NETTESHEIM, P.J.
Michael Ledger appeals from a judgment of conviction for masked armed robbery as a party to the crime, contrary to secs. 939.05, 939.641 and 943.32(2), Stats., and from an order denying his motion for postconviction relief. Ledger's principal argument is that his right to a jury trial under the Wisconsin Constitution was violated when the parties stipulated to allow a thirteen-member jury panel to deliberate and render a verdict. He also argues that statements obtained by the police after his arrest violated his sixth amendment right to counsel and that a voice identification lineup procedure was unconstitutionally violative of his right to due process and his sixth amendment right to counsel. We affirm.
Following our certification of this issue, the Wisconsin Supreme Court declined to take jurisdiction over this appeal.
On December 6, 1989, a masked armed robbery occurred at a Brookfield service station. Ledger was later arrested and charged with masked armed robbery as a party to the crime based upon information obtained from the victim and from Ledger's accomplice during the robbery.
By a pretrial motion, Ledger sought to suppress certain statements made by him to the police. He also sought to suppress the victim's voice identification obtained via a voice lineup procedure. The trial court denied both suppression requests.
At the opening of the trial, the trial court suggested that an additional juror be impaneled because of the anticipated length of the trial. The parties agreed. See secs. 972.04(1) and 805.08(2), Stats. The court also urged the parties to consider using the thirteen-member jury to deliberate and render a verdict. The court stated it would ask for the parties' position on the issue at the close of the evidence.
Before the case was submitted to the jury, the trial court revisited this question. The prosecutor and defense counsel mutually agreed to allow the thirteen-member jury to deliberate and render a verdict. In a personal colloquy with Ledger, the trial court explained the agreement and ensured that Ledger both understood and desired to have the thirteen-member jury deliberate his guilt or innocence. Ledger replied that he understood the agreement, that he had discussed the matter with his attorney, and that he wished to proceed with the thirteen-member jury.
After the prosecutor and defense counsel agreed to the thirteen-member jury, the trial court's colloquy with Ledger was as follows:
THE COURT: Mr. Ledger, under the statute, of course, you are entitled to have a jury of 12. What this would mean is that all 13 of the jurors who have heard the testimony will all be permitted to deliberate in this case, and then the jury as a whole, all 13 of them, will be required to decide this case unanimously. Do you understand that is the implication of what your attorney and the assistant district attorney wish to do?
THE DEFENDANT: Yes.
THE COURT: That is what you wish to do as well?
THE DEFENDANT: Yes.
THE COURT: You have had enough time to discuss this matter with Mr. Kuhary [your defense attorney]?
THE DEFENDANT: Yes, I have.
THE COURT: I will permit all 13 jurors to deliberate in this matter, and, of course, a unanimous. verdict will be required.
Pursuant to the parties' agreement, the thirteen-member jury deliberated and returned a verdict. The jury found Ledger guilty of masked armed robbery as a party to the crime. The court sentenced Ledger to twenty-five years imprisonment. After denial of his postconviction motions, Ledger brought this appeal.
THIRTEEN-MEMBER JURY
Ledger claims that the use of a thirteen-member jury is not recognized by Wisconsin statutory law. Thus, he concludes that the use of the thirteen-member jury violated his right to a jury trial pursuant to the Wisconsin Constitution, art. I, sec. 7, despite his agreement to the contrary.
Article I, sec. 7 of the Wisconsin Constitution states in relevant part: "In all criminal prosecutions the accused shall enjoy the right . . . to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed." No federal constitutional issue is presented because the right to a jury comprised precisely of twelve members is not an indispensable component of the sixth amendment right to a jury trial. Williams v. Florida, 399 U.S. 78, 102-03 (1970).
Whether Ledger was denied a constitutional right is a question of constitutional fact that we review independently as a question of law. State v. Dean, 163 Wis.2d 503, 511, 471 N.W.2d 310, 313-14 (Ct.App. 1991).
