allegations showing that there is a reason to hold an evidentiary hearing and that the defendant is not simply on a fishing expedition. We understand the temptation of busy trial courts to place the same burden on defendants like Hampton. Similar to Bentley's bald assertion that he would not have pled guilty had he been given correct information, id. at 316, Hampton made a bald assertion that he did not understand that the circuit court was not bound by the negotiated sentencing recommendation. As was apparently true in Bentley, the prosecutor here was content to rely on the record. And, as in Bentley, it was the defendant here who was in the best position to explain why, despite the record to that point, there was a need for an evidentiary hearing. However, fashioning a different burden-shifting scheme, one that might better fit the practicalities of busy trial courts and the nature of plea withdrawal requests, would be no easy task. Moreover, such an endeavor, if it is to be undertaken, is for the supreme court; this court is bound by the burden-shifting framework set forth in Bangert.

¶ 23. Having rejected the State's proposal that we impose an additional pleading burden on Hampton, the question remains whether we may affirm the circuit court's decision to deny Hampton's motion based on other grounds. The circuit court explained its rejection of Hampton's motion with the following:

When Hampton told the court that he and his attorney had gone over the form together, that trial counsel had read it to him, and that he had signed the form after he went over it with his lawyer, the court presumes this information to be true. His signature is intended to acknowledge his understanding of the form and its contents and conclusively advises the court of same. The court relies on a defendant's assertions when he is questioned about his understanding of the form, and subsequent claims that the form or its contents were really not understood simply renders the plea proceeding meaningless.
Hampton's current claims are belied by the record in this case, and a hearing to ascertain whether the defendant really understood the form and its contents, after having represented that he did, simply defeats the purpose of the plea proceeding and the reason for filling out the forms and signing them. Hampton would have the court find that his signature on' the bottom of the form, in reality, means nothing — until an evidentiary hearing can be held to determine if his acknowledgment is a true acknowledgment or a false acknowledgment of his understanding. The defendant's signature on the bottom of the form must be held to mean what it represents, and subsequent claims that "I really didn't know what the form said" completely undermine the finality of guilty pleas.

¶ 24. The circuit court's comments may be read at least two ways. First, that a defendant should never be able to contradict his or her attestation of understanding as evidenced by his or her signature on a plea questionnaire. If this is what the circuit court meant, the error is obvious. While a plea questionnaire may be used as evidence that a defendant actually understood a particular piece of information contained in the questionnaire, a signed questionnaire does not conclusively establish actual knowledge and understanding. In plea withdrawal proceedings, defendants may present evidence showing that, despite their signature on a plea questionnaire, they entered a plea without understanding some piece of information in the questionnaire. See, e.g., State v. Bollig, 2000 WI 6, ¶¶ 4-5, 52-55, 232 Wis. 2d 561, 605 N.W.2d 199 (signed plea questionnaire was not conclusive evidence that defendant understood elements of crime listed in questionnaire).

¶ 25. A second interpretation of the circuit court's comments is that the court did not find Hampton's new contrary assertion to be credible. If this is the court's meaning, the error is twofold. First, for the reasons set forth in ¶¶ 21-22 of this opinion, Hampton was not obligated to summarize in his plea withdrawal motion the evidence he might present at the requested hearing. Thus, any credibility finding by the court was made without Hampton's full explanation, or at least without affording Hampton his right to present a full explanation if he chose to do so. Second, the circuit court's procedure runs contrary to the general rule that credibility issues are resolved by live testimony. See State v. Leitner, 2001 WI App 172, ¶ 34, 247 Wis. 2d 195, 633 N.W.2d 207; see also Johnson Bank v. Brandon Apparel Group, Inc., 2001 WI App 159, ¶ 15, 246 Wis. 2d 828, 632 N.W.2d 107. Hampton, unlike the defendant in Leitner, did not invite the circuit court to resolve a factual dispute based on written assertions. See Leitner, 2001 WI App 172 at ¶ 34. Rather, Hampton specifically requested a hearing "to resolve the questions of fact and law presented by [his] motion."

¶ 26. Accordingly, we remand for an evidentiary hearing on the question whether Hampton understood, at the time of his plea, that his sentencing court would not be bound by the recommended sentence contained in the plea agreement. We do not suggest that the circuit court must give any particular weight to Hampton's live testimony, should he decide to testify. The circuit court is free to disbelieve Hampton, even if the only contrary evidence is the evidence relied on by the State thus far, including Hampton's education and the signed plea questionnaire. We only hold that because Hampton made a prima facie showing under Bangert, and requested an evidentiary hearing to resolve factual disputes, it was error to resolve the credibility issue without giving Hampton an opportunity to present evidence.

Conclusion

¶ 27. For the above reasons, we reverse the order denying Hampton's plea withdrawal motion without an evidentiary hearing. Hampton's motion is reinstated and the matter is remanded to give Hampton an opportunity to renew his request for an evidentiary hearing and for further proceedings consistent with this opinion.

By the Court. — Judgment and orders reversed and cause remanded with directions.

ROGGENSACK, J.

¶ 28. (dissenting). The majority opinion concludes that Hampton made a prima facie showing that his plea was not knowing, voluntary and intelligent because the circuit court did not personally tell him during its colloquy that it was not bound by the plea agreement, notwithstanding Hampton's signing a plea questionnaire that his trial lawyer had read to him that represented to the court that he knew that the circuit court was not bound. Then, after concluding that the plea colloquy was defective, the majority also concludes that Hampton has the right to an evi-dentiary hearing on his motion to withdraw his plea because his lawyer's statement appended to the motion contends that Hampton would testify that he did not understand that the circuit court was not bound by his plea agreement with the State. However, even if I were to assume that the circuit court had an obligation to personally tell Hampton during its colloquy that it was not bound by his plea agreement, Hampton's motion is insufficient to support a right to a hearing because it alleges only a conclusion or "ultimate fact," rather than setting forth evidentiary facts, which if proved true, would show why he did not understand then what he claims now not to have understood. Therefore, because I conclude that the circuit court's decision not to grant a hearing on Hampton's motion was discretionary and because the record demonstrates a rational exercise of discretion, I would affirm the circuit court's order. Accordingly, I respectfully dissent.

Standard of Review.

¶ 29. We independently review whether a plea was knowingly, voluntarily and intelligently entered as a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶ 13, 232 Wis. 2d 561, 605 N.W.2d 199. As part of that analysis, we begin by determining whether a defendant made a prima facie case sufficient to show that the circuit court violated Wis. Stat. § 971.08 (1999-2000), as interpreted by the Wisconsin Supreme Court or this court. If we conclude that the defendant made a prima facie case, we examine the motion and supporting affidavits to determine whether, as a matter of law, a hearing is required. State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50, 53 (1996). However, if the motion fails to allege sufficient evidentiary facts which if proved would entitle the defendant to withdraw his plea, the circuit court has the discretion to deny the motion without a hearing. Id. at 310-11, 548 N.W.2d at 53.

Sufficiency of Hampton's Pleadings.

