State v. Brent T. Novy , 346 Wis. 2d 289 ( 2013 )

2013 WI 23SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP407-CR, 2011AP408-CR & 2011AP409-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Brent T. Novy,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 338 Wis. 2d 439, 809 N.W.2d 889(Ct. App. 2012 - Published)
PDC No: 2012 WI App 10OPINION FILED: March 14, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 9, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Barbara A. Kluka
JUSTICES:
CONCURRED: Abrahamson, C.J., Bradley, J., concur (Opinion
filed).
DISSENTED:
NOT PARTICIPATING: Prosser, J., did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Gerald P. Boyle and Boyle, Boyle & Boyle, S.C.,
Milwaukee, and oral argument by Gerald P. Boyle.
For the plaintiff-respondent, the cause was argued by
Christine A. Remington, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
2013 WI 23NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
(L.C. No. 2008CF500, 2008CF1307 & 2009CF58)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. MAR 14, 2013
Brent T. Novy, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a
decision of the court of appeals1 that affirmed a judgment of the
circuit court for Kenosha County.2 Novy raises two issues.
First, Novy claims that the trial court erred when it allowed
the State to use certain fingerprint evidence and related
testimony in rebuttal, which the court had previously excluded
from the State's case-in-chief due to a Wis. Stat. § 971.231
State v. Novy, 2012 WI App 10, 338 Wis. 2d 439, 809 N.W.2d
889.
2
The Honorable Barbara A. Kluka presided.
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
(2009–10) discovery violation.3 Second, Novy asserts that he was
deprived of his right to a fair trial by an impartial jury
because, he claims, one of the jurors was sleeping during a
portion of defense counsel's closing argument.
¶2 We conclude that, with regard to the admission of
fingerprint-related testimony on rebuttal, the circuit court did
not erroneously exercise its discretion. The circuit court
initially determined that the State had failed to comply with
its discovery obligations under Wis. Stat. § 971.23(1); and
therefore, the court excluded fingerprint evidence and related
testimony from the State's case-in-chief pursuant to
§ 971.23(7m)(a). However, after Novy testified such that the
excluded fingerprint evidence and related testimony would
controvert his testimony, the circuit court concluded that it
could be presented in rebuttal. The circuit court properly
interpreted § 971.23 under the facts of this case, and given the
significant discretion afforded circuit courts on evidentiary
matters, we cannot say that the circuit court erroneously
exercised its discretion in permitting the rebuttal use of the
fingerprint evidence and related testimony.
¶3 With regard to the circuit court's treatment of the
allegedly sleeping juror, the circuit court did not find that
the juror was sleeping; therefore, Novy failed to establish a
3
Although the charged events occurred between 2007 and
2009, the relevant statutory provisions are identical to the
current version of the statutes, and therefore, all subsequent
references to the Wisconsin Statutes are to the 2009—10 edition
unless otherwise indicated.
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finding necessary to his contention. The circuit court's
findings are not clearly erroneous, and therefore, we will not
overturn the circuit court's refusal to strike the juror.
Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND4
¶4 For conduct that occurred between May 2008 and January
2009, Novy was charged in Kenosha County with two counts of
stalking, 11 counts of felony bail jumping, and one count of
violating a harassment injunction. All of the charges related
to Novy's conduct toward his ex-fiancé, Julie N. The two had
dated on and off for approximately five years, until September
of 2007, when Julie ended the relationship. After the
relationship ended, Novy continued to contact Julie, to the
point where, in November 2007, Julie sought and obtained a
harassment injunction against Novy under Wis. Stat.
§ 813.125(4). The injunction prohibited Novy from contacting
Julie in any way, and required that he avoid her residence.
¶5 In early May 2008, Novy was charged with one count of
stalking, in violation of Wis. Stat. § 940.32(2)(a), (b), and
(c). The complaint (case no. 08-CF-500) alleged that, between
October 17, 2007, and February 4, 2008, Novy had engaged in a
4
Novy's trial involved 14 separate charges, but only two of
those charges are relevant to this appeal: one count of bail
jumping and one stalking charge. Therefore, we will briefly
summarize the facts leading up to and including the trial,
focusing on the two relevant charges, as well as the facts
related to Novy's allegation that a juror was sleeping during
defense counsel's closing argument.
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course of conduct, directed at Julie, which had caused Julie to
suffer serious emotional distress, and that Novy knew or should
have known that his conduct would cause such distress.
Generally, Novy's alleged conduct included following and
harassing Julie in public places, calling Julie at work and
hanging up, accessing Julie's voicemail and prowling around
Julie's house. Novy was released on a $1,000 signature bond,
which provided that he was to have "No [c]ontact w/ Julie [N.];
not to be within 1000 feet of her residence."
¶6 Then, on November 12, 2008, Novy was charged with
another count of stalking under Wis. Stat. § 940.32(2) and eight
counts of felony bail jumping, in violation of Wis. Stat.
§ 946.49(1)(b). These charges (case no. 08-CF-1307) all
involved a course of conduct in which Novy allegedly had engaged
between May 4, 2008, and November 10, 2008. Similar to the
conduct underlying the previous stalking charge, the alleged
conduct involved hang-up calls to Julie's home, following her in
public (including waiting for her outside her place of work),
lurking around Julie's house and in her neighborhood, and
repeatedly calling Julie's friends. Again, Novy was released on
bond, this time a $5,000 cash bond, which also provided that he
was to have no contact with Julie or her residence.
¶7 Relevant for purposes of this appeal, one of the eight
counts of bail jumping in case number 08-CF-1307 (Count 7)
alleged that, on the night of November 9, 2008, Julie received a
hang-up call from a payphone at L&M Meats in Kenosha, which was
close to Novy's residence. Julie had previously noticed Novy's
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vehicle near L&M Meats, and had called her sister from that
payphone to determine the phone number associated with that
phone. After receiving the hang-up call on the night of
November 9, Julie called the police, who went to the payphone at
L&M Meats and verified that was the number from which Julie had
recently received the phone call. Officers also lifted
fingerprints from the receiver of the payphone. Police analysts
later determined that these fingerprints matched Novy's
fingerprints.
¶8 On January 14, 2009, Novy was charged with three
additional bail jumping counts, as well as one count of
violating the harassment injunction, contrary to Wis. Stat.
§ 813.125(7). The complaint (case no. 09-CF-58) alleged that
Novy had been seen driving slowly past Julie's house, in
violation of the harassment injunction and the conditions of his
bonds for the prior charges. Novy was again released on a cash
bond ($20,000), which reiterated the prohibition on contacting
Julie or being within 1,000 feet of her residence.
¶9 In late May 2010, a jury trial was held in Kenosha
County, wherein the three separate cases were joined and Novy
was tried on all 14 counts. During opening statements, counsel
for the State referred to testimony about fingerprint evidence
that would tend to show that Novy had called Julie from L&M
Meats on November 9, 2008. After opening statements, defense
counsel moved to exclude the fingerprint evidence and related
testimony on the ground that the defense had requested all
evidence subject to disclosure under Wis. Stat. § 971.23(1), but
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the State failed to provide access to the cards on which the
fingerprints were exhibited.5
¶10 The circuit court concluded that the State had failed
in its obligation to properly disclose the fingerprint evidence,
as required by Wis. Stat. § 971.23(1)(g). Therefore, the court
granted the defendant's motion to exclude the evidence. When
counsel for the State asked whether the fingerprint evidence
would be available for rebuttal, Judge Kluka responded, "I don't
know."
¶11 After the State completed its case-in-chief, the
defense moved to dismiss Count 7 in case number 08-CF-1307, the
bail jumping charge relating to the alleged phone call from the
L&M Meats payphone, arguing that without fingerprint-related
testimony, the State no longer had any evidence linking Novy to
the phone on the night in question. The State conceded that,
without the fingerprint-related testimony, the State would be
unable to prove the elements of bail jumping for Count 7.
Accordingly, the circuit court granted the defendant's motion to
dismiss that count.
¶12 During the defense case, Novy chose to testify. Prior
to his testimony, defense counsel sought to prevent any
questions regarding the phone call from L&M Meats on November 9,
2008, on the ground that the alleged call related solely to the
5
Although the State had provided defense counsel with an
expert's report relating to the fingerprint evidence, the actual
fingerprint cards were not available when defense counsel went
to review the materials at the evidence bureau.
6
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
dismissed bail jumping charge. The State responded that the
phone call from L&M Meats was a proper subject for questioning
because the call related to the course of conduct supporting the
second count of stalking, which allegedly occurred between
May 4, 2008, and November 10, 2008 (case no. 08-CF-1307). The
circuit court agreed with the State and concluded that such
questioning was relevant to the second stalking count.
¶13 During cross-examination of Novy, counsel for the
State asked Novy, "[D]id you call Julie from L and M Meats here
in Kenosha on November 9th of 2008 at approximately 8:00 p.m.?"
Novy responded, "No, I did not." During Novy's redirect,
defense counsel did not ask Novy any clarifying questions
regarding his use of the payphone at L&M Meats on the night in
question.
