State v. Brittany S. Baier

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 19, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP389-CR Cir. Ct. No. 2016CF5712

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRITTANY S. BAIER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: MARK A. SANDERS, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP389-CR

¶1 PER CURIAM. Brittany S. Baier appeals from a judgment of
conviction for one count of first-degree intentional homicide and one count of
being a felon in possession of a firearm, contrary to WIS. STAT. §§ 940.01(1)(a)
and 941.29(1m)(a) (2015-16).1 Baier argues that she is entitled to a new trial
because a juror downloaded a guide for jury deliberations from the internet and
shared it with other jurors during deliberations.2 We agree with the trial court that
Baier is not entitled to a new trial because the extraneous information that was
improperly brought to the jury room would not have had a prejudicial effect on a
hypothetical average jury. Therefore, we affirm.

BACKGROUND

¶2 Baier was charged with first-degree intentional homicide for the
shooting death of her boyfriend, Terrance Tucker. She was also charged with
being a felon in possession of a firearm. The complaint alleged that Baier told the
police that “in the hours preceding the shooting, the two had argued, and [Tucker]
beat her.” The complaint continued: “Later, when he was lying on the basement
couch with his gun near his head, she picked up the gun and shot him in the back
of the head two or three times.”

¶3 The case was tried to a jury. Baier’s defense was that she acted in
self-defense when she shot Tucker.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
In her opening brief, Baier also argued that the trial court erroneously prohibited certain
testimony from an expert witness. The State argued that Baier forfeited this issue by not
adequately raising it at the trial court. In her reply brief, Baier concedes forfeiture. Therefore, we
will not address this issue.

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No. 2019AP389-CR

¶4 The jury was instructed on both first-degree intentional homicide
and second-degree intentional homicide, including the law related to self-defense.
The trial court told the jury:

Because the law provides that it is the State’s
burden to prove all of the facts necessary to constitute a
crime beyond a reasonable doubt, you will not be asked to
make a separate finding on whether the defendant acted in
self-defense. Instead, you will be asked to determine
whether the State has established the necessary facts to
justify a finding of guilt[y] on first or second degree
intentional homicide. If the State does not satisfy you that
those facts are established by the evidence, you will be
instructed to find the defendant not guilty.

(Some formatting altered.) See WIS JI—CRIMINAL 1014 (2003). The trial court
explained that to find Baier guilty of first-degree intentional homicide, the State
had to prove three elements beyond a reasonable doubt. See id. The third element
was that Baier “did not actually believe that the force used was necessary to
prevent imminent death or great bodily harm to herself.” See id. To find Baier
guilty of second-degree intentional homicide, the third element the State had to
prove was that Baier “did not reasonably believe that she was preventing or
terminating an unlawful interference with her person or did not reasonably believe
that the force used was necessary to prevent imminent death or great bodily harm
to herself.” See id.

¶5 The jury found Baier guilty of first-degree intentional homicide and
of being a felon in possession of a firearm. The day after the jury reached its
verdict, the trial court contacted the parties concerning multiple copies of a two-
page document that was found in the jury room after the trial was completed. The
document was entitled, “Beyond Closed Doors[:] A Guide for Jury Deliberations”
(hereafter, “Guide”). It contained questions and answers that jurors might ask,
such as how to select the presiding juror, how to discuss the evidence, and how to

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No. 2019AP389-CR

approach the voting process. The document also stated: “This guide was
originally developed by the American Judicature Society. With their permission,
the Wisconsin Chief Judges’ Subcommittee on Juror Treatment and Selection
tailored the guide for use in Wisconsin Courts.”

¶6 Baier filed a motion seeking a new trial, alleging that “the jurors
during deliberations viewed extraneous information that was potentially
prejudicial.” The trial court conducted an evidentiary hearing where ten of the
twelve jurors testified. The trial court followed the procedure for such hearings
outlined in WIS. STAT. § 906.06(2) and State v. Eison, 194 Wis. 2d 160, 171-73,
533 N.W.2d 738 (1995).

¶7 One of the jurors testified that when the jurors began considering the
case on Friday afternoon, the “deliberation was chaotic.” The juror
explained: “[I]t seemed to be that all of us were new to the jury process and we
needed some kind of structure to follow.” That weekend the juror looked on the
internet and found the Guide. She said she took the Guide to the courthouse on
Monday morning, asked a staff person in Jury Management to make copies, and
gave those copies to the presiding juror and the other jurors as they arrived.

¶8 The trial court made findings consistent with that juror’s testimony.
It also found, based on testimony from other jurors, that “[d]ifferent jurors handled
[the Guide] differently.” The trial court noted that one juror “paid so little
attention to it that he did not remember it,” while the presiding juror “reviewed it
more closely.” The trial court said that “after all of the jurors arrived there was a
conversation about the substance” of the Guide that was led by the presiding juror.
The trial court found that the jurors’ discussion about the information in the Guide
“was relatively brief[,] lasted no longer than 15 minutes,” and included the

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No. 2019AP389-CR

presiding juror “explaining that he believed they already had much of the
information.” The trial court further found: “After that discussion [the Guide]
was set aside and deliberations continued. After that initial discussion … it was
not discussed further by the jury.”

