COURT OF APPEALS

DECISION

DATED AND FILED

March 9, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP942-CR Cir. Ct. No. 2014CF5088

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT DARIS SPENCER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Order affirmed in part; 

reversed in part and cause remanded with directions. 

Before Brash, P.J., Dugan and White, JJ.
No. 2018AP942-CR

2

¶1 DUGAN, J. Robert Daris Spencer appeals from the order of the 

trial court to deny his postconviction motion without a hearing.1 He argues that 

the trial court’s decision to dismiss a juror for cause violated his right to due 

process and equal protection and was an erroneous exercise of the trial court’s 

discretion. He further argues that he is entitled to a new trial because his 

constitutional right to counsel was violated when the trial court questioned a juror 

regarding her illness without his trial counsel present. Last, Spencer argues that 

his trial counsel was ineffective for failing to object to certain testimony that he 

argues is inadmissible hearsay.

¶2 Upon review, we conclude that Spencer forfeited his ability to 

challenge the trial court’s decision to dismiss the juror based on any alleged 

violation of his right to due process or equal protection or any alleged erroneous 

exercise of the trial court’s discretion. We further conclude that any error by the 

trial court that violated Spencer’s right to counsel was harmless. We, accordingly,

affirm the trial court’s order dismissing Spencer’s postconviction motion without a

hearing as to these grounds of Spencer’s motion. 

¶3 By contrast, we reverse the trial court’s order denying Spencer’s 

motion, without a hearing, on the grounds that he received ineffective assistance of 

counsel. We conclude that Spencer alleged sufficient material facts in his 

postconviction motion to warrant a Machner2 hearing, and we remand for the trial 

court to conduct a hearing on Spencer’s claim of ineffective assistance of counsel.

 

1

 While the appellant appeals from both a judgment and an order, we address only the 

order for the reasons set forth in the opinion.

2

 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2018AP942-CR

3

BACKGROUND

¶4 On September 28, 2014, police responded to a report of shots fired

in the area of 3402 North 23rd Street in Milwaukee, Wisconsin. When police 

arrived at the scene, they discovered T.M. laying on the sidewalk in a pool of 

blood with a gun shot wound to the head. An investigation into the shooting 

indicated that, prior to any shots being fired, Spencer and T.M. approached their 

friend, R.S., in front of his house located at 3398 North 23rd Street. Spencer and 

T.M. attempted to rob R.S. to settle a debt and then drag R.S. to a van located 

across the street. When R.S. broke free and ran back towards his house, shots 

followed. The investigation indicated that there were two shooters: one shooter 

near the van who shot at R.S. as he ran away, and one shooter who fired shots at 

Spencer and T.M. from a kitchen window at 3398 North 23rd Street. Spencer was 

charged on November 17, 2014, with one count of felony murder and one count of 

possession of a firearm by a felon, based on the State’s theory that Spencer 

attempted to rob R.S., shot at R.S. as R.S. ran away, and, as a result of the robbery, 

caused T.M.’s death. 

¶5 The case proceeded to a jury trial, which began on June 22, 2015. 

On June 26th, the final day of the trial, the proceedings began at 8:59 a.m. with a 

discussion about jury instructions. A bailiff advised the trial court that one of the 

jurors was ill. After a recess of approximately forty-five minutes, the proceedings 

resumed at about 10:05 a.m., whereupon, after allowing the parties to make any 

motions they deemed appropriate and state their positions on the record in 

response to the trial court’s decision to dismiss the juror the trial court dismissed 

the ill juror for cause. The State agreed that the juror should be dismissed for 

cause. However, Spencer’s trial counsel objected to the dismissal of the juror and 

moved for a mistrial based on her concern that this presented an issue under
No. 2018AP942-CR

4

Swain3 given the fact that the juror was the only African-American member of the 

jury. 

¶6 The proceedings continued with closing arguments with the 

remaining twelve jurors, and the jury began deliberations following closing 

arguments. The jury ultimately returned a guilty verdict on all counts, and the trial 

court sentenced Spencer to a global sentence of thirty-eight years of imprisonment,

composed of twenty-three years of initial confinement and fifteen years of 

extended supervision. 

¶7 Spencer filed a postconviction motion on January 25, 2018, wherein 

he argued that he was entitled to a new trial. Spencer contended that he was 

denied his Sixth Amendment right to counsel at a critical stage of the proceedings 

when the trial court questioned the juror about her illness without his trial counsel 

present. In addition, Spencer argued that he was entitled to a new trial because his 

trial counsel was ineffective when she failed to object to hearsay testimony 

indicating that Daniel McKinney, R.S.’s roommate, saw R.S. being dragged across 

the street and fired shots from the kitchen window to protect R.S. 

