State v. Robert Daris Spencer

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.
March 9, 2021
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. 2018AP942-CR Cir. Ct. No. 2014CF5088

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT DARIS SPENCER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Order affirmed in part;
reversed in part and cause remanded with directions.

Before Brash, P.J., Dugan and White, JJ.
No. 2018AP942-CR

¶1 DUGAN, J. Robert Daris Spencer appeals from the order of the
trial court to deny his postconviction motion without a hearing.1 He argues that
the trial court’s decision to dismiss a juror for cause violated his right to due
process and equal protection and was an erroneous exercise of the trial court’s
discretion. He further argues that he is entitled to a new trial because his
constitutional right to counsel was violated when the trial court questioned a juror
regarding her illness without his trial counsel present. Last, Spencer argues that
his trial counsel was ineffective for failing to object to certain testimony that he
argues is inadmissible hearsay.

¶2 Upon review, we conclude that Spencer forfeited his ability to
challenge the trial court’s decision to dismiss the juror based on any alleged
violation of his right to due process or equal protection or any alleged erroneous
exercise of the trial court’s discretion. We further conclude that any error by the
trial court that violated Spencer’s right to counsel was harmless. We, accordingly,
affirm the trial court’s order dismissing Spencer’s postconviction motion without a
hearing as to these grounds of Spencer’s motion.

¶3 By contrast, we reverse the trial court’s order denying Spencer’s
motion, without a hearing, on the grounds that he received ineffective assistance of
counsel. We conclude that Spencer alleged sufficient material facts in his
postconviction motion to warrant a Machner2 hearing, and we remand for the trial
court to conduct a hearing on Spencer’s claim of ineffective assistance of counsel.

1
While the appellant appeals from both a judgment and an order, we address only the
order for the reasons set forth in the opinion.
2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

2
No. 2018AP942-CR

BACKGROUND

¶4 On September 28, 2014, police responded to a report of shots fired
in the area of 3402 North 23rd Street in Milwaukee, Wisconsin. When police
arrived at the scene, they discovered T.M. laying on the sidewalk in a pool of
blood with a gun shot wound to the head. An investigation into the shooting
indicated that, prior to any shots being fired, Spencer and T.M. approached their
friend, R.S., in front of his house located at 3398 North 23rd Street. Spencer and
T.M. attempted to rob R.S. to settle a debt and then drag R.S. to a van located
across the street. When R.S. broke free and ran back towards his house, shots
followed. The investigation indicated that there were two shooters: one shooter
near the van who shot at R.S. as he ran away, and one shooter who fired shots at
Spencer and T.M. from a kitchen window at 3398 North 23rd Street. Spencer was
charged on November 17, 2014, with one count of felony murder and one count of
possession of a firearm by a felon, based on the State’s theory that Spencer
attempted to rob R.S., shot at R.S. as R.S. ran away, and, as a result of the robbery,
caused T.M.’s death.

¶5 The case proceeded to a jury trial, which began on June 22, 2015.
On June 26th, the final day of the trial, the proceedings began at 8:59 a.m. with a
discussion about jury instructions. A bailiff advised the trial court that one of the
jurors was ill. After a recess of approximately forty-five minutes, the proceedings
resumed at about 10:05 a.m., whereupon, after allowing the parties to make any
motions they deemed appropriate and state their positions on the record in
response to the trial court’s decision to dismiss the juror the trial court dismissed
the ill juror for cause. The State agreed that the juror should be dismissed for
cause. However, Spencer’s trial counsel objected to the dismissal of the juror and
moved for a mistrial based on her concern that this presented an issue under

3
No. 2018AP942-CR

Swain3 given the fact that the juror was the only African-American member of the
jury.

¶6 The proceedings continued with closing arguments with the
remaining twelve jurors, and the jury began deliberations following closing
arguments. The jury ultimately returned a guilty verdict on all counts, and the trial
court sentenced Spencer to a global sentence of thirty-eight years of imprisonment,
composed of twenty-three years of initial confinement and fifteen years of
extended supervision.

¶7 Spencer filed a postconviction motion on January 25, 2018, wherein
he argued that he was entitled to a new trial. Spencer contended that he was
denied his Sixth Amendment right to counsel at a critical stage of the proceedings
when the trial court questioned the juror about her illness without his trial counsel
present. In addition, Spencer argued that he was entitled to a new trial because his
trial counsel was ineffective when she failed to object to hearsay testimony
indicating that Daniel McKinney, R.S.’s roommate, saw R.S. being dragged across
the street and fired shots from the kitchen window to protect R.S.

¶8 In response, the State argued that Spencer forfeited his ability to
object to any interaction between the trial court and the juror because trial counsel
failed to voice any contemporaneous objection and, in fact, implicitly consented to

3
Swain v. Alabama, 380 U.S. 202 (1965), overruled in part by Batson v. Kentucky, 476
U.S. 79 (1986). In Swain, the Court held that the systemic exclusion of African-Americans from
jury arrays violated African-American defendants’ rights to equal protection of the law. Id. at
203-04. At trial here, trial counsel 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.

4
No. 2018AP942-CR

the trial court’s questioning of the juror when trial counsel asked the trial court to
ask the juror a follow-up question about her condition. The State additionally
argued that the interaction did not occur at a critical stage of the proceedings or, in
the alternative, that any error in the interaction between the trial court and the juror
was harmless. The State also argued that Spencer’s counsel was not ineffective
for failing to object to hearsay testimony because Spencer’s allegations of
deficient performance and prejudice were conclusory.

¶9 The trial court denied Spencer’s motion without a hearing. The trial
court found that Spencer’s right to counsel was not violated because the period of
time after the close of evidence and before deliberations in which the trial court
questioned the juror about her illness was not a critical stage of the proceedings for
which Spencer “needed assistance with a legal problem and where counsel’s
presence was essential.” Further, the trial court found that any error in the trial
court’s questioning the juror about her illness outside the presence of Spencer’s
counsel was harmless. As to Spencer’s argument relative to ineffective assistance
of counsel, the trial court found that Spencer suffered no prejudice because, even
if trial counsel had objected, “there is simply not a reasonable probability that the
defendant would have been acquitted of the crimes with which he was charged
because there was absolute overwhelming evidence of his guilt.”