Ledger relies upon a series of Wisconsin Supreme Court decisions to support his argument that his right to a jury trial under the Wisconsin Constitution was violated when the parties stipulated to a thirteen-member jury panel. In State v. Lockwood, 43 Wis. 403 (1877), the supreme court held that the trial court was without jurisdiction to try a criminal case without a jury even in the face of a jury waiver. "The right of trial by jury," the court declared, "is secured by the constitution, upon a principle of public policy, and cannot be waived." Id. at 405.
Eight years later, in In re Staff, 63 Wis. 285, 294-95, 23 N.W. 587, 590-91 (1885), the supreme court departed from the absolute stance taken in Lockwood and upheld the constitutionality of the defendant's jury waiver. There, the defendant waived a jury trial in municipal court pursuant to a statute which recognized such a waiver in limited situations. The court held that the defendant could constitutionally waive a jury trial in those instances where the legislature had expressly provided for such a procedure. Id. at 294-96, 23 N.W. at 590-91.
The statute in In re Staff, 63 Wis. 285, 23 N.W. 587 (1885), was enacted by the Wisconsin legislature to reestablish a municipal court in Rock county. The statute provided in relevant part that "[a] jury trial in said court in criminal cases begun by information, or not originally begun in said court, may be waived by the accused in writing, or by consent in open court entered on the minutes." Section 8, ch. 197, Laws of 1881.
In a later case, Jennings v. State, 134 Wis. 307, 114 N.W. 492 (1908), however, the supreme court relied on Lockwood to support its holding that an accused cannot consent to a jury of less than twelve. The court reasoned that "[i]f it is deemed good public policy to extend the privilege of waiving a jury in criminal cases, such policy should find expression in appropriate legislative action." Jennings, 134 Wis. at 310, 114 N.W. at 493.
In 1911, the Wisconsin legislature enacted a statute which allowed a waiver of less than twelve jurors but not a waiver of a jury trial altogether. Mindful of this fact, the supreme court ruled in State v. Smith, 184 Wis. 664, 672-73, 200 N.W. 638, 641 (1924), that the defendant could not waive a jury in full. The legislature responded one year later with an amendment to the trial by jury statute permitting a trial without a jury with the consent of the defendant. See sec. 357.01, Stats. (1925).
Chapter 191, sec. 4687, Stats. (1911), provided:
Issues of fact. Section 4687. Issues of fact joined upon any indictment or information may be tried by a jury of less than twelve men whenever the accused in writing, or by consent in open court, entered in the minutes, waives a trial by a jury of twelve men. When there is no such waiver such issue shall be tried by a jury drawn and returned in the manner prescribed by law for the trial of issues of fact in civil causes.
Section 357.01, Stats. (1925), provided:
Issues of fact. Issues of fact joined upon any complaint, indictment or information may be tried by the court without a jury or by a jury of less than twelve men whenever the accused in writing, or by statement in open court, entered in the minutes, consents thereto. When there is no such consent such issue shall be tried by a jury drawn and returned in the manner prescribed by law for the trial of issues of fact in civil causes.
The provision on waiver contained in sec. 357.01 remained unchanged until the 1949 revision of the criminal code. See sec. 120, ch. 631, Laws of 1949. As revised, sec. 357.01 read in relevant part as follows:
Jury trial; waiver. (1) Except as otherwise provided in this section, criminal cases in courts of record shall be tried by a jury of 12 jurors, drawn in the manner prescribed in chapter 270, unless the defendant waives a jury trial in writing or by statement in open court, entered in the minutes, with the approval of the court and the consent of the state.
(2) At any time before verdict the parties may stipulate in writing or by statement in open court, entered in the minutes, with the approval of the court, that the jury shall consist of any number less than 12.
The current waiver statute, sec. 972.02, Stats., is essentially a restatement of the 1949 revision. See sec. 972.02(1) and (2).
The theme Ledger draws from these cases is that unless the legislature has expressly recognized a particular kind of jury waiver, such waiver is constitutionally ineffective. See, e.g., State ex rel. Sauk County D.A. v. Gollmar, 32 Wis.2d 406, 410 n. 3, 145 N.W.2d 670, 672 (1966). He reasons that because the present trial by jury statute, sec. 972.02, Stats., does not expressly recognize a jury comprised of more than twelve members, his agreement to the contrary and the trial court's approval of the procedure is without legal effect.
