State v. Robert Daris Spencer ( 2022 )

2022 WI 56SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP942-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Cross Petitioner,
v.
Robert Daris Spencer,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 397 Wis. 2d 241, 959 Wis. 2d 241(2021 – unpublished)
OPINION FILED: July 6, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 2, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Stephanie Rothstein
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion,
in which DALLET and KAROFSKY, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by John J. Grau and Grau Law Office, Waukesha. There was
an oral argument by John J. Grau.
For the plaintiff-respondent-cross petitioner, there were
briefs filed by Kara L. Janson, assistant attorney general, with
whom on the briefs was Joshua L. Kaul, attorney general. There
was an oral argument by Kara L. Janson.
2022 WI 56NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP942-CR
(L.C. No. 2014CF5088)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Cross FILED
Petitioner,
JUL 6, 2022
v.
Sheila T. Reiff
Robert Daris Spencer, Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion,
in which DALLET and KAROFSKY, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part.
¶1 REBECCA GRASSL BRADLEY, J. This is a review of an
unpublished decision of the court of appeals1 affirming in part
and reversing in part the circuit court's2 denial of a
1State v. Spencer, No. 2018AP942-CR, unpublished slip op.
(Wis. Ct. App. Mar. 9, 2021).
2The Honorable Stephanie Rothstein, Milwaukee County
Circuit Court, presided.
No. 2018AP942-CR
postconviction motion. Following a jury trial, Robert Daris
Spencer was convicted of one count of felony murder and one
count of felon in possession of a firearm. After the close of
evidence——but before deliberations——the circuit court met in
chambers with a juror who had become ill, without counsel
present. Upon determining the juror would not be able to
continue serving, the judge dismissed the juror for cause.
¶2 Spencer filed a postconviction motion asserting the
judge's ex parte contact with the juror violated his Sixth
Amendment right to counsel and claiming his counsel was
ineffective for failing to object to hearsay testimony. The
circuit court denied the motion without an evidentiary hearing.
Spencer appealed, raising due process and equal protection
challenges to the juror's dismissal in addition to the Sixth
Amendment and ineffective assistance claims. The court of
appeals affirmed the denial of his motion, concluding Spencer
forfeited his due process and equal protection claims and any
error implicating the Sixth Amendment was harmless, but reversed
and remanded on the ground that Spencer was entitled to an
evidentiary hearing on the ineffective assistance claim.
¶3 Before this court, Spencer argues the judge's ex parte
meeting with the juror violated his Sixth Amendment right to
counsel, the judge's dismissal of the juror violated his equal
protection and due process rights and constituted an erroneous
exercise of discretion, and he was entitled to an evidentiary
hearing on his claim that counsel's failure to object to hearsay
testimony constituted ineffective assistance of counsel. The
2
No. 2018AP942-CR
State cross-petitioned on the evidentiary hearing decision,
arguing Sholar3 does not mandate a hearing if the record
conclusively shows the defendant is not entitled to relief.
¶4 We hold the judge's meeting with the ill juror was not
a critical stage of the proceedings at which the right to
counsel attached, and even if there were an error, it was
harmless. Accordingly, we affirm the court of appeals on this
issue.4 We reverse the court of appeals' decision to reverse the
circuit court's denial of an evidentiary hearing. If the record
as a whole conclusively demonstrates the defendant is not
entitled to relief, an evidentiary hearing is not mandatory.
State
3 v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912
N.W.2d 89.
Before the court of appeals, in addition to his Sixth
4
Amendment and ineffective assistance claims, Spencer also
alleged the circuit court erroneously exercised its discretion
by dismissing the juror over Spencer's objection, in violation
of his Fourteenth Amendment right to due process and equal
protection. The court of appeals determined Spencer forfeited
his claims relating to the dismissal of the juror because he
"failed to raise them below, either by objecting at the time of
trial or by addressing them in his postconviction motion."
Spencer, No. 2018AP942–CR, at ¶¶11–12. We agree and conclude
Spencer forfeited his claims relating to the dismissal of the
juror. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501(1997) ("The general rule is that issues not presented to the
circuit court will not be considered for the first time on
appeal. . . . [E]ven the claim of a constitutional right will
be deemed waived unless timely raised in the circuit court.")
(citations omitted). At trial, defense counsel moved for a
mistrial and renewed a Swain objection, but Spencer's
postconviction motion neither mentioned the Swain objection nor
argued the juror's dismissal was an erroneous exercise of
discretion or a violation of Spencer's due process or equal
protection rights. See Swain v. Alabama, 380 U.S. 202 (1965).
3
No. 2018AP942-CR
See State v. Ruffin, 2022 WI 34, ¶3, __ Wis. 2d __, 974
N.W.2d 432. The circuit court properly exercised its discretion
in denying an evidentiary hearing under this standard and the
court of appeals erred in reversing that decision.
I. BACKGROUND
A. The Incident and the Trial
¶5 The State charged Spencer with one count of felony
murder and one count of possession of a firearm by a felon for
his involvement in an armed robbery resulting in the death of
his accomplice, T.M. On the night of the crime, police officers
responded to reports of a shooting in Milwaukee, where they
found the victim lying face down and observed a number of bullet
holes and shell casings, later determined to be from two
different guns. The exchange of gunfire on the night of the
incident was confirmed by neighbors, ShotSpotter, and officers
at the scene, and forensic evidence indicated there were two
shooters.
¶6 At trial, the State's theory was that Spencer had a
debt to settle with R.S., a friend of Spencer and T.M. The
State contended that Spencer and T.M. approached R.S. as he
stood outside a residence, and Spencer, armed with a firearm,
robbed R.S. by grabbing him and "go[ing] through his pockets,
tak[ing] money, tak[ing] his cell phone." As R.S. broke away
and began running, the State asserted Spencer shot at R.S. as "a
second person with a firearm" located "right in front of the
residence or out, or inside the residence shooting from a
4
No. 2018AP942-CR
window" began to return fire "to protect [R.S.]." As a result
of this exchange of gunfire, T.M. was shot and killed.
¶7 The State relied on witness testimony from Lerone
Towns, a tow truck driver who testified he received a call for a
tow that night from a Mr. Green. He testified that when he
reached the vehicle pickup location, he encountered an
individual, later identified as R.S., waiting in a vehicle
behind the one to be towed. R.S. arranged for the vehicle to be
towed to a house on the corner of 23rd and Townsend. Upon
arriving at the drop-off location, Towns testified he spoke with
R.S. about writing his receipt and entering his information into
the company system. According to Towns, R.S. said he had to get
the money for the payment, and "went straight to the back door,"
where he stood "for some amount of time." While Towns was
taking down information about the vehicle, he said he "turned
around, heard somewhat of a commotion at the back door," and saw
"two gentlemen standing in front of [R.S.]" with their backs
turned toward Towns. He did not see their faces, but stated
"one of the individuals was lighter skinned than the other one"
and they both appeared to be males. He testified that "the
lighter complected gentleman" pulled out a handgun and proceeded
to "reach into [R.S.'s] pockets," and "proceeded to grab [R.S.]
by the back of his shirt and drug him across the street, across
Townsend in front of the residence on 23rd Street." After
"between 20 seconds to a full minute," Towns testified "there
was nothing but gunfire after that" but he "did not see anyone
shooting." He saw R.S. run past him, and testified the gunfire
5
No. 2018AP942-CR
stopped "once [R.S.] got pretty much to the alley." Towns said
he then left——with the vehicle still attached to his truck——and
received a call en route from R.S. to drop the vehicle off at a
different location, where R.S. arrived with the individual
identified as Mr. Green to pick it up.
¶8 In addition to Towns' testimony, the jury heard from
R.S., who said he knew T.M. and Spencer——identified as "D or D-
Dog." R.S. testified he and Spencer "were involved in business
together," and he owed Spencer $5,000. R.S. testified that he
heard Spencer was looking for him because he had not paid this
debt.5 R.S. also identified Mr. Green as his friend, Errion
Green-Brown. R.S. said he lived at the residence where the
incident occurred, along with Green-Brown and another individual
he identified as Danny McKinney. R.S. testified that McKinney
was present "in the upper unit of the residence" at the time the
tow truck arrived.
¶9 R.S. confirmed he was robbed by two individuals, T.M.
and a "lighter complected" individual whom he "couldn't
recognize." R.S. noted the second individual had a firearm and
asked R.S., "Where is the money at?" R.S. testified the
individuals then "[w]ent in [his] pockets," took a cell phone
and a "couple dollars," "snatched [him] up" by his shirt, and
dragged him across the street toward a gold mini-van. The
5 Although initially R.S. agreed he told the detective he
"never paid that debt," on cross-examination he confirmed he
"had already paid Mr. Spencer $3,000." R.S. acknowledged later
that "[t]he amount of the debt wasn't the same in each of the
interviews" with the detectives.
6
No. 2018AP942-CR
investigation revealed Spencer's fingerprints on the van, and a
traffic citation and receipt in Spencer's name were found inside
the van. Forensic evidence demonstrated one of the shooters
shot from the residence and the other shooter was near the gold
mini-van, in the area where T.M.'s body had been found.
¶10 During his testimony, R.S. acknowledged he had
identified Spencer as the second individual to the detectives
during three separate interviews. Additionally, R.S. identified
Spencer as the second individual to others——even before he told
the detectives. He told "one of [his] girlfriends it was a
person by the name of Spencer, who may be involved but not
actually with a gun." Two of T.M.'s sisters also testified
regarding the incident. One sister, K.G., testified she had
dinner with both T.M. and Spencer on the night of the robbery.
She said they left together hours before the shooting, in the
same van later found at the scene of the crime. Another sister,
Q.G., testified that R.S., prior to his interview with the
detectives, told her Spencer was involved in the robbery. She
said she called R.S. shortly after T.M. died, and when R.S.
returned her call, he told her "D'Dog" was responsible. Q.G.
denied that she knew who D'Dog was. She testified R.S. told her
T.M. and D'Dog "pulled up in a van and D'Dog and [T.M.] got out
[of] the van. [T.M.] stood a little further off away from them
with his hands behind the back and his head down and said D'Dog
walked up to him and grabbed him by his shirt with a gun and
told him . . . you're going to die today and tried to drag him
down the street." Q.G. recounted that she "asked [R.S.] would
7
No. 2018AP942-CR
he tell that same story to detectives and he said yes," and that
she called the detectives immediately after her phone call with
R.S. and told them what he had said. During his testimony, R.S.
denied that he told Q.G. that D'Dog was involved; instead, he
said she told him "it was D-dog." The prosecutor summed up:
Q: So, just so I'm clear, you told detectives that it
was D-Dog because you felt threatened. Correct?