¶10 This appeal followed. Spencer has renewed his same arguments on
appeal, as well as brought three additional arguments challenging the trial court’s
decision to dismiss the juror for cause.

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No. 2018AP942-CR

DISCUSSION

I. Spencer forfeited his claims challenging the trial court’s
decision to dismiss the ill juror

¶11 Spencer argues that the trial court’s decision to dismiss the juror for
cause violated his rights to due process and equal protection and was an erroneous
exercise of the trial court’s discretion. As the basis for his argument, Spencer
points to the trial court’s explanation of its decision in which the trial court noted
that the juror and many of the trial participants were African-American.

¶12 We conclude that Spencer has forfeited these claims and decline to
address them because Spencer failed to raise them below, either by objecting at the
time of trial or by addressing them in his postconviction motion. In other words,
Spencer raises his claims that the trial court’s decision to dismiss the juror for
cause violated his right to due process, his right to equal protection, and was an
erroneous exercise of the trial court’s discretion for the first time in his opening
brief in this appeal.

¶13 “The general rule is that issues not presented to the [trial] court will
not be considered for the first time on appeal.” State v. Caban, 210 Wis. 2d 597,
604, 563 N.W.2d 501 (1997). This rule serves several important functions,
including, that “[r]aising issues at the trial court level allows the trial court to
correct or avoid the alleged error in the first place, eliminating the need for
appeal.” State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.
The rule applies to constitutional claims, so long as the defendant knew of the trial
court’s action. See State v. Pinno, 2014 WI 74, ¶57, 356 Wis. 2d 106, 850
N.W.2d 207.

6
No. 2018AP942-CR

¶14 In this case, Spencer failed to raise these as arguments below when
trial counsel made a Swain objection during the trial and then he failed to raise
these arguments in his postconviction motion. Specifically, trial counsel objected
on the basis of Swain and moved for a mistrial saying: “I’m also renewing my
challenge under Swain. [T]he research shows … that even the presence of one
African-American on a jury can make a difference in terms of reducing systemic
bias. … So I’m moving for a mistrial.” Spencer then failed to revisit the Swain
objection in his postconviction motion or make any argument on the basis of his
rights to due process and equal protection or an argument on the basis of an
erroneous exercise of discretion.

¶15 At most, the trial court had in front of it an objection and a motion
for mistrial from counsel, during the trial, based on a concern that the jury would
not be fair and impartial without an African-American juror. This is wholly
different from the arguments that Spencer now makes essentially asserting that the
trial court’s decision was discriminatory because it considered the juror’s race and
the race of the trial participants in violation of his rights to due process and equal
protection and as an erroneous exercise of discretion. The trial court, therefore,
had no chance to address or correct any possible error, whether of a constitutional
nature or not, in its decision to dismiss the juror or explain its reference to the race
of the juror and the trial participants when it rendered its decision. These
arguments have, thus, been forfeited, and we do not address them as they were
raised for the first time in this appeal. See Caban, 210 Wis. 2d at 608 (considering
a Fourth Amendment argument forfeited when the defendant failed to object and
raise the argument in the postconviction motion).

7
No. 2018AP942-CR

II. Any assumed violation of Spencer’s right to counsel was
harmless error

¶16 Spencer further argues that he was denied his right to counsel at a
critical stage of the proceedings when the trial court interviewed the juror in
chambers and outside the presence of counsel. The State argues, that even
assuming that Spencer was denied counsel during a critical stage of the
proceedings in violation of his right, any error was harmless. We agree with the
State and conclude that any assumed error in the trial court’s interview of the juror
was harmless.

¶17 The Sixth Amendment of the United States Constitution guarantees a
criminal defendant the “right to counsel at all critical stages of the criminal
process.” Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (citation omitted).
“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 State v. Alexander, 2013 WI 70,
349 Wis. 2d 327, 833 N.W.2d 126. However, “a harmless error analysis may
apply to certain violations of the Sixth Amendment right to counsel,” such as
“when the [trial] court has had ex parte communications with the jury.” Id., ¶76.
In such a case, we examine the record to determine whether the communication,
“in light of the entire trial,” was harmless beyond a reasonable doubt, and we ask
whether there is a reasonable possibility that the error contributed to the
conviction.4 State v. Burton, 112 Wis. 2d 560, 571, 334 N.W.2d 263 (1983)
4
Spencer argues that, should this court apply the harmless error test, that the applicable
standard is whether there is overwhelming evidence of guilt. After reviewing Wisconsin
precedent, we reject this as the applicable standard. In fact, this approach was specifically
rejected by our supreme court in State v. Burton, 112 Wis. 2d 560, 571, 334 N.W.2d 263 (1983),
overruled on other grounds by State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d
126.

8
No. 2018AP942-CR

(citation omitted), overruled on other grounds by Alexander, 349 Wis. 2d 327.
“[S]ituations will inevitably arise in which the communication is so innocuous that
it cannot be said that the error in any way influenced the jury’s verdict.” Id. at
570.

¶18 The trial court made the following record of what transpired during
the forty-five minute recess on the final day of trial:

The [c]ourt 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. 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 [twelve] sitting back in
the jury room waiting to move forward.

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.

9
No. 2018AP942-CR

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.

¶19 The record is clear that trial counsel was not present during the trial
court’s discussion with the juror in chambers about the nature of the juror’s illness.
However, even if we assume that the trial court’s communication was in violation
of Spencer’s right to counsel, we conclude that any such violation was harmless.
The record is clear that counsel was still included in the process of deciding what
to do in response to the juror falling ill, and any error was, therefore, harmless.
The trial court “conferred” with the attorneys “in the back” to discuss the reason
for the delay, and “[they] agreed to wait” for a longer period of time. Indeed, the
trial court asked trial counsel’s question about whether the juror’s illness had
anything to do with the trial, and the trial court reported back with the juror’s
answer. After allowing the juror to rest for an additional period of time, the record
resumes with the trial court relating what happened over the preceding forty-five
minutes, and at that time, the trial court made the decision, with counsel present, to
dismiss the juror for cause because the juror was unlikely to be able to continue.
Trial counsel objected to the juror’s dismissal and moved for a mistrial based on
Swain, and after the trial court denied the motion, the proceedings continued with
the remaining twelve jury members.