¶ 30. I agree that the circuit court did not directly bring up the effect of Hampton's plea bargain in relation to the sentence it could impose for his crime, before accepting his plea. I also agree that it is the obligation of the circuit court to assess whether Hampton understands that the circuit court is not bound to follow the plea agreement in its sentencing decision. However, in order to have the right to an evidentiary hearing on his motion, Hampton was required to state those facts in his petition, which if proved to be true, would entitle him to withdraw his plea. The supreme court has consistently held that conclusory allegations are insufficient to require a hearing on a postconviction motion for plea withdrawal. Bentley, 201 Wis. 2d at 313, 548 N.W.2d at 54 (citing Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974)). As the supreme court explained in Levesque, "[a] statement of ultimate facts which may be sufficient to sustain a complaint against a demurrer is not sufficient for a petition for postconviction relief, a petition to withdraw a plea or a motion for a new trial." Levesque, 63 Wis. 2d at 422, 217 N.W.2d at 322.

¶ 31. In Levesque, a defendant who sought to withdraw his guilty plea was denied an evidentiary hearing. His motion provided:

(1) Levesque's conduct did not constitute burglary as defined in sec. 943.10(l)(a), Stats.; (2) the court did not adequately ascertain the defendant understood the nature of the offense charged; and (3) Levesque at the time of the arraignment was not able to understand the proceedings against him due to a mental disease or a mental defect.

Id. at 418, 217 N.W.2d at 320. The court's opinion addressed only the third contention, Levesque's purported lack of understanding due to a mental disease or defect. The court concluded that the motion was insufficient to require a hearing because Levesque had not alleged evidentiary facts to support his assertion that he did not understand. Id. The court explained that he had alleged only "legal grounds" for his motion, id., or "ultimate facts." Id. at 422, 217 N.W.2d at 322. As was explained again in Bentley, motions to withdraw a plea after sentencing cannot rely on conclusory allegations, hoping to supplement them with evidentiary facts at a subsequent hearing. Bentley, 201 Wis. 2d at 313, 548 N.W.2d at 54.

¶ 32. Here the only affidavit to support Hampton's motion is the hearsay statement of his attorney attesting to what Hampton would say if he were called at a hearing. It states in relevant part that:

3.a. At the time he entered his Alford plea, he did not know that the court was not bound by the State's recommendation and was free to sentence him to whatever sentence it deemed appropriate.
b. Had he known that the court was not bound by the State's recommendation, he would not have pled guilty but would have asserted his right to a jury trial.

¶ 33. Aside from the obvious evidentiary problems with providing a hearsay statement to the circuit court, the allegations made on Hampton's behalf are conclusory, self-serving statements, facially insufficient to require the circuit court to hold a hearing. In my view, the majority errs because it refuses to apply Levesque, a plea withdrawal case cited in Bentley, that requires Hampton to provide the circuit court with sufficient evidentiary facts to entitle him to withdraw his plea if those facts are proven, before he is entitled to a hearing on his motion. Bentley, 201 Wis. 2d at 313, 548 N.W.2d at 54. Hampton did not carry that burden. Furthermore, when faced with Hampton's motion, the circuit court carefully explained why it was exercising its discretion to deny the motion without a hearing. Accordingly, because I conclude that Hampton did not have a right to a hearing and that the circuit court did not erroneously exercise its discretion in denying his motion without a hearing, I would affirm its order. Therefore, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The underlying facts in this case are more complex than our "Background" factual summary suggests, but none of the additional complexities bear on any issue on appeal. For example, the plea agreement gave Hampton a choice of options and we have only recited the option he ultimately chose at sentencing. Also, Hampton's plea withdrawal request was made twice before two judges. Judge Mel Flanagan, who presided over Hampton's plea hearing, rejected Hampton's first plea withdrawal motion without a hearing. Hampton appealed Judge Flanagan's decision and, after obtaining new counsel, voluntarily dismissed his appeal, returned to the trial court, and filed a second plea withdrawal motion. This motion was heard by Judge Dennis E Moroney. Judge Moroney rejected Hampton's second motion, also without a hearing. Although technically this appeal is taken from both Judge Flanagan's order and Judge Moroney's order, we only address Judge Moroney's order. Neither Hampton nor the State suggests that the issues in this case are affected by the fact that Hampton made two plea withdrawal motions or that two different judges rejected the motions. Plainly, Judge Moroney's order deals with the same topic and supersedes Judge Flanagan's order. Because we are not presented with any challenges relating to these "complicating" facts, we ignore them for the sake of clarity in this opinion.

       In his reply brief before this court, Hampton says he alleged in his postconviction motion that "when going over the questionnaire his trial attorney did not explain to him that the court was not bound by the negotiations." It is true that Hampton's postconviction memorandum makes this factual assertion, but the more specific supporting affidavit, sworn to by postconviction counsel, does not back up this assertion. The affidavit states only that Hampton would testify: "He did not read the guilty plea questionnaire himself. His attorney briefly explained the form to him."

       The dissent states that this majority opinion "refuses to apply [Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974)]." Levesque, however, predates Bangert's "new approach" to handling the particular type of plea withdrawal argument made by Hampton. See State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). At the time Levesque was decided, there was no procedure akin to the burden shifting imposed by Bangert. The pleading burden imposed on defendants in Levesque (and subsequently refined in State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996)) is not inherently incompatible with burden shifting. But for the reasons in ¶¶ 18-21 of this opinion, we conclude it is incompatible with the specific burden-shifting scheme imposed by Bangert. At the same time, we readily acknowledge that Bangert does not apply to all plea withdrawal requests. For example, Bangert does not apply to plea withdrawal requests based on alleged ineffective assistance of counsel, exemplified by Bentley. More generally, Bangert does not apply unless the defendant asserts a defective plea colloquy.
        E.g., State v. Fosnow, 2001 WI App 2, ¶¶ 5, 8, 240 Wis. 2d 699, 624 N.W.2d 883 (Bangert not applied to claim that plea was not knowingly and voluntarily entered because defendant was not aware at the time of the plea that he had Dissociative Identity Disorder).

       The plea questionnaire states:
      10. I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the following minimum (if applicable) and maximum possible penalties in this case.
      It then lists the penalty for the crime charged, second degree sexual assault, as 20 years in prison and a $10,000 fine. Additionally, his trial attorney attested on the form that he had discussed and explained the contents of the questionnaire to Hampton and that Hampton acknowledged his understanding of each item in the questionnaire.

      I have significant doubts about the majority's analysis of the manner in which a circuit court must undertake its obligation to assess whether the defendant knew it was not bound by the plea agreement. However, because I would affirm the circuit court even if I were to conclude that the court's colloquy with Hampton was inadequate, I do not address this issue.


source: Caselaw Access Project

author:
      WILLIAM A. BABLITCH, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE ANN WALSH BRADLEY, J.
      DIANE S. SYKES, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Sherrie S. Tucker, Defendant-Appellant.
    Supreme Court

      No. 00-3354-CR.

      Oral argument September 12,2002. —
    Decided March 5, 2003.

    2003 WI 12
    (Also reported in 657 N.W.2d 374.)

      For the defendant-appellant there were briefs and oral argument by Paul LaZotte, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Kathleen M. Ptacek, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   WILLIAM A. BABLITCH, J.

¶ 1. We are asked to decide under what circumstances a circuit court may restrict the disclosure of juror information in a criminal trial, and, if juror information is restricted, what precautions must be taken to avoid prejudice to the criminal defendant.