¶14 As the State prepared to present its case-in-rebuttal,
counsel for the State asked whether the fingerprint evidence
from L&M Meats and related testimony would be allowed at that
point, given Novy's denial of having called Julie from that
phone. Defense counsel protested, arguing that the fingerprint-
related testimony showed only that Novy had at some point used
the payphone at L&M Meats, not that he had necessarily used it
that night. Additionally, defense counsel argued that the
discovery statute, Wis. Stat. § 971.23(1) and (7m), mandated
that evidence that had been excluded for discovery violations be
excluded throughout the trial, not solely for the State's case-
in-chief. The circuit court, however, disagreed and allowed the
State to present the fingerprint evidence and related testimony,
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calling it "bona fide rebuttal evidence" as to the second
stalking charge.
¶15 In its case-in-rebuttal, the State presented the
testimony of two officers from the Kenosha Police Department,
Officers Hamilton and Primmer. Officer Hamilton testified that
he was an evidence technician; that he had been dispatched to
examine the payphone at L&M Meats on the night of November 9,
2008; and that he had recovered two fingerprints from that
phone. Additionally, Officer Primmer testified that he had
conducted an analysis of the fingerprints that had been lifted
from the payphone at L&M Meats, and that he had determined that
those prints matched the fingerprints that the department had on
file for Novy.
¶16 Defense counsel did not cross-examine Officer Primmer.
On surrebuttal, however, defense counsel re-called Novy. Novy
testified that, although he had previously denied calling Julie
from the payphone at L&M Meats, he had used that phone "quite a
few times" in the past. In particular, Novy stated that he had
used the phone to call a friend in the Philippines because his
cell phone did not have an international calling plan.
¶17 After closing arguments and immediately before the
selection of the alternate juror, defense counsel sought a
sidebar. The record reflects that defense counsel alleged that
one of the jurors had been sleeping during the defense's closing
argument, and that the juror therefore should be struck. The
circuit court denied the motion, and noted that she makes an
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effort "to keep track of what's going on with the jurors," and
that she had not seen the juror sleeping.
¶18 The jury found Novy guilty of both counts of stalking,
six counts of bail jumping, and the one count of violating the
harassment injunction. Novy was sentenced to 90 days in jail
for violating the injunction, and two years of imprisonment for
the second stalking offense, consisting of one year of
confinement and one year of extended supervision. For the
remainder of the charges, Novy was placed on probation for five
years, with the sentences withheld.
¶19 On appeal to the court of appeals, Novy raised the two
issues currently before this court, seeking vacation of his
sentence and a remand for a new trial.6 The court of appeals
affirmed the circuit court's decision regarding the rebuttal
evidence and the allegedly sleeping juror, concluding that both
matters were within the broad discretion of the circuit court,
and that there was nothing in the record to suggest that the
court had erroneously exercised its discretion. See State v.
Novy, 2012 WI App 10, ¶¶18, 23, 338 Wis. 2d 439, 809 N.W.2d 889.
¶20 Novy petitioned for review, and we granted his
petition.
6
In the court of appeals, Novy also raised another issue
relating to "other acts" evidence that he has not raised before
this court.
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II. DISCUSSION
A. Standard of Review
¶21 Novy raises two issues for review. The first issue——
whether the circuit court erred by allowing the State to present
evidence in rebuttal when that evidence previously had been
excluded as a sanction for a discovery violation——relates to the
circuit court's decision on an evidentiary matter.
Consideration of this issue begins with statutory interpretation
and application, which present questions of law for our
independent review, although we benefit from the previous
interpretations of the court of appeals and the circuit court.
Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d
541, 749 N.W.2d 581. In addition, whether to admit or deny
evidence rests in the sound discretion of the circuit court,
which we will not overturn absent an erroneous exercise of
discretion. See State v. Smith, 2005 WI 104, ¶28, 283 Wis. 2d
57, 699 N.W.2d 508.
¶22 Second, Novy argues that the circuit court erred by
failing to strike a juror whom defense counsel alleged was
sleeping during the defense's closing argument. The circuit
court did not find that the juror was sleeping. We will uphold
a circuit court's findings of fact unless they are clearly
erroneous. See State v. Funk, 2011 WI 62, ¶¶29–30, 335 Wis. 2d
369, 799 N.W.2d 421.
B. Rebuttal Evidence
¶23 Novy argues that the circuit court erred when it
allowed the State to rebut Novy's testimony using fingerprint
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evidence and related testimony that the court had previously
excluded for a discovery violation under Wis. Stat.
§ § 971.23(1) and (7m)(a). The State contends that its use of
the fingerprint-related evidence is clearly permitted under
§ 971.23(1)(d). We therefore begin our discussion with the
relevant portions of the discovery statute, § 971.23, which
provide in relevant part:
(1) What a district attorney must disclose to a
defendant. Upon demand, the district attorney shall,
within a reasonable time before trial, disclose to the
defendant or his or her attorney and permit the
defendant or his or her attorney to inspect and copy
or photograph all of the following materials and
information, if it is within the possession, custody
or control of the state:
. . . .
(d) A list of all witnesses and their addresses
whom the district attorney intends to call at the
trial. This paragraph does not apply to rebuttal
witnesses or those called for impeachment only.
(e) Any relevant written or recorded statements
of a witness named on a list under par. (d), including
. . . any reports or statements of experts made in
connection with the case . . . and the results of any
physical or mental examination, scientific test,
experiment or comparison that the district attorney
intends to offer in evidence at trial.
. . . .
(g) Any physical evidence that the district
attorney intends to offer in evidence at the trial.
. . . .
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(7m) Sanctions for failure to comply. (a) The court
shall exclude any . . . evidence not presented for
inspection or copying required by this section, unless
good cause is shown for failure to comply.
(Emphasis added.)
1. General principles
¶24 When interpreting the meaning of Wis. Stat. § 971.23,
we begin with the language of the statute. State ex rel. Kalal
v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110. "If the meaning of the statute is plain,
we ordinarily stop the inquiry," and the statute will be applied
according to that plain meaning. Id., ¶¶45–46 (internal
quotation marks omitted). Statutes are interpreted in context,
as they relate to each other. Id., ¶46.
¶25 Wisconsin Stat. § 971.23(1)(d) has an exception for
disclosure of rebuttal evidence that has been interpreted by
appellate courts on other occasions. Such interpretations have
concluded that the plain meaning of § 971.23(1)(d) does not
require the State to disclose "rebuttal witnesses or those
called for impeachment only." See Lunde v. State, 85 Wis. 2d
80, 91, 270 N.W.2d 180 (1978).
¶26 Appellate courts also have concluded that the State
has no obligation under Wis. Stat. § 971.23(1)(d) to disclose
rebuttal evidence, even when the State anticipates before trial
that certain evidence may be used for rebuttal. State v.
Konkol, 2002 WI App 174, ¶1, 256 Wis. 2d 725, 649 N.W.2d 300.
¶27 Notwithstanding that the State has no statutory
discovery obligation to disclose rebuttal evidence, where the
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circuit court determines that the State has failed to comply
with the initial requirements set forth in Wis. Stat.
§ 971.23(1), the court "shall exclude any witness not listed or
evidence not presented for inspection or copying required by
this section, unless good cause is shown for failure to comply."
§ 971.23(7m)(a).
¶28 Such an initial order under Wis. Stat. § 971.23(7m)(a)
was made by the circuit court in this case when the fingerprint
evidence and related testimony that would have been used for the
State's case-in-chief was excluded. Notwithstanding this order,
after Novy testified, the State asserts that the fingerprint
evidence and related testimony became rebuttal evidence. No
appellate court has determined what, if any, effect paragraph
(7m)(a) has on paragraph (1)(d)'s exception for discovery of
rebuttal testimony.
¶29 Furthermore, in addition to statutory provisions
governing disclosure of evidence by the State, we have long
recognized the circuit court's discretion on evidentiary
matters, including the exclusion and admission of evidence on
rebuttal. See Howard v. Beldenville Lumber Co., 129 Wis. 98,
110-11, 108 N.W. 48 (1906); McGowan v. Chi. & Nw. Ry. Co., 91
Wis. 147, 153–54, 64 N.W. 891 (1895).
¶30 We have set forth a relatively broad general rule to
define rebuttal evidence. We have explained that rebuttal
evidence is that "which squarely meets and controverts some
affirmative fact or facts which the adversary has attempted to
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prove." State v. Watson, 46 Wis. 2d 492, 499, 175 N.W.2d 244(1970) (internal quotation marks omitted).
¶31 Furthermore, even with this general rule for rebuttal
evidence, we have consistently reaffirmed a circuit court's
broad discretion to admit "evidence of any acts or circumstances
which are inconsistent with the relevant testimony of [a]
witness. Any evidence, otherwise proper, which in any respect
tends to contradict the witness, is admissible for this
purpose." Id. at 500 (internal quotation marks omitted).