¶20 This is not the first time a trial court has communicated with the jury
outside the presence of counsel, and while we cannot condone the practice—in
fact, we discourage it—it need not result in automatic reversal. For example,
when the trial court correctly responded to questions from the jury during
deliberations without alerting counsel of the jury’s question, we found any error
with the communication to be harmless. See State v. Koller, 2001 WI App 253,
¶1, 248 Wis. 2d 259, 635 N.W.2d 838; State v. Bjerkaas, 163 Wis. 2d 949, 952,

10
No. 2018AP942-CR

472 N.W.2d 615 (Ct. App. 1991). Furthermore, when a judge entered the jury
room during deliberations to discuss dinner arrangements for the juror members,
our supreme court found any error with the communication to be harmless. See
Burton, 112 Wis. 2d at 562. In each case, the communications were said to be
innocuous and did not contribute to the outcome of the case. We see the
communications between the trial court and the juror here as comparable, even
assuming, without deciding, the communication was in error.

¶21 Additionally, looking at the communication “in light of the entire
trial,” id. at 572-73, we must necessarily conclude that any assumed error was
harmless because Spencer received what he was entitled to, namely a fair and
impartial jury, and the communications cannot be said to have influenced the
jury’s verdict. “A defendant is entitled to fair and impartial jurors, not jurors
whom he hopes will be favorable towards his position.” State v. Mendoza, 227
Wis. 2d 838, 863, 596 N.W.2d 736 (1999). “A defendant’s rights go to those who
serve, not to those who are excused.” Id. There is nothing in the record, and
Spencer fails to argue, that the remaining twelve jurors, none of whom had any
ex parte communications with the trial court, were biased or partial. See State v.
Tulley, 2001 WI App 236, ¶11, 248 Wis. 2d 505, 635 N.W.2d 807. Spencer had a
right to be tried by a fair and impartial jury composed of twelve members, and that
is what he received despite the ill juror having been dismissed prior to
deliberations.

III. Spencer pled sufficient facts entitling him to a hearing on
his claim for ineffective assistance of counsel

¶22 “A hearing on a postconviction motion is required only when the
movant states sufficient material facts that, if true, would entitle the defendant to
relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. “If

11
No. 2018AP942-CR

the motion raises such facts, the circuit court must hold an evidentiary hearing.”
Id., ¶9. “[I]f the 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. See id. Whether a
motion alleges sufficient facts that, if true, would entitle the defendant to an
evidentiary hearing presents a question of law that we review de novo. See
State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). “[A] defendant
should provide facts that allow the reviewing court to meaningfully assess his or
her claim.” Id. at 314. As stated in Allen:

postconviction motions [should] … allege the five “w’s”
and one “h”; that is, who, what, where, when, why, and
how. A motion that alleges, within the four corners of the
document itself, the kind of material factual objectivity ...
will necessarily include sufficient material facts for
reviewing courts to meaningfully assess a defendant’s
claim.

Id., 274 Wis. 2d 568, ¶23 (footnote omitted).

¶23 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id. “To demonstrate deficient performance, the defendant must show that his
counsel’s representation ‘fell below an objective standard of reasonableness’
considering all the circumstances.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d
640, 782 N.W.2d 695 (citation omitted). Prejudice occurs when the attorney’s

12
No. 2018AP942-CR

error is of such magnitude that there is a “reasonable probability” that but for the
error the outcome would have been different. State v. Erickson, 227 Wis. 2d 758,
769, 596 N.W.2d 749 (1999). “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ That requires a ‘substantial,’
not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563
U.S. 170, 189 (2011) (citations omitted).

¶24 In his postconviction motion, Spencer alleged that R.S.’s testimony
that McKinney shot at Spencer and T.M. from the kitchen window to protect R.S.
constituted inadmissible hearsay and his trial counsel was ineffective in failing to
object to this testimony. Spencer further argued that the State’s reliance on this
assertion in its opening and closing arguments demonstrate that the State used it
for the truth of the matter asserted.

¶25 After identifying what he alleged was inadmissible hearsay and how
and why he believes it is hearsay, Spencer then alleged how he was prejudiced
because McKinney shooting from the kitchen window to protect R.S. was the “key
evidence” in the State’s case to prove felony murder. Spencer further alleged how
trial counsel’s performance was deficient because he contended there is no
possible strategy that trial counsel could have had in not objecting to R.S.’s
hearsay testimony. Spencer argued the hearsay “was important to the State, and
harmful to the defense.”

¶26 Spencer provided the who, what, where, why, when, and how of his
allegations that he received ineffective assistance of counsel and did more than
recite conclusory allegations. Taking his allegations as true, we conclude that
Spencer alleged sufficient material facts that would entitle him to relief, and the
trial court was required to grant Spencer a Machner hearing. See State v. Sholar,

13
No. 2018AP942-CR

2018 WI 53, ¶51, 381 Wis. 2d 560, 912 N.W.2d 89 (“[T]he issue … is whether the
defendant’s motion alleged sufficient facts entitling him to a hearing.”).

¶27 We, therefore, remand for the trial court to hold a Machner hearing
on Spencer’s claim that he received ineffective assistance of counsel when his trial
counsel failed to object to R.S.’s hearsay testimony. See Sholar, 381 Wis. 2d 560,
¶54 (“[W]hen an appellate court remands for a Machner hearing, it must leave
both the deficient performance and the prejudice prongs to be addressed[.]”).

CONCLUSION

¶28 We conclude that Spencer is not entitled to a new trial because he
forfeited his claims that the trial court’s decision to dismiss the juror for cause
violated his right to due process and equal protection and was an erroneous
exercise of discretion. We further conclude that Spencer is not entitled to a new
trial because any error in the trial court’s communications with the juror was
harmless. Therefore, the trial court’s decision in these respects is affirmed.