¶ 2. The defendant, Sherrie Tucker (Tucker), was convicted of possession with intent to deliver cocaine within 1,000 feet of a school while armed, in violation of Wis. Stat. §§ 961.41(lm)(cm), 939.05 and 961.49 (1999-2000). Prior to jury selection, the circuit court judge told counsel off the record that "[i]t has been my practice to use numbers and not names in this court." The court proceeded to use numbers over defense counsel's objection "because it is a case involving sales of drugs." Although the jurors names were withheld from the record, both parties had access to all the juror information, including the jurors' names.

¶ 3. Tucker appealed her conviction, arguing that the use of numbers instead of the jurors' names constituted prejudicial error. The court of appeals certified the following issues to this court: (1) Whether voir dire by number constitutes an anonymous jury under State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996), when the restriction only applies to using the jurors' names in open court; and (2) Whether Britt's holding that an anonymous jury may be empanelled only if there is a strong reason the jury needs protection should continue to be the legal standard in Wisconsin.

¶ 4. We hold that in accordance with the standard articulated in Britt, if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant. Therefore, we conclude that the circuit court in this case erroneously exercised its discretion in withholding the jurors' names from the record because it failed to make an individualized determination that the jury needed protection and failed to take reasonable precautions to minimize any prejudicial effect to Tucker. Nevertheless, we further conclude that the error was harmless based on the overwhelming evidence of Tucker's guilt.

¶ 5. Tucker also raised an issue regarding a ruling of the circuit court that denied the admission of out-of-court statements by an unavailable witness. We conclude that the circuit court did not erroneously exercise its discretion by refusing to admit the out-of-court statements by an unavailable witness since the court reached a reasonable conclusion through a rational process based upon the relevant facts. We further conclude that Tucker was not denied her constitutional right to present a defense based upon an independent review of the record.

FACTS AND PROCEDURAL HISTORY

¶ 6. In March 1998, law enforcement officers executed a search warrant at an apartment shared by Tucker and her boyfriend, Damien McCray (McCray). In the apartment, officers found cocaine in a bag marked "Shiree Tucker," a .38 caliber revolver, and bullets. Tucker made a statement to police after a Miranda warning was given, in which she admitted that the cocaine belonged to her and that she had been selling cocaine for about a month. Tucker was tried and convicted of possession of cocaine with intent to deliver within 1,000 feet of a school while armed with a dangerous weapon, which resulted in a seven-year prison sentence. The circuit court judge stayed the prison sentence and instead ordered seven years of probation for Tucker.

I. Restriction on Jurors' Names

¶ 7. Prior to jury selection for Tucker's trial, the circuit court judge told counsel off the record that "[i]t has been my practice to use numbers and not names in this court. . . . What I'm prohibiting is the names of jurors being stated in the courtroom and for the record when other people may be sitting in the audience and using those names for any other reason." When defense counsel objected, the judge explained that the use of numbers is appropriate because this was a case "involving drugs and an allegation of drug dealing which I think raises the bar to some extent in terms of any danger to jurors." The judge further explained that "it's the practice of this Court simply to use numbers and just go right into using numbers as opposed to names, not highlighting the fact that the numbers are used and certainly making no statement to jurors about numbers being used for safety or anything else." During the trial, the judge corrected defense counsel when he referred to a juror by name, stating "it's my practice to refer to the jurors by number, so please follow the practice." There was no other statement made in front of the jury regarding the use of numbers instead of their names.

II. Out-of-Court Statements

¶ 8. In December 1998, McCray was interviewed by defense investigator, Cynthia Kollath (Kollath) and Tucker's attorney. Kollath prepared a memorandum that summarized the interview. At Tucker's trial, McCray invoked his Fifth Amendment privilege, so defense counsel sought to introduce McCray's statements through Kollath's memorandum. Defense counsel argued that McCray's statements should he admissible as statements against penal interest or alternatively, as statements made under the residual hearsay exception for unavailable witnesses. The circuit court found that neither of these hearsay exceptions applied in this case because the statements lacked the requisite indicia of trustworthiness. Tucker filed a postconviction motion seeking a new trial based on two issues: (1) Whether the circuit court erred by not admitting McCray's out-of-court statements; and (2) Whether she had been denied the right to present a fair defense. After a hearing, the circuit court denied Tucker's postconviction motion for a new trial.

¶ 9. The court of appeals certified issues regarding the definition and use of an anonymous jury in light of the standard announced in Britt, and Tucker appealed the circuit court's refusal to admit McCray's out-of-court statements under an exception to the hearsay rule.

ANALYSIS

I. "Anonymous" Juries

¶ 10. Appellate review of a circuit court's decision to use an anonymous jury examines whether the circuit court properly exercised its discretion. Britt, 203 Wis. 2d at 34. According to the Seventh Circuit, the review of a court's decision regarding an anonymous jury is for "abuse of discretion, and must be particularly deferential to the trial court's substantial discretion." United States v. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992). The proper exercise of a circuit court's discretion requires a reasoning process that considers the applicable law and the facts of record, leading to a conclusion that a reasonable judge could reach. State v. Jeske, 197 Wis. 2d 905, 912, 541 N.W.2d 225 (Ct. App. 1995). However, a circuit court erroneously exercises its discretion if it makes an error of law. State v. St. George; ¶ 37, 252 Wis. 2d 499, 643 N.W.2d 777.

¶ 11. The issues certified by the court of appeals deal with the definition of an "anonymous" jury and the circumstances under which an "anonymous" jury may be used. In this case, it may be more appropriate to describe the jury as a "numbers" jury instead of an "anonymous" jury since only the jurors' names were withheld from the record. Both parties had access to all the juror information, including the jurors' names. Furthermore, the public presumably could have obtained the jurors' names by inquiring at the clerk of courts' office. A jury is typically deemed "anonymous" when juror information is withheld from the public and the parties themselves. See, e.g., Crockett, 979 F.2d at 1215 n.10. Therefore, the jury in this case was not a classic "anonymous" jury. Notwithstanding whether the jury in this case is characterized as an "anonymous" or a "numbers" jury, if restrictions are placed on juror identification or information, due process concerns are raised regarding a defendant's rights to an impartial jury and a presumption of innocence. Accordingly, although this case does not deal with the classic "anonymous" jury, the reasoning in cases involving anonymous juries is beneficial to our analysis.

¶ 12. The empanelling of an anonymous jury is a relatively recent phenomenon that was rarely utilized before the Second Circuit's opinion in United States v. Barnes, 604 F.2d 121 (2d Cir. 1979). The court in Barnes addressed juror anonymity with respect to its effect on the practice of voir dire. Id. at 142. In Barnes, the district court ordered that the jurors' identities, addresses, religious affiliations, and ethnic backgrounds remain anonymous, even from the parties themselves. Id. at 133. The court began its analysis by noting a judge's broad discretion in conducting voir dire. Id. at 137. The court then examined each of the restrictions placed on juror information and concluded that the jurors' demeanors and responses to questions regarding their family, education and other matters would provide substantially the same information as the juror information that was restricted. Id. at 142. Consequently, the court rejected the argument that the defendant was denied the ability to intelligently exercise peremptory challenges. Id. In sum, the Second Circuit held that the circuit court had permitted adequate questioning of the jury and had acted in accordance with its responsibility "to protect the jury, to assure its privacy, and to avoid all possible mental blocks against impartiality." Id. at 141. Although not explicit, the court essentially weighed the need to protect the jury, which was prompted by the defendant's ties to the mafia, against the rights of the defendant to an impartial jury.