¶8 In response, the State argued that Spencer forfeited his ability to 

object to any interaction between the trial court and the juror because trial counsel

failed to voice any contemporaneous objection and, in fact, implicitly consented to 

 

3

 Swain v. Alabama, 380 U.S. 202 (1965), overruled in part by Batson v. Kentucky, 476 

U.S. 79 (1986). In Swain, the Court held that the systemic exclusion of African-Americans from

jury arrays violated African-American defendants’ rights to equal protection of the law. Id. at 

203-04. At trial here, trial counsel argued that Milwaukee County’s procedures when impaneling 

jury arrays systemically excluded African-Americans and, therefore, violated Spencer’s right to 

equal protection of the law. The trial court found that Spencer failed to prove that Milwaukee 

County’s procedures systemically excluded African-Americans from jury service and denied 

Spencer’s motion.
No. 2018AP942-CR

5

the trial court’s questioning of the juror when trial counsel asked the trial court to 

ask the juror a follow-up question about her condition. The State additionally 

argued that the interaction did not occur at a critical stage of the proceedings or, in 

the alternative, that any error in the interaction between the trial court and the juror

was harmless. The State also argued that Spencer’s counsel was not ineffective 

for failing to object to hearsay testimony because Spencer’s allegations of 

deficient performance and prejudice were conclusory. 

¶9 The trial court denied Spencer’s motion without a hearing. The trial 

court found that Spencer’s right to counsel was not violated because the period of 

time after the close of evidence and before deliberations in which the trial court 

questioned the juror about her illness was not a critical stage of the proceedings for 

which Spencer “needed assistance with a legal problem and where counsel’s 

presence was essential.” Further, the trial court found that any error in the trial 

court’s questioning the juror about her illness outside the presence of Spencer’s 

counsel was harmless. As to Spencer’s argument relative to ineffective assistance 

of counsel, the trial court found that Spencer suffered no prejudice because, even 

if trial counsel had objected, “there is simply not a reasonable probability that the 

defendant would have been acquitted of the crimes with which he was charged 

because there was absolute overwhelming evidence of his guilt.” 

¶10 This appeal followed. Spencer has renewed his same arguments on 

appeal, as well as brought three additional arguments challenging the trial court’s 

decision to dismiss the juror for cause.
No. 2018AP942-CR

6

DISCUSSION

I. Spencer forfeited his claims challenging the trial court’s 

decision to dismiss the ill juror

¶11 Spencer argues that the trial court’s decision to dismiss the juror for 

cause violated his rights to due process and equal protection and was an erroneous 

exercise of the trial court’s discretion. As the basis for his argument, Spencer 

points to the trial court’s explanation of its decision in which the trial court noted 

that the juror and many of the trial participants were African-American. 

¶12 We conclude that Spencer has forfeited these claims and decline to 

address them because Spencer failed to raise them below, either by objecting at the 

time of trial or by addressing them in his postconviction motion. In other words, 

Spencer raises his claims that the trial court’s decision to dismiss the juror for 

cause violated his right to due process, his right to equal protection, and was an 

erroneous exercise of the trial court’s discretion for the first time in his opening 

brief in this appeal. 

¶13 “The general rule is that issues not presented to the [trial] court will 

not be considered for the first time on appeal.” State v. Caban, 210 Wis. 2d 597, 

604, 563 N.W.2d 501 (1997). This rule serves several important functions, 

including, that “[r]aising issues at the trial court level allows the trial court to 

correct or avoid the alleged error in the first place, eliminating the need for 

appeal.” State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727. 

The rule applies to constitutional claims, so long as the defendant knew of the trial 

court’s action. See State v. Pinno, 2014 WI 74, ¶57, 356 Wis. 2d 106, 850 

N.W.2d 207.
No. 2018AP942-CR

7

¶14 In this case, Spencer failed to raise these as arguments below when 

trial counsel made a Swain objection during the trial and then he failed to raise

these arguments in his postconviction motion. Specifically, trial counsel objected 

on the basis of Swain and moved for a mistrial saying: “I’m also renewing my 

challenge under Swain. [T]he research shows ... that even the presence of one 

African-American on a jury can make a difference in terms of reducing systemic 

bias. ... So I’m moving for a mistrial.” Spencer then failed to revisit the Swain

objection in his postconviction motion or make any argument on the basis of his 

rights to due process and equal protection or an argument on the basis of an 

erroneous exercise of discretion.