¶32 Indeed, we have affirmed circuit courts' discretion to
admit evidence in rebuttal even if the evidence tends to
corroborate the case-in-chief, see McGowan, 91 Wis. at 154, and
where the evidence could have been submitted in the State's
case-in-chief, see Watson, 46 Wis. 2d at 500. In those
instances, we have recognized that the admission of such
evidence may be "necessary to achieve justice," and the
determination of what is necessary in those instances is subject
to the circuit court's discretion. Id. at 499 (internal
quotation marks omitted).
¶33 However, appellate courts have implied that evidence
is not appropriate in rebuttal where it is plain that the
evidence was withheld from the case-in-chief for dramatic effect
or to ambush the defendant, although this rule would be subject
to the necessities of justice. See Lunde, 85 Wis. 2d at 91–92;
McGowan, 91 Wis. at 154; cf. Konkol, 256 Wis. 2d 725, ¶¶15–19
(rejecting circuit court's determination that an expert's
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testimony was "not really rebuttal" and that it "could have been
proffered during the case in chief").
¶34 Wisconsin courts have come to refer to evidence that
is proper for rebuttal as "bona fide rebuttal evidence." See
Lunde, 85 Wis. 2d at 91; State v. Sandoval, 2009 WI App 61, ¶30,
318 Wis. 2d 126, 767 N.W.2d 291. Specifically, appellate courts
have defined bona fide rebuttal evidence as that which (1) was
not necessary to the State's (or plaintiff's) case-in-chief, and
(2) which became necessary and appropriate when the defense made
its case. See Lunde, 85 Wis. 2d at 91–92. Bona fide rebuttal
evidence is not determined by asking whether the evidence could
have been admitted in the State's case-in-chief, but rather
whether the evidence became necessary and appropriate because it
controverts the defendant's case. See Konkol, 256 Wis. 2d 725,
¶18; Lunde, 85 Wis. 2d at 91–92.
¶35 Moreover, rebuttal evidence is no less bona fide when
the State is able to anticipate the defense's theory or
particular pieces of evidence. See Konkol, 256 Wis. 2d 725,
¶15. Once the defendant raises a particular theory, the
defendant's veracity and the credibility of that theory become
relevant issues in the case. See id., ¶17. The State's ability
to predict or anticipate the defendant's theory does not
diminish the necessity or propriety of otherwise bona fide
rebuttal evidence. See id., ¶17 & n.6. To the extent that the
State is better able to prepare a strong rebuttal to the defense
theory, the truth-seeking function of litigation is better
served, in that the possibility of such rebuttal will keep the
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defendant honest, or at least afford the State an opportunity to
shed light upon questions raised by the defense's case. See
id., ¶17 n.6.
2. Application
¶36 As we apply the principles set out above, we will
uphold a circuit court's decision to admit or exclude evidence
if the circuit court examined the relevant facts, applied a
proper legal standard, and, using a demonstrated rational
process, reached a reasonable conclusion. Miller v. Hanover
Ins. Co., 2010 WI 75, ¶29, 326 Wis. 2d 640, 785 N.W.2d 493.
¶37 The circuit court's discussion of whether the
fingerprint evidence and related testimony was proper rebuttal
evidence shows consideration of the relevant facts and is
consistent with the discovery statute, Wis. Stat. § 971.23, as
interpreted by appellate courts. Following opening statements,
Novy objected to the use of the fingerprint evidence and related
testimony based on the State's failure to provide the defense
with access to the fingerprint cards that were to be used by the
State's witnesses.7 The circuit court agreed with Novy and held
that, under § 971.23(7m)(a), the State could not use the
7
The parties do not dispute that the State provided the
defense with a report of the State's expert, Todd Thorne,
detailing the conclusions of his analysis of the fingerprints.
The circuit court concluded, however, that the report was
insufficient under Wis. Stat. § 971.23(1)(g), which requires the
State to provide access to "[a]ny physical evidence that the
district attorney intends to offer in evidence at the trial."
On that basis, the court excluded from the State's case-in-chief
both the physical fingerprint evidence and the State's expert's
testimony.
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fingerprint evidence in its case-in-chief, although the court
reserved judgment on whether the evidence would be admissible in
rebuttal.
¶38 The circuit court's interpretation of Wis. Stat.
§ 971.23——including the State's discovery obligations and the
applicable sanctions for discovery violations——is supported by
the plain meaning of the statute as interpreted by appellate
courts. Section 971.23(1)(g) requires the State to disclose
"any physical evidence" that the State intends to offer in
evidence at trial, and upon failure to comply with that
provision, § 971.23(7m)(a) requires that the court "shall
exclude any . . . evidence not presented for inspection or
copying required by [§ 971.23]." Accordingly, the court's
initial decision to exclude the fingerprint evidence and related
testimony from the State's case-in-chief was in accord with the
plain language of the statute.
¶39 Novy contends that once the circuit court excluded the
fingerprint evidence and related testimony, the court was
without discretion to allow the evidence or testimony on
rebuttal. Novy relies on Wis. Stat. § 971.23(7m)(a)'s statement
that, upon finding that the State has violated its discovery
obligations, "[t]he court shall exclude any witness not listed
or evidence not presented for inspection . . . unless good cause
is shown for failure to comply." He asserts that this provision
withdraws the circuit court's discretion to later allow such
evidence for purposes of rebuttal. Appellate court decisions,
however, have suggested otherwise.
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¶40 As noted above, the discretion afforded circuit courts
has been reaffirmed numerous times since the enactment of the
discovery statute. See Konkol, 256 Wis. 2d 725, ¶¶15–18. In
Konkol, the court of appeals determined that the circuit court
had erroneously excluded rebuttal evidence, where the circuit
court had concluded that the State's use of the evidence in
rebuttal was an attempt to circumvent the disclosure
requirements of Wis. Stat. § 971.23(1)(d). Id., ¶¶5–7, 18.
Relying on our decision in Lunde, 85 Wis. 2d at 91–92, the court
of appeals in Konkol reaffirmed the principle that the proper
analysis for determining whether evidence is "bona fide rebuttal
evidence" is not whether the evidence could have been admitted
in the State's case-in-chief, but rather whether the evidence
became necessary and appropriate upon presentation of the
defense's case. Konkol, 256 Wis. 2d 725, ¶18.
¶41 This test for bona fide rebuttal evidence effectively
harmonizes the plain language of the sanctions provision in the
discovery statute and the discretion of the circuit court. The
sanctions provision of the discovery statute, Wis. Stat.
§ 971.23(7m)(a), provides that "[t]he court shall exclude"
evidence for which the State failed to comply with the
disclosure requirements. Here, the circuit court did just that:
upon determining that the State failed to provide proper access
to the fingerprint cards, that evidence and related testimony
was excluded from the State's case-in-chief.
¶42 However, notwithstanding the initial exclusion, such
an exclusion need not be absolute because circuit courts retain
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significant discretion to admit rebuttal evidence, even when
such evidence was not disclosed for use in the case-in-chief.
See id. (relying on Lunde, 85 Wis. 2d at 91–92); cf. Wold v.
State, 57 Wis. 2d 344, 355, 204 N.W.2d 482 (1973) (recognizing
that in the context of impeachment of a defendant by a prior
inconsistent statement that was obtained in violation of the
warnings required under Miranda v. Arizona, 384 U.S. 436 (1966),
the proper focus is on the statement's trustworthiness, or lack
thereof, not on whether the statement was excluded from the
State's case-in-chief). Moreover, as relevant here, the circuit
court's discretion to admit evidence on rebuttal is particularly
broad "when the evidence is necessary to achieve justice."
Watson, 46 Wis. 2d at 499 (internal quotation marks omitted).
¶43 During the defense's case, Novy testified that he did
not call Julie from the payphone at L&M Meats on the night of
November 9, 2008. This statement raised an issue of credibility
between Novy's and Julie's accounts of what occurred that
evening because Julie had previously testified that she had
received such a phone call and implicated Novy. Accordingly,
after Novy's testimony, admission of testimony related to the
fingerprint evidence became necessary and appropriate as
rebuttal testimony to contradict Novy's testimony.
¶44 Furthermore, neither the State's pointed question
(whether Novy called Julie from the payphone that night) nor the
fact that Novy might have used the phone on other occasions
diminished the propriety of the State's use of the fingerprint
evidence and related testimony in rebuttal. As we have said,
19
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
the standard for rebuttal evidence is quite broad: any evidence
otherwise admissible that "in any respect tends to contradict
the witness, is admissible" for rebuttal. Id. at 500 (internal
quotation marks omitted). On this standard, we cannot say that
the circuit court erroneously exercised its discretion in
allowing the State to offer testimony that tended to undermine
or contradict Novy's testimony regarding his use of the payphone
at L&M Meats on November 9, 2008.8
¶45 Accordingly, we conclude that the circuit court's
interpretation of the statute was consistent with prior
appellate decisions, and that the circuit court's decision to
allow testimony relating to fingerprint evidence on rebuttal was
not an erroneous exercise of discretion.