¶ 13. A few years later, the Second Circuit addressed a different concern with the use of an anonymous jury in United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985). In Thomas, the defendants argued that an anonymous jury is an unconstitutional infringement on a defendant's presumption of innocence because it gives jurors the impression that the defendant is dangerous and a threat to the jurors' safety. Id. at 1363. The court in Thomas acknowledged the fundamental tenet that a defendant is presumed innocent until proven guilty, but nevertheless determined that an anonymous jury might be permissible if jurors are in need of protection. Id. at 1364-65. Therefore, the court rejected a per se rule against empanelling an anonymous jury, but concluded that an anonymous jury is warranted only if there is a "strong reason" to believe that the jury needs protection and if the court takes "reasonable precaution[s]" to minimize the impact of anonymity on the jurors' views of the defendant. Id. at 1365. The court noted that reasonable precautions were taken in that cáse, in part, because the judge gave the jury an "intelligent, reasonable and believable explanation for his actions that did not cast the defendants in an unfavorable light." Id. at 1364. In other words, the curative or precautionary instruction served to rebut any notion that the use of an anonymous jury was somehow a negative reflection on the defendant's guilt or character.

¶ 14. The Second Circuit's approach in Thomas has been widely adopted by both federal and state courts, including the Seventh Circuit and the Wisconsin court of appeals. See Crockett, 979 F.2d 1204; Britt, 203 Wis. 2d 25. The court of appeals in Britt held that a circuit court may, in its discretion, take reasonable steps to protect identifying information of jurors in a criminal case. Britt, 203 Wis. 2d at 34. In Britt, the circuit court had ruled that the jurors' names, addresses, and places of employment could not be publicly revealed in open court or on the record; however, both parties had access to all juror information via written questionnaires.

¶ 15. Citing the Seventh Circuit's decision in Crockett, the Britt court concluded that a circuit court may empanel an anonymous jury if two criteria are met: (1) if there is a strong reason to believe that the jury needs protection; and (2) if reasonable precautions are taken to minimize any prejudicial effect to the defendant, so as to protect the defendant's rights to a fair and impartial jury. Id. at 34-36.

¶ 16. In Britt, the court of appeals concluded that the circuit court had satisfied both criteria and therefore properly exercised its discretion in empanelling an anonymous jury. Id. at 35, 38. First, the court cited several episodes of victim and witness intimidation prior to trial, and concluded that these constituted sufficient grounds to reasonably believe that the jury might also be subject to similar tactics, which warranted their protection. Id. at 35. Second, the court reasoned that the restrictions imposed by the circuit court were minimal since the parties were allowed to ask certain general questions regarding the jurors' residences and types of employment and were provided with all of the juror information via the written questionnaires. Thus, the court of appeals concluded that the circuit court had prudently balanced the jury's need for protection against the defendant's right to a fair and impartial jury. Id. at 37.

¶ 17. Similar to Britt, where juror information was only restricted in open court, the factual situation in this case does not involve a truly "anonymous" jury; nevertheless, we find the reasoning in Britt persuasive. Therefore, before a circuit court restricts any juror information in an individual case, it should determine that the jurors are in need of protection and take reasonable precautions to avoid prejudice to the defendant. In this case, Tucker concedes that her opportunity for voir dire was not impeded since both parties had access to all the juror information. However, Tucker claims that her presumption of innocence was eroded by the circuit court's use of numbers without an individualized determination that the jury needed protection nor a precautionary statement made to the jury regarding the use of numbers instead of names.

¶ 18. Serious concerns regarding a defendant's presumption of innocence are raised when juror information is restricted, as in this case. As observed by the Supreme Judicial Court of Massachusetts, "[t]he em-panelment of an anonymous jury triggers due process scrutiny because this practice is likely to taint the jurors' opinion of the defendant, thereby burdening the presumption of innocence." Commonwealth v. Angiulo, 615 N.E.2d 155, 171 (Mass. 1993). Therefore, courts must attempt to ensure that "juror anonymity should not cast any adverse reflection upon the defendant . . . ." United States v. Scarfo, 850 F.2d 1015, 1025 (3d Cir. 1988). Similarly,. the Eleventh Circuit has stated,

Unquestionably, the empanelment of an anonymous jury is a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances. An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence. The presumption of innocence is "undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

United States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)).

¶ 19. As illustrated by these federal and state court decisions, the restriction of juror information raises serious concerns regarding a defendant's rights to an impartial jury and a presumption of innocence. Accordingly, we uphold the two-prong test enunciated in Britt and conclude that if a court withholds any juror information, it must both: (1) find that a jury needs protection; and (2) take reasonable precautions to avoid prejudicing the defendant. We now examine whether the circuit court in this case satisfied this two-prong test.

¶ 20. The review of a circuit court's decision regarding the restriction of juror information is for abuse of discretion. Crockett, 979 F.2d at 1215. However, in order to properly exercise its discretion, a circuit court must "apply the correct standard of law to the facts at hand." State v. Margaret H., 2000 WI 42, ¶ 32, 234 Wis. 2d 606, 610 N.W.2d 475. This court will reverse a discretionary decision if the circuit court's exercise of discretion "is based on an error of law." Marten Transp. v. Hartford Specialty, 194 Wis. 2d 1, 13, 533 N.W.2d 452 (1995). Thus, despite a deferential standard of review, we hold that the circuit court erroneously exercised its discretion by failing to apply the correct standard of law, namely the two-prong test announced in Britt.

¶ 21. First, the circuit court did not make an individualized determination that the jurors needed protection based on the specific circumstances present in Tucker's case. Rather, the court informed counsel that "it has been my practice to use numbers and not names" in drug cases. The circuit court repeatedly referred to its "practice" of using numbers without specifically noting any particular factors that warranted the use of numbers in Tucker's case.

¶ 22. There are various factors that may be taken into account in making an individualized determination that a jury needs protection. Such factors may include, but are not limited to: (1) the defendant's involvement in organized crime; (2) the defendant's participation in a group with the capacity to harm jurors; (3) the defendant's past attempts to interfere with the judicial process; and (4) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation or harassment. United States v. Darden, 70 F.3d 1507, 1532 (8th Cir. 1995); United States v. Ross, 33 F.3d at 1520.

¶ 23. Second, the circuit court did not take necessary precautions to minimize any prejudicial effect to Tucker. Although the circuit court explained the use of numbers instead of jurors' names to counsel off the record, the court did not make any statement to the jurors regarding its use of numbers. Rather, the jurors were just referred to by number instead of name. The only statement heard by the jurors regarding the use of numbers was when the circuit court corrected defense counsel by stating, "it's my practice to refer to the jurors by number, so please follow the practice." The circuit court did instruct the jury on Tucker's presumption of innocence and on the State's burden of proving guilt beyond a reasonable doubt. However, we conclude that this instruction, by itself, was insufficient. When jurors' names are withheld, as in this case, the circuit court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence. We recognize that in Britt, the circuit court apparently did not give a precautionary instruction to the jury; however, due to the potential for prejudice to the defendant, we conclude that such an instruction is necessary.

