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Notice of Alibi, § 971.23(8): DA Comment on Missing Witness; Appellate Procedure, Forfeiture of Issue: Sleeping Juror

State v. Forrest Andre Saunders, 2011 WI App 156 (recommended for publication); for Saunders: Robert A. Kagen; case activity

Notice of Alibi, § 971.23(8) – DA Comment on Missing Witness 

“Alibi” merely refers to the fact that the defendant was elsewhere when the alleged occurred, ¶21, citing, State v. Brown, 2003 WI App 34, ¶13, 260 Wis. 2d 125, 659 N.W.2d 110. Although § 971.23(8) bars prosecutorial comment on the defendant’s failure to produce an alibi witness, this restriction assumes both that a notice alibi was filed and that alibi is at issue. Saunders testified here that, at the time the crime occurred, he was at the house of a friend who wasn’t home – this testimony didn’t establish an alibi, and the prosecutor was authorized to comment on the fact that the friend wasn’t present to testify that he and Saunders were to meet. The prosecutorial comment was separately permissible because Saunders didn’t file a notice of alibi.

¶24      While Saunders argues that Paul was in fact an alibi witness, we cannot agree with his contention because—given the testimony that Paul was not home at the time Saunders was at his house—Paul would not have been able to vouch for Saunders’ whereabouts during the night of the burglary.  See Brown, 260 Wis. 2d 125, ¶13; Harp, 288 Wis. 2d 441, ¶15.  Contrary to Saunders’ assertions, the fact that he himself testified that he was elsewhere during the commission of the burglary does not mean that Paul would have done so.  Indeed, the best Paul could have done would have been to corroborate Saunders’ testimony that he (Paul) was not at home during the time that Saunders allegedly went there.  However, this is far different from an account that Saunders “was elsewhere at the time the alleged incident took place.”  See Brown, 260 Wis. 2d 125, ¶13.

¶25      Moreover, while Saunders repeatedly notes that the statute imposes no requirement that he file a notice of alibi to testify that he was elsewhere, the issue before us is whether the prosecutor improperly commented on the absence of Paul.  The statute, by its plain language, only bars a prosecutor from commenting on missing alibi witnesses whom the defendant has named in the notice of alibi.  See Wis. Stat. § 971.23(8)(a).  Our case law supports this plain-language interpretation of the statute.  See State v. Burroughs, 117 Wis. 2d 293, 305, 344 N.W.2d 149 (1984) (“The statute does not deny the defendant the right to testify, but rather, only requires that if he is going to claim not to have been at the scene of the crime, then he must notify the state where he was.”); see also State v. Haynes, 118 Wis. 2d 21, 28-29, 345 N.W.2d 892 (1984) (no error where trial court excluded defendant’s alibi witnesses for failure to comply with Wis. Stat. § 971.23(8) when trial counsel did not advise trial court of the possible alibi witnesses until mid-trial); State v. Selbach, 268 Wis. 538, 540, 68 N.W.2d 37 (1955) (“The language of the [notice of alibi] statute is plain and unambiguous.  Any notice given thereunder must be in writing.”).  Therefore, even if Saunders could have considered Paul an alibi witness and sought the protections of the notice of alibi statute, he was required to notify the State before trial.  Because he did not do so, however, the prosecutor’s comments were not inappropriate.

Sleeping Juror – Forfeiture 

Saunders’ failure to argue until after trial that a juror slept during testimony forfeited the issue.

¶31      Many of the reasons underlying the timely objection rule justify its application to Saunders’ case.  Most importantly, if Saunders had notified the trial court of the allegedly sleeping juror at the time he discovered the alleged misconduct, the trial court could have immediately corrected the problem.  See id., 156 Wis. 2d at 10.  Conversely, allowing Saunders to notify the trial court after trial about the juror would complicate the problem, and encourage future litigants to “build in an error” for appeal.  See id. at 10-11.  Indeed:

[t]he only conclusion possible from [circumstances in which defense counsel neither moved for a mistrial nor requested substitution of an allegedly sleeping juror until after guilty verdicts were returned] is that defense counsel, fully aware of the existence of the problem … , deliberately chose to proceed with the original jury to create a no-lose situation:  either a not guilty verdict would be returned or an arguably tainted guilty verdict would provide a basis for appeal. We strongly disapprove such a “gamesmanship approach to criminal justice.”

See United States v. Krohn, 560 F.2d 293, 297 (7th Cir. 1977) (citation omitted); see also State v. Huebner, 2000 WI 59, ¶¶11-12 & n.2, 235 Wis. 2d 486, 611 N.W.2d 727 (“‘waiver’” or “‘forfeiture’” rule “prevents attorneys from ‘sandbagging’ errors,” in other words, from “failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal”).

¶32      We therefore conclude that any party who notices that a juror may have fallen asleep at trial must bring the issue to the trial court’s attention during trial as soon as practicable after the person notices the sleeping juror.  We further conclude that, because Saunders waited until after trial to bring the issue to the trial court’s attention, he forfeited his right to appeal the trial court’s discretionary resolution of this issue. Because Saunders forfeited his right to contest the sleeping juror, the trial court did not err in upholding the conviction or in denying Saunders’ postconviction motion.

State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996), distinguished, ¶33 (Hampton “objected to the sleeping juror during trial … In fact, case law from multiple courts around the country establish that the proper time to object to an allegedly sleeping juror is when the issue first arises, thereby allowing the trial court to immediately correct the problem.  See Hampton, 201 Wis. 2d at 669 n.3″).

The court also notes that, although Hampton contends he told his attorney during trial that a juror was asleep, Hampton hasn’t raised the issue as a matter of ineffective assistance of counsel, ¶34.

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