C. Juror Inattentiveness
¶46 The second issue Novy raises is that the circuit court
erred by denying Novy's motion to strike a juror whom defense
counsel claimed was sleeping during the defense's closing
8
Novy also argues that the fingerprint-related testimony
became irrelevant once the applicable bail jumping charge (Count
7) was dismissed. However, the nature of the offense of
stalking suggests that Novy's conduct relevant to the bail
jumping charge (viz., calling Julie at home) was equally
relevant to demonstrate the course of conduct for stalking. See
State v. Conner, 2011 WI 8, ¶28, 331 Wis. 2d 352, 795 N.W.2d 750(discussing the nature of the offense of stalking). This is so
because if the jury believed that Novy called Julie from L&M
Meats on the night in question, such facts would tend to support
the State's theory that Novy had engaged in a course of conduct
that Novy knew or should have known would cause Julie to suffer
serious emotional distress, and that did in fact cause such
distress. See Wis. Stat. § 940.32(2)(a), (b), and (c) (setting
forth elements of the offense of stalking).
20
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
argument. This argument is based on the constitutional right to
an impartial jury and due process, as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and
Article I, Section 7 of the Wisconsin Constitution. See State
v. Kettner, 2011 WI App 142, ¶23, 337 Wis. 2d 461, 805 N.W.2d
132.
1. General principles
¶47 The right to a fair trial by an impartial jury
underlies the requirement that jurors have heard all of the
material portions of the trial. See id. "The absence of this
condition, whether it is due to a hearing deficiency or a state
of semi-consciousness, could imperil the guarantees of
impartiality and due process." Id. (quoting State v. Hampton
(Hampton I), 201 Wis. 2d 662, 668, 549 N.W.2d 756 (Ct. App.
1996) (internal quotation marks omitted). Review of an
allegation of juror inattentiveness involves a twofold inquiry:
First, the circuit court must determine, as a question of fact,
whether the juror was actually inattentive to the point of
potentially undermining the fairness of the trial; here, whether
the juror was sleeping. See State v. Hampton (Hampton II), 217
Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998). Second, if
the circuit court finds that the juror was in fact sufficiently
inattentive, the court must determine whether the defendant
suffered prejudice as a result of the juror's inattentiveness.
See id.¶48 As with evidentiary issues, questions involving juror
conduct and attentiveness implicate the circuit court's broad
21
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
discretion. See id. Accordingly, although we review a circuit
court's prejudice analysis as a matter of law, we will uphold a
circuit court's factual findings regarding the conduct and
attentiveness of the jurors, unless those findings are clearly
erroneous. See Kettner, 337 Wis. 2d 461, ¶12.
2. Application
¶49 Our decision on this issue rests on the absence of a
necessary factual finding by the circuit court that a juror was
sleeping. See id. Without such a finding, we need not address
the question of law this issue presents, i.e., whether the
juror's alleged sleeping prejudiced Novy.
¶50 After completion of closing arguments, defense counsel
sought a sidebar during which he moved to strike the allegedly
sleeping juror. Judge Kluka denied the motion and, after the
jury left the courtroom, counsel was afforded an opportunity to
make a record of his objection. During that discussion, Judge
Kluka noted that she considered the defense counsel's request,
but that she did not see the juror sleeping. Additionally,
Judge Kluka also noted that she had kept "track of what's going
on with the jurors fairly well," and that she had "paid very[,]
very close attention to the demeanor and conduct of the jurors."
¶51 In explaining the reason for her ruling, the circuit
court did not find that the juror was sleeping, and therefore,
Novy did not establish a fact necessary to his motion to strike.
On this record, we cannot say that the circuit court's findings
are clearly erroneous because they did not include a finding
that the juror was sleeping. Because we accept such findings,
22
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
we do not discuss this legal challenge further.9 Accordingly, we
affirm the circuit court's denial of Novy's motion to strike the
allegedly sleeping juror from further participation in his
trial.
III. CONCLUSION
¶52 We conclude that, with regard to the admission of
rebuttal fingerprint-related testimony, the circuit court did
not erroneously exercise its discretion. The circuit court
initially determined that the State had failed to comply with
its discovery obligations under Wis. Stat. § 971.23(1); and
therefore, the court excluded fingerprint evidence and related
testimony from the State's case-in-chief pursuant to
9
At oral argument, counsel for Mr. Novy was questioned
about whether the circuit court made findings regarding the
allegedly sleeping juror. Justice Roggensack said that it
seemed "the trial court made a finding that she didn't see that
there was any juror sleeping." Counsel for Mr. Novy responded,
"You know, judge, I read that, and that certainly is true, but I
don't think the judge in [her] decision made that the issue. I
think [she] made the issue that you just don't have to have a
juror listen to closing arguments if they choose not to listen."
Oral Argument at 4:40, State v. Novy, 2011AP407-CR, available at
http://www.wiseye.org/Programming/VideoArchive/ArchiveList.aspx?
cv=34.
Counsel for the State noted defense counsel's concession on
the trial court's finding, and reiterated that it was the
State's position that "the circuit court made a finding that the
juror was not sleeping," but that the court also "went that step
further and said 'Even if the juror was sleeping, then [the
court doesn't] find any prejudice because this wasn't
testimonial.'" Underscoring this point, counsel for the State
concluded that "On these facts, [although] there was
no . . . explicit finding, . . . I think it can definitely be
interpreted as a finding of fact that the juror was not asleep."
Id. at 27:00.
23
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR
§ 971.23(7m)(a). However, after Novy testified such that the
excluded fingerprint evidence and related testimony would
controvert his testimony, the circuit court concluded that it
could be presented in rebuttal. The circuit court properly
interpreted § 971.23 under the facts of this case, and given the
significant discretion afforded circuit courts on evidentiary
matters, we cannot say that the circuit court erroneously
exercised its discretion in permitting the rebuttal use of the
fingerprint evidence and related testimony.
¶53 With regard to the circuit court's treatment of the
allegedly sleeping juror, the circuit court did not find that
the juror was sleeping; and therefore, Novy failed to establish
a finding necessary to his contention. The circuit court's
findings are not clearly erroneous; and therefore, we will not
overturn the circuit court's refusal to strike the juror.
Accordingly, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶54 DAVID T. PROSSER, J., did not participate.
24
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶55 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I write
separately for two reasons. First, I disagree with the majority
opinion's interpretation and application of Wis. Stat. § 971.23to the undisputed facts in the present case. Second, I disagree
with the majority opinion's approach to the second issue, namely
the allegedly sleeping juror.
I
¶56 The majority opinion does not address the difficult
issue of law facing the court, namely interpreting and applying
the text of Wis. Stat. § 971.23 to the undisputed facts of the
case. The majority opinion carefully reprints the text of the
statute but then ignores the words themselves. Indeed, the
majority opinion masks, avoids, and seems oblivious to the
difficult statutory interpretation issue by failing to
distinguish between witness testimony, which is governed by Wis.
Stat. § 971.23(1)(d) and physical evidence, which is governed by
§ 971.23(1)(g).
¶57 The question presented in the instant case is,
according to the court of appeals,1 the State, and the defendant,
whether fingerprint evidence (physical evidence)2 excluded from
the State's case-in-chief as a discovery sanction may later be
1
State v. Novy, 2012 WI App 10, ¶9, 338 Wis. 2d 439, 809
N.W.2d 889.
2
It is undisputed that the fingerprint evidence in this
case is "physical evidence." Fingerprint evidence has been
categorized as "physical evidence" on multiple occasions. See,
e.g., State v. Martin, 2012 WI 96, ¶63, 343 Wis. 2d 278, 816
N.W.2d 270; State v. Armstrong, 2005 WI 119, ¶63, 283
Wis. 2d 639, 700 N.W.2d 98; State v. Stuart, 2005 WI 47, ¶54,
279 Wis. 2d 659, 695 N.W.2d 259.
1
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
used by the State in its rebuttal witnesses' testimony to
challenge the defendant's testimony. In other words, the issue
is not whether the expert witnesses can be rebuttal witnesses.
They can under the statute at issue and relevant case law. The
issue, rather, is whether the State can, while questioning its
rebuttal expert witnesses, introduce into evidence and have the
witnesses testify about the physical fingerprint evidence that
has been excluded under Wis. Stat. § 971.23.
¶58 The majority opinion does not directly answer the
question presented in the instant case. Instead, the majority
opinion states a different question: whether the trial court
erred when it allowed the State to use certain fingerprint
evidence and related testimony in rebuttal. Majority op., ¶1.
The majority opinion seems to answer yet another question
(changing the phrase "fingerprint evidence and related
testimony" in the question to "fingerprint-related testimony" in
the answer): "We conclude that, with regard to the admission of
fingerprint-related testimony on rebuttal, the circuit court did
not erroneously exercise its discretion [to admit the rebuttal
testimony]." Majority op., ¶2.3
¶59 The majority opinion meshes physical evidence (the
fingerprint cards) and the witnesses' testimony and thus shifts
the focus of inquiry from physical evidence to testimony.