A: Yes.
Q: You told one of your girlfriends it was a person
by the name of Spencer, who may be involved but not
actually with a gun. Correct?
A: Yes.
Q: And you told [Q.G.] that, who the robbers were,
but you don't remember saying it was D-Dog?
A: She told me it was D-Dog.
¶11 At trial, numerous discrepancies surfaced between the
story R.S. provided to detectives and his trial testimony.
Detectives interviewed R.S. three times about the incident,
during which R.S. identified Spencer as the other individual
with T.M. R.S. changed his story at trial, saying he "couldn't
recognize" the individual with T.M. R.S. admitted he had
previously identified Spencer, or "D-Dog," and that he told the
detective "Spencer walked up and stated, Where is the money at,"
took $400 from him, grabbed him by his collar and told him
"[c]ome with me, you are going to die," and "pull[ed] out a dark
gray large semi-automatic handgun from his left side and
point[ed] it at [R.S.]" He also testified that he remembered
telling the detective Spencer dragged him across the street
8
No. 2018AP942-CR
toward a gold mini-van, and he broke away because he thought the
men were going to put him in the van. R.S. recounted that as he
ran away, "[s]hots were fired," and he remembered telling the
detective Spencer raised his firearm and fired one shot at him,
and he heard more gunshots as he ran. R.S. claimed Danny told
him afterward he "was firing from the residence in an attempt to
protect [R.S.]." R.S. testified he did not call T.M. because he
was "scared because [T.M.] was with [Spencer]."
¶12 To explain the discrepancies, R.S. stated, "[the
detectives] threatened me if I didn't cooperate, they would lock
me up and charge me with the crime." R.S. explained he used
Spencer's name because "[t]he detectives told me if I didn't
give up Mr. Spencer they would charge me with the crime." R.S.
reiterated throughout his testimony that he had "no idea who the
individual was" and he "couldn't recognize him." R.S. also
admitted he lied to detectives about Green-Brown being at the
second location, because Green-Brown "was on probation" and he
"didn't want to get him involved." He also said he was not "at
first up front about Danny McKinney telling [him] he had fired
to protect [him] as [he] ran away." Additionally, R.S. stated
he "didn't go to the back door to get money for the tow truck
driver" because he had money in his pocket.6 Earlier in his
testimony, however, R.S. indicated the two men took a "[c]ouple
dollars" from his pockets, which again conflicted with both his
6 Earlier in his testimony, R.S. said he "went in the
house . . . to use the bathroom."
9
No. 2018AP942-CR
testimony that he had enough money in his pocket for the tow
truck driver and his statement to the detective that the men
took $400 from him.
¶13 The detective who conducted the first interview
testified he never threatened R.S. into disclosing Spencer’s
involvement, and that R.S. provided the names of the individuals
who robbed him. Throughout the detective's testimony, portions
of his interview with R.S. were played for the jury. In
response to the prosecutor's questioning about whether the story
R.S. gave to the detectives was true, R.S. explained:
A: I didn't say it's not true. I never said it ain't
true.
Q: So, you did hear, you did see the defendant put a
gun in your stomach tell you you were going to die and
shoot at you?
A: I didn't recognize the second person, but that is
what happened.
Q: So, everything is true, except for the identity of
the defendant as being the person who did all this?
A: Yes.
Q: Just so we are clear, a guy you owe money to?
. . .
A: Yes.
B. The Judge's Meeting with Juror 2
¶14 On the fifth and last day of trial, which began at
8:59 a.m., a discussion about jury instructions was interrupted
by a bailiff informing the judge that Juror 2 was ill. The
record reflects the court took a 45-minute recess, during which
10
No. 2018AP942-CR
the judge sent Juror 2 to the judge's chambers to rest. The
judge met with Juror 2 in her chambers, without counsel or the
defendant, but "conferred with the attorneys" outside of the
courtroom. Following the meeting, at 10:05 a.m., the judge went
back on the record to explain what had transpired:
It's been over a half an hour at least, maybe 45
minutes, since we went off the record earlier. The
Court went off the record because I was advised that
we had a juror who was not feeling well. And when I
inquired and with the assistance of one of the
bailiffs, we had the juror come out of the jury room,
go into my chambers where there's a quiet place for
her to rest to see whether she would be feeling
better.
She is not feeling well enough to proceed. And when I
asked her about 15, 20 minutes ago if she thought she
would feel well enough to proceed in any particular
length of time, her answer was very tentative and she
said unlikely basically and she didn't know how long
she would need before she could participate. She is,
if you want to know the details, queasy, light headed,
just unwell generally.
I did inquire. She said she's been having some health
issues as of late and believes that these are——her
words——"the reminisce" of some health issues that have
been going on I think last week.
¶15 Although counsel was not in the room for the judge's
interactions with Juror 2, the judge relayed at least one
question from counsel. The judge described the juror's response
while documenting her handling of the situation:
I conferred with the attorneys. We met in the back.
I advised the attorneys going along what was the cause
for the delay and what was being done to assist the
juror and we agreed to wait and we've now waited a
significant period of time. And I have to be mindful
that we have the remaining 12 sitting back in the jury
room waiting to move forward.
11
No. 2018AP942-CR
I understand the significance of this for both sides,
frankly. This is the only African-American juror on
the panel. But I am not prepared to put her health at
risk by having her continue and go to deliberations
when she is so unwell. After we met, the defense
asked a question for purposes of the record which I do
not find inappropriate. I did ask——I inquired along
the lines of the concern that the defense had. I
asked the juror if her stress or her not being well
enough to proceed had anything to do with her service
as a juror or with the behavior of any of the other
jurors. Her response to me was "Oh, no. This has
nothing to do with the trial." So I'm satisfied with
that response. I've made my record.
Additionally, the judge noted, "the remainder of the jurors
already were aware [the] juror was not feeling well, that she
had been laying down . . . in the jury room. She had been
resting in there before she was excused to chambers. So they're
aware of the situation. They're aware that it's regarding her
health."
C. The Dismissal of the Juror
¶16 After meeting with the juror and explaining the nature
of that meeting on the record, the judge provided opportunity
for counsel to bring motions on the dismissal. The judge
explained, "At this point I will tell you I have resolved that
we will go forward with the 12. I understand that each of you——
one of you might have some motions to bring and I'll allow you
to state your positions succinctly for the record[.]" The
prosecutor requested the juror be struck "for cause," which the
circuit court granted. Defense counsel moved for a mistrial and
renewed her Swain challenge, both of which the judge denied.7
7Defense counsel had argued in a pretrial motion that
Milwaukee County's procedure of using driver's licenses to
12
No. 2018AP942-CR
The trial proceeded with the 12 remaining jurors. The jury
returned a guilty verdict on each count.
D. Spencer's Postconviction Motion
¶17 Spencer filed a postconviction motion arguing the
circuit court violated his Sixth Amendment right to counsel by
interviewing the juror ex parte and maintaining trial counsel
was ineffective for failing to object to the meeting with the
juror and failing to object to hearsay testimony. Regarding the
hearsay testimony, Spencer asserted R.S. "told the police that
Mr. McKinney had told him that he, Mr. McKinney, had been
shooting to protect [R.S.]" and that the testimony was used "to
prove the truth of the matters asserted" because it was used "to
show that Mr. McKinney was shooting to protect [R.S.]" Spencer
claimed this testimony was "key evidence in the State's theory
of felony murder."
¶18 The circuit court denied the motion without an
evidentiary hearing. With respect to the judge's interactions
with the juror, the court concluded it could not find "the
juror's health issue which arose in this case prior to closing
arguments constituted a critical stage of the proceedings in
which the defendant needed assistance with a legal problem and
where counsel's presence was essential." The court determined
that even if it were error to meet with the juror outside the
summon jurors resulted in an unconstitutional racial composition
of the jury panel, which in this case consisted of 2 Black
citizens on the panel of 35, in violation of Swain v. Alabama,
380 U.S. 202 (1965). The circuit court denied the motion.
13
No. 2018AP942-CR
presence of the parties, it was harmless because the error did
not prejudice Spencer's case or contribute to the guilty
verdict. With respect to the hearsay testimony, the court
concluded, "even if trial counsel had objected and the testimony
was struck, there is simply not a reasonable probability that
the defendant would have been acquitted . . . because there was
absolute overwhelming evidence of guilt."
E. Court of Appeals Proceedings
¶19 Spencer appealed the denial of his postconviction
motion. With respect to Spencer's Sixth Amendment claim, the
court of appeals assumed the circuit court's discussion with the
juror violated Spencer's right to counsel, but concluded "any
such violation was harmless" because "counsel was still included
in the process of deciding what to do in response to the juror
falling ill." State v. Spencer, No. 2018AP942-CR, unpublished
slip op., ¶19 (Wis. Ct. App. Mar. 9, 2021). The court noted
counsel "agreed to wait" while the juror rested, and, upon
resuming the record, the circuit court "made the decision, with
counsel present, to dismiss the juror for cause," at which point
counsel objected and moved for a mistrial. Id. The court
further concluded Spencer received "a fair and impartial jury,
and the communications cannot be said to have influenced the
jury's verdict."8 Id., ¶21.
8Judge White concurred in part and dissented in part.
Judge White disagreed that the due process and equal protection
claims were forfeited. Spencer, No. 2018AP942-CR, at ¶30 n.1
(White, J., concurring/dissenting). She concluded the dismissal
of the juror was a critical stage of the proceedings,
implicating both due process and the right to counsel, id., ¶33,
14
No. 2018AP942-CR
¶20 Having affirmed the denial of the postconviction
motion on the foregoing grounds, the court reversed the order
with respect to Spencer's ineffective assistance claim. Id.,
¶29. The court remanded for a hearing on this claim, concluding
"Spencer alleged sufficient material facts [in his
postconviction motion] that would entitle him to relief, and the
trial court was required to grant Spencer a Machner9 hearing."