¶15 At most, the trial court had in front of it an objection and a motion 

for mistrial from counsel, during the trial, based on a concern that the jury would 

not be fair and impartial without an African-American juror. This is wholly 

different from the arguments that Spencer now makes essentially asserting that the 

trial court’s decision was discriminatory because it considered the juror’s race and 

the race of the trial participants in violation of his rights to due process and equal 

protection and as an erroneous exercise of discretion. The trial court, therefore, 

had no chance to address or correct any possible error, whether of a constitutional 

nature or not, in its decision to dismiss the juror or explain its reference to the race 

of the juror and the trial participants when it rendered its decision. These 

arguments have, thus, been forfeited, and we do not address them as they were 

raised for the first time in this appeal. See Caban, 210 Wis. 2d at 608 (considering 

a Fourth Amendment argument forfeited when the defendant failed to object and 

raise the argument in the postconviction motion).
No. 2018AP942-CR

8

II. Any assumed violation of Spencer’s right to counsel was 

harmless error

¶16 Spencer further argues that he was denied his right to counsel at a 

critical stage of the proceedings when the trial court interviewed the juror in 

chambers and outside the presence of counsel. The State argues, that even 

assuming that Spencer was denied counsel during a critical stage of the 

proceedings in violation of his right, any error was harmless. We agree with the 

State and conclude that any assumed error in the trial court’s interview of the juror

was harmless.

¶17 The Sixth Amendment of the United States Constitution guarantees a 

criminal defendant the “right to counsel at all critical stages of the criminal 

process.” Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (citation omitted). 

“Ordinarily, the absence of counsel at a critical stage of the trial is not subject to 

harmless error analysis.” State v. Anderson, 2006 WI 77, ¶74, 291 Wis. 2d 673, 

717 N.W.2d 74, overruled on other grounds by State v. Alexander, 2013 WI 70, 

349 Wis. 2d 327, 833 N.W.2d 126. However, “a harmless error analysis may 

apply to certain violations of the Sixth Amendment right to counsel,” such as 

“when the [trial] court has had ex parte communications with the jury.” Id., ¶76. 

In such a case, we examine the record to determine whether the communication, 

“in light of the entire trial,” was harmless beyond a reasonable doubt, and we ask 

whether there is a reasonable possibility that the error contributed to the 

conviction.

4

 State v. Burton, 112 Wis. 2d 560, 571, 334 N.W.2d 263 (1983) 

 

4

 Spencer argues that, should this court apply the harmless error test, that the applicable 

standard is whether there is overwhelming evidence of guilt. After reviewing Wisconsin 

precedent, we reject this as the applicable standard. In fact, this approach was specifically

rejected by our supreme court in State v. Burton, 112 Wis. 2d 560, 571, 334 N.W.2d 263 (1983), 

overruled on other grounds by State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 

126.
No. 2018AP942-CR

9

(citation omitted), overruled on other grounds by Alexander, 349 Wis. 2d 327. 

“[S]ituations will inevitably arise in which the communication is so innocuous that 

it cannot be said that the error in any way influenced the jury’s verdict.” Id. at 

570. 

¶18 The trial court made the following record of what transpired during 

the forty-five minute recess on the final day of trial:

The [c]ourt went off the record because I was advised that 

we had a juror who was not feeling well. And when I 

inquired and with the assistance of one of the bailiffs, we 

had the juror come out of the jury room, go into my 

chambers where there’s a quiet place for her to rest to see 

whether she would be feeling better. 

She is not feeling well enough to proceed. And 

when I asked her about 15, 20 minutes ago if she thought 

she would feel well enough to proceed in any particular 

length of time, her answer was very tentative and she said 

unlikely basically and she didn’t know how long she would 

need before she could participate. She is, if you want to 

know the details, queasy, light headed, just unwell

generally. 

I did inquire. She said she’s been having some 

health issues as of late and believes that these are her words 

“the reminisce” of some health issues that have been going 

on I think last week. I conferred with the attorneys. We 

met in the back. I advised the attorneys going along what 

was the cause for the delay and what was being done to 

assist the juror and we agreed to wait and we’ve now 

waited a significant period of time. And I have to be 

mindful that we have the remaining [twelve] sitting back in 

the jury room waiting to move forward.