3
Yet sometimes the majority opinion seems to address the
admissibility of the fingerprint evidence itself. See, e.g.,
majority op., ¶37.
2
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶60 Throughout the opinion the majority uses the words
"testimony" and "evidence" either interchangeably4 or in
combination in some phrase,5 all the while stating that it is
applying the plain meaning of Wis. Stat. § 971.23. The case law
upon which the majority relies, case law that is pre- and post-
the present version of § 971.23, addresses only testimony; the
case law does not address physical evidence or testimony related
to physical evidence. Yet § 971.23 treats testimony and
physical evidence separately——and differently. That's the rub.
¶61 I look first at Wis. Stat. §§ 971.23(1)(d) and (1)(g).6
Wisconsin Stat. § 971.23(1)(d) requires that before trial, the
4
See, e.g., majority op., ¶25, in which the majority states
that Wis. Stat. § 971.23(1)(d) "has an exception for disclosure
of rebuttal evidence." Not true. Section 971.23(1)(d) excepts
rebuttal testimony.
5
The majority opinion repeatedly refers to the State's use
of "certain fingerprint evidence and related testimony in
rebuttal" or some such mixed reference to fingerprint physical
evidence and testimony of a witness. See, e.g., majority op.,
¶¶1, 2, 11, 14, 23, 28, 37, 39, 43, 44, 52.
6
Wis. Stat. § 971.23, Discovery and Inspection:
(1) What a district attorney must disclose to a
defendant. Upon demand, the district attorney shall,
within a reasonable time before trial, disclose to the
defendant or his or her attorney and permit the
defendant or his or her attorney to inspect and copy
or photograph all of the following materials and
information, if it is within the possession, custody
or control of the state:
. . . .
(d) A list of all witnesses and their addresses whom
the district attorney intends to call at the trial.
This paragraph does not apply to rebuttal witnesses or
those called for impeachment only.
3
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
district attorney must disclose to the defendant a list of all
witnesses whom the district attorney intends to call at trial.
Wisconsin Stat. § 971.23(1)(g) requires the district attorney to
disclose any physical evidence that the district attorney
intends to use at trial.
¶62 The statute governing discovery of the witness list,
§ 971.23(1)(d), makes an exception for a rebuttal or impeachment
witness. Such a witness need not be included on the list of
witnesses disclosed before trial.
¶63 In contrast, the statutory provision governing
discovery of physical evidence, § 971.23(1)(g), does not provide
a similar exception for rebuttal or impeachment evidence.
¶64 What are we to make of this different treatment in the
statute of testimony and physical evidence? Testimony and
physical evidence are not synonymous. "Testimony" and "physical
evidence" are different types of evidence.
¶65 I begin my discussion by reciting what happened at the
trial court.
¶66 The physical evidence at issue was two "cards"
containing fingerprints. One card contained the defendant's
known fingerprints; the other card contained fingerprints lifted
from the pay phone. Prior to trial, the State failed to
disclose to the defendant the physical evidence——the fingerprint
cards——it intended to use at trial. Disclosure of physical
. . . .
(g) Any physical evidence that the district attorney
intends to offer in evidence at trial.
4
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
evidence prior to trial is required by Wis. Stat.
§ 971.23(1)(g).
¶67 The defendant moved to exclude the physical
fingerprint evidence. The trial court granted the defendant's
motion and prohibited the State from introducing this physical
fingerprint evidence at trial. The ruling comports with Wis.
Stat. § 971.23(1)(g), although the circuit court did not
specifically refer by number to this paragraph of the statute.
The State does not challenge the trial court's exclusion of the
physical fingerprint evidence from its case-in-chief.
¶68 Even though the trial court had excluded the physical
fingerprint evidence from the State's case-in-chief, the State
still sought to call the fingerprint experts in its case-in-
chief. The experts would have testified about their examination
of the fingerprints on the two cards and their conclusion that
the known fingerprints matched the fingerprints lifted from the
pay phone. The trial court refused to allow the experts to
testify in the State's case-in-chief because their testimony
relied on the physical fingerprint evidence that had been
excluded. The trial court concluded that without the physical
fingerprint evidence, none of the experts' testimony was
relevant to the case. The State does not challenge the trial
court's exclusion of the witnesses from its case-in-chief.
¶69 Indeed, the majority opinion concludes, as do I, that
the trial court validly excluded the fingerprint cards and the
expert testimony that would have been based on the cards from
the State's case-in-chief. Majority op., ¶38.
5
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶70 The problem arose when the State sought to introduce
the previously excluded physical fingerprint evidence in
rebuttal. According to the text of the statute, Wis. Stat.
§ 971.23(7m)(a) provides the sanction for failure to disclose
physical evidence: "The court shall exclude any witness not
listed or evidence not presented for inspection or copying
required by this section, unless good cause is shown for failure
to comply. The court may in appropriate cases grant the
opposing party a recess or a continuance" (emphasis added).
¶71 Despite Wis. Stat. § 971.23(7m)(a) excluding the
physical fingerprint evidence that wasn't presented for
inspection, the circuit court, without any analysis of the
statute or case law, simply announced that there was no
distinction between a witness and physical evidence and that a
rebuttal witness can bring in any kind of physical evidence that
the State may wish to use in connection with that witnesses'
testimony.7 The circuit court laid down a rule of law that the
bench and bar could readily apply.
¶72 Because the majority opinion does not analyze the
relationship between testimony and physical evidence and the
application of the text of Wis. Stat. § 971.23(7m)(a) to both,
7
The defendant did not see the fingerprint cards before
they were introduced into the record on rebuttal, and therefore
the defendant was unable to procure his own expert to challenge
the State's experts' testimony.
Although the State had not listed the names of the
witnesses who would testify about the fingerprints, the
defendant had a copy of the fingerprint report and knew the
names of the fingerprint experts.
6
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
the majority opinion, unlike the ruling of the circuit court, is
muddled and fails to give proper guidance to the bench and bar.
¶73 For help in interpreting the present statute, I have
examined the cases cited in the majority opinion. Although past
cases upon which the majority opinion relies sometimes used the
words "testimony" and "evidence" interchangeably in rebuttal
witness cases,8 none of the cases is relevant for resolving the
issue presented here because each case dealt with testimony, not
physical evidence.9
8
That the words "testimony" and "evidence" are sometimes
used interchangeably should not be surprising. After all,
testimony is one type of evidence. In many instances it might
not matter whether a court uses the word "evidence" or
"testimony." In the present case, however, the applicable
statute treats the two separately and differently.
9
See, e.g., cases cited at majority op., ¶¶25, 26, 29-35,
40, 42, 44.
State v. Lunde, 85 Wis. 2d 80, 270 N.W.2d 180 (1978) (State
was permitted to present bona fide rebuttal witness testimony
from a witness who had not been previously identified to the
defendant because the rebuttal witness's testimony was only
necessary and appropriate once the defendant testified. State
action was permitted under old Wis. Stat. § 971.23(3)(a), which
is now § 971.23(1)(d)).
State v. Watson, 46 Wis. 2d 492, 499-500, 175 N.W.2d 244(1970) (Decided before the statute was enacted. State could
present "rebuttal evidence" through "rebuttal witnesses" to
impeach the credibility of a testifying defendant).
Howard v. Beldenville Lumber Co., 129 Wis. 98, 108 N.W. 48(1906) (Decided before the statute was enacted. The plaintiff
had wide discretion to present rebuttal testimony to contradict
the defendant's testimony. The court used the term "evidence"
to refer to rebuttal "testimony" that did not include any
"physical evidence.").
7
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶74 I have also reviewed the history of Wis. Stat.
§ 971.23 going back to the 1969 enactment of the first version
of the statute.10 What is clear from the statutory history is
that since the statute's enactment, the defendant's discovery of
the list of witnesses and discovery of physical evidence were
treated differently in two distinct statutes.11 The statute
McGowan v. Chicago & N.W. Ry. Co., 91 Wis. 147, 64 N.W. 891(1895) (Decided before the statute was enacted. The plaintiff
could call witnesses on rebuttal even though the plaintiff had
known the witnesses existed before trial and had considered
calling them in the case-in-chief.).
State v. Sandoval, 2009 WI App 61, ¶¶30-31, 318
Wis. 2d 126, 767 N.W.2d 291 (State could call a rebuttal witness
whose testimony about what he saw included exculpatory evidence
that had not been disclosed to the defendant before trial
pursuant to Wis. Stat. § 971.23(1)(h)).
State v. Konkol, 2002 WI App 174, ¶18, 256 Wis. 2d 725, 649
N.W.2d 300 (State had no duty to list a rebuttal witness under
Wis. Stat. § 971.23(1)(d) even if the prosecutor knew before
trial that the witness would be called. Testimony, not physical
evidence, was admitted.).
10
The current statute requiring a district attorney to
provide pretrial discovery to a defendant was created by ch.
255, Laws of 1969, a complete redraft of the criminal procedure
statutes undertaken by the Criminal Rules Committee established
by the Judicial Council.