Id., ¶26 (citing State v. Sholar, 2018 WI 53, ¶51, 381
Wis. 2d 560, 912 N.W.2d 89).
¶21 Spencer appealed the affirmance of the circuit court's
denial of his postconviction motion. The State cross-
petitioned, arguing the case should not have been remanded for a
Machner hearing. We granted both petitions for review. We now
affirm the denial of the postconviction motion and reverse the
decision to remand for an evidentiary hearing.
II. STANDARD OF REVIEW
¶22 This case requires us to determine whether Spencer had
a constitutional right to be represented by counsel during the
circuit court's ex parte meeting with the ill juror. We review
independently the interpretation and application of
and disagreed that the ex parte meeting was harmless error
because the court's analysis was "devoid of 'a fact-specific
due-process inquiry' that is required to determine if 'the
communication between the judge and jury [denied] the defendant
a fair and just hearing.'" Id., ¶53 (quoting State v.
Alexander, 2013 WI 70, ¶28, 349 Wis. 2d 327, 833 N.W.2d 126).
9 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
15
No. 2018AP942-CR
constitutional provisions. State v. Alexander, 2013 WI 70, ¶18,
349 Wis. 2d 327, 833 N.W.2d 126 (citing State v. Hamdan, 2003 WI
113, ¶19, 264 Wis. 2d 433, 665 N.W.2d 785); see also State v.
Chambers, 2021 WI 13, ¶13, 395 Wis. 2d 770, 955 N.W.2d 144("This court independently reviews whether deprivation of a
constitutional right has occurred." (quoting State v. Jones,
2010 WI 72, ¶23, 326 Wis. 2d 380, 797 N.W.2d 378)).
¶23 We apply a mixed standard of review to the court of
appeals' determination that the circuit court erroneously
exercised its discretion when it denied Spencer's postconviction
motion without holding an evidentiary hearing. Ruffin, __
Wis. 2d __, ¶26 (citing State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568, 682 N.W.2d 433). We first independently consider
"whether the motion on its face alleges sufficient material
facts that, if true, would entitle the defendant to relief."
Id., ¶27 (citing Allen, 274 Wis. 2d 568, ¶9). "Whether the
record conclusively demonstrates that the defendant is entitled
to no relief is also a question of law we review independently."
Id. (citing State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225,
880 N.W.2d 659). If the record conclusively demonstrates the
defendant is not entitled to relief, the circuit court has the
discretion to decide whether to hold a hearing, which we review
for an erroneous exercise of discretion. Id., ¶28.
III. DISCUSSION
A. No Sixth Amendment Violation
¶24 This challenge involves ex parte contact between the
circuit court and a juror after the close of evidence but prior
16
No. 2018AP942-CR
to deliberations, concerning the juror's health. Considering
both the substance and the timing of the meeting, we conclude
the judge's communications with the juror did not violate
Spencer's Sixth Amendment rights because the meeting did not
constitute a critical stage at which the presence of counsel was
required. Trial counsel was present for the court's decision to
dismiss the juror, which was made on the record and with
counsel's participation. Even if the ex parte meeting were a
violation, any error was harmless.
1. The ex parte meeting was not a critical stage
¶25 The Sixth Amendment provides, in relevant part: "In
all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense."
U.S. Const. amend. VI. The historical underpinnings of this
right are reflected in its "core purpose . . . to assure
'Assistance' at trial, when the accused [i]s confronted with
both the intricacies of the law and the advocacy of the public
prosecutor." United States v. Ash, 413 U.S. 300, 309 (1973).
The United States Supreme Court has accordingly applied a test
"call[ing] for examination of the event in order to determine
whether the accused required aid in coping with legal problems
or assistance in meeting his adversary." Id. at 313.
¶26 The right to counsel attaches "at all critical stages
of the criminal process." Iowa v. Tovar, 541 U.S. 77, 80–81
(2004) (citing Maine v. Moulton, 474 U.S. 159, 170 (1985);
United States v. Wade, 388 U.S. 218, 224 (1967)). Not every
point in the criminal process is a "critical stage"; the
17
No. 2018AP942-CR
constitutional right to counsel has been expanded "only when new
contexts appear presenting the same dangers that gave birth
initially to the right itself." Ash, 413 U.S. at 311. The
United States Supreme Court has identified as critical stages
"proceedings between an individual and agents of the State
(whether 'formal or informal, in court or out,' . . .) that
amount to 'trial-like confrontations,' at which counsel would
help the accused 'in coping with legal problems or . . . meeting
his adversary.'" Rothgery v. Gillespie County, 554 U.S. 191,
212 n.16 (2008) (citing United States v. Wade, 388 U.S. 218, 226
(1967); Ash, 413 U.S. at 312–13; Massiah v. United States, 377
U.S. 201 (1964)) (internal citations omitted). Points in the
process are not critical if "there is minimal risk that
[defendant's] counsel's absence at such stages might derogate
from his right to a fair trial." Wade, 388 U.S. at 228.
¶27 Wisconsin courts have determined that voir dire, jury
instructions, and jury deliberations constitute critical stages
at which the right to counsel attaches. See, e.g., State v.
Tulley, 2001 WI App 236, ¶¶6, 11, 248 Wis. 2d 505, 635
N.W.2d 807 (voir dire); State v. Mills, 107 Wis. 2d 368, 370,
320 N.W.2d 38 (Ct. App. 1982) (jury instructions); State v.
Koller, 2001 WI App 253, ¶62, 248 Wis. 2d 259, 635 N.W.2d 838(jury deliberations). In Koller, the court of appeals
emphasized that "a trial court's communication with a
deliberating jury in the absence of . . . defendant's counsel
violates the defendant's constitutional right . . . to have
counsel at every stage where he or she needs aid in dealing with
18
No. 2018AP942-CR
legal problems." 248 Wis. 2d 259, ¶62 (citing State v. Burton,
112 Wis. 2d 560, 565, 334 N.W.2d 263 (1983), overruled on other
grounds by Alexander, 349 Wis. 2d 327)).
¶28 In State v. Lehman, 108 Wis. 2d 291, 301, 321
N.W.2d 212 (1982), we held the circuit court erroneously
exercised its discretion by discharging ex parte a juror who
became ill during jury deliberations. We decided the case on
purely statutory grounds, concluding the discharge of the juror
violated Wis. Stat. § 972.02(1) (1979–80), governing the
defendant's right to jury trial by twelve persons, and Wis.
Stat. § 972.05 (1979–80), governing the process for replacing
regular jurors with alternates. Id. at 301 n.6, 318 n.17.
Additionally, we detailed the procedure a circuit court must
follow before discharging a juror. Id. at 300. The record in
Lehman was "totally devoid of any indication" as to the
circumstances of the juror's illness and subsequent discharge,
including "whether the circuit judge questioned the juror prior
to her discharge." Id. at 293–94, 301. Given a deficient
record, we declared, "[I]t is the circuit court's duty, prior to
the exercise of its discretion to excuse the juror, to make
careful inquiry into the substance of the request and to exert
reasonable efforts to avoid discharging the juror." Id. at 300.
We noted the efforts of the circuit court "depend on the
circumstances of the case." Id. Although Lehman did not
implicate the Sixth Amendment, and the procedure outlined in
that case is not a constitutional requirement, the court's
19
No. 2018AP942-CR
discussion of the nature of jury deliberations provides useful
context for our constitutional analysis.
¶29 Removing a juror during deliberations "poses a very
difficult question for the fair and efficient administration of
justice" because it impedes the deliberative process. Id. at
307–08. We explained in Lehman:
If, during deliberations, a juror is discharged and
another substituted, the eleven regular jurors will
have had the benefit of the views of the discharged
juror while the alternate will not. The eleven
regular jurors will have formed views without the
benefit of the views of the alternate juror, and the
alternate juror who is unfamiliar with the prior
deliberations will participate without the benefit of
the prior group discussion.
Id. The court of appeals in State v. Avery, 2011 WI App 124,
337 Wis. 2d 351, 804 N.W.2d 216, also addressed the discharge of
a juror during jury deliberations. In Avery, the court assumed
it was error for the judge to conduct ex parte communications
with the juror.10 Avery, 337 Wis. 2d 351, ¶56. In that case,
the sheriff called the judge at his home late in the evening to
relay a request from a juror to be excused due to an "unforeseen
family emergency" and marital difficulties. Id., ¶51. After
this conversation, the judge contacted the special prosecutor
and defense counsel, who agreed the judge should speak with the
juror and that the juror should be excused if the information
could be verified. Id. Because the trial judge's discussion
The court assumed the ex parte contact violated Avery’s
10
constitutional right to be present, but did not provide a
detailed analysis on the constitutional claim. State v. Avery,
2011 WI App 124, ¶56, 337 Wis. 2d 351, 804 N.W.2d 216.
20
No. 2018AP942-CR
with the juror, who was ultimately excused, could not have
influenced the remaining jurors——who had no further contact with
the excused juror——the appellate court concluded Avery received
a fair trial and the error was harmless. Id., ¶58.
¶30 In United States v. Schiro, the Seventh Circuit
addressed a judge's ex parte discussion with a juror during the
trial.11 679 F.3d 521 (7th Cir. 2012). After learning the juror
was uncomfortable serving on the jury and observing that she
seemed "anxious and even panicky," the judge "met with her in
private and asked her whether everything was okay." Id. at 531.
Although she confirmed it was, the juror asked follow-up
questions——including whether the trial was almost over and
whether threats were made against her——which prompted the judge
to remove her from the jury. Id. The Seventh Circuit
determined counsel's absence from the meeting was not
constitutionally problematic:
Given her anxieties it would not have been a good idea
to confront her with the defendants' lawyers——that is,
agents of the defendants; she would have been
intimidated by their presence. A defendant's interest
in being present at all stages of his trial is limited
by the need for orderly administration of criminal
trials.
Id. (internal citations omitted). The court concluded, however,
that "before dismissing her the judge should have told the
As in Lehman, the court in United States v. Schiro did
11
not consider whether the meeting was a "critical stage" under
the Sixth Amendment; instead, the court determined "[t]he
judge's failure to consult the lawyers was thus a harmless
error." 679 F.3d 521, 531 (7th Cir. 2012).
