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Waiver of Issue: Judicial Communications with Jury during deliberations – Defendant’s Right to Presence

 State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel


¶36      The parties agree with the court of appeals that the circuit court’s communications with the jury outside the presence of the defendant is error, violating the defendant’s constitutional and statutory right to be present.  We agree with the parties.…

¶63      (W)hatever the requirement for an accused’s waiver of the right to be present when a circuit court communicates with the jury, something more than the failure to object is needed to convert the challenge from a direct challenge to the alleged error to a claim of ineffective assistance of counsel.

¶64      We conclude that although neither the defendant nor defense counsel objected to the circuit court’s communicating with the jury in the defendant’s absence, the alleged error is treated as a direct challenge in the appellate court, not as a claim of ineffective assistance of counsel.

Jury deliberations is a “critical stage” for purposes of attachment of right to counsel, such that judicial communications to the jury during deliberations without notice to the defense violates right to counsel; mere failure to object doesn’t establish waiver because it isn’t accompanied by the colloquy necessary for waiver of counsel. However, harmless error analysis does apply. ¶¶65-76.

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