¶ 24. Any additional precautionary statements that are made to a jury when juror information is restricted should be based on factors and influences that may be present in a case, which could warrant withholding juror information. A precautionary statement must not mislead a jury, but must be based on factors and influences that are relevant in a particular case. In formulating a precautionary statement, a variety of factors and influences may be taken into account, as illustrated by statements that have been made by courts in other jurisdictions. See, e.g., United States v. DeLuca, 137 F.3d 24 (1st Cir. 1998) (district court may instruct jury that their identities will be withheld to ensure that no extrajudicial information is conveyed to them); Scarfo, 850 F.2d 1015 (district court may instruct jury that their anonymity is a precautionary measure to ensure that both sides get a fair trial); State v. Samonte, 928 P.2d 1 (Haw. 1996) (circuit court may instruct jury that anonymity is to protect jurors from contacts by the news media); State v. Bowles, 530 N.W.2d 521 (Minn. 1995) (circuit court may instruct jury that purpose of anonymity is to shield jurors from media harassment and undesirable publicity); State v. McKenzie, 532 N.W.2d 210 (Minn. 1995) (circuit court may instruct jury that they will remain anonymous to shield them from media harassment and ward off curiosity that might infringe on their privacy).

¶ 25. Courts must ensure that the use of numbers or any other restriction on identifying juror information is not interpreted as a reflection of a defendant's guilt or character. Therefore, in addition to instructing the jury on Tucker's presumption of innocence, the circuit court should have also given a precautionary instruction to the jury regarding the use of numbers instead of their names in order to minimize any potential prejudicial effect to Tucker.

¶ 26. Although the circuit court erred by failing to satisfy the two-prong test under Britt, the error in this case was harmless. An "error is harmless if it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" State v. Harvey, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189 (citing Neder v. United States, 527 U.S. 1,18 (1999)). In this case, Tucker admitted to police after she was given a Miranda warning that the cocaine belonged to her and that she had been selling cocaine for about a month. Tucker told police that she had purchased an "eight-ball" of cocaine and sold it in amounts of $20, $30, and $50 for a $150-$200 profit. In addition, the cocaine found in Tucker and McCray's apartment was in a plastic bag marked "Shiree Tucker." Although the initial focus in a harmless error analysis is the error itself, the error itself is evaluated in the context of the whole. In light of the overwhelming evidence in this case, we conclude that it is clear beyond a reasonable doubt that a rational jury would have found Tucker guilty notwithstanding the circuit court's error.

¶ 27. Based on all the above, we hold that when a circuit court restricts any juror information, the court must: (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant's guilt or character. The circuit court in this case failed to satisfy this two-prong test; however, the error was harmless in light of the overwhelming evidence of Tucker's guilt.

II. Admissibility of Out-of-Court Statements

¶ 28. Evidentiary rulings are generally reviewed with deference to determine whether the circuit court properly exercised its discretion in accordance with the facts and accepted legal standards. In re Michael R.B., 175 Wis. 2d 713, 720, 499 N.W.2d 641 (1993). This court will sustain an evidentiary ruling if " 'it finds that the circuit court examined the releyant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach.'" State v. Gray, 225 Wis. 2d 39, 48, 590 N.W.2d 918 (1999) (citing State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998)). However, whether a circuit court infringes upon a defendant's right to present a defense is a question of constitutional fact that requires independent appellate review. State v. Pulizzano, 155 Wis. 2d 633, 648, 456 N.W.2d 325 (1990).

¶ 29. An out-of-court statement or "hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Wis. Stat. § 908.01(3). In general, hearsay evidence is inadmissible; however, there are statutory exceptions to this general rule. Wis. Stat. § 908.02. One exception to the hearsay rule is the admission of an unavailable declarant's statement against his or her penal interest. Wis. Stat. § 908.045(4). If a person invokes the privilege against self-incrimination, he or she is deemed "unavailable" for purposes of the hearsay rule. State v. Peck, 143 Wis. 2d 624, 644, 422 N.W.2d 160 (Ct. App. 1988). Therefore, as an initial matter, McCray was correctly deemed unavailable to testify at Tucker's trial since he had invoked the privilege against self-incriminatipn. Another exception to the hearsay rule, known as the "residual exception," permits admission of hearsay evidence that is not specifically addressed in the other exceptions, but possesses "comparable circumstantial guarantees of trustworthiness." Wis. Stat. § 908.045(6).

¶ 30. Tucker claims that McCray's out-of-court statements are admissible under the exception regarding statements against one's penal interest. Tucker argues that the following out-of-court statements made by McCray illustrate that they were against his penal interest: "I'm fittin' to go to the penitentiary," his statement that the drugs did not belong to Tucker and that she had no involvement with the drugs, and his statement of "yeah, right" when asked whether the drugs belonged to him. Tucker also claims that McCray's invocation of his Fifth Amendment rights indicates that his statements were against his penal interest.

¶ 31. Alternatively, Tucker argues that McCray's out-of-court statements are admissible under the residual exception because his statements were corroborated and are therefore trustworthy. Tucker claims that she is entitled to a new trial because the circuit court committed prejudicial error by not admitting McCray's out-of-court statements.

¶ 32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray's statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray's statements attempted to exculpate Tucker without inculpating himself. For example, in McCray's statements of "I'm fittin' to go to the penitentiary," and that Tucker was not involved with the drugs, McCray never actually took responsibility for the drugs. The court noted that nowhere in Kollath's memo did McCray ever explicitly state that the drugs belonged to him; rather, his statements were only aimed at exculpating Tucker. With respect to McCray's response of "yeah, right" when asked whether the drugs belonged to him, the court realistically interpreted the statement as meaning "yeah, right, as if I would ever admit to that." This is a reasonable interpretation in light of the fact that the overriding concern throughout Kollath's memo was that McCray did not want to be incarcerated regardless of what happened to Tucker. Therefore, the court concluded that McCray's statements were not clearly against his penal interest, nor were they sufficiently trustworthy to be admissible under the residual exception.

¶ 33. The circuit court also considered whether its evidentiary ruling that McCray's out-of-court statements were inadmissible violated Tucker's constitutional right to a fair trial, particularly her right to present a defense. Upon reviewing the United States Supreme Court's decision in Chambers v. Mississippi, 410 U.S. 284 (1973), the circuit court distinguished Tucker's situation from the one in Chambers, where the defendant was denied a fair trial due to the cumulative impact of various evidentiary rulings. The court noted that Tucker had been allowed to testify to the statements made by McCray in order to show why she made her statements to the police. However, the court concluded that McCray's statements "were properly excluded for the truth of the matter asserted and that the combination of those doesn't rise to a level in which she was denied her due process right to a fair trial."

¶ 34. Upon independent review of the trial transcripts and the postconviction hearing, we agree with the circuit court's determination that Tucker was not denied the constitutional right to a fair trial. We conclude that the circuit court demonstrated a rational process in making a reasonable evidentiary ruling on the admissibility of McCray's out-of-court statements. Accordingly, we hold that the circuit court did not err by refusing to admit McCray's out-of-court statements under either the exception for statements against penal interest or the residual exception to the hearsay rule.