21
No. 2018AP942-CR
lawyers about his discussions with her . . . , for they might
have suggested that he question her further, albeit outside
their presence." Id. (internal citations omitted). The court
determined the error was harmless, acknowledging that "[s]he had
already answered the essential questions . . . by saying she
hadn't been threatened . . . and hadn't discussed her anxieties
with the other jurors. What more was there to ask her?" Id.¶31 Guided by this precedent and having the benefit of a
detailed record documenting the judge's communications with the
juror as well as counsel, we conclude the judge's meeting with
Juror 2 regarding her health did not constitute a critical stage
of the proceedings because the meeting (1) occurred prior to
deliberations and (2) involved only a discussion of the juror's
health and ability to proceed. Both the timing and substance of
the communications dictate that counsel's absence did not result
in a constitutional violation.
¶32 As to timing, the meeting took place after the close
of evidence but before deliberations began. As the circuit
court explained, the alternate juror had been present for the
trial and had not been excluded from any juror deliberations.
Whereas the concerns animating the court's reasoning in Lehman,
Avery, and other jury deliberation cases arose from the
difficulty in replicating the deliberative process with the
substitution of an alternate juror, substitution prior to
deliberations does not implicate these problems.12
Our conclusion is reinforced by Wisconsin's decision not
12
to recognize "alternate" jurors. See Wis. Stat. § 972.10(7)
22
No. 2018AP942-CR
¶33 As to substance, the judge's conversation with Juror 2
regarding her health was not one in which Spencer "required aid
in coping with legal problems or assistance in meeting his
adversary." See Ash, 413 U.S. at 313; see also United States v.
Gagnon, 470 U.S. 522, 526 (1985) ("[T]he mere occurrence of an
ex parte conversation between a trial judge and a juror does not
constitute a deprivation of any constitutional right. The
defense has no constitutional right to be present at every
interaction between a judge and a juror, nor is there a
constitutional right to have a court reporter transcribe every
such communication." (quoting Rushen v. Spain, 464 U.S. 114,
125–26 (1983) (Stevens, J., concurring in judgment)));
Alexander, 349 Wis. 2d 327, ¶22 ("A conference in chambers might
well constitute part of the trial depending upon what matters
are discussed or passed upon." (quoting Ramer v. State, 40
Wis. 2d 79, 84, 161 N.W.2d 209 (1968)). The record shows the
communications centered on the nature of Juror 2's health
issues. The juror had been "laying down . . . in the jury room"
and was brought to chambers to rest. The judge communicated
(2019–20) ("If additional jurors have been selected under
s. 972.04(1) . . . , the court shall determine by lot which
jurors shall not participate in deliberations and discharge
them."). The legislature repealed the alternate juror provision
in 1984 and amended related provisions to instead reference
"additional jurors" in order to "promote an attentive attitude
and a collegial relationship among all jurors." See 1983 Wis.
Act 226, §§ 3–5; Judicial Council Note, 1983, Wis. Stat.
§ 972.04. This attempt to increase attentiveness and
collegiality among all jurors minimizes if not eliminates any
consequences of discharging any particular juror before
deliberations.
23
No. 2018AP942-CR
Juror 2 was "not feeling well enough to proceed" and she would
be "unlikely" to proceed "in any particular length of time."
The judge described the "details" of her symptoms as "queasy,
light headed, just unwell generally." Additionally, the judge
conveyed that Juror 2 "said she's been having some health issues
as of late and believes that these are——her words——'the
reminisce' of some health issues that have been going on I think
last week."
¶34 Spencer contends "there were legal issues to be
addressed where trial counsel could have acted on behalf of her
client, thus making the ex parte meeting a critical stage in the
proceedings." As one example, Spencer says counsel "could have
thoroughly explored whether the nature of the juror's illness
rose to the level of cause for dismissal, or whether her
discomfort might have warranted a request for a continuance for
a few hours, if appropriate, or even a day." Spencer asserts
counsel "could have thoroughly investigated whether the fact the
juror was the lone African-American on the panel contributed to
her discomfort."
¶35 We are skeptical of the utility or propriety of this
sort of adversarial approach to a juror's health status——
particularly because counsel could pose questions through the
judge and deliberations had not begun. The judge in fact
relayed a question from defense counsel concerning the source of
the juror's symptoms. The court stated, "I did ask——I inquired
along the lines of the concern that the defense had. I asked
the juror if her stress or her not being well enough to proceed
24
No. 2018AP942-CR
had anything to do with her service as a juror or with the
behavior of any of the other jurors." The judge indicated, "Her
response to me was 'Oh, no. This has nothing to do with the
trial.'"
¶36 The United States Supreme Court has recognized as
"critical stages" those "step[s] of a criminal proceeding" which
involve some adversarial confrontation, such as postindictment
interrogations, plea hearings, preliminary hearings, and
sentencing. See Schmidt v. Foster, 911 F.3d 469, 480 (7th Cir.
2018); see also Wade, 388 U.S. at 226 ("[T]he accused is
guaranteed that he need not stand alone . . . where counsel's
absence might derogate from the accused's right to a fair
trial . . . . The presence of counsel at such critical
confrontations, as at the trial itself, operates to assure that
the accused's interests will be protected consistently with our
adversary theory of criminal prosecution."). The meeting
between the juror and the judge in this case was not an
adversarial event in which "defense counsel was powerless to
prime the pump of persuasion." United States v. Parent, 954
F.2d 23, 26 (1st Cir. 1992). Indeed, Juror 2's response does
not invite the force of the adversarial process to ferret out an
answer that might better serve the defendant's interests. This
juror had been "laying down" in the jury room, the other jurors
were aware that she had health concerns, and she told the judge
she was "unlikely" to be able to continue. At least under the
facts of this case, when the juror became ill before
deliberations and trial counsel was aware of the meeting,
25
No. 2018AP942-CR
"agreed to wait," and had the opportunity to relay questions,
the adversarial process would not serve any proper role. In
fact, it may have subjected Juror 2 to more stress and soured
her opinion of the criminal justice system. The investigative
and adversarial probing of jurors' symptoms——particularly when
substitute jurors are available and the deliberative process is
not compromised——is far afield of the Sixth Amendment's
protections and antithetical to the idea of an orderly
courtroom.13
2. Trial counsel was present for the decision to dismiss
¶37 Having determined the ex parte meeting between the
judge and Juror 2 did not offend the Constitution, we turn to
the trial court's decision to dismiss the ill juror——a related
but procedurally independent event.14 In Alexander, we concluded
Consistent with the reasons underlying the constitutional
13
protections, as a best practice lawyers should be present if
possible. See, e.g. Alexander, 349 Wis. 2d 327, ¶76 n.2
(Ziegler, J., concurring) ("[I]t is a good practice to include
defendants and counsel, if possible, when matters arise during
trial."); State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212(1982) ("Such inquiry [into the substance of the discharge
request] generally should be made out of the presence of the
jurors and in the presence of all counsel and the defendant."
(emphasis added)). Nonetheless, the deviation from this
practice under the circumstances of this case, which for the
reasons set forth above counseled against the lawyers' presence,
did not rise to a constitutional violation entitling Spencer to
a new trial.
At the court of appeals, Judge White dissented based on
14
"Spencer's right to due process and his right to have counsel
present during a critical stage in the legal proceeding, namely
when a juror selected at voir dire was dismissed for cause
before deliberations began." Spencer, No. 2018AP942-CR, ¶33
(White, J., concurring/dissenting). This conflates the judge's
ex parte communications with the juror and the judge's decision
26
No. 2018AP942-CR
the defendant "had no automatic constitutional right to be
present during the circuit court's in-chambers discussions" with
two of the jurors. Alexander, 349 Wis. 2d 327, ¶30. In our
discussion on that point, we cited a Third Circuit Court of
Appeals case holding "there is no constitutional right for a
defendant to be present at a conference in chambers concerning
dismissal of a juror." Id., ¶29 (quoting United States v.
Provenzano, 620 F.2d 985, 997–98 (3d Cir. 1980)). We
emphasized, "[a]ll that the Constitution requires at such a
conference is the presence of defense counsel." Id. (citing
Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir. 1970))
(emphasis added). In this case, defense counsel was present "at
such a conference" "concerning dismissal of a juror." See id.¶38 Prior to the discussion on the juror's dismissal, the
judge was notified that a juror was feeling ill and laying down
in the jury room, had Juror 2 moved to her chambers where there
was "a quiet place for her to rest," proceeded to check on Juror
2 in her chambers——meanwhile "conferr[ing]" with counsel who
"agreed to wait"——and asked a question on behalf of defense
counsel regarding the nature of the illness. That was the
extent of the ex parte meeting. After roughly 45 minutes, the
judge went back on the record and documented what transpired
during her interaction with Juror 2, stated that she decided to
dismiss the juror, and invited counsel to make any motions on
to dismiss, which was made on the record while counsel was
present and had the opportunity to make motions and object——
which Spencer's counsel did.
27
No. 2018AP942-CR
the issue. This decision to dismiss occurred on the record, in
the presence of counsel, and with counsel's participation. That
is all the Constitution requires.
B. Harmless Error
¶39 Even if the judge's meeting with Juror 2 were a
critical stage, any Sixth Amendment violation was harmless
error. "Ordinarily, the absence of counsel at a critical stage
of the trial is not subject to harmless error analysis." State
v. Anderson, 2006 WI 77, ¶74, 291 Wis. 2d 673, 717 N.W.2d 74,
overruled on other grounds by Alexander, 349 Wis. 2d 327, ¶¶26–
29. However, we have held "a harmless error analysis may apply
to certain violations of the Sixth Amendment right to counsel"
including "when the circuit court has had ex parte
communications with the jury." Id., ¶76. In determining whether
any error was harmless, "[w]e examine the circumstances and
substance of the communication in light of the entire trial[.]"
Koller, 248 Wis. 2d 259, ¶62 (citing State v. Bjerkaas, 163
Wis. 2d 949, 957–58, 472 N.W.2d 615 (Ct. App. 1991)). "An error
is harmless if there is no reasonable possibility that the error
affected the outcome of the trial."15 Id. (citing Bjerkaas, 163
Wis. 2d at 958).