11
Wis. Stat. § 971.23(3)(a) (1969-70), List of Witnesses:
A defendant may, not less than 15 days nor more than
30 days before trial, serve upon the district attorney
an offer in writing to furnish the state a list of all
witnesses the defendant intends to call at the trial,
whereupon within 5 days after the receipt of such
offer, the district attorney shall furnish the
defendant a list of all witnesses and their addresses
whom he intends to call at the trial. Within 5 days
after the district attorney furnishes such list, the
defendant shall furnish the district attorney a list
of all witnesses and their addresses whom the
defendant intends to call at the trial. This section
8
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
governing discovery of witnesses included an exception for
rebuttal and impeachment witnesses, while the statute governing
discovery of physical evidence did not include such an
exception.12 The 1969 statute and the revisions, including the
present version, preserve this distinction.
¶75 I conclude that Wis. Stat. § 971.23(1) does not
explicitly authorize a trial court to admit physical evidence on
rebuttal. Perhaps other legal principles can support the
admission of the previously excluded physical fingerprint
evidence in the State's case on rebuttal. The majority opinion
hints that perhaps admissibility should hinge on
trustworthiness, and that the general principles of impeachment
shall not apply to rebuttal witnesses or those called
for impeachment only.
Wis. Stat. § 971.23(4) (1969-70) Inspection of Physical
Evidence:
On a motion of a party subject to s. 971.31(5), all
parties shall produce at a reasonable time and place
designated by the court all physical evidence which
each party intends to introduce in evidence.
Thereupon, any party shall be permitted to inspect or
copy such physical evidence in the presence of a
person designated by the court. The order shall
specify the time, place and manner of making the
inspection, copies or photographs and may prescribe
such terms and conditions as are just.
12
The current criminal discovery statute took its present
form in 1996 after the enactment of 1995 Wisconsin Act 387,
which repealed, renumbered, and recreated certain portions of
the old statute. The analysis of 1995 Assembly Bill 721 (which
became 1995 Act 387) by the Legislative Reference Bureau
indicates that the new bill aimed to eliminate old arduous
procedure requirements in favor of simpler, more responsive
discovery of witness lists and physical evidence.
9
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
testimony should apply to the present case. See majority op.,
¶42.13
¶76 In any event, I concur in the mandate because I agree
with the State that if the admission of the fingerprint evidence
in rebuttal was error, it was harmless error in the present
case.
II
¶77 I turn now to the second issue, the allegedly sleeping
juror.
¶78 The majority embarks on its own new theory about the
allegedly sleeping juror——a theory that was neither briefed nor
argued by the parties. This theory asserts that the circuit
court based its decision on findings of fact. I disagree with
the majority opinion.
¶79 The circuit court did not base its decision on any
factual findings. Rather, the circuit court based its decision
on a legal conclusion: Even if the defendant's factual
allegations that the juror was sleeping were true, the defendant
was not prejudiced.
¶80 Rather than addressing the actual legal basis of the
decision of the circuit court, the majority opinion fails to
even mention it. Because the majority opinion's analysis
arrives at conflicting conclusions, mischaracterizes the circuit
court record and ultimately fails to provide guidance to circuit
courts on how they should proceed when confronted with a
13
See also Novy, 338 Wis. 2d 439, ¶¶14, 15.
10
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
challenge that a juror was sleeping, I write separately to
address this issue.
A
¶81 The majority's theory and analysis of the sleeping
juror issue rests on its discussion of the circuit court's
findings of facts——findings that the circuit court never made.
¶82 At the outset of its discussion of the sleeping juror
issue, the majority opinion states that review of the issue
involves a twofold inquiry. First, the circuit court must
determine, as a question of fact, whether the juror was
sleeping. Majority op., ¶47. Second, the circuit court must
determine whether the defendant suffered prejudice as a result
of the juror's inattentiveness. Id.¶83 After this set-up of the inquiry, the majority opinion
then provides the standard of review: "[A]lthough we review a
circuit court's prejudice analysis as a matter of law, we will
uphold a circuit court's factual findings regarding the conduct
and attentiveness of the jurors, unless those findings are
clearly erroneous." Majority op., ¶48.
¶84 Throughout its opinion, the majority repeatedly
concludes that the circuit court "did not find that the juror
was sleeping." Majority op., ¶¶3, 22, 51, 53. The majority
opinion also states that its decision "rests on the absence of a
necessary factual finding by the circuit court that a juror was
sleeping." Majority op., ¶49. Nevertheless, the majority
opinion simultaneously applies the standard of review to the
non-existent finding and concludes that the circuit court's
11
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
"findings are not clearly erroneous." See majority op., ¶¶3,
22, 51, 53.
¶85 The majority opinion emphasizes that the circuit court
"had not seen the juror sleeping," majority op., ¶¶17, 50, and
mentions the circuit court's statement that it tries "to keep
track of what's going on with the jurors." Majority op., ¶17.
Ultimately, the majority opinion concludes that "[o]n this
record, we cannot say the circuit court's findings are clearly
erroneous because they did not include a finding that the juror
was sleeping." Majority op., ¶51.
¶86 Thus, on the one hand, the majority opinion concludes
that the circuit court made no finding that the juror was
sleeping. Majority op., ¶¶3, 22, 51, 53. The circuit court
also made no finding that the juror was not sleeping. In other
words, the circuit court made no finding of fact about whether
the juror was or was not sleeping. Nevertheless, the majority
opinion paradoxically concludes that the circuit court's
findings on the issue are not clearly erroneous.
¶87 In order to determine whether a finding of historical
fact is clearly erroneous, it is axiomatic that there must first
be a finding of historical fact.14 Yet the majority opinion does
not mention any other findings of fact that the circuit court
made related to this issue of juror inattentiveness. The
14
See, e.g., State v. Owens, 148 Wis. 2d 922, 926-27, 436
N.W.2d 869 (1989).
12
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
majority opinion appears to review a sole finding of fact that
it acknowledges never occurred.15
¶88 Even a cursory review of the record reveals that the
circuit court undertook no factual inquiry into whether the
juror was sleeping. The circuit court did not voir dire the
allegedly sleeping juror, did not take any testimony, and did
not consider other admissible evidence in the record on this
fact.
¶89 Furthermore, the majority opinion's reliance on the
circuit court's statements that it did not see the juror
sleeping similarly cannot be the basis for the elusive
"findings" on which the majority opinion rests its conflicting
conclusions. This court has held that a "circuit court may not
rely on its own personal observations of events not contained in
the record." State v. Anson, 2005 WI 96, ¶33, 282 Wis. 2d 629,
698 N.W.2d 776. Furthermore, a judge presiding at a trial
cannot testify as a witness.16
¶90 It is the majority's misplaced focus on non-existent
findings of fact that gets the majority into analytical trouble.
The only reference to a finding of fact related to a sleeping
15
"On this record, we cannot say that the circuit court's
findings are clearly erroneous because they did not include a
finding that the juror was sleeping. Because we accept such
findings, we do not discuss this legal challenge further."
Majority op., ¶51.
16
State v. Anson, 282 Wis. 2d 629, ¶¶33, 34 & n.3, 698
N.W.2d 776 (citing Wis. Stat. §§ 906.05 & 902.01(2)); State v.
Hampton (Hampton I), 201 Wis. 2d 662, 672-73, 549 N.W.2d 756(Ct. App. 1996). For additional discussion on the issue of a
circuit court's personal observation and judicial notice, see
¶¶105-119, infra.
13
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juror in the majority's entire opinion is its reference to what
it describes as a non-existent finding.
¶91 Although the majority acknowledges that the first step
when presented with an sleeping juror issue is to determine
whether the juror was in fact sleeping, the majority fails to
acknowledge that such a determination never occurred in the
present case.
B
¶92 The majority's approach to "facts" and its
contradictory conclusions appear to stem from its
mischaracterization of the record. The circuit court determined
that "even assuming what [the defense attorney alleged about the
sleeping juror] is correct," the law does not automatically
require the juror's removal.
¶93 The majority selectively quotes the circuit court to
make it appear as if the circuit court found that the juror was
not sleeping, without actually stating that the circuit court
found that the juror was not sleeping. However, the context of
what occurred before the circuit court is different from what
the majority appears to describe.
¶94 The defendant's attorney raised the issue about the
juror before the circuit court by advising the court that he had
seen a juror sleeping during his closing argument. The
defendant's attorney described what he saw as follows:
MR. CICCHINI: Just for the record. I saw his eyes
closed and his head nod down on one occasion[], and I
saw his eyes closed on several occasions.
14
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶95 In response, the State acknowledged that the juror may
not have been paying rapt attention during closing arguments,
but noted that she had not seen any indication that the juror
was sleeping during the presentation of evidence:
MS. JAY: I certainly observed that he was not paying
rapt attention, but I——I'll just take it personally.
I didn't see anything during the trial during evidence
that indicated to me that he was asleep during the
evidence portion. So, I just didn't think it was
necessary to make him the 13th juror.