Section 972.02, Stats., provides in relevant part:
Jury trial; waiver. (1) Except as otherwise provided in this chapter, criminal cases shall be tried by a jury of 12, drawn as prescribed in ch. 805, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.
(2) At any time before verdict the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than 12.
We accept Ledger's assertion that the jury contemplated by art. I, sec. 7 of the Wisconsin Constitution is the type of jury recognized at common law, i.e., a twelve-member jury. See, e.g., State ex. rel Sauk County, 32 Wis.2d at 409, 145 N.W.2d at 671-72; State v. Cooley, 105 Wis.2d 642, 645, 315 N.W.2d 369, 370-71 (Ct.App. 1981). We also accept that a thirteen-member jury is not contemplated by sec. 972.02, Stats., since subsec. (1) of the statute recognizes a twelve-member jury and subsec. (2) recognizes a jury of less than twelve members when all parties stipulate. We also note that sec. 805.08(2), Stats., states that "if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not participate in deliberations and discharge them." (Emphasis added.)
Nonetheless, we are not persuaded that the procedure employed here requires reversal. When the trial court suggested the possibility of using a thirteen-member jury, the court directed defense counsel to discuss the matter with Ledger. The court clearly stated that it would not use the procedure unless agreed to by all the parties. At the close of the evidence, defense counsel and the prosecutor indicated their agreement. The court then engaged in a personal colloquy with Ledger assuring that Ledger: (1) understood the agreement, (2) understood its consequences, (3) had received sufficient time to discuss the matter with his counsel, and (4) wished to proceed with the thirteen-member jury.
After the agreement was consummated and before the jury began its deliberations, the trial court instructed the jury that "before you can return a verdict which legally can be received, your verdict must be unanimous. In a criminal case all 13 of you must agree on what the verdict is before that verdict can legally be received by me." When the jury returned after deliberations, the verdicts were received without complaint, and the court inquired whether the jury had "arrived at a unanimous. verdict."
We see no constitutional impediment to the use of a thirteen-member jury in the face of such an elaborate and detailed record documenting the defendant's consent and the jury's understanding of the unanimity requirement.
Moreover, we are convinced there is no likelihood that a thirteen-member jury would convict more readily than would a twelve-member jury. Indeed, the case law commentary suggests just the opposite. In Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court upheld a Florida statute which limited defendants to a six-member jury in all but capital cases. The Court stated that "the 12-man jury [might] give a defendant a greater advantage since he has more chances of finding a juror who will insist on acquittal and thus prevent conviction." Id. at 101 n. 47. In Johnson v. Louisiana, 406 U.S. 356 (1972), the Supreme Court upheld the defendant's conviction by a nine-member majority vote of the jury. The Court stated: "Of course, the State's proof could be regarded as more certain if it had convinced all 12 jurors instead of only nine; it would have been even more compelling if it had been required to convince and had, in fact, convinced 24 or 36 jurors." Id. at 362. In Ballew v. Georgia, 435 U.S. 223 (1978), the Court said: "Statistical studies suggest that the risk of convicting an innocent person . . . rises as the size of the jury diminishes." Id. at 234. In Brown v. Louisiana, 447 U.S. 323 (1980), the Court stated that "a decline in jury size leads to less accurate factfinding and a greater risk of convicting an innocent person." Id. at 332.
See also United States v. Reed, 790 F.2d 208, 210 (2d Cir.), cert. denied, 479 U.S. 954 (1986) (where the court stated that the thirteen-person guilty verdict presented no likelihood that the defendant was prejudiced); United States v. Stewart, 700 F.2d 702, 704-05 (11th Cir. 1983) (defense counsel's waiver of a twelve-person jury for a jury of thirteen was a tactical decision because by requiring a unanimous verdict, counsel sought to increase his clients' chances of acquittal); United States v. Kaminski, 692 F.2d 505, 518 (8th Cir. 1982) (where each defendant gave his personal consent on the record to have the alternate juror accompany the jury during its deliberations, and to be later substituted, the deviation was not so fundamental so as to require reversal).