The principal dissent's misplaced emphasis on the record
15
of the ex parte communications fails to properly contextualize
Anderson, on which it relies. See Justice Ann Walsh Bradley's
Dissent, ¶75 ("In light of the absence of a sufficient record,
an appellate court will have great difficulty concluding that
the circuit court's erroneous procedure in communicating with
the jury was harmless error." (quoting State v. Anderson, 2006
WI 77, ¶81, 291 Wis. 2d 673, 717 N.W.2d 74, overruled on other
grounds by Alexander, 349 Wis. 2d 327, ¶¶26–29)). That
28
No. 2018AP942-CR
¶40 This case reflects the practical realities of running
a courtroom. "Judges face tough calls in the courtroom each
day." Alexander, 349 Wis. 2d 327, ¶77 (Ziegler, J., concurring)
(citations omitted). The United States Supreme Court has
statement concerned the circuit court's violation of the
statutory requirement that "all statements or comments by the
judge to the jury or in their presence relating to the case
shall be on the record." Anderson, 291 Wis. 2d 673, ¶78
(quoting Wis. Stat. § 805.13(1) (2003–04).
In Anderson, the circuit court responded to two notes from
the jury during deliberations——neither of which were in the
record and both of which concerned evidence introduced during
trial——without consulting counsel. Id., ¶14. After
deliberations ended, the court informed counsel of the ex parte
communications and "reconstructed from memory" the substance of
the contact. Id., ¶15. We determined the lack of a record and
the circuit court's decision not to read to the jury testimony
it requested be read "combin[ed] 'to contribute to the verdict
obtained.'" Id., ¶117. We concluded when ex parte
communications occur "during the deliberative phase of a
criminal prosecution, the absence of a complete record as to the
alleged communications has been held a factor weighing heavily
in favor of reversal," because it deprives the appellate court
"of an opportunity to make an assessment of the prejudicial
effect of the communication." Id., ¶118 n.72 (quoting 43 A.L.R.
4th 410, § 24) (emphasis added). This was particularly so in
Anderson, in which "[t]he circuit court could have improperly
influenced the jury deliberations, even if such influence was
accidental." Id., ¶118. The jury's request to hear the
testimony indicated "it had serious doubts about the outcome of
the case and wanted to hear the testimony again to determine
whether a guilty verdict was appropriate." Id., ¶122.
"Combin[ed]" with the lack of a record of the communications,
the court could not determine "beyond a reasonable doubt" the
errors did not contribute to the verdict. Id., ¶¶117, 123. The
same combination of factors is not present in this case: The ex
parte communications occurred between the judge and a juror who
did not participate in deliberations, and concerned the juror's
health but not the case itself. Unlike in Anderson, the judge
in this case consulted counsel regarding the court's handling of
the situation.
29
No. 2018AP942-CR
observed, "There is scarcely a lengthy trial in which one or
more jurors do not have occasion to speak to the trial judge
about something, whether it relates to a matter of personal
comfort or to some aspect of the trial." Rushen, 464 U.S. at
118. Concluding "that an unrecorded ex parte communication
between trial judge and juror can never be harmless error
ignores these day-to-day realities of courtroom life and
undermines society's interest in the administration of criminal
justice." Id. at 119; see also United States v. Bertoli, 40
F.3d 1384, 1399 (3d Cir. 1994) ("While it may have been
preferable to have counsel present, . . . we cannot say that
[the defendant] was prejudiced by the trial court's decision to
conduct the interviews [with the jurors] without counsel
present.").
¶41 The State emphasizes that the "specific inquiry" in
this case concerns "whether there's a reasonable possibility
that counsel's absence during the ex parte discussions affected
the outcome of Spencer's trial." We agree with this narrow
formulation and conclude any error was harmless. In order to
affect the outcome of the trial, counsel's presence at the
meeting would have had to result in Juror 2's retention.
Because the nature of the discussion concerned Juror 2's health,
there is no reason on this record to believe counsel's presence
would have had any impact on the juror's ability to proceed.
The juror had been laying down in the jury room before being
moved to the judge's chambers to rest, felt "queasy, light
headed, just unwell generally," and said she was "unlikely" to
30
No. 2018AP942-CR
be able to continue after any particular length of time. The
judge relayed defense counsel's question about whether the
illness was related to the trial, and Juror 2 responded no. As
the Seventh Circuit queried in Schiro, "What more was there to
ask her?" Schiro, 679 F.3d at 531.
¶42 Had counsel's presence at the meeting resulted in
Juror 2 remaining on the panel, there is no reasonable
possibility her retention would have affected the outcome of the
trial. Juror 2 was removed prior to deliberations, so the kind
of concerns inherent to the deliberative process were not
implicated. Spencer cites Hinton v. United States, 979 A.2d 663(D.C. Cir. 2009), for the proposition that "jurors are not
fungible after they have heard the evidence." In Hinton, the
D.C. Circuit determined the trial court abused its discretion in
removing an empaneled juror. Hinton, 979 A.2d at 692. The
court emphasized it was not concluding "the erroneous
replacement of an empaneled juror can never be found
harmless[.]" Id. at 689, 691–92 ("In many cases, where twelve
impartial jurors have voted unanimously to find the defendant
guilty beyond a reasonable doubt, we might be persuaded that the
erroneously removed thirteenth juror would not have viewed the
evidence differently. Thus, for example, we would suppose that
if the government's case is strong and there is no reason
apparent in the record to think the erroneously removed juror
would have dissented, a reviewing court could be satisfied that
the juror substitution had no substantial influence on the
outcome."). In that case, the court had "some information
31
No. 2018AP942-CR
concerning the removed juror's thoughts about the evidence"
based on the juror's "pointed, probing inquiries" of the
witnesses. Id. at 692.
¶43 Borrowing the language of Hinton, "this is not such a
case." Id. The State's case was strong and there was no
indication the discharged juror would have voted to acquit
Spencer. Instead, the State's case shows overwhelming evidence
of Spencer's guilt. The only fact disputed by R.S. during his
trial testimony was whether Spencer was the second individual
involved in the robbery. Regarding R.S.'s story, the prosecutor
asked, "So, everything is true, except for the identity of the
defendant as being the person who did all this?" to which R.S.
responded "Yes."
¶44 Despite R.S.'s recantation on the stand of statements
he made identifying Spencer during multiple interviews with the
police, the jury heard testimony from a series of other
individuals placing Spencer at the scene. In addition to
telling the detectives Spencer was involved, R.S. told "one of
[his] girlfriends it was a person by the name of Spencer, who
may be involved but not actually with a gun." T.M.'s sister,
K.G., testified she had dinner with both "D-Dog" and T.M. just
hours before the robbery and shooting, and that "D-Dog" and T.M.
both left together in the same van later found at the scene.
Another sister, Q.G., testified R.S. told her after the
incident——but before speaking to detectives——that D-Dog was
responsible. She said R.S. told her "D'Dog came to his block
with [T.M.] and he said he tried to——that they tried to
32
No. 2018AP942-CR
kill. . . . He said they pulled up in a van and D'Dog and
[T.M.] got out [of] the van" and "D'Dog walked up to him and
grabbed him by his shirt with a gun[.]" She testified that R.S.
told her he "pulled away from D'Dog," and "took off running down
the street and D'Dog starting shooting at him." Q.G. said R.S.
told her he would tell the same story to detectives, and that
she called the detectives immediately after her phone call with
R.S. Although R.S. testified he identified Spencer to
detectives because they threatened him, Q.G.'s testimony
indicates he had already told her and had voluntarily agreed to
identify Spencer to the detectives. Not only did the detective
testify he never threatened R.S., but the interview was recorded
and portions of it were played for the jury during the trial.
¶45 Additionally, Towns testified that Green-Brown, who
showed up with R.S. after the incident to complete the tow and
whom Spencer suggested might be involved, was not one of the
individuals he had seen during the robbery. R.S. repeatedly
told detectives D-Dog had robbed him, which he acknowledged
during his testimony. R.S. also testified he owed Spencer a
debt of several thousand dollars, he had heard Spencer was
looking for him regarding this debt, and the individual who
robbed him said, "Where is the money at?" Detective O'Day
testified R.S. told him in the first of these interviews that
Spencer "went into his pockets and pulled out $400 in U.S.
currency," "grabbed him by the front of his shirt," "pulled out
a gun with his left hand and stated, you're going to die," and
"drag[ged] him northbound across Townsend to North 23rd Street."
33
No. 2018AP942-CR
He testified R.S. said he realized he was in trouble and began
to run when he saw the gold mini-van, he saw Spencer shoot at
him once, and he heard seven more gunshots. The report of
gunshots was corroborated by multiple witnesses, ShotSpotter,
and forensic evidence, which placed Spencer at the scene through
fingerprints lifted from the gold van and a traffic citation and
receipt in his name found inside the van.
¶46 Given this record, there is no reasonable possibility
that trial counsel's absence during the judge's meeting with
Juror 2 affected the outcome of the trial. There is no reason
to believe counsel would have altered Juror 2's symptoms somehow
or asked more probing questions enabling Juror 2 to remain on
the panel. There is no reason to believe Juror 2's presence on
the panel would have altered the outcome of the trial in the
face of overwhelming evidence of Spencer's guilt and with no
disruption to the deliberative process.
C. No Evidentiary Hearing Required
¶47 The court of appeals erred in concluding Spencer was
entitled to a Machner hearing on his ineffective assistance
claim. See Spencer, No. 2018AP942-CR, at ¶29. The court of
appeals' analysis on this issue mirrors the court of appeals'
analysis described in State v. Ruffin, decided this term. 2022
WI 34, ¶¶39–41, __ Wis. 2d __, 974 N.W.2d 432. In reversing the
court of appeals' decision in Ruffin that the defendant was
entitled to a Machner hearing, we reaffirmed the "well-
established" standard on this issue: "[A]n evidentiary hearing
is not mandatory if a defendant's motion presents only
34
No. 2018AP942-CR
conclusory allegations or if the record as a whole conclusively
demonstrates that the defendant is not entitled to relief."
Id., ¶¶35, 38.