By the Court. — The judgment of the circuit court is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 35. (concurring). I agree with both the majority opinion and Justice Ann Walsh Bradley's concurrence that this is not a typical anonymous jury. The circuit court judge merely replaced the name of each potential juror with a number during the voir dire process; the district attorney and the defendant still had access to each juror's name.

¶ 36. Even though this is not a typical anonymous jury, this court should be concerned about the decision of the circuit court to refer to the jurors by number only. I believe that fundamental constitutional rights, namely the right to a presumption of innocence and an impartial jury, are potentially implicated when a circuit judge deviates from the standard practice of full disclosure of juror information. It is therefore imperative that appellate courts properly scrutinize the effect that a deviation from the standard practice has on a defendant's constitutional rights.

¶ 37. I write separately to explain that the majority opinion's harmless error analysis misses the mark. The majority focuses only on the sufficiency of the evidence to convict and fails to assess whether the fundamental constitutional rights of the defendant were violated.

¶ 38. The majority concludes that a circuit court's erroneous decision to withhold juror information on voir dire is subject to the harmless error analysis established in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. Harvey holds that an error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. In the present case, the majority opinion asserts that the evidence of the defendant's guilt was so "overwhelming" that no rational jury would have failed to convict her. Thus, according to the majority opinion, juries selected behind closed doors or by blindfolded defendants will be acceptable in Wisconsin courts as long as the evidence of a defendant's guilt is "overwhelming."

¶ 39. In short, the Harvey harmless error standard employed by the majority opinion is improper because it assesses for a harm unrelated to the alleged error. The improper withholding of juror information during voir dire does not become harmless simply because the evidence against the defendant is strong.

¶ 40. In this case the court's task is to determine whether the defendant may have been convicted by jurors biased against her as a result of a selection process conducted in partial secrecy. The Harvey standard of a rational jury considering the evidence is inapplicable because our inquiry is whether the jury was rational, that is, whether the jury was impartial and unbiased, not whether an error during trial was harmless.

¶ 41. The United States Supreme Court has consistently recognized that an impartial judge and jury are "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . .. and no criminal punishment may be regarded as fundamentally fair." A finding of guilt by a jury biased against the defendant is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Justice Bradley's concurrence correctly identifies the alleged error in this case as an alleged structural defect.

¶ 42. Here the alleged error is an alleged structural defect because it is in the framework of the trial, the composition of the jury, not in a single event during trial. A defendant has a constitutional right to a presumption of innocence and an impartial jury. The presumption of innocence and an impartial jury are cornerstones of our criminal justice system and guaranteed by the due process clause of the United States Constitution. When juror information is withheld during voir dire of a criminal trial, violence may be done to a defendant's right to an unbiased and impartial jury. A natural inference jurors selected under secretive circumstances may draw is that the defendant is a dangerous person from whom they need protection, thereby implicating the defendant's constitutional rights.

¶ 43. Moreover, information kept from defendants may interfere with their ability to effectively exercise their strikes, thereby further jeopardizing their right to an impartial jury.

¶ 44. Consequently, an appellate court can only conclude that the withholding of juror information was "harmless" if it determines that the defendant's due process rights were nevertheless protected.

¶ 45. In the present case, I am convinced that a structural error did not occur. The defendant was convicted by an unbiased and impartial jury and her constitutional rights were protected despite the fact that the circuit court withheld information about the jurors. The only information. withheld in the present case was the names of the potential jurors, and that information was only withheld from the public. The defendant and the State had access to juror names because they possessed the juror questionnaires. Indeed, the defendant does not identify any information that she or her attorney were unable to obtain from the juror questionnaires or through voir dire.

¶ 46. More importantly, the defendant in the present case was given extensive opportunity to conduct voir dire, including asking questions about the presumption of innocence. The record does not indicate that the defendant had any difficulty exercising her peremptory challenges, and the defendant does not argue that she was forced to accept jurors who indicated an inability to presume her innocent until proven guilty during voir dire. Furthermore, the circuit court instructed the jury on the presumption of innocence and the State's burden of proof at the end of the trial.

¶ 47. Lastly, while it was not a planned instruction, the circuit court judge explained to defense counsel in front of the venire that it was a regular practice "to refer to the jurors by number," thereby minimizing the likelihood that jurors would infer that their anonymity was required by the defendant's character in the present case.

¶ 48. If the withholding of juror information had infected the defendant's trial by compromising the presumption of innocence or jeopardizing the impartiality of the jury, a structural error would have occurred and we would be obligated to reverse the conviction, regardless of the strength or sufficiency of the evidence. Structural error defies harmless error review. The Harvey test for harmless error set forth in the majority opinion does not apply in the present case. However, because I am convinced that none of the harm that can be caused by withholding juror information injured the defendant here by causing a structural error, no reason exists to overturn her conviction.

¶ 49. For the foregoing reasons, I concur.

ANN WALSH BRADLEY, J.

¶ 50. (concurring). I agree with the majority that this is not a true "anonymous jury" case. Nevertheless, the majority treats it as an anonymous jury case and concludes, inevitably, that the error is harmless.

¶ 51. I write separately because I disagree with the majority's application of the harmless error rule in this case. Even if this were an anonymous jury, and even if harmless error applies to anonymous jury cases, the majority incorrectly sets forth the circumstances in which the rule can be applied. Additionally, I write to emphasize that measures that shield juror information not only implicate the defendant's rights, but also contradict the presumption of openness that defines the American judicial system.

( — I

¶ 52. By treating this numbers jury as an anonymous jury, the majority dodges the threshold certified issue presented to us by the court of appeals. The certified issue inquires: "Whether voir dire by number constitutes an anonymous jury under State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996), when the restriction applies only to using the jurors' names in open court but does not prohibit inquiry into any other identifying information."

¶ 53. The State argues, and I agree, that the jury empanelled in this case is not an anonymous jury. No information was withheld from the parties and no significant restriction was placed on questions asked at voir dire. The only restriction here is how jurors are addressed.

¶ 54. As the court of appeals notes in its certification, the restriction on Tucker is less than the restrictions placed on the parties in Britt. In that case, the circuit court restricted references on the record to the jurors' names, addresses, and employers. Here the only restriction curtailed the use of the jurors' names on the record. The parties were advised to use numbers only, rather than names, in referring to the jurors.

¶ 55. In Britt, there were indications of witness intimidation and harassment, factors that the court considered relevant to jury safety. Here, no such factors existed. Instead, the circuit court expressed a policy of conducting voir dire by number without making any specific finding that anonymity was necessary to protect the jury.

¶ 56. Not only are the factors that existed in Britt absent from this case, but the record also fails to reveal any other factors that would justify empanelling an anonymous jury. The majority sets forth the Thomas test to determine whether an anonymous jury is warranted. United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985). This two-prong test provides that an anonymous jury is warranted only if there is a "strong reason" to believe that the jury needs protection and if the court takes "reasonable precaution[s]" to minimize the impact of anonymity on jurors' views of the defendant. Majority op., ¶ 13. It then notes that this approach has been widely adopted by both federal and state courts, including the Seventh Circuit.

