SCOW: trial judge’s in-chambers conversation with ailing juror wasn’t a critical stage of proceedings requiring the presence of defense counsel

State v. Robert Daris Spencer, 2022 WI 56, July 6, 2022, affirming in part and reversing in part an unpublished court of appeals decision; case activity (including briefs)

A majority of the supreme court holds that Spencer had no right to be personally present or even to have counsel present when the trial judge decided to dismiss a juror for cause just before deliberations began because the judge’s interaction with the juror wasn’t a critical stage of the proceedings. 

Before the start of the last day of Spencer’s trial, the only Black juror of the 13 jurors seated complained that she was feeling ill. The judge questioned the juror alone, in chambers, without counsel or the defendant present; though the judge did relay “at least one question from counsel.” (¶15). The judge eventually dismissed the juror for cause after the juror said she was feeling “queasy, light headed, just unwell generally” and was too ill to participate. Only after dismissing the juror did the judge make a record of its ex parte conversation and give a rationale for dismissing the juror. While the judge also asked counsel if they had motions regarding the dismissal, it was she wasn’t going to change her mind and the trial would go ahead with the 12 remaining jurors. Spencer’s lawyer objected to the juror’s dismissal and moved for a mistrial, to no avail. (¶¶14-16).

Spencer argued in a postconviction motion and on appeal that the trial court’s ex parte examination of the juror deprived him of the right to the assistance of counsel at a critical stage of the proceedings. (¶¶17-19). A majority of the supreme court rejects his claim, citing a 7th Circuit case involving a situation similar to Spencer’s, United States v. Schiro, 679 F.3d 521 (7th Cir. 2012), and two Wisconsin cases, State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982), and State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216, both involving dismissal of a juror after deliberations begin, which poses a more difficult question because of the impact on the deliberative process.

¶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.

¶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 [United States v.] Ash, 413 U.S. [300,] 313 [(1973)]; 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.” …). The record shows the communications centered on the nature of Juror 2’s health issues. …. The judge communicated 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 ….”

Moreover, even if Spencer’s right to counsel was violated, the error was harmless because he hasn’t shown the jurors who deliberated to a verdict were biased or partial. (¶¶39-46).

Three dissenting justices believe the judge’s communication with the juror were a critical stage of the proceeding coming as they did just before closing arguments and the start of deliberations, which meant the judge and juror weren’t merely discussing the juror’s health but the continued participation in the final stage of the trial. (¶¶64-72). They also conclude the exclusion of defense counsel from the communications wasn’t harmless. (¶¶73-84). Two of the dissenters raise particular concerns about the fact the ex parte process led to the dismissal of the only Black juror and so undermined the importance of diversity and perceptions of the fairness of the criminal justice system. (¶¶87-93).

Finally, the court of appeals had rejected Spencer’s challenge to the juror’s dismissal on forfeiture grounds, but it also held he was entitled to an evidentiary hearing on his allegation that trial counsel was ineffective for failing to object to hearsay evidence about the crime that he asserted was “key evidence” in the state’s case to prove the most serious charge, felony murder. In keeping with its recently reinvigorated parsimonious attitude toward Machner hearings, the supreme court’s majority reverses the order for an evidentiary hearing, saying the record conclusively establishes Spencer isn’t entitled to relief. (¶¶47-50).