Appeal from the United States District Court for the Eastern District of Wisconsin. No. 84 C 1024 -- Myron L. Gordon, Judge.
Before Easterbrook and Ripple, Circuit Judges, and Grant, Senior District Judge.*fn*
GRANT, Senior District Judge
We are asked to decide whether a racial comment uttered by a juror during jury deliberations violates a criminal defendant's constitutional right to an impartial jury. Because, under the facts of this case, we hold that the rule prohibiting impeachment of verdicts sufficiently protects the petitioner's constitutional right, we affirm the district court's denial of the petition for habeas corpus.
The state of Wisconsin charged Shillcutt, a black male, with soliciting prostitutes and keeping a place of prostitution in violation of Wisconsin law. The state's chief witness was a young white woman who testified that she gave Shillcutt her earnings from prostitution, and Shillcutt paid for her housing, food and drugs. At trial, the jury remained deadlocked after nearly six hours of deliberation, prompting the trial judge to further charge the jurors. Shortly afterward, the jury announced a guilty verdict. In the wake of the trial, one juror affiant revealed that during the final deliberations a white male juror had said: "Let's be logical. He's black and he sees a seventeen year old white girl -- I know the type." Armed with this affidavit, Shillcutt moved for a new trial. After conducting a hearing, the trial court found the affidavit to be credible but denied the motion and imposed sentence. The Wisconsin Court of Appeals affirmed the judgment of conviction on the basis that the statement made during jury deliberations were not competent evidence under state law. A divided Supreme Court of Wisconsin affirmed. The federal district court denied Shillcutt's habeas corpus petition and Shillcutt now appeals that decision.
Shillcutt presents a number of issues for review, some for the first time. Shillcutt argues the racial comment made during jury deliberations violated his sixth amendment right to an impartial jury; the instruction given to the deadlocked jury denied him sixth and fourteenth amendment rights to a fair trial and due process; the tainted voir dire rendered the jury verdict a nullity; and the "totality of circumstances" constitutes a violation of his sixth and fourteenth amendment rights.
Every criminal defendant in the state of Wisconsin is guaranteed the right to an impartial jury, Wis. Const. art. I, §§ 5, 7; U.S. Const. amends. VI, XIV, and the prejudice of even one juror jeopardizes fulfillment of the right. United States v. Booker, 480 F.2d 1310, 1311 (7th Cir. 1973). In alternative fashion, Shillcutt contends that the racial comment is "presumptively prejudicial," the fact the statement was made "undeniably establishes" that he was denied the right to an impartial jury, and recent pronouncements of the United States Supreme Court require this Court to do whatever is necessary to weed out juror prejudice. See, e.g., Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986).
According to the affidavit submitted after trial, one juror encouraged the others to be "logical" and to take notice that Shillcutt was black and the girl was white. Another juror responded by saying Shillcutt "wasn't capable of loving anybody." These comments were made only a short time before a formerly deadlocked jury submitted a guilty verdict. Shillcutt contends the statement was a racial slur which infected the jury process, violating his constitutional right to an impartial jury.
In denying the motion for new trial, the trial court stated: "Although [the statement] could be categorized as a racial slur, the court does not find by clear, satisfying evidence convincing proof that this information would be prejudicial to a hypothetical jury." Hearing Transcript at 16. Whether the statement was prejudicial made no matter to the Wisconsin Court of Appeals; it concluded a juror was not competent to testify about such a statement under § 906.06(2) of the Wisconsin statutes and, therefore, any additional inquiry into prejudicial effect was foreclosed. State v. Shillcutt, 116 Wis. 2d 227, 231, 341 N.W.2d 716, 717 (Wis. App. 1983). The Supreme Court of Wisconsin affirmed the appellate court's holding, State v. Shillcutt, 119 Wis. 2d 788, 350 N.W.2d 686 (1984).
Wisconsin statute § 906.06(2) reads:
INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received.
This statute, like its counterpart in Federal Rule of Evidence 606(b), n.1 [Footnote Omitted] is essentially an accommodation between the policies that conflict when a juror affidavit concerning juror misconduct is used as the basis of a motion for new trial. "The court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room." McDonald v. Pless, 238 U.S. 264, 267, 59 L. Ed. 1300, 35 S. Ct. 783 (1915). The general rule of incompetence has limited exceptions for juror testimony "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Thus, the competency of the jury's testimony hinges on whether it may be characterized as "extraneous information" or as an "outside influence." The Wisconsin ...