¶ 57. What the majority fails to acknowledge, however, is that the Seventh Circuit and others set a standard requiring something more than just assertions or beliefs in order to justify anonymity. The standard requires actual evidence indicating that intimidation is likely:

In short, that the defendants had the ability and incentive to threaten jurors, without additional evidence indicating that they were likely to act on that ability and incentive, was not enough to justify the unusual step of juror anonymity.

United States v. Mansoori, 304 F.3d 635, 651 (7th Cir. 2002). See, e.g., United States v. Darden, 70 F.3d 1507, 1532-1533 (8th Cir. 1995); United States v. Ross, 33 F.3d 1507, 1520-1521 (11th Cir. 1994); United States v. Vario, 943 F.2d 236, 240-241 (2nd Cir. 1991).

¶ 58. If this were an anonymous jury, then I agree with the majority that the circuit court was required to make an individualized determination of the need for such a jury. I part ways with the majority because it fails to draw a distinction between a numbers jury as here, and an anonymous jury The result of this failure is that in concluding that harmless error applies in this "numbers only" situation, it incorrectly extends harmless error as a remedy in all truly anonymous jury cases. Such a widespread extension is contrary to precedent.

A

¶ 59. The majority opinion correctly notes the import of the right to an impartial jury Yet, after acknowledging the import of the right, it diminishes the right by subjecting it to the harmless error rule. In failing to consider whether there may be structural error, the majority commits its own error.

¶ 60. The majority departs from well-established precedent which recognizes that certain constitutional deprivations are structural and therefore defy harmless error analysis. Chapman v. California, 386 U.S. 18, 23 (1967) (describing the right to counsel and the right to an impartial judge as examples of constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error); Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (describing a structural error as a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself' and citing the following cases as involving constitutional errors that are not subject to the harmless error rule: Vasquez v. Hillery, 474 U.S. 254 (1986) (unlawful exclusion of members of the defendant's race from a grand jury); McKaskle v. Wiggins, 465 U.S. 168 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39 (1984) (right to public trial)).

¶ 61. Similar to the rights described above, the improper use of an anonymous jury is not simply an error in the trial process. Rather, the improper use of an anonymous jury effectively denies an accused of the right to a trial by an impartial jury, thereby tainting the entire framework within which the trial process occurs. As such, it is a structural error that is not subject to harmless error review.

B

¶ 62. I recognize, however, that federal courts of appeals that have addressed the issue have not foreclosed the possibility that in very limited circumstances the harmless error rule could be applied to anonymous jury violations. The federal courts of appeals have imposed a much stricter standard in applying the harmless error rule than the majority sets forth here.

¶ 63. In United States v. Sanchez, 74 F.3d 562 (5th Cir. 1996), the defendant did not know the jurors' names and addresses or their spouses' or employers' names. The Fifth Circuit focused on the factors set forth in United States v. Krout, 66 F.3d 1420 (5th Cir. 1995), that justify an anonymous jury Those factors include: "(1) the defendants' involvement in organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment." Sanchez, 74 F.3d at 564.

¶ 64. The court noted that virtually none of the factors listed in Krout justified the empanelling of an anonymous jury in the case before it. No one could demonstrate that the defendant was involved in organized crime or participated in a group that would attempt to harm jurors. Although the defendant was a renegade policeman, there was no evidence that he had attempted to interfere with the judicial process. Finally, the court noted that there was no indication that the jurors would be subjected to the type of publicity that would result in intimidation and harassment.

¶ 65. In finding error, the Sanchez court concluded that more than mere speculation or inferences of potential risk was needed to justify an anonymous jury. There must be actual evidence that anonymity was warranted before the defendant's right to be tried before a panel of identified jurors was required to be sacrificed. Id. at 565.

¶ 66. The government argued that even if the Krout criteria were lacking, the error was harmless because extensive voir dire was conducted that enabled the defendant to pick an unbiased jury. The Sanchez court disagreed. It concluded that the harmless error rule could not apply in anonymous jury cases except in very limited circumstances. It stated:

Unless the type of circumstances listed in Krout exist, where the defendant has essentially compromised his right, he should receive a verdict, not from anonymous decisionmakers, but from people he can name as responsible for their actions. In closer cases on the merits of requiring anonymity, there might be room for a harmless error analysis, but this is not such a case. The conviction must be reversed and remanded for retrial.

Id.

¶ 67. A recent Seventh Circuit case, United States v. Mansoori, 304 F.3d 635 (7th Cir. 2002), discussed Sanchez and endorsed its conclusion that an erroneous decision to empanel an anonymous jury is not harmless where almost none of the pertinent factors supported the decision. It noted, however, that the Sanchez court left open the possibility that harmless error analysis might be appropriate in limited circumstances. It concluded that the case before it constituted such limited circumstances.

¶ 68. The Mansoori court described the case as a narcotics conspiracy that embraced "a large-scale, gang-related operation with ready access to firearms." Id. at 651. It noted that the defendants and their unindicted co-conspirators used weapons and violence in furtherance of the conspiracy, that the defendants faced very long prison terms, and that there had been some pretrial publicity. The court observed that although the circumstances were not, by themselves, sufficient to justify empanelling an anonymous jury, the record did support a basis for the concern of juror safety. That basis in the record, together with a three and one-half day "searching and thorough" voir dire which protected the defendants' right to an unbiased jury, justified a harmless error analysis. Id. at 652.

¶ 69. Here we note that none of the pertinent factors supports a decision to empanel an anonymous jury. There is no inference of organized crime or suggestion that the defendant is involved with a group that has the capacity to harm jurors. Likewise, there is no evidence to suggest that the defendant previously attempted to interfere with the judicial process or that this case received any publicity whatsoever. It was unlikely that the defendant would suffer a lengthy incarceration or substantial monetary penalties. Ip-deed, as a result of her conviction, the defendant was placed on probation.

¶ 70. Regardless of whether use of the harmless error rule is precluded because an improper anonymous jury constitutes structural error, or whether it is precluded here because none of the pertinent factors supports the use of an anonymous jury, one thing is clear. The majority's general application of harmless error as a remedy in an anonymous jury case is error, and it is hardly harmless.

¶ 71. Ultimately, I concur in the mandate of the majority because I conclude that there was no error. The defendant had access to all juror information, including their names. Given that the only limitation here was how the jurors were addressed and that the judge advised the jury that it was her practice to use numbers rather than names, I do not find that the defendant's rights were violated.

II.

¶ 72. Measures to shield juror information not only implicate the defendant's rights, but also contradict the presumption of openness that defines the American judicial system. The selection of jurors has always presumptively been a public process.

¶ 73. Since the sixteenth century jurors have been selected in public. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 507 (1984). It is not surprising that trials in colonial America adopted the presumptive openness of the jury selection process that developed in England. Id. at 508. This openness "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Id. at 508.

¶ 74. As the majority noted, the empanelling of an anonymous jury is a relatively recent phenomenon. Majority op., ¶ 12. Although courts have recognized that the use of an anonymous jury may be appropriate in limited circumstances, they have been understandably narrow in defining those circumstances. "The use of an anonymous jury will remain a device of last resort. . . ." Krout, 66 F.3d at 1427. It is considered to be a "drastic measure." Sanchez, 74 F.3d at 564.

