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Judge’s answer to jury question in absence of defendant and counsel was harmless error

State v. Deshawn Harold Jewell, 2017AP2503-CR, 10/30/18. District 1 (not recommended for publication); case activity (including briefs)

Jewell claims that he is innocent of armed robbery, so his identity was an issue at trial. During deliberations,  the jury asked the trial court for the “six pack” of pictures of people who appeared in the police photo array that the victim used to identify him. They also asked a question about how the photos were numbered. Jewell and his lawyer were not present and had no input into the answer. Jewell claimed he was denied his right to be present, his right to counsel and so forth. He also challenged his sentence because the judge seemed to penalize him for not admitting that he committed the robbery.

Right to be present when court answers jury questions. There is no doubt that Jewell had a right to be present during the court’s interaction with the jury. See e.g. §971.04(1)(b); State v. Peterson, 220 Wis. 2d 474, 584 N.W.2d 144 (Ct. App. 1998); State v. Anderson, 2006 WI 77, ¶ 43, 291 Wis. 2d 673, 717 N.W.2d 74, overruled on other grounds by State v. Alexander, 2013 WI 70, ¶¶ 26-29, 349 Wis. 2d 327, 833 N.W.2d 126; Rogers v. U.S., 422 U.S. 35 (1975); U.S. v. Neff, 10 F.3d 1321, 1325 (7th Cir. 1993). But the court of appeals held:

While we agree that defense counsel at least should have had the opportunity (in person or telephonically) to suggest a response to the jury’s question before the trial court responded, we conclude that the error was harmless. Opinion ¶22.

The court of appeals explained that the trial court answered the jury question based on undisputed trial testimony, and its answer was correct. That’s why the error was harmless. Opinion ¶23 (citing May v. State, 97 Wis. 2d  175, 184-85, 293 N.W.2d 478 (1980). It further noted that sufficient evidence supported the verdict so it could not say that without the error the result would have been different. Jewell takes issue with this conclusion.

Defendant’s resistance to admitting guilt at sentencing.  You have to read the judge’s comments to Jewell at sentencing to get a feel for this. It really does seem like the court was prodding him to admit guilt and then criticized and punished him for not doing so. See Opinion ¶13.  However, the court of appeals explained that a court may consider the defendant’s refusal to admit guilt as one of several sentencing factors as long it does give it undue weight. Opinion ¶26 (citing State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984)). Allegedly that is what happened here.

{ 1 comment… add one }
  • Colleen Marion November 5, 2018, 12:25 pm

    This appears to be the wrong harmless error standard. In the context of the defendant’s right to be present, “Whether the evidence presented to the jury ‘is sufficient to support the conviction’ is not dispositive.” State v. Harris, 229 Wis. 2d 832, 841 (Ct. App. 1999) (internal citation omitted). Rather, this Court should evaluate the error in the context of the trial as a whole to determine whether the error “affect[ed” the defendant’s “substantial rights.” Id.

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