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State v. Demone Alexander, 2011AP394-CR, District 1, 5/8/12, WSC rev granted 11/14/12

court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Alexander: Hans P. Koesser; case activity

Juror Selection / Dismissal – Right to Personal Presence 

A defendant has a non-waivable right to personal presence at voir dire, ¶6 (citing, § 971.04(1)(c); and, State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct. App. 1999)). Contrastingly, the right to be present when a juror is examined for possible dismissal, following selection and swearing-in, is waivable.

¶17      Contrary to Alexander’s assertion, the trial court did not dismiss the jurors during the jury selection process.  The trial court’s decision was made on the day scheduled for closing arguments―well after jury selection had been completed.  At that point in the trial, Alexander’s counsel was entitled to make the strategic decision to waive Alexander’s presence at the in-chambers meetings with the jurors.  See Wilkens, 159 Wis. 2d at 622-23.  Alexander’s counsel was adamant that Alexander not make any statements to the trial court, or in the jurors’ presence regarding the jurors on the record; however, the record indicates that Alexander’s counsel consulted with him outside of the presence of the trial court and the State during the interviews.  Alexander’s counsel spoke with him privately about the jurors’ statements and the trial court’s questions, relayed relevant information in chambers that had been obtained from Alexander and consistently argued against removing either juror.  Therefore, Alexander was not ignorant about what was occurring and being discussed in chambers.  He also does not suggest how his physical presence during the in-chambers interviews and arguments might have altered the trial court’s decision.

Is the holding based on notions of waiver, or harmless error? Wilkens, which discusses delegation to counsel of the decision “whether to have a public or closed preliminary hearing,” 159 Wis. 2d at 623, doesn’t appear to be especially pertinent; indeed, doesn’t appear to deal with the question of personal presence at all. As the supreme court has held: “A trial runs from the commencement of jury selection through the final discharge of the jury and at any time an action is taken affecting the accused.[18] Williams v. State, 40 Wis.2d 154, 160, 161 N.W.2d 218 (1968). In other words, according to Williams, an accused has a right to be present whenever any substantive step is taken in the case ….” State v. Anderson, 2006 WI 77, ¶42, 291 Wis.2d 673, 717 N.W.2d 74. Surely, examination and dismissal of a juror is a “substantive step,” from which it follows that Alexander had a personal right to be present, as opposed to a mere opportunity whose implementation was within the realm of attorney tactical decision-making. And if this right is personal, rather than, delegable, is a contemporaneous, on-record colloquy required for its waiver? And on breach of such a requirement, is a post hoc Bangert-type inquiry the remedy? Compare, State v. Garcia, 2010 WI App 26 (postconviction remedy for absence of on-record colloquy re: defendant’s right to testify is evidentiary hearing, not outright reversal). Of course, harmless error analysis presents a separate problem, one too elaborate for a blog post. Worth mentioning, though, that at a minimum Alexander might have a bit of a quibble with the idea that he must show how his presence “might have altered the trial court’s decision.” E.g., Anderson, 2006 WI 77, ¶27 (“The State, the beneficiary of any such error in the present case, has the burden to persuade this court that the circuit court’s error is harmless.”)

Juror Bias 

The trial court’s dismissal of two jurors, on grounds of subjective bias arising during trial, is sustained:

¶19      A biased juror may be removed by the trial court if the trial court determines that one of the three types of juror bias exists.  See State v. Kiernan, 227 Wis. 2d 736, 744-45, 596 N.W.2d 760 (1999).  Statutory bias is based on Wis. Stat. § 805.08(1),[4] which declares certain categories of persons ineligible to be jurors, and describes other disqualification factors.  Kiernan, 227 Wis. 2d at 744.  Subjective bias may be found when the record reflects that the juror is a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the juror might have, yet who the trial court concludes, based on the juror’s verbal responses to questions and demeanor in giving those responses, cannot actually be objective.  Id. at 745.  Objective bias inquires whether a reasonable person in the juror’s position could set aside the opinion or prior knowledge.  Id. at 745-46.  A reviewing court “will uphold the [trial] court’s factual findings regarding a … juror’s subjective bias unless they are clearly erroneous.”  Id. at 745.  We will reverse the trial court’s conclusion regarding objective bias only if as a matter of law a reasonable court could not have reached such a conclusion.  Id.

¶20      Although the trial court did not explicitly use the term “subjective bias,” the trial court made implicit findings that both jurors were subjectively biased.  See id. at 745.  The trial court made the decision to remove the jurors, despite their statements of impartiality, after observing their respective verbal responses to questions, their demeanor in the interviews, and after having the time to consider the issues carefully.  Juror 10 was concerned about “revenge” by a former friend who Juror 10 believed was connected to the case.  Juror 33 knew an important witness for the defense whose credibility was challenged by other witnesses.  The rest of the jury knew of Juror 33’s acquaintance. Additionally, Juror 33 had been at the garage outside of the witness’s house―a place that was a subject of testimony during the trial.  The trial court was reasonably concerned about the ability of either juror to be impartial in spite of the jurors’ statements to the contrary.  The record supports the trial court’s implicit conclusion that neither juror could actually be objective.

The court also rejects Alexander’s highly fact-intensive claims of ineffective assistance of counsel (¶¶21-30: no prejudice); and newly discovered evidence (¶¶31-35: no reasonable probability of different outcome).

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