¶29 However, we reverse the trial court’s decision to deny Spencer’s
motion that he received ineffective assistance of counsel because Spencer alleged
sufficient material facts in his postconviction motion. We emphasize that we are
not deciding that trial counsel was deficient or that Spencer was prejudiced, only
that Spencer’s postconviction motion was sufficient to require that the trial court
conduct an evidentiary hearing on ineffective assistance of trial counsel. We
remand to the trial court for a Machner hearing and further proceedings consistent
with this decision.

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

14
No. 2018AP942-CR

Not recommended for publication in the official reports.

15
No. 2018AP942-CR(CD)

No. 2018AP942-CR(CD)

¶30 WHITE, J. (concurring in part; dissenting in part). I disagree with
the Majority’s conclusion that Spencer forfeited his claim to challenge the trial
court’s decision to discharge Juror No. 2 and that the trial court’s ex parte
communication with Juror No. 2 constituted harmless error.1 See Majority, ¶¶11-
21. I believe that Spencer’s due process rights were violated when trial counsel
was not present when the trial court questioned the juror about her ability to
continue serving on the jury and then dismissed the juror, contrary to our supreme
court’s holdings in State v. Alexander, 2013 WI 70, ¶24, 349 Wis. 2d 327, 833
N.W.2d 126. Therefore, I would remand this matter for a new trial and I
respectfully dissent. I join in the Majority opinion in its conclusion that Spencer
was denied effective assistance of counsel for failing to object to certain testimony
that he argues is inadmissible hearsay. See Majority, ¶¶22-27.

¶31 Although the Majority concedes that Spencer’s constitutional rights
may have been violated, it concludes that the violation was harmless error because
there were no allegations that the final jury panel was not impartial. I believe this
considers the wrong question. A defendant’s constitutional right to presence
during criminal proceedings exists independently of a defendant’s constitutional

1
The Majority considers trial counsel’s motion for mistrial and Swain objection
insufficient for this court to review his arguments on appeal. Majority ¶15; see Swain v.
Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986). I
disagree. As I consider the trial court’s ex parte communication with and discharge of Juror
No. 2 to implicate violations of Spencer’s due process rights and constitutional rights to
assistance of counsel, I consider his objections sufficient to avoid forfeiture. See State v.
Albright, 96 Wis. 2d 122, 129-30, 291 N.W.2d 487 (1980), holding modified by State v. Weed,
2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485.
No. 2018AP942-CR(CD)

right to an impartial jury. The Majority conflates the two rights, determining that
as long as Spencer’s deliberating jury panel was not alleged to be unfair, then the
due process violations that occurred in selecting the final jury are not prejudicial.
I cannot ignore the trial court’s failure to comply with due process and Wisconsin
precedent.

¶32 “The constitutional right to presence is rooted to a large extent in the
Confrontation Clause of the Sixth Amendment ... but we have recognized that this
right is protected by the Due Process Clause in some situations where the
defendant is not actually confronting witnesses or evidence against him.” United
States v. Gagnon, 470 U.S. 522, 526 (1985) (citations omitted). Both the United
States and Wisconsin Constitutions contain a right to due process. U.S. CONST.
amend. XIV, WIS. CONST. art. I, § 8. “Due process guarantees a defendant ‘the
right to be present at any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of the procedure.’”
Alexander, 349 Wis. 2d 327, ¶20 (quoting Kentucky v. Stincer, 482 U.S. 730, 745
(1987)).

¶33 “A criminal defendant’s right to an impartial jury, on the other hand,
flows from the Sixth Amendment to the U.S. Constitution and Article I, Section 7
of the Wisconsin Constitution.” Alexander, 349 Wis. 2d 327, ¶21.2 There are no

2
I consider the Majority’s reliance on State v. Tulley to be misplaced. See id., 2001 WI
App 236, ¶3, 248 Wis. 2d 505, 635 N.W.2d 807. Tulley challenged his conviction because “the
circuit court examined three members of the venire outside the presence of the defendant, his
counsel and the prosecuting attorney, without objection from anyone.” Id., ¶8. In contrast,
Spencer’s trial was at a completely different stage: Juror No. 2 was selected for the jury panel,
the trial phase had ended, and deliberations were set to begin. The analysis of harmless error
caused by ex parte communication during voir dire of jurors not selected to the panel does not
implicate a defendant’s due process rights.

2
No. 2018AP942-CR(CD)

allegations here that Juror No. 2 was biased or that Spencer’s preemptory
challenges were ignored or improper.3 The issue here is 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.4

¶34 As our supreme court shaped the law on the constitutional right of
defendant’s presence, it concluded over and over that the presence of counsel
safeguarded defendant’s due process rights. “All that the Constitution requires at
such a conference is the presence of defense counsel.” Alexander, 349 Wis. 2d

3
The importance of an impartial jury cannot be overstated; however, the concerns it
raises are not issues in Spencer’s trial. For example, “[i]f a juror is not indifferent in the case, the
juror shall be excused.” WIS. STAT. § 805.08(1) (2017-18); see State v. Brunette, 220 Wis. 2d
431, 439, 583 N.W.2d 174 (Ct. App. 1998). There is no allegation that Juror No. 2 was biased.
“Any claim that a jury is not impartial must focus not on the jurors who were removed by
peremptory challenges but on the jury that actually sat in the case.” State v. Traylor, 170 Wis. 2d
393, 400, 489 N.W.2d 626 (Ct. App. 1992). See State v. Lindell, 2001 WI 108, ¶81, 245 Wis. 2d
689, 629 N.W.2d 223; State v. Lepsch, 2017 WI 27, ¶58, 374 Wis. 2d 98, 892 N.W.2d 682.
There is no allegation that the twelve jurors who deliberated on the case were not impartial.
There is no allegation that Spencer was denied access to preemptory challenges in the
composition of the jury panel.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
4
I fully acknowledge that Juror No. 2 may have become the alternate through random
chance. Deliberations had not yet begun and by law, “the court shall determine by lot which
jurors shall not participate in deliberations and discharge them. WIS. STAT. § 972.10(7). That
Juror No. 2 was not guaranteed to serve on the jury does not negate my due process concerns.

3
No. 2018AP942-CR(CD)

327, ¶29.5 The overarching message is that a defendant’s right of presence may be
limited in certain situations, but defendant’s right to counsel and accordingly,
counsel’s presence cannot and should not be limited.