¶9 Having found that there was competent testimony that the jurors had
considered extraneous information, the trial court considered “whether the
extraneous information constituted prejudicial error requiring reversal of the
verdict.” See Eison, 194 Wis. 2d at 177. The trial court concluded that a new trial
was not warranted and denied Baier’s motion.

¶10 The trial court subsequently sentenced Baier to a mandatory term of
life in prison for the homicide conviction, and it declared her eligible for extended
supervision after serving twenty-five years. The trial court imposed a consecutive
sentence of fifteen months of initial confinement and twelve months of extended
supervision for the firearm conviction. This appeal follows.

DISCUSSION

¶11 A party seeking to impeach the verdict on grounds that the jury was
exposed to extraneous information must demonstrate that: “(1) the juror’s
testimony concerns extraneous information (rather than the deliberative process of
the jurors), (2) the extraneous information was improperly brought to the jury’s
attention, and (3) the extraneous information was potentially prejudicial.” See
State v. Searcy, 2006 WI App 8, ¶32, 288 Wis. 2d 804, 709 N.W.2d 497; see also

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No. 2019AP389-CR

WIS. STAT. § 906.06(2).3 If the moving party meets that threshold burden, then the
trial court must make factual findings and decide, as a matter of law, “whether the
extraneous information produced prejudice requiring reversal of the verdict.” See
Searcy, 288 Wis. 2d 804, ¶33.

¶12 Neither party challenges the trial court’s decision to hold an
evidentiary hearing or the trial court’s findings, including its finding that the
Guide was extraneous information distributed by one juror to the other jurors.
Thus, the only issue on appeal is whether the jury’s exposure to that extraneous
information requires reversal. See id.

¶13 Eison outlined the analysis that must be undertaken to evaluate
potential prejudice, stating:

[The trial] court must assess, as a matter of law, whether
the conviction must be reversed because there is a
reasonable possibility that the [extraneous information]
would have had a prejudicial effect upon a hypothetical
average jury…. [T]he [S]tate “must prove beyond a

3
WISCONSIN STAT. § 906.06(2) provides:

INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything
upon the juror’s or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes in
connection therewith, except that a juror may testify on the
question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any
juror. Nor may the juror’s affidavit or evidence of any statement
by the juror concerning a matter about which the juror would be
precluded from testifying be received.

(Emphasis added.)

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No. 2019AP389-CR

reasonable doubt that the error complained of did not
contribute to the verdict obtained.”

Id., 194 Wis. 2d at 177-78 (citations omitted). Eison held that courts considering
“the possibility of prejudice” must “consider factors such as the nature of the
extraneous information, the circumstances under which it was brought to the jury’s
attention, the nature and character of the [S]tate’s case and the defense presented
at trial, and the connection between the extraneous information and a material
issue in the case.” See id. at 179.

¶14 On appeal, the question of whether extraneous information could
“have had a prejudicial effect on a verdict rendered by a hypothetical average
jury” is a question of law this court reviews independently. See id. at 178. “We
may benefit, however,” from the trial court’s analysis. Id.

¶15 Here, the trial court specifically analyzed the four factors outlined in
Eison and its progeny. First, the trial court considered “the nature of the
extraneous information[.]” See id. at 179. The trial court recognized that the two-
page Guide has “eight sections” and refers jurors to the jury instructions on five
occasions. The trial court observed that other suggestions in the Guide are
consistent with specific jury instructions that were read to the jury, such as
instructions about selecting the presiding juror.

¶16 Second, the trial court considered “the circumstances under which
[the extraneous information] was brought to the jury’s attention[.]” See id. at 179.
The trial court found that the motive of the juror who brought the Guide “into the
jury room was not to define the law or not to tell the jurors what to do, but to
create some organization to reduce the chaos that she and other jurors perceived
had taken place on Friday.”

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No. 2019AP389-CR

¶17 Third, the trial court discussed “the nature of the [S]tate’s case and
the defense presented at trial[.]” In doing so, the trial court recognized that the
case involved “complicated burdens of proof with respect to the State’s burden to
disprove self[-]defense.”

¶18 Finally, the trial court analyzed “the connection between the
extraneous information and a material issue in the case.” See id. The trial court
recognized that one of Baier’s primary arguments in favor of a new trial was that
the Guide “doesn’t, explicitly, define the burdens of proof and doesn’t, explicitly,
define the elements of the offenses.” The Guide offers these suggestions for jurors
discussing the evidence and applicable law:

The judge’s instructions will tell you if there are special
rules or a set process you should follow. Otherwise you are
free to conduct your deliberations in whatever way is
helpful. Here are several suggestions:

• Look at the judge’s instructions that define each charge
or claim and list each separate element that make up that
charge or claim.