¶48 As in Ruffin, the court of appeals in this case
correctly stated the legal standard for holding an evidentiary
hearing. See Spencer, No. 2018AP942-CR, at ¶22; Ruffin, __
Wis. 2d __, ¶40. The court below explained if the
postconviction motion states sufficient material facts that, if
true, would entitle the defendant to relief, "the circuit court
must hold an evidentiary hearing." Spencer, No. 2018AP942-CR,
at ¶22 (quoting State v. Allen, 2004 WI 106, ¶¶9, 14, 274
Wis. 2d 568, 682 N.W.2d 433). "'[I]f the [postconviction]
motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the
record conclusively demonstrates that the defendant is not
entitled to relief,' a trial court may, in its discretion, deny
a postconviction motion without a hearing." Id. (quoting Allen,
274 Wis. 2d 568, ¶9).
¶49 As we emphasized in Ruffin, __ Wis. 2d __, ¶3, "even
if the motion alleges sufficient facts, an evidentiary hearing
is not mandatory if the motion presents only conclusory
allegations or if the record as a whole conclusively
demonstrates that the defendant is not entitled to relief."
Nevertheless, in both cases "the court of appeals neglected the
'record conclusively demonstrates' analysis." Ruffin, __
Wis. 2d __, ¶41. The court below determined only that Spencer
pled facts sufficient to entitle him to a Machner hearing.
35
No. 2018AP942-CR
Spencer, No. 2018AP942-CR, at ¶26 (citing Sholar, 381
Wis. 2d 560, ¶51). The court "thus perform[ed] only half of the
required analysis." Ruffin, __ Wis. 2d __, ¶39.
¶50 Applying this longstanding two-step framework, we
conclude Spencer is not entitled to a Machner hearing on his
ineffective assistance claim because "the record as a whole
conclusively demonstrates that [Spencer] is not entitled to
relief." Id., ¶3; see also Sholar, 381 Wis. 2d 560, ¶50. The
circuit court determined "even if trial counsel had objected and
the testimony was struck, there is simply not a reasonable
probability that [Spencer] would have been acquitted of the
crimes with which he was charged because there was absolute
overwhelming evidence of his guilt." We agree. For the reasons
set forth in the harmless error analysis above——which does not
rely on the challenged hearsay testimony——the record
conclusively shows Spencer is not entitled to relief.
IV. CONCLUSION
¶51 Under the circumstances of this case, the judge's ex
parte meeting with Juror 2 did not constitute a critical stage
at which the presence of counsel was required. The meeting's
timing and substance——the nature of Juror 2's health concerns
and her ability to continue, prior to deliberations——did not
implicate Spencer's need for "aid in coping with legal problems
or assistance in meeting his adversary." Ash, 413 U.S. at 313.
The judge informed counsel of the situation, relayed a question
from trial counsel, and after this meeting made the decision to
dismiss the juror on the record with counsel's participation.
36
No. 2018AP942-CR
We accordingly decline to recognize as a constitutional
violation counsel's inability to personally subject the ill
juror to a "thorough[] explor[ation]" of the extent and nature
of her symptoms in an adversarial setting. Even if the ex parte
meeting was error, it was harmless. There is no reasonable
probability that counsel's presence at the meeting would have
changed the outcome of the trial.
¶52 We further clarify that an evidentiary hearing is not
required when "the record as a whole conclusively demonstrates
that the defendant is not entitled to relief." Ruffin, __
Wis. 2d __, ¶3; see also Sholar, 381 Wis. 2d 560, ¶50. The
record in this case conclusively demonstrates that Spencer is
not entitled to relief on his ineffective assistance claim. We
reverse the court of appeals decision remanding for an
evidentiary hearing.
By the Court.—The decision of the court of appeals is
affirmed in part and reversed in part.
37
No. 2018AP942-CR.awb
¶53 ANN WALSH BRADLEY, J. (dissenting). The Sixth
Amendment to the United States Constitution ensures that the
accused shall have the assistance of counsel. To this end, the
right to counsel attaches at all critical stages of a trial.
United States v. Wade, 388 U.S. 218, 224 (1967).
¶54 The issue before the court is whether the circuit
court's in chambers, off-the-record communications with an ill
juror, resulting in the juror's dismissal for cause, constituted
a critical stage of the trial at which the right to counsel
attaches. If Spencer did have a right to counsel at the
meetings between the circuit court and ill juror, then he is
entitled to a new trial unless the State can prove beyond a
reasonable doubt that the constitutional error did not
contribute to the verdict.
¶55 In disposing of the Sixth Amendment claim, the
majority errs in two ways. First, it wrongly separates the
circuit court's communications with the juror from the juror's
dismissal, concluding that the communications between the
circuit court and the juror without counsel present did not
constitute a critical stage at which the right to counsel
attaches. Majority op., ¶4. Second, it determines that this
constitutional error was harmless by overlooking gaps in the
record and ignoring the State's burden to prove beyond a
reasonable doubt that the constitutional error was harmless.
See id., ¶41.
1
No. 2018AP942-CR.awb
¶56 Contrary to the majority, I determine that the
circumstances presented here constitute a critical stage of the
trial. Spencer's Sixth Amendment right to counsel was violated
because his counsel was not present at this critical stage.
Additionally, I conclude that, assuming harmless error applies,
the State failed to meet its burden to prove beyond a reasonable
doubt that this constitutional violation did not contribute to
the verdict. Accordingly, I respectfully dissent.1
I
¶57 Spencer was charged with one count of felony murder
and one count of possession of a firearm by a felon. Majority
op., ¶5. The case went to trial, and after the close of
evidence but before deliberations, the bailiff informed the
judge that a juror had fallen ill. Id., ¶14. As a result, the
court took a 45-minute recess, during which time the judge met
with the ill juror in chambers. Id. Neither the prosecutor nor
Spencer's counsel was present for the meetings. Id. Nothing
was on the record.
¶58 After the communications outside the presence of
counsel occurred, the court went on the record to recreate what
had transpired in the 45-minute interval. It memorialized the
determination it had made before allowing the attorneys to state
their positions for the record or make any motions. At the
outset, the circuit court indicated that it had made its
decision that the juror would not proceed to deliberations,
Because I determine that Spencer's Sixth Amendment right
1
was violated and the error was not harmless, I need not address
the other issues presented.
2
No. 2018AP942-CR.awb
explaining that the juror was "not feeling well enough to
proceed" and that the court was "not prepared to put her health
at risk by having her continue and go to deliberations when she
is so unwell."
¶59 The circuit court continued making the record,
advising the attorneys about the juror's condition: "She is, if
you want to know the details, queasy, light headed, just unwell
generally." It further explained that it had advised the
attorneys of the reason for the delay, that it conferred with
the attorneys, and that the court waited "a significant period
of time." The circuit court also recognized that the ill juror
was the only African-American juror on the panel and that the
defendant was African-American.
¶60 Additionally, the circuit court stated for the record
that it had asked the ill juror a question "along the lines of
the concern that the defense had." The question asked was
whether "her stress or her not being well enough to proceed had
anything to do with her service as a juror or with the behavior
of any of the other jurors." The ill juror responded, "Oh, no.
This has nothing to do with the trial." Id. Ultimately, the
circuit court said, "I've made my record."2
2The State explained to the circuit court that the juror
could not be excused but instead should be dismissed for cause.
It reasoned that the court could not designate the ill juror as
an alternate because "alternates can only be picked at random"
and therefore the court "can't designate her as an alternate per
statute but [the court] can excuse her for a good reason." See
Wis. Stat. § 972.10(7) ("If additional jurors have been
selected . . . and the number remains more than required at
final submission of the cause, the court shall determine by lot
which jurors shall not participate in deliberations and
discharge them.").
3
No. 2018AP942-CR.awb
¶61 Nothing else was presented to illuminate the juror's
condition or otherwise speak to the communications that took
place between the court and the juror. It was not until after
the circuit court made a record of its prior decision to dismiss
the juror for cause that the court invited the parties to bring
motions and "state [their] positions succinctly for the record."
¶62 At that time, defense counsel moved for a mistrial and
renewed her Swain challenge.3 Id. Subsequently, the jury
convicted Spencer on both counts. Id., ¶16. Spencer filed a
postconviction motion, arguing both that his Sixth Amendment4
3 In Swain v. Alabama, the United States Supreme Court held
that, "Although a [Black] defendant is not entitled to a jury
containing members of his race, a State's purposeful or
deliberate denial to [Black people] on account of race of
participation as jurors in the administration of justice
violates the Equal Protection Clause." 380 U.S. 202, 203-04
(1965). Earlier in this trial, Spencer's attorney argued that
"Milwaukee County's procedures when impaneling jury arrays
systemically excluded African-Americans and, therefore, violated
Spencer's right to equal protection of the law. The trial court
found that Spencer failed to prove that Milwaukee County's
procedures systemically excluded African-Americans from jury
service and denied Spencer's motion." State v. Spencer, No.
2018AP942-CR, unpublished slip op., ¶5 n.3 (Wis. Ct. App. Mar.
9, 2021). When Spencer's counsel renewed her Swain challenge,
she argued that "the research shows . . . that even the presence
of one African-American on a jury can make a difference in terms
of reducing systemic bias."
4 The Sixth Amendment provides in full:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
4
No. 2018AP942-CR.awb
right to counsel was violated and that his counsel was
ineffective. The circuit court denied the motion. Id., ¶18.
¶63 Spencer appealed,5 and the court of appeals affirmed
the circuit court's denial of Spencer's postconviction motion on
Sixth Amendment grounds. However, it reversed the circuit court
on Spencer's ineffective assistance of counsel claim and
remanded the case for a Machner hearing.6 Id., ¶¶19-20.
II
¶64 The majority's first mistake is that it concludes the
communications between the circuit court and the ill juror,
taking place immediately before jury deliberations and resulting
in the juror's dismissal for cause, did not constitute a
critical stage of the proceedings at which the right to counsel
attached. See majority op., ¶4. "A critical stage is any point
in the criminal proceedings when a person may need counsel's
assistance to assure a meaningful defense. The assistance of
counsel when a court communicates with the jury during
favor, and to have the Assistance of Counsel for his
defence.
Article I, Section 7 of the Wisconsin Constitution also
provides for the right to counsel.
5Spencer also argued at the court of appeals and at this
court that the dismissal of the juror was an erroneous exercise
of discretion and violated his due process and equal protection
rights. The court of appeals determined that Spencer had
forfeited those claims. I need not reach these claims or
address whether they were forfeited because, as noted, I would
reverse on the basis of the Sixth Amendment violation.