I understand the significance of this for both sides, 

frankly. This is the only African-American juror on the 

panel. But I am not prepared to put her health at risk by 

having her continue and go to deliberations when she is so 

unwell. After we met, the defense asked a question for 

purposes of the record which I do not find inappropriate. I 

did ask I inquired along the lines of the concern that the 

defense had. I asked the juror if her stress or her not being 

well enough to proceed had anything to do with her service 

as a juror or with the behavior of any of the other jurors. 
No. 2018AP942-CR

10

Her response to me was “Oh, no. This has nothing to do 

with the trial.” So I’m satisfied with that response. I’ve 

made my record.

¶19 The record is clear that trial counsel was not present during the trial 

court’s discussion with the juror in chambers about the nature of the juror’s illness. 

However, even if we assume that the trial court’s communication was in violation 

of Spencer’s right to counsel, we conclude that any such violation was harmless. 

The record is clear that counsel was still included in the process of deciding what 

to do in response to the juror falling ill, and any error was, therefore, harmless. 

The trial court “conferred” with the attorneys “in the back” to discuss the reason 

for the delay, and “[they] agreed to wait” for a longer period of time. Indeed, the 

trial court asked trial counsel’s question about whether the juror’s illness had 

anything to do with the trial, and the trial court reported back with the juror’s 

answer. After allowing the juror to rest for an additional period of time, the record 

resumes with the trial court relating what happened over the preceding forty-five 

minutes, and at that time, the trial court made the decision, with counsel present, to 

dismiss the juror for cause because the juror was unlikely to be able to continue. 

Trial counsel objected to the juror’s dismissal and moved for a mistrial based on 

Swain, and after the trial court denied the motion, the proceedings continued with 

the remaining twelve jury members.

¶20 This is not the first time a trial court has communicated with the jury 

outside the presence of counsel, and while we cannot condone the practice—in 

fact, we discourage it—it need not result in automatic reversal. For example, 

when the trial court correctly responded to questions from the jury during 

deliberations without alerting counsel of the jury’s question, we found any error

with the communication to be harmless. See State v. Koller, 2001 WI App 253, 

¶1, 248 Wis. 2d 259, 635 N.W.2d 838; State v. Bjerkaas, 163 Wis. 2d 949, 952, 
No. 2018AP942-CR

11

472 N.W.2d 615 (Ct. App. 1991). Furthermore, when a judge entered the jury 

room during deliberations to discuss dinner arrangements for the juror members, 

our supreme court found any error with the communication to be harmless. See

Burton, 112 Wis. 2d at 562. In each case, the communications were said to be 

innocuous and did not contribute to the outcome of the case. We see the

communications between the trial court and the juror here as comparable, even 

assuming, without deciding, the communication was in error.

¶21 Additionally, looking at the communication “in light of the entire 

trial,” id. at 572-73, we must necessarily conclude that any assumed error was

harmless because Spencer received what he was entitled to, namely a fair and 

impartial jury, and the communications cannot be said to have influenced the 

jury’s verdict. “A defendant is entitled to fair and impartial jurors, not jurors 

whom he hopes will be favorable towards his position.” State v. Mendoza, 227 

Wis. 2d 838, 863, 596 N.W.2d 736 (1999). “A defendant’s rights go to those who 

serve, not to those who are excused.” Id. There is nothing in the record, and 

Spencer fails to argue, that the remaining twelve jurors, none of whom had any 

ex parte communications with the trial court, were biased or partial. See State v. 

Tulley, 2001 WI App 236, ¶11, 248 Wis. 2d 505, 635 N.W.2d 807. Spencer had a 

right to be tried by a fair and impartial jury composed of twelve members, and that 

is what he received despite the ill juror having been dismissed prior to 

deliberations.

III. Spencer pled sufficient facts entitling him to a hearing on 

his claim for ineffective assistance of counsel

¶22 “A hearing on a postconviction motion is required only when the 

movant states sufficient material facts that, if true, would entitle the defendant to 

relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. “If 
No. 2018AP942-CR

12

the motion raises such facts, the circuit court must hold an evidentiary hearing.” 

Id., ¶9. “[I]f the motion does not raise facts sufficient to entitle the movant to 

relief, or presents only conclusory allegations, or if the record conclusively 

demonstrates that the defendant is not entitled to relief,” a trial court may, in its 

discretion, deny a postconviction motion without a hearing. See id. Whether a 

motion alleges sufficient facts that, if true, would entitle the defendant to an 

evidentiary hearing presents a question of law that we review de novo. See

State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). “[A] defendant 

should provide facts that allow the reviewing court to meaningfully assess his or 

her claim.” Id. at 314. As stated in Allen:

postconviction motions [should] ... allege the five “w’s” 

and one “h”; that is, who, what, where, when, why, and 

how. A motion that alleges, within the four corners of the 

document itself, the kind of material factual objectivity ... 

will necessarily include sufficient material facts for 

reviewing courts to meaningfully assess a defendant’s 

claim.