¶96 The circuit court then stated its reasoning for
denying the defendant's motion to strike the alleged sleeping
juror. It observed that it was aware of case law that may
require removal if the juror is sleeping during the presentation
of evidence. Here, however, the allegation was that the juror
was sleeping during closing arguments. The circuit court
determined that "even assuming what [the defendant's attorney
alleged about the sleeping juror] is correct," the law does not
automatically require the juror's removal. Counsels'
presentation and the full reasoning of the circuit court are as
follows:
MR. CICCHINI: Would you like to do the juror issue
real quick? I'd like to make a record real quick that
I brought up at the side bar?
THE COURT: Oh, sure.
MR. CICCHINI: During the side bar, I made a motion to
strike as the——or have removed or strike as the 13th
juror——Miss Jay [the prosecuting attorney] can maybe
confirm this——I think his name was [juror's name]?
MS. JAY: Correct.
MR. CICCHINI: Okay. He was in the lower right hand
corner. He had a Cubs shirt on, dark hair; and
15
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
noticed him sleeping during the closing——my closing
argument——and because I——I was trying to make eye
contact with him, and I noticed that. I move to
strike. I believe that Miss Jay concurred that she——
well she can speak for herself; but she noticed
similar and opposed the motion. The court denied the
motion. And I think that summarizes it.
THE COURT: The motion to strike him as the alternate
juror.
MR. CICCHINI: Yes, alternate juror. Yes.
THE COURT: Attorney Jay.
MS. JAY: I certainly observed that he was not paying
rapt attention, but I——I'll just take it personally.
I didn't see anything during the trial during evidence
that indicated to me that he was asleep during the
evidence portion. So I just didn't think it was
necessary to make him the 13th juror.
MR. CICCHINI: Oh, I'm sorry. I guess——could I just
describe in brief detail what I saw?
THE COURT: Sure.
MR. CICCHINI: Just for the record. I saw his eyes
closed and his head nod down on one occasion, and I
saw his eyes closed on several occasions.
THE COURT: During your closing.
MR. CICCHINI: Yes. Thank you.
THE COURT: Did you see it during Attorney Jay's
closing?
MR. CICCHINI: I——one time what I think I first
noticed that his——his head was down but he was rubbing
his forehead and came up back up, and I did not see it
then. I saw it during my closing.
THE COURT: Okay. Your observations are noted. I did
consider this request at the side bar just before
sending the jurors out to deliberate. I myself []
didn't notice it. I try to keep track of what's going
on with the jurors fairly well. I am aware of case
law which says if a juror is sleeping during
testimony, during the presentation of evidence, that
16
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
can warrant the dismissal of that juror or [] raise
some issues with respect to deliberations in the sense
that the juror [] doesn't have the same basis for
deliberations as the other jurors.
I——I didn't notice any of those kinds of problems
while testimony was coming in during which I think I
paid very——very close attention to the demeanor and
conduct of the jurors.
So, even assuming what you say is correct, it does not
automatically require removal of that juror; and for
that reason I did not grant your request and we
selected the alternate randomly instead (emphasis
added).
¶97 Both parties describe the circuit court's statement as
a legal conclusion reached by the circuit court's assuming the
factual question. Indeed, when pressed at oral argument before
this court about whether the circuit court based its decision on
factual findings, the defendant's attorney rebuffed such an
assertion. He responded that the issue the circuit court
addressed was not the factual question of whether the juror was
sleeping, but rather it was the legal question addressing the
import of any juror sleeping when it allegedly occurred during
closing arguments.17
17
The complete exchange occurred as follows:
Justice Roggensack: Counselor, as I read the
arguments and the materials provided, I thought that
the trial court made a finding that she didn't see
that there was any juror sleeping.
Defendant's Attorney: You know, [Justice Roggensack],
I read that and um, that certainly is true but I don't
think the judge in [her] decision made that the issue.
I think [s]he made the issue that you just don't have
to have a juror listen to closing argument if they
choose not to listen. I mean, let's face facts,
jurors may be thinking about the Green Bay Packer game
during the entire closing argument and we wouldn't
17
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶98 After Justice Roggensack raised the issue with the
defendant's attorney, the State's attorney briefly addressed the
issue. The State concluded that the circuit court did not make
an "explicit finding" of fact on the record regarding the
sleeping juror and asked the court "to conclude that there was
no prejudice."18
know that but it wouldn't really make any difference
because what's important is that they listen to all
the testimony and then make their decision on the
testimony. Does that answer your honor's . . . ?
Justice Roggensack: Well, I thought that, to me it
was a finding and we adhere to the findings of the
circuit court, unless they are clearly erroneous and I
thought the judge was asked about this, it was brought
to her attention and she said she didn't see any
jurors sleeping and I thought she said she watched the
jury quite closely. So if it's a finding of fact,
that's a different kind of an issue than if it's a
question of law about whether we want to do something
with a juror who was sleeping, you gotta get over the
first step which was, was there a juror sleeping
before you can get to the second step?
Defendant's Attorney: I understand that, [Justice
Roggensack]. I'm not gonna disagree with that. Thank
you. [The defendant's attorney proceeded to argue the
issue of the rebuttal evidence.]
18
The Assistant Attorney General's full statement is as
follows:
I will do the same as defense counsel did and start
with the sleeping juror issue. There weren't many
questions on it but I did want to clear up something.
I think he [the defendant's attorney] made the
statement that it was obvious or something to that
effect that the juror was sleeping or appeared to be
sleeping in this case. To Justice Roggensack's point,
I do believe that the circuit court made a finding
that the juror was not sleeping but went that step
further and said that even if the juror was sleeping,
I [the circuit court] don't find any prejudice because
18
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶99 In any event, whether a circuit court can make a
finding of fact regarding the attentiveness of a juror under the
circumstances of the present case is problematic. No evidence
was presented on the issue, and it is ordinarily inappropriate
for a circuit court to take judicial notice of the fact that a
juror was inattentive without further inquiry. See ¶¶105-122,
infra.
C
¶100 The majority's mischaracterizations do not stop with
the record and the circuit court's decision.
¶101 The majority opinion declares: The court of appeals
concluded that the issue of the allegedly sleeping juror was
"within the broad discretion of the circuit court, and that
there was nothing in the record to suggest that the court had
erroneously exercised its discretion." Majority op., ¶19
(citing Novy, 338 Wis. 2d 439, ¶23).
¶102 Not so! The court of appeals treated the circuit
court as having based its conclusion on prejudice, not on any
finding of whether the juror was in fact sleeping. The court of
appeals stated: "We know of no Wisconsin case, and Novy has not
cited one, in which a juror was removed for nodding off during
this wasn't testimonial. On these facts, there was
no, it was not an explicit finding but I think it can
definitely be interpreted as a finding of fact that
the juror was not asleep and I think, so I just wanted
to clear up that the State on the sleeping juror issue
would ask this court to affirm and conclude that there
was no prejudice and that the defendant failed to meet
his burden on that issue. [The State then proceeded
to argue the rebuttal evidence issue]. (Emphasis
added.)
19
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
closing arguments. We therefore reject Novy's argument that the
trial court erred in failing to conduct a further inquiry into
whether the juror was sleeping."19
D
¶103 As a result of relying on a finding of fact that does
not exist and mischaracterizing the record and the decisions of
the circuit court and court of appeals, the majority opinion
ultimately fails to undertake the ultimate question of whether
the defendant's constitutional right to a fair trial was
violated by juror inattentiveness.
¶104 By short-circuiting the analysis, the majority further
fails to provide guidance on how circuit courts are to handle an
allegation of a sleeping juror.
E
¶105 Unlike the majority opinion, I acknowledge the circuit
court's stated reasoning for denying the defendant's motion to
strike. The circuit court did not determine whether the
defendant's allegation of a sleeping juror was true. Instead
the circuit court determined that "even assuming what [Novy's
attorney alleged about the sleeping juror] is correct," the law
does not automatically require the juror's removal. The circuit
19
Novy, 338 Wis. 2d 439, ¶23.
After reaching this conclusion, the court of appeals went
on to state that defense counsel did not ask the circuit court
to conduct further inquiry into whether the juror was asleep;
that it would not fault the circuit court for failing to
undertake a further inquiry under the circumstances of the
present case; and that the circuit court did not erroneously
exercise its discretion in failing to conduct a further inquiry
into whether the juror was sleeping. Id.20
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
court concluded that even if the juror was sleeping, as alleged,
it did not prejudice the defendant.
¶106 Here, the defendant's attorney alleged that he "saw
[the juror's] eyes closed and his head nod down on one
occasion[]" and "saw his eyes closed on several occasions." The
alleged inattentiveness occurred during defense counsel's
closing argument.
¶107 The constitutional right to an impartial jury requires
that the jurors "have heard all of the material testimony."20
When a party seeks to have a juror discharged, whether it is due
to sleep or for another cause, it is the circuit court's duty to
"make careful inquiry into the substance of the request and to
exert reasonable efforts to avoid discharging the juror."21
Upholding juror integrity is a task assigned to the courts.22
The ultimate question of whether the defendant's constitutional
right to a fair trial was violated by juror inattentiveness is a
question of law that a reviewing court determines
independently.23
¶108 A circuit court must "approach the issue [of a
sleeping juror] with extreme caution."24
20
Hampton I, 201 Wis. 2d at 668.