¶35 Our supreme court clarified that a defendant’s constitutional rights
are safeguarded by the presence of counsel even when the defendant is denied
access. In Alexander, two jurors notified the trial court separately that the juror
recognized someone connected to the case, the first a person in the gallery and the
second a witness at trial. Alexander, 349 Wis. 2d 327, ¶¶10-11. The trial court
met with trial counsel, the State, and the jurors in three separate meetings; the
defendant was not present. Id., ¶¶7-8, 10, 12. The trial court struck each of the
jurors from the panel for cause before deliberations began. Id., ¶14. Alexander
argued that his due process rights were violated because he was excluded from
these meetings. But our supreme court held that “[a]ll that due process …
required was that the defendant’s attorney be present.” Id., ¶24. Our supreme
court cited to federal case law to support that the defendant’s absence could be
safeguarded by the presence of counsel. See United States v. Provenzano, 620
F.2d 985, 998 (3d Cir. 1980) (“Examination of the record reveals that counsel
vigorously safeguarded appellants’ interests, to the extent of insisting on

5
See May v. State, 97 Wis. 2d 175, 183-184, 293 N.W.2d 478, (1980) (“[C]ounsel
should have been given the opportunity to confer with the court about the appropriate response to
be given to the jury’s question. It was error for the trial court to answer the question without
notifying counsel.”); State v. Burton, 112 Wis. 2d 560, 564-65, 334 N.W.2d 263 (1983),
overruled on other grounds by State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d
126) (“The [S]tate and defendant agree that this judge’s comments to the jury in the jury room
outside the presence of defendant and defense counsel constitute constitutional error.”); State v.
Anderson, 2006 WI 77, ¶¶68-70, 291 Wis. 2d 673, 717 N.W.2d 74, overruled on other grounds
by Alexander, 349 Wis. 2d 327 (“The assistance of counsel when a court communicates with the
jury during deliberations may be necessary to a meaningful defense…. The circuit court thus
erred by failing to have defense counsel present when it communicated with the jury.”).

4
No. 2018AP942-CR(CD)

procedures [that] counsel thought would yield the best chance for acquittal.”);
United States v. McCoy, 8 F.3d 495, 497 (7th Cir. 1993) (“McCoy’s interests were
sufficiently protected by his counsel’s presence at the conferences. McCoy
therefore had no due process right to attend.”); Ellis v. Oklahoma, 430 F.2d 1352,
1355 (10th Cir. 1970) (“By deciding that a criminal defendant does not have an
absolute constitutional right to be a participant in such in camera discussions
where his lawyer is present, the question narrows itself to whether the
communication itself, as related in the in camera proceeding, was actually
prejudicial.”)

¶36 My analysis focuses on four concerns: (1) the record is insufficient
for meaningful review; (2) the trial court’s ex parte communication was
consequential; (3) Spencer was denied the right to counsel at a critical stage; and
(4) the removal of Juror No. 2 was not harmless error.

I. The record

¶37 Here, critical information is missing from the record because the trial
court was alone when it assessed Juror No. 2. The record itself notes that a forty-
five minute recess was taken. The trial court stated “The record should reflect …
[i]t’s been over a half an hour at least, maybe 45 minutes, since we went off the
record earlier.” As the Majority recounts, the trial court explained that a juror had
become ill and the court sent that juror to lie down in chambers. Majority, ¶18.
The court asked the juror about her potential return “about 15, 20 minutes ago.”
The trial court also stated: “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.” The record is unclear if the trial court had the juror alone
for twenty-five to thirty minutes before the trial court “conferred with the

5
No. 2018AP942-CR(CD)

attorneys” or exactly how long the trial court met with the juror without the
presence of counsel.

¶38 In reviewing the record, I was struck by the trial court’s description
that it conferred with counsel regarding the discharge of Juror No. 2. The record
does not make clear what that meant in a practical way or whether it complied
with the duties set forth for trial courts when faced with the need to discharge
jurors in State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212 (1982). In
Lehman, when a juror became ill during several hours into deliberations, an
alternate juror that had been released was recalled to service without notifying the
defendant, counsel or the State. Id. at 293. When the defense objected to
substituting the alternate or having a jury of eleven people, the circuit court
ordered that the alternate be impaneled. Id. On appeal, our supreme court held
that a trial court had discretion to discharge a juror before or during deliberations;
however, “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.” Id. at 300. Relevant here,
the circuit court’s inquiry “generally should be made out of the presence of the
jurors and in the presence of all counsel and the defendant.” Id. (emphasis added).
This inquiry depends on the facts and circumstances of the case. The trial court
must be extremely cautious 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.

¶39 The Lehman court noted that the record was “totally devoid” of how
the circuit court became aware of the ill juror, who discharged the juror, what
inquiries were made of the ill juror, and whether discharge was the only option.
Id. at 301. Relevant to our discussion here, our supreme court highlighted that

6
No. 2018AP942-CR(CD)

“neither the defendant nor the [S]tate was given an opportunity to be present when
the ill juror was discharged.” Id. It continued, “[w]e can not determine from the
record … whether or not the circuit court exercised its discretion to discharge the
juror or on what basis the court reached its decision.” Id. The Lehman court then
stated that under these facts and circumstances, it could only conclude “that the
circuit court abused its discretion in discharging the regular juror.” Id. Similarly,
Spencer’s counsel was denied the opportunity to be present during the meeting
with Juror No. 2, and I consider the record to be inadequate to support the trial
court’s exercise of discretion.

¶40 Here, Spencer was denied the safeguards of counsel when the trial
court acted alone in its meeting with the juror. The Majority ably recites the trial
court’s description of what happened that day. Majority, ¶18. However, I must
reiterate the point that the trial court is the only record for what happened. There
is no testimony from the juror, no court reporter record, no colloquy with counsel.
Two additional parts of the record stand out as well. The first issue is that the trial
court appeared unaware that removing Juror No. 2 would be “for cause.” The
conversation went as follows:

[THE STATE]: I would simply indicate, Your
Honor, that I do agree that based on health issues that she
should be struck for cause. I think it would be very—

THE COURT: She’s excused is what we’re going
to say.