All of the cases Ledger cites recognize that statutory authority is required to diminish a defendant's constitutional right to a jury trial. See, e.g., Lockwood, 43 Wis. at 405; In re Staff, 63 Wis. at 294-95, 23 N.W. at 590-91; Jennings, 134 Wis. at 309, 114 N.W. at 492; Smith, 184 Wis. at 672-73, 200 N.W. at 641. However, the procedure employed here was an enlargement of Ledger's right to a jury trial, not a diminution.
Ledger reasons that if a particular jury selection procedure is not recognized by the statutes, the practice is unconstitutional per se. We disagree. The constitution sets out a level of protection below which the law may not descend when seeking a criminal conviction. However, if the parties with the approval of the trial court choose to employ a procedure which accords a greater level of protection, we see no constitutional impediment. By having a thirteen-member jury pass upon the question of his guilt or innocence, Ledger was granted a greater, rather than a lesser, constitutional protection.
Being mindful that a criminal defendant can waive many of the constitutional rights to which he or she would otherwise be entitled, we reject Ledger's assertion that his agreement to forego a lesser protection for something greater was constitutionally ineffective.
See, e.g., State v. Mitchell, 167 Wis.2d 672, 697-98, 482 N.W.2d 364, 374 (1992) (waiver of constitutional right against compulsory self-incrimination); State v. Livingston, 159 Wis.2d 561, 565-66, 464 N.W.2d 839, 841 (1991) (waiver of constitutional right to trial by jury in favor of trial by the court); State v. Gove, 148 Wis.2d 936, 941, 437 N.W.2d 218, 220 (1989) (waiver by defendant of constitutional right to confrontation); State v. Mendoza, 80 Wis.2d 122, 140, 258 N.W.2d 260, 267 (1977) (waiver by defendant of constitutional right to venue where the crime was committed); Keller v. State, 75 Wis.2d 502, 507-08, 249 N.W.2d 773, 776 (1977) (waiver by defendant of constitutional right to counsel); Beverly v. State, 47 Wis.2d 725, 729, 177 N.W.2d 870, 872 (1970), cert. denied, 400 U.S. 995 (1971) (waiver of constitutional right to be present at trial or at the proceedings before trial).
Ledger does not challenge the sufficiency of the trial court's colloquy with him on this subject. Thus, he does not claim that his agreement to use the thirteen-member jury was uninformed or involuntary. Therefore, this case does not present any issue as to whether a personal colloquy with the defendant is required, or, if so, the content of such colloquy. Nonetheless, we strongly recommend the kind of colloquy used by the trial court here to establish the defendant's voluntary agreement with the procedure and understanding of its consequences.
VOICE IDENTIFICATION LINEUP
Ledger next argues that the out-of-court voice identification made by the victim, Michael Staves, should have been suppressed because the procedure employed by the police was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." See Stovall v. Denno, 388 U.S. 293, 302 (1967). After Ledger's arrest, the police conducted a tape recorded voice identification lineup with Ledger and four other participants. Outside of Staves' visual observation, the police instructed Ledger and the other participants to repeat several of the phrases that were used by the perpetrator during the robbery. Staves identified Ledger as the perpetrator because his voice "seemed to be slurred" and was "deeper."
Ledger does not challenge on appeal the admissibility of Staves' in-court identification of him at trial.
The procedure was conducted by having each of the five participants repeat three times, both with and without a ski mask, a series of statements made by the perpetrator during the masked armed robbery.
Ledger contends the procedure was impermissibly suggestive because his lack of front teeth causes him to slur his speech, a distinctive characteristic none of the other four participants in the lineup shared. Ledger additionally argues that because his codefendant, Steven Walworth, also has a speech impediment caused by the absence of upper front teeth, the failure to include him in either the same or a separate lineup contributed to the suggestiveness of the out-of-court procedure.
Out-of-court identifications are governed by our supreme court's decision in Powell v. State, 86 Wis.2d 51, 271 N.W.2d 610 (1978). The supreme court stated:
The test for determining whether an out-of-court . . . identification is admissible or, on review, whether the out-of-court identification was properly admitted has two facets. First, the court must determine whether the identification procedure was impermissibly suggestive. Second, it must decide whether under the totality of the circumstances the out-of-court identification was reliable, despite the suggestiveness of the procedures.
