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State v. Raye8/10/2004
Raye was charged with operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration, both as third offenses. A jury returned a verdict acquitting him of the OWI but convicting him of the PAC. Raye asked for a jury poll. When asked by the court, "Is this your verdict?" one juror responded, "Can I ask a question?" The court directed the juror to answer the poll before it could address his inquiry. He answered "no" and the court continued polling. The other eleven jurors assented to the verdict.
. Because it did not know the content of the juror's question, the court sent the other eleven jurors out with the bailiff. Ultimately, the court ascertained that the juror had a question about the testimony from one of the State's expert witnesses. The juror stated he would have asked the question before returning the verdict had he known there would be polling. In response to the court's questioning, he indicated that a partial transcript of the witness's testimony would be helpful. The court rejected the jury's verdict, ordered the partial transcript prepared, and indicated the jury would have to resume deliberations.
. Court adjourned for approximately thirty minutes while the transcript was prepared. When the transcript was ready, court reconvened so the State and Raye could verify the document was acceptable to send to the jury. At that point, Raye moved for a mistrial and dismissal because of the non-unanimous verdict. The court denied the motion because it had rejected the first verdict. The jury deliberated further and returned the same verdict, this time without dissent. Raye filed a post-conviction motion to vacate the sentence or, alternatively, for a new trial. The court denied the motion. Raye appeals.
Discussion
. The right to trial by jury protected by the state constitution includes the right to a unanimous verdict in criminal trials.*fn2 State v. Cartagena, 140 Wis. 2d 59, 61, 409 N.W.2d 386 (Ct. App. 1987). As a corollary, the defendant has the right to poll the jurors individually. Id. If there is a dissent, or if the juror indicates the assent "is merely an accommodation and against the juror's conscience," it is the court's duty to direct the jury to retire and reconsider its verdict. State v. Wiese, 162 Wis. 2d 507, 518, 469 N.W.2d 908 (Ct. App. 1991).
. The court should interrogate a juror who, during the poll, creates some doubt as to his vote. Cartagena, 140 Wis. 2d at 62. Doubt may result from the juror's demeanor, tone of voice, or language used. Id. However, the court should first make a determination that the answer was ambiguous or ambivalent before it questions the juror further. Id. This court accepts the trial court's finding on the issue of assent unless the record shows the trial court foreclosed dissent. Id.
. The issue-the propriety of the interrogation following polling-is waived because Raye failed to make a contemporaneous objection. See State v. Cydzik, 60 Wis. 2d 683, 696, 211 N.W.2d 421 (1973) (failure to contemporaneously object to the manner of polling the jury constitutes waiver). Raye claims he did not need to make a contemporaneous objection because the real controversy has not been fully tried and he moved for a mistrial.
. Raye does not identify the "real controversy" nor does he explain how it was not fully tried. Additionally, the mistrial motion was insufficient to preserve the error. The court had completed polling of the jurors, had conducted the juror's interrogation, had ordered the portion of the transcript that the juror needed, and had recessed to conduct other matters in other cases while the transcript was prepared. The proceedings then resumed so the parti
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