[THE STATE]: The only reason I was going to say
“for cause” is because I do know that the statutes do say
that alternates can only be picked at random. So we can’t
designate her as an alternate per statute but we can excuse
her for a good reason.

THE COURT: For cause.

7
No. 2018AP942-CR(CD)

[THE STATE]: Yeah, for cause. And the only
reason I’m saying that is because that is allowed. So I
agree with the Court’s resolution or determination.

THE COURT: All right.

¶41 This record raises concerns whether the process under Lehman to
discharge Juror No. 2 at this stage of trial was followed. If a careful inquiry in
accordance with Lehman leads the trial court to require removing a juror for
cause, the “trial court has the discretion to remove a juror for cause during a trial
proceeding.” State v. Gonzalez, 2008 WI App 142, ¶20, 314 Wis. 2d 129, 758
N.W.2d 153. If this occurs prior to deliberations, then the trial court may
determine that the excused juror was the alternate. Id., ¶20. Here, the State
appears to remind the trial court about this procedure when it told the trial court
that Juror No. 2 would need to be excused for cause, but the record is insufficient
to show that the trial court fulfilled its duty of careful inquiry and reasonable
efforts to avoid discharging the juror.

¶42 The second issue is the court’s reaction to trial counsel’s attempt to
make a record on its concerns.

[TRIAL COUNSEL]: At the outset of this trial
when the panel was impaneled and after the composition of
the potential jurors was revealed, I expressed to the [c]ourt
concern about the underrepresentation of minorities at that
point in the room. The following morning I brought a
Swain challenge based on the pool of people that is from
the Department of Transportation’s photo ID and state ID
records and that it underrepresented African-Americans.
The [c]ourt denied the challenge ruling that I had not met
my burden of proof.

We’re now in a situation where we have no
African-American jurors. And in a trial where the
defendant is African-American, I inquired specifically of—
I believe she was Juror No. 2.

THE COURT: Yes.

8
No. 2018AP942-CR(CD)

[TRIAL COUNSEL]: —whether or not she would
be able to handle the pressure if she were the only African-
American juror. I believe what these events demonstrate is
not that the juror was not—

THE COURT: That the juror was what?

[TRIAL COUNSEL]: The juror was in any way
dishonest with any of us or herself but that there are—that
our bodies are under lots of pressure from lots of things and
that this is not unpredictable. I’m moving for a mistrial. I
understand the [c]ourt is going to deny it but I have to
move for a mistrial to protect the record.

THE COURT: Yes.

[TRIAL COUNSEL]: I’m also renewing my
challenge under Swain. And finally, the research shows,
and I have it in my car, not here in front of me, that even
the presence of one African-American on a jury can make a
difference in terms of reducing systemic bias. And I’d be
happy to get the article to complete the record but I don’t
have it in front of me. It’s in the car with the rest of the
stuff. And I would like permission to supplement that just
to put it in the record. So I’m moving for a mistrial.

THE COURT: Okay. Your motion is noted and it
will be denied for the reasons that I’ve stated. I will add
and thank you but I’m not gonna allow you to supplement
the record at this point with additional research materials.
I’m not saying that they’re not valid. I haven’t read them.
But at this point they’re not part of the record and they
don’t—they’re not part of the [c]ourt’s decision making
process in this.

¶43 Trial counsel’s argument gets to the heart of the importance of
representation when the trial court communicates with jurors. Trial counsel raises
concerns about whether the juror has been stressed by the experience of being on
the jury or the trial itself. Trial counsel’s concerns about the racial makeup of the
jury pool and a Swain challenge are questions that reach the fairness of a jury.6
6
I do not follow this argument any further other than to note that defense has raised the
issue, made an objection, and has not forfeited Spencer’s claims. I do not inquire or assess
Spencer’s potential success at showing an equal protection violation.

9
No. 2018AP942-CR(CD)

See Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky,
476 U.S. 79 (1986); Powers v. Ohio, 499 U.S. 400, 411 (1991) (“Jury selection is
the primary means by which a court may enforce a defendant’s right to be tried by
a jury free from ethnic, racial, or political prejudice.” (citations omitted)). When
the trial court announced that Juror No. 2 had been released, the trial court
mentioned the concern about losing the only African-American member of the
jury panel. However, the trial court’s process by which Juror No. 2 was released
foreclosed trial counsel’s opportunity to see the juror’s demeanor or to ask
whether accommodations might allow her to remain on the jury panel. “Unless a
defendant and his or her lawyer are present when potential jurors are questioned,
the subtleties of responses are lost-even if a transcript is made available to the
defendant and defense counsel.” State v. Harris, 229 Wis. 2d 832, 844, 601
N.W.2d 682 (Ct. App. 1999).7

¶44 It is critical that the trial court left no record by anyone who could
testify to what happened that morning with Juror No. 2. The Majority concludes
that Spencer forfeited his right to challenge the trial court’s decision to dismiss the
ill juror because he failed to object on the basis of due process violation and equal
protection directly to the trial court or in his postconviction motion. Majority,
¶¶11-15. The Majority concludes that trial counsel’s Swain objection did not
satisfy those objectives. I disagree and I conclude that Spencer has not forfeited
his claims. An overly narrow reading of Spencer’s objections denies him legal
recourse. A trial court judge cannot serve dual roles under our adversarial system:

7
State v. Harris, 229 Wis. 2d 832, 844, 601 N.W.2d 682 (Ct. App. 1999), addresses due
process concerns in voir dire, but its characterization of the importance of interactions between
juror and counsel or juror and judge are applicable here.

10
No. 2018AP942-CR(CD)

the judge cannot represent the defendant’s or State’s interests; the judge must not
invade the province of counsel or the jury. If the trial court makes the only record,
then there is no one who can be questioned about the proceedings. This directly
leads to why the presence of counsel is of critical importance. A defendant denied
counsel faces violations of constitutional rights without objection or recourse.