¶ 75. A few years ago this court unanimously rejected a petition for an administrative rule governing juror confidentiality. The petition provided that jurors be referred to only by number and that no personal juror identifying information could be elicited during voir dire. It allowed that a party may, after the trial, petition the court for access to personal juror identifying information for purposes of developing a motion for a new trial.

¶ 76. The breadth of such a proposal and its effect on our tradition of public trials were apparent to many who appeared in opposition to the proposal at the public hearing. The State Bar of Wisconsin was one of the groups that appeared in opposition to the petition. It cautioned that an anonymous jury should be used only in "an extremely rare circumstance." (Statement of State Bar of Wisconsin filed Nov. 16, 1998, at 8.)

¶ 77. A trial is a public event and a public trial lies at the foundation of our legal tradition. The public trial is rooted in the "principle that justice cannot survive behind walls of silence." Sheppard v. Maxwell, 384 U.S. 333, 349 (1966).

¶ 78. The majority's failure to distinguish between a numbers jury and an anonymous jury serves to dilute the jurisprudence on anonymous juries. It compounds this problem by applying an across-the-board "no harm, no foul" analysis of the harmless error rule thus serving to make the use of anonymous juries more commonplace.

¶ 79. The result of the majority's decision will stand in stark contrast to the federal courts of appeals decisions that have emphasized that use of an anonymous jury is the "last resort" and "a drastic measure."

¶ 80. It stands in stark contrast to the position of many who appeared at our public administrative hearing opposing the proposed rule, noting that if anonymous juries are to be used, they should be used only in extremely rare circumstances.

¶ 81. But, most importantly, the result of the majority's decision lies in stark contrast to the presumption of openness that defines our Anglo-American judicial tradition. The promise of a public trial by an impartial jury is a cornerstone of that tradition. The most common rationale for an anonymous jury is the protection of the jurors. A jury that sits in fear may not fill the expectation of impartiality. Yet, the use of an anonymous jury is a double-edged sword — it can give a sense of security or it can breed and feed fear. When fear is the result, then jury anonymity is a solution that exacerbates the problem it was intended to solve.

DIANE S. SYKES, J.

¶ 82. (concurring). The majority opinion and Justice Bradley's concurrence conclude that a "numbers jury" is not an "anonymous jury" as that term is understood in the case law. Majority op., ¶ 11; Justice Bradley's concurrence, ¶¶ 50, 53. I agree. No juror information was withheld from anyone in this case. The circuit court merely instructed the attorneys to refer to the jurors by number rather than name during voir dire, consistent with the circuit court's standard practice for cases of this type. The parties and the public had unrestricted access to all juror identifying information. As such, the anonymous jury case law does not apply.

¶ 83. The majority opinion nevertheless applies the anonymous jury case law, assumes that the presumption of innocence has been violated, and imposes the procedural requirements prescribed by the inapplicable anonymous jury cases, thereby prohibiting any voir dire by number in this state unless there is 1) an individualized determination of a need for juror protection; and 2) a precautionary instruction to protect against any negative reflection on the defendant. Majority op., ¶¶ 12-27.1 cannot agree with this approach.

¶ 84. Voir dire by number does not implicate the presumption of innocence in the same way that the cases have assumed the use of an anonymous jury does. It has not been demonstrated — in this case or in the case law — that mere voir dire by number, without any restriction on access to juror information, has any serious adverse impact on the presumption of innocence. Any suggestion that it does is pure speculation. Indeed, the majority engages in no evaluation of this point at all, but merely extrapolates a presumption of innocence/due process violation from cases that involved true anonymous juries rather than the far more innocuous practice of voir dire by number.

¶ 85. Our courthouses today are equipped with various security precautions — metal detectors at courthouse entrances, security glass in individual courtrooms, armed deputy sheriffs in the courtroom and in the courthouse hallways — all of which suggest at least some level of risk to the people who work and visit there, including the jurors. It cannot seriously he suggested that the presumption of innocence has necessarily been compromised by the use of any of these sorts of generalized protections. Certain special security precautions are sometimes taken in individual cases, such as posting extra deputies in the courtroom, without encumbering the presumption of innocence or requiring particularized due process justifications. Voir dire by number (if a circuit court chooses to use this technique) falls within this category of routine security measures, whether used as a general practice, in a certain class of cases, or case-by-case.

¶ 86. In my view, voir dire by number, without any other restriction on the scope of voir dire or the parties' or the public's access to juror identifying information, does not rise to the level of an encumbrance on the presumption of innocence so as to implicate the defendant's right to due process. In answer to the certified questions in this case, I would clarify that a "numbers jury" is not an "anonymous jury" within the meaning of State v. Britt, 203 Wis. 2d 25, 553 N.W.2d 528 (Ct. App. 1996) or the federal case law cited by the majority and concurring opinions.

¶ 87. Because voir dire by number is not the equivalent of an anonymous jury, the presumption of innocence has not been undermined and there is no need to impose any particularized due process prerequisites upon a decision to conduct voir dire by number, either as a general practice or in an individual case. Accordingly, there is no error, and therefore no need to inquire into the applicability of harmless error analysis.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       Ephraim Margolin & Gerald F. Uelmen, The Anonymous Jury: Jury tampering by another name?, Crim. Just, at 14 (Fall 1994).

        State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189.

       Majority op., ¶ 26.

       There may be several harmless-error tests depending on the nature of the right violated. In re Jayton S., 2001 WI 110, ¶ 40, 246 Wis. 2d 1, 629 N.W.2d 768 (Abrahamson, C.J., concurring) (quoting 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b), at 938-39 (2d ed. 1999)).

        Neder v. United States, 527 U.S. 1, 8-9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577 (1986)).

         Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

        See, e.g., United States v. Mansoori, 304 F.3d 635, 650 (7th Cir. 2002).

        See United States v. Thomas, 757 F.2d 1359, 1364 (2d Cir. 1985) ("the presumption of innocence is of significant importance, and is protected by the due process clause of the Fifth Amendment").

        See Mansoori, 304 F.3d at 650 (citations omitted).

        See, e.g., United States v. DiDomenico, 78 F.3d 294, 301 (7th Cir. 1996).

        See Wis. Stat. § 805.18 (2001-02), which provides as follows:

        (1) 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.
      (2) 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 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.

        See also State v. Lindell, 2001 WI 108, ¶¶ 69-82, 245 Wis. 2d 689, 629 N.W.2d 223 (holding that whether a conviction will be reversed on an alleged error in jury selection focuses on whether the jury that actually sat on the case is impartial).

        Neder, 527 U.S. at 8. See also Harvey, 254 Wis. 2d 442, ¶ 37.

       Petition No. 98-08, In the Matter of the Amendment of Supreme Court Rules: (Proposed) SCR 73.04: Juror Confidentiality, Public Hearing November 17, 1998; Order Denying Petition January 19, 1999. Groups that appeared or registered in opposition to the proposed rule include the Wisconsin District Attorneys Association, the Judges of Milwaukee County, the Milwaukee Bar Association, the Wisconsin Association of Trial Lawyers, the Wisconsin Newspaper Association, the Wisconsin Broadcasters Association, and the Freedom of Information Council.