6 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
5
No. 2018AP942-CR.awb
deliberations may be necessary to a meaningful defense." State
v. Anderson, 2006 WI 77, ¶68, 291 Wis. 2d 673, 717 N.W.2d 74,
overruled on other grounds by State v. Alexander, 2013 WI 70,
349 Wis. 2d 327, 833 N.W.2d 126.7
¶65 Although not precisely defined, a critical stage
generally includes proceedings that determine the composition of
the jury. See State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d
682 (Ct. App. 1999); State v. Spencer, No. 2018AP942-CR,
unpublished slip op., ¶50 (Wis. Ct. App. Mar. 9, 2021) (White,
J., concurring in part and dissenting in part). Examples of
"critical stages" are jury selection (including voir dire) and
communications between the circuit court and the jury during
deliberations. See, e.g., Harris, 229 Wis. 2d at 839; Gomez v.
United States, 490 U.S. 858, 873 (1989); Anderson, 291 Wis. 2d
673, ¶69. As particularly relevant here, "An in-chambers
conference that deals with the ability of sworn jurors to
continue to serve on the jury is an exceedingly important
occurrence in a criminal trial . . . " State v. Alexander, 349
Wis. 2d 327, ¶49 (Crooks, J., concurring).
¶66 The majority erroneously separates the off-the-record
communications from their ultimate outcome, i.e. the dismissal
of the juror. By considering only "the substance and the timing
State v. Alexander overruled State v. Anderson to the
7
extent that a defendant does not have a right to be present
during out of court communications between the judge and the
jury. State v. Alexander, 2013 WI 70, ¶¶28-29, 349 Wis. 2d 327,
833 N.W.2d 126. It remains true that "[a]ll that the
Constitution requires at such a conference is the presence of
defense counsel." Id., ¶29.
6
No. 2018AP942-CR.awb
of the meeting," the majority concludes that "the meeting did
not constitute a critical stage at which the presence of counsel
was required." Majority op., ¶24. This analysis evaluates the
communications in a vacuum and as a result, minimizes the right
at issue. See id., ¶33.
¶67 To explain, the majority conclusively determines that
because the communications were about the health of the juror,
Spencer did not require aid in coping with legal problems. Id.
However, this takes too narrow of a view of the "legal problem"
with which Spencer required aid. Properly framed, the
communications between the court and the ill juror implicated
the juror's ability to serve on the jury and participate in
deliberations, a consequential event during which Spencer could
have benefited from the aid of counsel. See State v. Carter,
2010 WI App 37, ¶18, 324 Wis. 2d 208, 781 N.W.2d 527; see also
United States v. Ash, 413 U.S. 300, 313 (1973).
¶68 Here, the ill juror sat through the entire trial
except for the closing arguments. Even though deliberations had
not yet begun, they were soon to commence. I agree with court
of appeals Judge Maxine White's apt description of the
situation: "The meeting with Juror No. 2 was not innocuous
communication or a de minimis interaction; it was not a foregone
conclusion that Juror No. 2 would be removed from the jury."
Spencer, No. 2018AP942-CR, at ¶51 (White, J., concurring in part
and dissenting in part).
¶69 Spencer could have stood to benefit from his counsel's
assistance in this situation. At the very least, defense
7
No. 2018AP942-CR.awb
counsel could have been apprised of the juror's condition
firsthand and more thoroughly investigated all options. For
example, this would have allowed defense counsel to be in a
better position to assess the import of this particular juror
and whether a longer break would result in the juror's ability
to continue serving.
¶70 The majority questions the "utility" and "propriety"
of an "adversarial approach to a juror's health status."
Majority op., ¶35. Once again, this distracts from the
substantive legal problem with which Spencer required the
assistance of counsel: the dismissal of a juror for cause who
observed the trial through the close of evidence.
¶71 By separating the communications between the court and
juror from the juror's dismissal and treating them as distinct
events, the majority paints the communications as a benign
interlude with no bearing on Spencer's rights. To the contrary,
the judge and juror were not merely discussing the juror's
health. They were discussing the juror's health to determine if
the juror should be dismissed from finishing the trial and
participating in deliberations.
¶72 These communications between the circuit court and
juror resulting in the juror's dismissal for cause were a
critical stage of trial at which the right to counsel attached.
Such communications affected the makeup of the jury, and Spencer
could have benefited from the aid of counsel being in the room,
at the very least to build a record. Thus, the majority is
wrong to conclude these communications were not a critical stage
8
No. 2018AP942-CR.awb
and that Spencer was not entitled to his counsel's presence at
the discussions between the circuit court and the juror. It
brushes off the import of the communications and how they were
inseparable from the decision to dismiss the juror for cause.
III
¶73 Next, the majority stumbles again when it concludes
that even if the communications were a critical stage, the error
was harmless. See majority op., ¶4. The majority overlooks
gaps in the record and ignores the State's burden of proof in
making this determination.
¶74 Whether to apply a harmless error analysis to a
deprivation of counsel claim such as this has met with
inconsistent treatment. In some circumstances "[t]his court and
the court of appeals have applied harmless error analysis to the
denial of the Sixth Amendment right to counsel when the circuit
court has had ex parte communications with the jury." Anderson,
291 Wis. 2d 673, ¶76; see State v. Koller, 2001 WI App 253, ¶62,
248 Wis. 2d 259, 635 N.W.2d 838. Thus, assuming the harmless
error analysis8 applies to these communications between the
circuit court and juror, the error was certainly not harmless as
the majority claims.
8 Although in other circumstances courts have determined
that deprivation of the right to counsel at a critical stage
constitutes a structural error requiring automatic reversal, see
State v. Travis, 2013 WI 38, ¶61, 347 Wis. 2d 142, 832 N.W.2d
491, I do not decide whether structural error should apply to
this Sixth Amendment violation. Instead, I assume, without
deciding, that harmless error applies in response to the
majority's conclusion that the error was not harmless. See
majority op., ¶39.
9
No. 2018AP942-CR.awb
¶75 Where the majority finds a record sufficient to
determine the error was harmless, I find a record utterly
lacking. See Anderson, 291 Wis. 2d 673, ¶81 ("In light of the
absence of a sufficient record, an appellate court will have
great difficulty concluding that the circuit court's erroneous
procedure in communicating with the jury was harmless error.").
As detailed below and as referenced in Anderson, this case
suffers from an insufficient record——an insufficiency which the
majority overlooks and which precludes a determination that the
State has met its burden of proof.
¶76 If an error is subject to harmless error analysis, the
beneficiary of the error must prove beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained. State v. Hale, 2005 WI 7, ¶60, 277 Wis. 2d 593, 691
N.W.2d 637; see also State v. Beamon, 2013 WI 47, ¶27, 347 Wis.
2d 559, 830 N.W.2d 681. In other words, the State here must
prove beyond a reasonable doubt that Spencer would still have
been convicted absent the Sixth Amendment violation.
¶77 Simply put, the State has failed to meet its burden of
proof to show beyond a reasonable doubt that the Sixth Amendment
violation did not contribute to the verdict. Neglecting to even
mention the State's burden of "beyond a reasonable doubt," the
majority determines that "there is no reason on this record to
believe counsel's presence would have had any impact on the
juror's ability to proceed." Majority op., ¶41.
¶78 Such a conclusion does not comport with our case law.
In State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982), we
10
No. 2018AP942-CR.awb
were very specific about the procedure the circuit court must
follow before it dismisses a juror. It includes making careful
inquiry regarding the substance of the request and exerting
efforts to avoid dismissing the juror:
When a juror seeks to be excused, or a party seeks to
have a juror discharged, whether before or after jury
deliberations have begun, it is the circuit court's
duty, prior to the exercise of its discretion to
excuse the juror, to make careful inquiry into the
substance of the request and to exert reasonable
efforts to avoid discharging the juror. Such inquiry
generally should be made out of the presence of the
jurors and in the presence of all counsel and the
defendant. The juror potentially subject to the
discharge should not be present during counsel's
arguments on the discharge. The circuit court's
efforts depend on the circumstances of the case. The
court must approach the issue with extreme caution to
avoid a mistrial by either needlessly discharging the
juror or by prejudicing in some manner the juror
potentially subject to discharge or the remaining
jurors.
Id. at 300.
¶79 Lehman instructs how the circuit court should conduct
an inquiry before dismissing a juror even before deliberations
have begun. The 45-minute gap in the record does not reflect
the above inquiry, and the State has not otherwise proven the
error was harmless. It argues only that because the juror was
sick, she would have been dismissed no matter what.
¶80 There is no transcript of the off-the-record
communications which the State can reference in endeavoring to
meet its burden. And although "[t]he circuit court's efforts
depend on the circumstances of the case," the State has not
shown from the gaps in this record that the circumstances
11
No. 2018AP942-CR.awb
indicate the result would have been the same absent the
constitutional error.
¶81 It is clear that before the circuit court went back on
the record, it had already made its determination that the juror
would not continue serving on the panel. What is not clear from
the transcript is whether the juror had already left the
courthouse before the court went back on the record——that is,
before counsel even had an opportunity to make or renew any
motions. See Spencer, No. 2018AP942-CR, at ¶48 (White, J.,
concurring in part and dissenting in part). A review of the
transcript shows the circuit court's concern for making a record
of the communications and its decision to dismiss the juror but
does not shed light on when the juror was actually allowed to
leave. This presents a significant gap in the record. The
possibility that the juror had already left the courthouse
before the court went on the record certainly would further
exacerbate the error.
¶82 Added to the mix, the communications between the
circuit court and the juror were neither brief nor
inconsequential. See Koller, 248 Wis. 2d 259, ¶¶61, 67
(assuming that the trial court erred when it responded through
the bailiff without the assistance of counsel that two items the
jury asked for were "not available," but finding the error
harmless); State v. Bjerkaas, 163 Wis. 2d 949, 957-58, 472
N.W.2d 615 (Ct. App. 1991) (noting the parties' agreement that
it was constitutional error when the trial court wrote back "no"
in response to a question posed by the jury without consulting
12
No. 2018AP942-CR.awb
counsel, but finding no prejudice to the defendant). Instead,
it was an approximately 45-minute recess that determined the
composition of the jury after most of the trial had concluded.
A decision to dismiss a juror for cause can be consequential,
implicating significant constitutional rights. See State v.
