In this prosecution for reckless driving causing great bodily harm and homicide by operating with a detectable amount of a controlled substance, the circuit court erroneously excluded Richey’s medical records from evidence at trial, though the error was harmless. More interesting, perhaps, is the issue arising out of the trial court’s post-verdict meeting with the jury. While it wasn’t plain error for the trial judge to meet with the jury after receiving its verdict, what happened in this case causes the court of appeals to suggest trial judges tread carefully when doing so.
Exclusion of information from medical records
Before trial Richey filed a § 908.03(6m)(b) notice of intent to offer into evidence his emergency room records, which contained his statements to the ER doctor. (¶7). The trial court sustained the state’s objection to the doctor testifying about Richey’s statements on the grounds they were hearsay. (¶8). The parties dispute whether § 908.03(6m) creates a separate and independent hearsay exception for any statements in the medical records (¶¶16-17), but the court of appeals doesn’t resolve the issue. Instead it holds that Richey’s statements to the ER doctor were admissible as prior consistent statements under § 908.01(4)(a)(intro.) and 2. and therefore the circuit court erred by excluding them. (¶19).
The error was harmless, though, because the evidence was cumulative, for other witnesses testified Richey made very similar statements to them. (¶¶22-25). The error also didn’t affect Richey’s argument that he wasn’t impaired, which was relevant to his affirmative defense that the victim’s death would have occurred even if he had been exercising due care and had not had a detectable amount of a controlled substance in his blood, § 940.09(2)(a). The state didn’t argue he was impaired, and there was also other evidence showing he wasn’t impaired. (¶¶26-29).
Postverdict meeting with jury
After receiving the verdict, and without any objection from the parties, the circuit court advised the jury it would meet with them. (¶9). At that meeting, the court thanked the jurors for their service, explained that the next step was a sentencing hearing, and, when asked by a juror if they could submit something on Richey’s behalf at sentencing, advised the jurors they could submit information and the court and counsel would discuss whether it was relevant to sentencing. (¶12).
A juror named Fisk later wrote a letter to the judge, saying it was unfair to charge Richey with the homicide because he wasn’t impaired and asking the judge to take that into account at sentencing. (¶10). Based on Fisk’s letter Richey moved for a mistrial, arguing that the court’s post-verdict communication was plain error that effectively “re-opened” the polling of the jury. (¶11). The court rejects Richey’s plain error argument for three reasons:
¶32 …. First, Richey cites no Wisconsin law or rule indicating that it is improper for a judge to meet with a jury after receiving its verdict. In fact, as the State notes, Wis JI—CRIMINAL 525A (2010), “Instruction After Verdict Received—Alternative Form,” includes the sentence, “If any of you have questions for the court before leaving today, please let the bailiff know before you leave the jury room.” This instruction appears to contemplate the possibility of a judge meeting with jurors after receiving their verdict.
Second, while Richey relies on some Wisconsin cases for the proposition that a court should not accept a jury’s verdict if a juror’s comments during polling suggest that he or she disagrees with the verdict, those cases don’t apply here. Neither Fisk nor any of the other jurors expressed disagreement with the verdicts during polling, and Fisk’s letter wasn’t received until nearly two months after the verdicts. (¶33). Nor did the court “continue or re-open polling” by giving jurors the opportunity to submit information prior to Richey’s sentencing: “By the time the court met with the jury, the jury had concluded its deliberations, rendered its verdicts, and been polled in court. The mere fact that the court told the jurors they, like any other citizens, could submit information they believed was relevant to Richey’s sentencing does not constitute a continuation or reopening of polling.” (Id.).
Third, the court’s meeting with the jurors was not a prohibited ex parte communication:
¶41 …. The term “ex parte” is defined as “[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest[.]” Black’s Law Dictionary 697 (10th ed. 2014). An “ex parte communication” is “[a] communication between counsel and the court when opposing counsel is not present.” Id. at 337. Here, the judge’s meeting with the jury was not instigated by either party, nor was its purpose to benefit one party over the other. The court announced its intention to meet with the jury in open court, and neither party objected or expressed a desire to be present during the meeting. The postverdict communication was between the court and the jury and was not a communication with one attorney or party in the absence of the other. Thus, the discussion did not fall within the definition of an ex parte communication ….
While the court of appeals rejects Richey’s claims, “we recommend that trial judges use care when engaging in this type of practice. Consideration should be given to holding such discussions in the presence of counsel and on the record. Substantive discussions about the basis for the jury’s decision, the validity of the verdict, and judicial considerations at sentencing are discouraged.” (¶42 n.8).
Richey also argued he should get a new trial because Fisk’s letter showed she had a reasonable doubt about his guilt, but this is a non-starter because under § 906.06(2) the letter can’t be used to impeach the verdict. (¶42).