21
State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212(1982).
22
State v. Gonzalez, 2008 WI App 142, ¶9, 314 Wis. 2d 129,
758 N.W.2d 153.
23
State v. Hampton (Hampton II), 217 Wis. 2d 614, 621-22,
579 N.W.2d 260 (Ct. App. 1998).
24
Lehman, 108 Wis. 2d at 300.
21
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶109 As a threshold issue, parties must timely object in
order to properly raise the issue before the circuit court.
When parties notice a sleeping juror, they must bring the issue
to the circuit court's attention during trial "as soon as
practicable" after they notice the sleeping juror.25 If the
objection is not timely, it may be considered "waived" or
"forfeited".26 No one argues that the objection was not timely
in the instant case.
¶110 When a timely objection is made, the circuit court may
proceed in different ways depending on the circumstances of the
case. The circuit court may have to decide whether the juror
was sleeping. Because the circuit court in the instant case did
not address this question, the parties did not argue in their
briefs how the circuit court should have handled the question.
I write to remind the bench and bar that Hampton I27 and Hampton
II28 are instructive about what a circuit court is to do to make
a finding about juror attentiveness.29
25
State v. Saunders, 2011 WI App 156, ¶32, 338 Wis. 2d 160,
807 N.W.2d 679.
26
See Hampton I, 201 Wis. 2d at 669.
27
Id.
28
Hampton II, 217 Wis. 2d at 621-24. See also Anson, 282
Wis. 2d 629, ¶¶33-34.
29
For a discussion of the numerous cases across the country
on juror inattentiveness, see George L. Blum, Annotation,
Inattention of Juror from Sleepiness or Other Cause As Ground
for Reversal or New Trial, 59 A.L.R. 5th 1 (2003) (made current
by weekly addition of relevant new cases).
22
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
¶111 The issue in the present case was raised in a
substantially similar manner to that which occurred in Hampton
I, in which the defendant also raised the issue orally at trial
outside the presence of a jury. The Hampton I court determined
that when there is a "sufficient demonstration of juror
sleepiness," the circuit court should undertake further factual
inquiry.30
¶112 In Hampton I, the attorney noticed a juror sleeping
during witness testimony and raised the issue outside the
presence of the jury.31 Although the circuit court acknowledged
that the juror was "drowsy" during portions of the testimony, it
did not undertake any further inquiry into whether the juror was
actually sleeping. The court of appeals concluded that there
was a sufficient demonstration of juror sleepiness to warrant
further factual inquiry and remanded the matter to the circuit
court for an evidentiary hearing.32
¶113 Following a remand for an evidentiary hearing in
Hampton I, the circuit court found that the juror was drowsy for
ten minutes and fell asleep for one or two minutes.33 On appeal
from the evidentiary hearing, the court of appeals concluded in
Hampton II that Hampton's due process rights to a fair trial
30
Hampton I, 201 Wis. 2d at 673.
31
Id. at 666-67.
32
Id. at 673-74.
33
Hampton II, 217 Wis. 2d at 622.
23
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
were not violated because the testimony that was missed was not
pivotal to the case.34
¶114 In order for a circuit court to make a finding of fact
regarding the inattentiveness of a juror, there must be facts in
the record to support such a finding.
¶115 It is problematic for a circuit court to take judicial
notice of the juror's inattentiveness or to rely on its own
observations.
¶116 Case law from other jurisdictions suggests that a
trial court may on "informed judicial knowledge" take judicial
notice of the fact that a juror was sleeping when the circuit
judge actually observes the juror sleeping.35 Wisconsin case
law, including Hampton I, warns that taking judicial notice of
the fact that a juror was or was not sleeping without further
inquiry is ordinarily inappropriate.36
¶117 The procedures for judicial notice are set forth in
Wis. Stat. § 902.01 (2009-10). Judicial notice of whether a
juror is sleeping does not fit easily with the kinds of
adjudicative facts that may be judicially noticed under Wis.
Stat. § 902.01(2). See Anson, 282 Wis. 2d 629, ¶33 & n.3
(holding that a circuit court cannot take judicial notice of
facts it observes); Lemke v. Lemke, 2012 WI App 96, ¶21, 343
34
Id. at 624.
35
Hampton I, 201 Wis. 2d at 669 n.5.
36
Id. at 671-72 (quoting United States v. Barrett, 703
F.2d 1076, 1083 (9th Cir. 1983)). See also Anson, 282
Wis. 2d 629, ¶¶33-34. Compare Hampton II, 217 Wis. 2d at 619-
20.
24
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
Wis. 2d 748, 820 N.W.2d 470 (declaring that "[a] trial court
sitting as a fact-finder may derive inferences from the
testimony and take judicial notice of a fact that is not subject
to reasonable dispute, but it may not establish as an
adjudicative fact that which is known to the judge as an
individual."); State v. Peterson, 222 Wis. 2d 449, 457-58, 588
N.W.2d 84 (Ct. App. 1998) (stating a trial court "may not
establish as an adjudicative fact that which is known to the
judge as an individual."); II McCormick on Evidence § 329 at 373
(John W. Strong ed., 5th ed. 1999) ("What a judge knows and what
facts a judge may judicially notice are not identical data
banks.").
¶118 In making the required factual determinations, circuit
courts should take care not to act as witnesses. Although a
circuit court may make credibility determinations when making
its factual findings, the case law indicates a circuit court may
not rely on its personal knowledge of events not appearing in
the record.37 A circuit court that relies on its own personal
observations of events not in the record as the basis for a
37
An example of this principle is set forth in Anson, which
stated that a circuit court may not state "its opinion [that]
the witness was being intimidated by the presence of several
well-known gang members in the courtroom, if the presence and
behavior of these individuals was not documented in the record."
Anson, 282 Wis. 2d 629, ¶34 (emphasis in original).
Compare and contrast Hampton II, in which the court of
appeals concluded that the circuit court's opinion about the
attentiveness of the juror did not transform the circuit court
into a material witness, requiring the judge's disqualification
under Wis. Stat. § 757.19(2)(b). Hampton II, 217 Wis. 2d at
619-20.
25
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
factual finding "is essentially acting as a witness in the case
by providing testimony."38 Acting as a witness is contrary to
Wis. Stat. § 906.05, which provides that a judge "presiding at
the trial may not testify in that trial as a witness."
¶119 I recognize there is some tension within the case law
regarding the circuit court's role in determining the fact of
whether a juror was inattentive. I conclude that the safest and
best practice is for the party challenging the juror's
attentiveness to put evidence in the record so that the circuit
court may make a factual determination of a juror's
attentiveness (or lack thereof) on the basis of evidence in the
record. A circuit court may then have to determine whether a
juror's inattention prejudiced the defendant to the extent that
the defendant did not receive a fair trial.
F
¶120 Here, the circuit court did not undertake any factual
inquiry about the juror sleeping. It did not have to do so.
Instead the circuit court determined that even if the juror were
sleeping, the defendant was not prejudiced. In making that
determination, the circuit court recognized that the ultimate
focus of the analysis is to determine whether a defendant is
prejudiced.39 As the Hampton I court noted, "it is universally
recognized that before inattentiveness warrants a mistrial,
38
Anson, 282 Wis. 2d 629, ¶33.
39
Hampton I, 201 Wis. 2d at 668.
26
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
there must be a determination regarding prejudice."40 The same
logic holds true regarding a motion to strike a sleeping juror.
¶121 To satisfy the prejudice requirement, a defendant must
establish that the juror missed enough of the proceeding to
prejudice the defense.41 Generally, a defendant is prejudiced if
a juror misses hearing "material testimony."42 Likewise, a
defendant can be prejudiced by a sleeping juror if the juror
misses a "pivotal" or "significant" part of the case.43
¶122 In the present case, there is no indication that the
sleeping juror missed a pivotal or significant portion of the
proceeding. Furthermore, it is undisputed that the juror heard
all material testimony. The defendant has therefore failed to
establish that the allegedly sleeping juror was prejudicial to
the defense.
¶123 Because there is no indication that the defendant was
prejudiced, the circuit court's discretionary refusal to strike
the juror was reasonable. Therefore, I conclude that the
circuit court did not erroneously exercise its discretion when
it denied the defendant's motion to strike.
¶124 Unfortunately, the majority opinion's analysis is
confusing and fails to provide guidance on how circuit courts
should proceed when confronted with the challenge that the
40
Id. at 670.
41
Id. at 668.
42
Id. at 668.
43
Hampton II, 217 Wis. 2d at 621, 624.
27
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
defendant's constitutional right to an impartial jury is being
denied based on an assertion that a juror was sleeping.
¶125 For the reasons set forth, I write separately.
¶126 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
28
No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa
1