Id. at 65,
271 N.W.2d at 617 (adopting
Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). Once the defendant bears his or her burden of showing that the identification was the result of an impermissibly suggestive procedure, the state has the burden of showing that the identification was nonetheless reliable under the totality of the circumstances.
Id. at 66,
271 N.W.2d at 617.
We are not persuaded that Ledger has met his threshold burden of showing that the out-of-court identification was the result of an impermissibly suggestive procedure. As to the lineup procedure, the trial court found (and the tape recording demonstrates) that each of the five voices sound similar in accent, range and volume. Although a slight lisp in Ledger's voice can be detected, any disparity between Ledger's voice and that of the other participants falls far short of the substantial likelihood of suggestiveness required for reversal. Cf. Foster v. California, 394 U.S. 440, 442-43 (1969); Simmons v. United States, 390 U.S. 377, 384 (1968).
Ledger makes much of the fact that Staves was able to identify his voice as that of the perpetrator's because it was "deep" and had a "slur." The evidence adduced at trial, however, indicates that the only description Staves provided to the police immediately after the robbery was that of the perpetrator's physical characteristics and clothing. Neither after the robbery nor before the lineup did Staves relate to the police that the perpetrator had a deep voice or that his speech was slurred. Thus, it does not appear that the lineup participants were selected so as to emphasize any particular identifying characteristic of Ledger's.
The fact that Staves was able to articulate — after the procedure — distinguishing features of Ledger's voice that allowed him to identify Ledger as the perpetrator does not condemn the integrity of the lineup as impermissibly suggestive.
In a related argument, Ledger also argues that not including his codefendant, Walworth, in either the same or a separate lineup contributed to the procedure's suggestiveness. However, Walworth was never implicated as the party responsible for the actual holdup — he was implicated as the party responsible for "casing" the establishment and driving the get-away car. While it may have been Ledger's preference to have Walworth included in the lineup procedure, the possibility that the procedure might have produced a better comparison does not render the procedure employed here impermissibly suggestive. Rather, factors causing doubts as to the accuracy of the identification can be attacked by counsel on cross-examination and closing argument and go to the weight to be given the identification by the jury. See Manson v. Brathwaite, 432 U.S. 98, 113 n. 14 (1977); Powell, 86 Wis.2d at 68, 271 N.W.2d at 618. Ledger's counsel vigorously attacked the reliability of Staves' out-of-court identification at trial.
Moreover, even if we were to conclude the identification was impermissibly suggestive, we would find under the totality of the circumstances that it was reliable. The factors to be considered include:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199 (1972).
Here, Staves testified at trial that during the robbery the defendant stood only "a foot to ten inches" behind him, and Staves was able to accurately recall at least five separate statements made by Ledger during the robbery. Staves attentively observed the masked individual during the robbery and gave the police a description only minutes afterwards. Though the robber was masked, the description included the robber's race, gender, height, build, color of his facial hair and clothing worn. No serious claim has been made that Ledger did not possess the physical characteristics so described. Staves also testified at trial that when he heard Ledger's voice during the lineup, his "eyes lit up . . . [he] remembered that voice" and he "was positive that was it." Additionally, the identification was made only one week after the robbery. Weighing all the factors, we find no substantial likelihood of misidentification. The identification evidence was properly allowed to go to the jury.
Ledger next argues, along the same lines, that the manner in which the voice identification lineup was conducted denied him his sixth amendment right to counsel. Ledger's attorney was present throughout the duration of the lineup and observed Staves during the entire procedure. After the lineup, however, Ledger's attorney requested that the police conduct another lineup with both Ledger and Walworth as participants or, in the alternative, with Walworth alone. The police refused. Ledger now contends the failure of the police to abide by his attorney's request violated his sixth amendment right to counsel. We cannot agree.