II. Ex parte communication

¶45 Wisconsin courts have concluded that ex parte communication
between the jury and judge constitutes harmless error when the communication
was an incidental encounter, a “short interlude in a complex trial,” Gagnon, 470
U.S. at 527, or it “concern[ed] situations where, in the context of the case, the
deprivations were essentially de minimis.” Harris, 229 Wis. 2d at 841. The
Wisconsin appellate courts have frequently admonished and warned trial courts
that ex parte communication with jurors is a potentially dangerous and inadvisable
path. “There is always a risk of the conference exceeding a nonconstitutional
scope or causing misunderstanding.” Ramer v. State, 40 Wis. 2d 79, 85-86, 161
N.W.2d 209 (1968). This supreme court warning remains prescient:

While we do not question the good faith or the motives of a
judge, like the one in this case, who communicates with the
jury about supper and other matters relating to the jurors’
physical comfort and well-being, we do not condone the
practice of a judge entering the jury room or
communicating with a jury outside of the presence of the
defendant and of counsel for the defendant both and the
state, even when the judge scrupulously takes a court
reporter with him or her to the jury room to record the
comments. The judge is a figure of authority and respect
during the trial; his or her intrusions into the sanctity of
jury deliberations may affect those deliberations. Even a
transcript of the judge’s communication cannot reveal a
judge’s facial expressions or tone of voice. Defense
counsel and defendant must be present to have the
opportunity to observe the judge’s demeanor first-hand, to

11
No. 2018AP942-CR(CD)

object to statements or request curative statements in the
event that the communication may be improper in any way.

State v. Burton, 112 Wis. 2d 560, 569, 334 N.W.2d 263 (1983), overruled on
other grounds by Alexander, 349 Wis. 2d 327. If the entire recess was forty-five
minutes, it is unclear how long the juror was alone with the court and when
counsel was notified. What is clear is that the trial court did not make a record of
its conversation with the juror. The trial court did not invite counsel to see the
juror or question her directly, instead it relayed questions and answers. This ex
parte communication was not harmless because it was consequential: Juror No. 2
was removed from the panel after that communication.

¶46 In State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d
216, the court of appeals addressed a similar factual circumstance and illustrates
how to avoid the due process violations found here. In Avery, the trial court
communicated ex parte with a juror who had asked to leave the jury after the first
day of deliberations. Id., ¶51. During the five-week trial, the trial court
sequestered twelve jurors and an alternate. Id. After the first day of deliberations,
Juror M asked the sheriff to be excused because a family emergency and marital
problems. Id. The sheriff notified the trial court, who reached out by telephone to
defendant’s counsel and the State that evening. Id. “Counsel agreed that the court
should speak personally with Juror M. and, if the information provided by [the
sheriff] was verified, the juror should be excused.” Id. The trial court spoke with
the juror and heard genuine concern related to his marriage and excused the juror.
Id.

¶47 The Avery trial court met again with counsel before the second day
of deliberations began. “Both defense counsel and the trial court agreed that the
procedure would be governed by” Lehman. Avery, 337 Wis. 2d 351, ¶52. After

12
No. 2018AP942-CR(CD)

that meeting, defense counsel met with the defendant for twenty minutes. Id.
Upon confirmation on the record in court, the defendant agreed to replace Juror M
with the alternate juror; deliberations with the newly constituted panel began
anew. Id.

¶48 In contrast, here the trial court did not notify counsel when the bailiff
informed the court that a juror was feeling unwell. Although the Avery and
Spencer trial courts each met with a juror alone to hear the juror’s concerns, in
Avery, the trial court communicated with counsel before speaking to the juror and
all parties had agreed to release the juror if his issues were verified. Here, the trial
court did not notify counsel that the juror was unwell until that juror had been in
chambers for some period of time. At some point, the trial court informed trial
counsel and “conferred” on how to proceed. In contrast, the Avery court spoke
with counsel in the evening as soon as it heard about the juror and before the trial
court spoke with the juror. Here, the trial court relayed a question from trial
counsel, however, it is unclear if the trial court had reached an agreement from
counsel to release the juror before the trial court discharged the juror.

¶49 Harmless error analysis is appropriate when counsel is not present
for minimal, inconsequential interactions.8 Here, the consequence of this ex parte

8
I believe there is a strong distinction between the ex parte communication that occurred
here and the ex parte communication deemed harmless error in the cases relied upon by the
Majority. Majority, ¶20. In Burton, 112 Wis. 2d at 563, overruled by Alexander, 349 Wis. 2d
327, the judge entered the jury room to determine logistics for deliberations and to make
arrangements for dinner. In State v. Koller, 2001 WI App 253, ¶61, 248 Wis. 2d 259, 635
N.W.2d 838, holding modified by State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668
N.W.2d 760, the judge, without consulting counsel or the defendant, told the jury that two pieces
of evidence it requested to view were not available during deliberations. In State v. Bjerkaas,
163 Wis. 2d 949, 957, 472 N.W.2d 615 (Ct. App. 1991), the judge correctly answered the jury’s
question on a point of law without consulting counsel. None of those interactions had
consequence to the composition of the jury panel.

13
No. 2018AP942-CR(CD)

communication was that the only African-American member of the jury panel was
excused and Spencer was denied an opportunity for counsel to ensure that
finalizing the jury panel was conducted with all due process.

III. Denied counsel at a critical stage

¶50 The trial court’s meeting with Juror No. 2 was a critical stage in the
legal proceedings—the trial court does not get to pick and choose who is
discharged from service. The trial court has a duty to transparency in justice: we
all follow the same rules of law. The trial court may not obscure that process
without violating a defendant’s constitutional rights. A critical stage has not been
precisely defined by the United State Supreme Court, although it has been
described as a stage with “significant consequences” or a time when the accused
benefits from counsel’s legal assistance. See Schmidt v. Foster, 911 F.3d 469,
479-480 (7th Cir. 2018) (citations omitted). “The Supreme Court has consistently
limited the presumption of prejudice to cases where counsel is physically absent at
a critical stage.” Morgan v. Hardy, 662 F.3d 790, 804 (7th Cir. 2011) (citations
omitted).

As one federal court has colorfully observed, the purpose of
defense counsel’s presence in the context of a trial court’s
communication with the jury is to allow counsel to “prime
the pump of persuasion” and, thus, potentially convince the
court to address the jury communication in a manner that
would support the defendant’s interests.

