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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
January 24, 1996
A party may file with the Supreme Court                                              This opinion is subject to further editing.
a petition to review an adverse decision                                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                  Official Reports.
No.   95-2501
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
DISTRICT II
In the Interest of Sara V.,
A Person Under the Age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
SARA V.,
Respondent-Appellant.
APPEAL  from  orders  of  the  circuit  court  for  Racine  County:
RICHARD G. HARVEY, JR., Reserve Judge, and NANCY E. WHEELER, Judge.
Orders reversed.
BROWN, J.                                                                            In this CHIPS case, Sara V. alleges that the trial
court erred when it made comments to the jury suggesting how her case should
be  decided.    After  reviewing  the  record,  we  agree  that  these  statements
interfered with the jury's deliberations and thus reverse the verdict finding Sara
in need of protective services and the trial court's dispositional order.




No.   95-2501
In March 1994, the State filed a petition alleging that Sara was in
need of protective services.   It relied on information from the Racine Unified
School District that Sara had been excessively truant from school during the
1993-94 academic year and that her mother “seems to encourage her seclusion
by not sending her to school.”   The State sought a dispositional order with
hopes that Sara would return to class.
At trial, Sara and her parents attempted to show how Sara was
harassed by other students.   They claimed that Sara suffered from depression
and a bladder infection which created an unfortunate odor problem.   Sara and
her parents contended that the school district had failed to control the other
students and make school a less hostile environment for Sara.
The evidence at trial consisted of testimony from Sara's mother
and various school officials about how each side had responded to her situation.
Sara was emotionally unable to appear in open court, but her testimony was
taken in chambers and read to the jury.  She explained how she was continually
harassed at school and that she believed that the administration had not taken
any steps towards improving her situation.
Sara's testimony was followed by closing arguments.   But before
formally instructing the jury, Reserve Judge Richard G. Harvey, Jr., presiding,
made the following comments:
I'll tell you, members of the jury, I've been a judge for 26 years and
this is in a lot of ways an unusual case from my point
of view.                                                                           ...   And I had a brief enough conversation
with [Sara] in Chambers when we were doing the
step to, I'm very confident that she has a good mind
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No.   95-2501
and that she will, with the proper guidance, she'll
take advantage of it.    And she's going to be very
much sought after, I'm sure, because she physically is
quite attractive.    And particularly when you're up
close to her, she is very nice looking.
The function of the Court is to give some instructions.   I think
that the district attorney, what she is asking for that
outcome for is because she feels that's a necessary
tool so that we can achieve the educational path that
we want.   And that we need with this young lady.
So, this is not to be taken as a reprimand to the
parents or to Sara.                                                                   It is simply a finding of a
situation  that  she's  in  need  of  help  on—legally
speaking so that the powers available.   And for that
reason, not because her parents are wicked or bad or
don't  know  what  they  are  doing    but  simply
because this thing would be helpful—that outcome
would be helpful and that was the point of view of
the district attorney in asking you for that.
I must say, of course, that the comments made by the defense
attorney are fair and decent and he's done a nice job
and he had a good motive in mind for doing the
defense    that   he's   done    and   he   deserves
commendation .
My own instruction and my—I don't want you to feel that I have
some special merit or power to make you make a
verdict, that's your job.   And I want you to do it the
way you feel it's sincere.   I do feel that—that a yes
verdict would be—would be helpful toward the final
outcome, but you  make the decision  and you do
what you feel is right and just and proper.  So I thank
you for your attention.
The jury returned with a verdict finding Sara in need of protective services and
the trial court entered an appropriate dispositional order.
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No.   95-2501
In  a  postverdict  hearing,  the  court1  focused  on  the  additional
cautionary instruction that was read to the jury; it stated:
If during the trial you gained any impression that I have a feeling
one  way  or  the  other  on  this  case,  you  should
completely disregard any such impression because
you jurors are the sole judges of the evidence and the
credibility of the witnesses in the case.   My feelings
are  immaterial and that's important.   I've already
told you that also.
The  trial court  reasoned  that  the  above  instruction  remedied any  problem
resulting from the earlier comments to the jury and denied Sara's motion for a
new trial.
On  appeal,  Sara  nonetheless  renews  her  contention  that  these
remarks interfered with the jury's deliberative process.   She relies on Breunig v.
American  Family  Ins.,  45  Wis.2d  536,  173  N.W.2d  619  (1970),  where  the
supreme court warned that trial judges bear the responsibility of maintaining an
atmosphere of impartiality.   See id. at 547, 173 N.W.2d at 626.   Sara contends
that the trial court breached its duty when it made these comments.  We agree.
The message sent by the trial court could not be any clearer.   It
wanted the jurors to know that the best thing they could do for Sara would be
to find her in need of protective services.   These remarks were not casual, made
1  Judge Nancy E. Wheeler presided at this hearing.
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No.   95-2501
in passing, or a simple misstatement.   Compare State v. Vinson, 183 Wis.2d 297,
302-04, 515 N.W.2d 314, 316-17 (Ct. App. 1994) (trial court's use of the term
credible, instead of competent, not reversible error).   The trial court set aside time
to make these statements.  And because the jury was so “instructed,” we are not
confident that its verdict was premised on an impartial review of the evidence.
The trial court twice informed the jury that it was ultimately responsible for the
verdict, but it also informed them that both sides had done a very good job of
presenting their respective sides of the story.   In such a close case, the jury was
likely looking for something to base its decision on—and here it could rely on
the trial judge's personal conclusions that were backed up with twenty-six years
of experience.
We set aside the State's concern, raised during the postverdict
hearing, that Sara waived her right to raise this error because an objection was
not made until after the jury was sent to deliberate.   Under the plain error rule,
this court may review issues not squarely presented to the trial court when a
substantial right is affected.    See Virgil v. State,  84 Wis.2d  166,  192-93,  267
N.W.2d 852, 865 (1978); see also § 901.03(4), STATS.   While certain elements of the
trial  court's  remarks  pertained  to  Sara  as  a  witness,  and  reviewing  such
commentary may not fall within the scope of the plain error rule, see Vinson, 183
Wis.2d at 303, 515 N.W.2d at 317, the trial court's error also impeded Sara's right
to an impartial jury.   We thus conclude that the only proper remedy is to grant
her a new trial.
By the Court.—Orders reversed.
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No.   95-2501
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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