While there is no question that a defendant is entitled to the presence of counsel at any live lineup after the initiation of adversary judicial criminal proceedings against him, United States v. Wade, 388 U.S. 218, 236-37 (1967); Gilbert v. California, 388 U.S. 263, 272 (1967), the important purpose to be served by counsel at such a procedure is that of observer. Wright v. State, 46 Wis.2d 75, 84, 175 N.W.2d 646, 651 (1970); McMillian v. State, 83 Wis.2d 239, 244-45, 265 N.W.2d 553, 556 (1978). In Wright, our supreme court explained that:
The presence of counsel at the lineup is intended to make possible the reconstruction at the time of trial any unfairness that may have occurred at the time of the lineup.
The important purpose to be served is that of observer. A police lineup is not a magisterial or judicial hearing at which a record is made and objections to procedures can be entered. The lawyer is present as eyes and ears for the accused, not as interrogator or cross-examiner.
It is his presence, not his participation, that is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself . . . .
. . . In fact, the limited purpose served by the presence of counsel at the time of the lineup has led to the holding that the fact that the attorney present at the lineup did not represent the defendant on the charge
for which the lineup was conducted did not prejudice the defendant . . . .
Id.,
46 Wis.2d at 84-85, 175 N.W.2d at 651 (emphasis added).
Here, Ledger's counsel was present at the lineup and even asserted his advice and thoughts concerning the procedure. Through his presence, he served as Ledger's "eyes and ears" — the very role the law contemplates. Counsel was not required, and indeed had no authority, to direct the lineup procedure. "His function, as observer, was to assist the court in reconstructing the circumstances of the lineup at the time of trial." Id. at 84, 175 N.W.2d at 651. Because counsel's function as an observer at the lineup was not frustrated, we reject Ledger's sixth amendment claim.
STATEMENTS AFTER ARREST
Finally, we address Ledger's claim that statements obtained by the police after his arrest violated his sixth amendment right to counsel. The criminal complaint charging Ledger with masked armed robbery was filed in the clerk of courts office prior to the police executing an arrest and search warrant at Ledger's residence. At his residence and again after he was transported to the police department, Ledger was advised of and waived his Miranda rights. Thereafter, he made several incriminating statements to the police. Ledger argues that because his sixth amendment right to counsel had already attached by the time of his arrest — i.e., when he was formally charged by criminal complaint — his waiver under Miranda was ineffectual and the statements should have been suppressed.
Ledger filed both a pretrial motion and an amended motion to suppress the statements. Both motions were partially based upon Ledger's claim that his sixth amendment right to counsel had been violated. However, Ledger's arguments at the pretrial motion hearing, and the trial court's interpretation of the challenge, went only to the fifth amendment/ Miranda aspects of the issue. Now on appeal, Ledger attempts to broaden the argument to encompass his sixth amendment claim. Ledger concedes on appeal that "the focus of the hearing appears to have been primarily centered around Miranda."
Ledger's motions are entitled "Notice of Motion And Motion To Suppress Statements" and "Notice of Motion And Amended Motion To Suppress Statements." The body of each motion asserts that the "statements were obtained in violation of rights guaranteed to him by . . . the Fourth, Fifth, Sixth and Fourteenth Amendments," and the amended motion adds "specifically the right to counsel and proper Miranda warnings."
On appeal, issues raised but not briefed or argued are deemed abandoned. Reiman Assocs. v. R/A Advertising, 102 Wis.2d 305, 306 n. 1, 306 N.W.2d 292, 294 (Ct. App. 1981). Akin to this rule, for purposes of trial court proceedings, is the principle that a party must raise and argue an issue with some prominence to allow the trial court to address the issue and make a ruling. See State v. Salter, 118 Wis.2d 67, 79, 346 N.W.2d 318, 324 (Ct. App. 1984). In this case, while Ledger's motions arguably raised his sixth amendment claim, he tacitly abandoned this argument in the actual proceedings by arguing only the Miranda and voluntariness aspects of the issue. Because we conclude the issue was abandoned at the trial court, we decline to review it on appeal. See Zeller v. Northrup King Co., 125 Wis.2d 31, 35, 370 N.W.2d 809, 812 (Ct.App. 1985).
By the Court. — Judgment and order affirmed.