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Trial judge answered jury question without consulting the parties, but error was harmless

State v. Roman D. Lovelace, 2017AP943-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

During deliberations at Lovelace’s trial on a charge of burglary as party to a crime, the jury sent a note to the judge asking how burglary and party to a crime “relate” and whether they were “two separate charges or one in the same.” Without consulting the parties the court sent a written response telling the jury to review the written instructions they were given. (¶4). The judge shouldn’t have done that without consulting Lovelace’s attorney, but the error was harmless.

While Lovelace didn’t have a right to be present personally when the judge was deciding how to respond, he had a right to have his attorney present, State v. Alexander, 2013 WI 70, ¶¶24, 30, 349 Wis. 2d 327, 833 N.W.2d 126, and the state concedes as much. (¶¶12-17, 20). “However, the State calls attention to the non-substantive nature of the trial court’s response to the jury note: it directed the jurors to review the jury instructions that were previously agreed upon by the parties and read to the jury on the record prior to closing arguments. The State argues that there is not a reasonable possibility that the error—the trial court’s failure to confer with trial counsel—contributed to the verdict. …. We agree, and therefore find that this error was harmless.” (¶21).

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