Anderson, 291 Wis. 2d 673, ¶69.

¶51 The State argues that removing Juror No. 2 was not a critical stage
because Spencer cannot “point to a concrete example of prejudice counsel could
have helped avoid during that limited discussion in chambers.” The State
shortchanges Spencer’s due process rights with a conclusion that there was no

14
No. 2018AP942-CR(CD)

prejudice because what could trial counsel have done to change the outcome of the
conference with the juror. This ignores federal and state jurisprudence that
safeguard due process through the presence of counsel. 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. The trial
court denied counsel face to face access to the juror and by doing so violated
Spencer’s constitutional due process rights.

¶52 Having counsel present does not guarantee any specific or positive
outcome for the defendant, but counsel’s representation of defendant’s interests
fulfills the requirements of due process. In Henderson v. Lane, a juror had a heart
attack more than two hours into deliberations. Id., 613 F.2d 175, 179 (7th Cir.
1980). The trial court called counsel to discuss using an alternate juror; trial
counsel did not agree with the use of the alternate, but counsel was present and
advocated for the defendant. Id. “The [alternate] juror was reinstated in the
presence of the petitioner’s attorney only after reaffirming his ability to make a
fair decision in the case.” Id. “Unlike many of the proceedings subject to
constitutional scrutiny because of the defendant’s absence, the proceedings at
issue here were transcribed, giving this court a precise record from which to
determine prejudice.” Id. The record allowed the appellate court to fairly review
the case. “The most obvious barrier to prejudice in this case was the presence of
the petitioner's attorney.… Because of the attorney’s presence, the petitioner’s
interests were properly represented.” Id. When the trial court makes a record and
includes counsel, the reviewing court can determine prejudice to the defendant and
violation of due process rights.

15
No. 2018AP942-CR(CD)

IV. Harmless error

¶53 The Majority correctly explains that harmless error analysis is
available when the defendant is denied his right to counsel. Majority, ¶17. My
disagreement is not the interpretation of the available law, but the application. I
do not claim that ex parte communication between judge and jury is reversible
error for violating the Sixth Amendment right to counsel or due process in all
cases. The majority’s harmless error analysis is conclusory because it is 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.” Alexander, 349 Wis. 2d 327, ¶28.

¶54 “The State has the burden of persuasion that the error was
harmless … that is, that counsel was not necessary to protect the accused’s
substantive rights.” Anderson, 291 Wis. 2d 673, ¶76. Here, I conclude that the
State failed in its burden of persuasion. The State contends that Spencer has not
shown what prejudice he suffered by this due process violation; however, it is the
State’s burden to show the lack of prejudice. Further, this argument fails because
this conference between the judge and Juror No. 2 was not inconsequential; the
trial court did not satisfy its duties under Lehman to make a careful inquiry before
discharging a juror; and the trial court left an insufficient record of its process.

¶55 The State’s conclusion that Spencer experienced no prejudice suffers
from the same issues as the Majority opinion: the lack of record. When an “error
occurs at trial and its scope is readily identifiable ... the reviewing court can
undertake with some confidence its relatively narrow task of assessing the
likelihood that the error materially affected the deliberations of the jury.”
Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (citations omitted). Here, the

16
No. 2018AP942-CR(CD)

scope and impact of the trial court’s error is difficult to assess because of the lack
of record. The “absence of a complete record of the communication” between the
judge and jury weighed heavily as a factor in favor of a finding of prejudice
because the reviewing court was “deprived of an opportunity to make an
assessment of the prejudicial effect of the communication.” Anderson, 291
Wis. 2d 673, ¶118 (citations omitted). There is a similar problem here. The
record is insufficient for the reviewing court to meaningfully assess the prejudice
to Spencer’s trial.

¶56 I was struck by the trial court’s words in response to trial counsel’s
inquiry, when the trial court stated that Juror No. 2, was “if you want to know the
details, queasy, light headed, just unwell generally.” The trial court made the
inquiry. Addressing the parties and the record with the words “if you want to
know the details”—is the trial court’s fundamental misunderstanding of its duties.
In our legal system, trial counsel and the State are zealous advocates of their
respective clients. Here, the trial court invaded counsel’s responsibility. Trial
counsel had a duty to her client: a duty to inquire vigorously about the fitness of
the jury panel members. The juror’s words and demeanor should not be filtered
by the judge. Spencer’s rights should not be filtered by the judge. Spencer’s
rights cannot be considered rights if he is only granted them as filtered by the trial
court. Trial counsel needs to have an opportunity to represent her client’s legal
interests and the trial court must not overstep.

¶57 Trial counsel made a record about the defense’s concern that there
was a racism component to the juror’s illness. Our trial courts have a duty to
preserve each defendant’s rights. This duty springs from the basis of justice, flows
through our state and federal constitutions, and is repeatedly pronounced in our
supreme court decisions.

17
No. 2018AP942-CR(CD)

¶58 This issue comes down to the law and the record. The law is simple.
The trial court should make a careful inquiry before discharging a juror for cause
during the trial or deliberations. Lehman, 108 Wis. 2d at 300. The trial court’s
meetings with jurors should occur in the presence of counsel to safeguard a
defendant’s constitutional rights, particularly when it comes to removing jurors.
See Alexander, 349 Wis. 2d 327, ¶29. The record should be clear and
unambiguous to allow a reviewing court to determine whether there is any
reasonable doubt that the ex parte communication impacted the fairness of the
trial. Avery, 337 Wis. 2d 351, ¶52, see also Moore v. Knight, 368 F.3d 936, 944
(7th Cir. 2004). Here, the record was insufficient.

¶59 I concur in the Majority opinion that Spencer was denied effective
assistance of counsel for failing to object to certain testimony that he argues is
inadmissible hearsay. I am also persuaded that Spencer’s rights were also violated
when the trial court failed to include his counsel at a critical stage in the case—a
meeting with Juror No. 2 that led to the juror’s discharge—and this was not
harmless error. I do not agree that he forfeited his right to appeal these issues.
Therefore, I respectfully dissent and would reverse and remand this matter for a
new trial.

18