• For each of these elements, review the evidence, both the
exhibits and witness testimony, to see if each element has
been established by the evidence.

• If there is a lot of evidence, try listing each piece of it
next to the elements it applies to.

• Discuss each charge or claim, one at a time.

• Vote on each charge or claim.

• Fill out the verdict form(s) given to you by the judge.

¶19 The trial court rejected Baier’s argument that the Guide’s
suggestions could have led to confusion and caused the jurors to believe “that
Ms. Baier had the burden to establish, beyond a reasonable doubt, that she acted in
self[-]defense” when “[t]hat’s not the burden.” The trial court said:

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No. 2019AP389-CR

The Guide certainly does condense things into a very brief
form. But in doing so, again, it refers the jury back to the
instructions themselves and back to the elements read [and]
defined in the instruction. There is not a direct connection
between the substance of the Guide and the material issue.

That is, the Guide does not define self-defense
differently than the instructions. The Guide does not
provide a dictionary definition of what self-defense is that
would compete with how it is defined in the instructions.
The Guide does not provide some example of what self-
defense is and what self-defense isn’t that could compete
with the definition contained in the instruction. It merely
refers the jury back to the instructions.

(Hyphens added, one comma omitted, and “the Guide” substituted for references
to “Exhibit 1.”) Ultimately, the trial court concluded that the extraneous
information was not prejudicial.4

¶20 We agree with the trial court’s thorough analysis of the four factors
outlined in Eison and its progeny. The Guide, which is written in general terms,
does not provide misinformation about the burden of proof or the elements of the
crimes at issue. Instead, it repeatedly directs jurors to follow the trial court’s
instructions. The Guide also does not suggest that a defendant has the burden of
proving a self-defense claim; indeed, it does not even mention self-defense.

4
The trial court originally framed the issue as “whether there is a reasonable probability
that the information in the jurors’ possession would have had a prejudicial effect upon a
hypothetical average juror.” However, the “reasonable probability” standard is used in civil
cases, not criminal cases. See Manke v. Physicians Ins. Co. of Wis., Inc., 2006 WI App 50, ¶22,
289 Wis. 2d 750, 712 N.W.2d 40 (“In a civil case the prejudice inquiry asks whether there is a
reasonable probability that the extraneous information would have a prejudicial effect upon a
hypothetical average juror.”). Because this is a criminal case, we must consider “whether the
conviction must be reversed because there is a reasonable possibility that the [extraneous
information] would have had a prejudicial effect upon a hypothetical average jury.” See State v.
Eison, 194 Wis. 2d 160, 177, 533 N.W.2d 738 (1995). In our analysis, we apply the standards
outlined in Eison for use in criminal cases.

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No. 2019AP389-CR

¶21 On appeal, Baier argues that the Guide’s lack of references to self-
defense or “defenses of any kind” is precisely why the jury’s exposure to that
extraneous information was prejudicial. Baier asserts that “any juror taking the
Guide seriously could believe no consideration of [defenses] was needed.” We are
not persuaded by this argument. The jury would have to completely ignore the
trial court’s detailed instructions about self-defense—the primary issue litigated in
the case—to conclude that it should not consider self-defense.

¶22 Moreover, as explained above, the jury was instructed that it was
“the State’s burden to prove all the facts necessary to constitute a crime beyond a
reasonable doubt,” including the elements of each crime. See WIS JI—CRIMINAL
1014. To prove either first-degree or second-degree intentional homicide, the
State had to disprove self-defense. See id. For instance, with respect to first-
degree intentional homicide, the State had to prove beyond a reasonable doubt that
Baier “did not actually believe that the force used was necessary to prevent
imminent death or great bodily harm to herself[.]” See id. Thus, even if a
hypothetical juror were to follow the Guide’s suggestions to the letter, including
determining “if each element has been established by the evidence,” the juror
would have to consider self-defense in order to determine whether the State
established the third element of first-degree or second-degree intentional
homicide.

¶23 Baier also faults the Guide for not mentioning “the constitutional
requirement of proof beyond a reasonable doubt.” We are not persuaded that the
lack of a reference to the standard of proof would lead a hypothetical juror to
believe there was no burden of proof, especially when the trial court gave the jury
specific instructions about the burden of proof.

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No. 2019AP389-CR

¶24 For the foregoing reasons, we conclude “that there is no reasonable
possibility that the verdict of a hypothetical average jury would have been
influenced by the extraneous information improperly brought to the jury’s
attention.” See Eison, 194 Wis. 2d at 181. Because there was no prejudice, Baier
is not entitled to a new trial. See id. We affirm the judgment.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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