Mendoza, 227 Wis. 2d 838, 849-50, 596 N.W.2d 736 (1999).
¶83 Admittedly, there may be occasions when a judge
communicating with a juror outside the presence of counsel
involve "the practical realities of running a courtroom,"
constituting harmless error. See majority op., ¶40. But this
is not one of them. Rather, the law provides a clear roadmap,
requiring the State to prove the error was harmless beyond a
reasonable doubt, which it has not done based on this deficient
record.
¶84 Judge White's separate writing at the court of appeals
is instructive. She explains that the dearth of a record of the
communications between the circuit court and juror precludes the
conclusion that the error was harmless. See Spencer, No.
2018AP942-CR, at ¶55 (White, J., concurring in part and
dissenting in part). I agree that "the scope and impact of the
trial court's error is difficult to assess because of the lack
of record." Id. We cannot know, and the State has not proven,
whether the outcome would have been the same absent the
constitutional violation. In sum, the State has failed to meet
its burden of proof that the error was harmless beyond a
reasonable doubt.
¶85 Accordingly, I respectfully dissent.
13
No. 2018AP942-CR.awb
¶86 I am authorized to state that Justices REBECCA FRANK
DALLET and JILL J. KAROFSKY join this dissent.
14
No. 2018AP942-CR.rfd
¶87 REBECCA FRANK DALLET, J. (dissenting). I join
Justice Ann Walsh Bradley's dissent in full. As she correctly
concludes, the circumstances under which the only Black juror
was dismissed for cause prior to deliberations violated
Spencer's Sixth Amendment rights. I write separately to
emphasize the importance of racially diverse juries to enhancing
both a jury's performance in criminal trials and the public's
perceptions of the fairness of the legal system.
¶88 Racial diversity on juries has both constitutional and
moral dimensions. For example, a categorical bar on jury
service by non-white citizens violates the Fourteenth Amendment.
See Strauder v. West Virginia, 100 U.S. 303, 307-08 (1879),
abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522,
536 n.19 (1975). Relatedly, the way potential jurors are
summoned "must not systematically exclude distinctive groups in
the community and thereby fail to be reasonably representative
thereof." Taylor, 419 U.S. at 538. Otherwise, that method of
summoning potential jurors violates the defendant's right to a
jury of his peers. See id. at 528 (explaining that "an
essential component of the Sixth Amendment right to a jury
trial" is that the pool of potential jurors is a "representative
1
No. 2018AP942-CR.rfd
cross section of the community").1 The Constitution not only
requires that people of all races be included in the pool of
potential jurors, but it also prohibits practices designed to
keep jurors of any particular race off the final panel. See,
e.g., Batson v. Kentucky, 476 U.S. 79, 96 (1986) (racially
motivated peremptory challenges to potential jurors violate the
Fourteenth Amendment). Those principles, which are rooted in
the Constitution's text, flow from the Constitution's underlying
moral value of equality before the law: "The very idea of a
jury is a body . . . composed of the peers or equals of the
person whose rights it is selected or summoned to determine;
that is, of his neighbors, fellows, associates, persons having
the same legal status in society as that which he holds."
Strauder, 100 U.S. at 308. In short, "[e]qual justice under law
requires a criminal trial free of racial discrimination in the
jury selection process." Flowers v. Mississippi, 139 S. Ct.
2228, 2242 (2019). These precedents underscore the importance
of the circuit court's decision to dismiss the only Black juror
on the panel after the close of evidence, and why the events
leading up to that decision were a "critical stage" of the
1In Wisconsin, potential jurors are summoned from lists of
individuals with valid drivers' licenses or State IDs. This is
problematic because, in Milwaukee County, for instance, only 47%
of Black adults and 43% of Hispanic adults have a valid drivers'
license, as compared to 85% of white adults statewide. See John
Pawasarat, The Driver License Status of the Voting Age
Population in Wisconsin, Emp. & Training Inst., Univ. of Wis.-
Milwaukee (June 2005). Thus, that system excludes more than
half of the Black and Hispanic adult populations in Milwaukee
County from ever being summoned for jury duty, let alone being
placed on a final jury panel.
2
No. 2018AP942-CR.rfd
trial. See generally United States v. Cronic, 466 U.S. 648, 659
(1984).
¶89 Setting aside the constitutional and moral dimensions
of jury diversity, research suggests that juries perform better
simply if they include non-white members. See, e.g., Samuel R.
Sommers, On the Obstacles to Jury Diversity, 21 Jury Expert 1, 7
(2009) ("[T]he nature and content of deliberations can actually
vary by a jury's racial composition."). Although there are many
ways to assess jury performance, the research focuses generally
on the length and breadth of jurors' discussions, the number of
factual errors made in deliberations, and the reduction of
jurors' individual biases, whether implicit or explicit. See
generally id.; see also Samuel R. Sommers, On Racial Diversity
and Group Decision-Making, 90 J. Personality & Soc. Psych. 597,
606 (2006) On each of these metrics, diverse juries perform
better than all-white ones. Specifically, juries that include
even one non-white member tend to deliberate longer and discuss
a wider range of evidence than all-white juries. See Sommers,
Racial Diversity, supra, at 608. White jurors on diverse juries
are generally more accurate in their discussion of the facts of
the case than if they were on an all-white jury; and they are
less likely to pre-judge the defendant's guilt, including before
deliberations begin. See id. at 606 (adding that diverse juries
are less likely to tolerate prejudicial statements in
deliberations than are all-white juries). Similarly, jurors
demonstrate "less biased reasoning when placed in a diverse
decisionmaking group." See Michael Selmi, Statistical
Inequality and Intentional (Not Implicit) Discrimination, 79 Law
3
No. 2018AP942-CR.rfd
& Contemp. Probs. 199, 217 & n.92 (2016). These findings mirror
those in numerous other studies confirming that diversity has a
positive effect on group performance in other settings. See
generally Vivian Hunt, et al., Why Diversity Matters, McKinsey &
Co. (Jan. 2015) (finding that corporations with gender and
ethnic diversity were significantly more likely to outperform
their competitors); Lu Hong & Scott E. Page, Groups of Diverse
Problem Solvers Can Outperform Groups of High-Ability Problem
Solvers, 101 Proceedings of the Nat'l Academy of Scis. 16385
(2004).
¶90 There are many potential explanations for these
effects. One is that people bring their implicit biases with
them to the jury room. See generally Justin D. Levinson &
Danielle Young, Different Shades of Bias, 112 W. Va. L. Rev.
307, 326–31 (2010). For instance, Levinson and Young found that
mock jurors "who saw [a] photo of [a] perpetrator with a dark
skin tone judged ambiguous evidence to be significantly more
indicative of guilt than participants who saw [a] photo of a
perpetrator with a lighter skin tone." Id. at 337. Likewise,
people are more likely to remember "aggressive facts" about a
Black character in a story than a white one. See generally
Justin D. Levinson, Forgotten Racial Equality, 57 Duke L.J. 345,
398-99 (2007). But an even more fundamental explanation may be
that when jurors expect to have discussions with people who have
different perspectives than they do, they tend to listen to the
evidence more closely, prepare for deliberations more
thoroughly, and guard against preconceived notions more
4
No. 2018AP942-CR.rfd
carefully.2 See Sommers, On Racial Diversity, supra, at 601.
Diverse juries might also outperform all-white juries as a
result of each juror contributing his or her own life experience
to deliberations. As Justice Thurgood Marshall put it:
When any large and identifiable segment of the
community is excluded from jury service, the effect is
to remove from the jury room qualities of human nature
and varieties of human experience, the range of which
is unknown and perhaps unknowable. It is not necessary
to assume that the excluded group will consistently
vote as a class in order to conclude, as we do, that
its exclusion deprives the jury of a perspective on
human events that may have unsuspected importance in
any case that may be presented.
Peters v. Kiff, 407 U.S. 493, 503-04 (1972).
¶91 Racial diversity on juries also has a meaningful
impact on the public's perceptions of the fairness and
legitimacy of jury verdicts. One study found that ordinary
citizens' perceptions about the fairness of a trial and the
correctness of a verdict varied depending on whether the jury
was all-white or racially diverse. See Leslie Ellis & Shari
Seidman Diamond, Race, Diversity, and Jury Composition, 78 Chi.-
Kent L. Rev. 1033, 1043-45 (2003). When participants were told
that a particular verdict was reached by a racially diverse
2 This point and others were discussed more fully in a
recent presentation by the National Center for State Courts
(NCSC) entitled "Jury Diversity and its Role in Promoting
Confidence in the Court System," which can be viewed here:
https://cdm16501.contentdm.oclc.org/digital/collection/juries/id
/339. The presentation was part of NCSC's ongoing "Blueprint
for Racial Justice" Project, which "is examining the systemic
changes needed to make equal justice under law an enduring
reality for all." See https://www.ncsc.org/information-and-
resources/improving-access-to-justice/racial-justice/blueprint-
for-racial-justice.
5
No. 2018AP942-CR.rfd
jury, they perceived the trial to be equally fair regardless of
whether it ended in a conviction or an acquittal. Id. at 1049.
The same was not true, however, when the jury had no racially
diverse members: "[W]hen the jury did not include minority
members, observers viewed the trial as less fair when it
produces a guilty verdict than when it produced a not guilty
verdict." Id. The key takeaway from this study is that
participants thought a verdict was unfair "only when [they]
questioned the procedure that procured it, i.e., the racial
composition of the jury." Id.
¶92 I do not mean to suggest that discharging the only
juror of color is always erroneous, or that doing so here
prejudiced Spencer. After all, "[d]efendants are not entitled
to a jury of any particular composition." Taylor, 419 U.S. at
538. Instead, I write to emphasize the importance of racially
diverse juries to both the quality of verdicts and the
perception of fairness in the judicial system. Given that
"[t]he purpose of the jury system is to impress upon the
criminal defendant and the community as a whole that a verdict
of conviction or acquittal is given in accordance with the law
by persons who are fair," Powers v. Ohio, 499 U.S. 400, 413
(1991), juries themselves must be perceived as fair, and
therefore must reflect the communities from which they are
drawn.
¶93 I am authorized to state that Justice JILL J. KAROFSKY
joins this dissent.
6
No. 2018AP942-CR.rfd
1