Id., 274 Wis. 2d 568, ¶23 (footnote omitted).

¶23 “Under the Sixth and Fourteenth Amendments to the United States 

Constitution, a criminal defendant is guaranteed the right to effective assistance of 

counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. 

A defendant must show two elements to establish that his or her counsel’s 

assistance was constitutionally ineffective: (1) counsel’s performance was 

deficient; and (2) the deficient performance resulted in prejudice to the defense. 

Id. “To demonstrate deficient performance, the defendant must show that his 

counsel’s representation ‘fell below an objective standard of reasonableness’ 

considering all the circumstances.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 

640, 782 N.W.2d 695 (citation omitted). Prejudice occurs when the attorney’s 
No. 2018AP942-CR

13

error is of such magnitude that there is a “reasonable probability” that but for the 

error the outcome would have been different. State v. Erickson, 227 Wis. 2d 758, 

769, 596 N.W.2d 749 (1999). “‘A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.’ That requires a ‘substantial,’ 

not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563 

U.S. 170, 189 (2011) (citations omitted).

¶24 In his postconviction motion, Spencer alleged that R.S.’s testimony 

that McKinney shot at Spencer and T.M. from the kitchen window to protect R.S.

constituted inadmissible hearsay and his trial counsel was ineffective in failing to 

object to this testimony. Spencer further argued that the State’s reliance on this 

assertion in its opening and closing arguments demonstrate that the State used it

for the truth of the matter asserted. 

¶25 After identifying what he alleged was inadmissible hearsay and how 

and why he believes it is hearsay, Spencer then alleged how he was prejudiced 

because McKinney shooting from the kitchen window to protect R.S. was the “key 

evidence” in the State’s case to prove felony murder. Spencer further alleged how

trial counsel’s performance was deficient because he contended there is no 

possible strategy that trial counsel could have had in not objecting to R.S.’s 

hearsay testimony. Spencer argued the hearsay “was important to the State, and 

harmful to the defense.” 

¶26 Spencer provided the who, what, where, why, when, and how of his 

allegations that he received ineffective assistance of counsel and did more than 

recite conclusory allegations. Taking his allegations as true, we conclude that 

Spencer alleged sufficient material facts that would entitle him to relief, and the 

trial court was required to grant Spencer a Machner hearing. See State v. Sholar, 
No. 2018AP942-CR

14

2018 WI 53, ¶51, 381 Wis. 2d 560, 912 N.W.2d 89 (“[T]he issue ... is whether the 

defendant’s motion alleged sufficient facts entitling him to a hearing.”). 

¶27 We, therefore, remand for the trial court to hold a Machner hearing 

on Spencer’s claim that he received ineffective assistance of counsel when his trial 

counsel failed to object to R.S.’s hearsay testimony. See Sholar, 381 Wis. 2d 560,

¶54 (“[W]hen an appellate court remands for a Machner hearing, it must leave 

both the deficient performance and the prejudice prongs to be addressed[.]”).

CONCLUSION

¶28 We conclude that Spencer is not entitled to a new trial because he 

forfeited his claims that the trial court’s decision to dismiss the juror for cause 

violated his right to due process and equal protection and was an erroneous 

exercise of discretion. We further conclude that Spencer is not entitled to a new 

trial because any error in the trial court’s communications with the juror was 

harmless. Therefore, the trial court’s decision in these respects is affirmed.

¶29 However, we reverse the trial court’s decision to deny Spencer’s 

motion that he received ineffective assistance of counsel because Spencer alleged

sufficient material facts in his postconviction motion. We emphasize that we are 

not deciding that trial counsel was deficient or that Spencer was prejudiced, only 

that Spencer’s postconviction motion was sufficient to require that the trial court 

conduct an evidentiary hearing on ineffective assistance of trial counsel. We 

remand to the trial court for a Machner hearing and further proceedings consistent 

with this decision.

By the Court.—Order affirmed in part; reversed in part and cause 

remanded with directions.
No. 2018AP942-CR

15

Not recommended for publication in the official reports.
No. 2018AP942-CR(CD)

No. 2018AP942-CR(CD)

¶30 WHITE, J. (concurring in part; dissenting in part). I disagree with 

the Majority’s conclusion that Spencer forfeited his claim to challenge the trial 

court’s decision to discharge Juror No. 2 and that the trial court’s ex parte

communication with Juror No. 2 constituted harmless error.1 See Majority, ¶¶11-

21. I believe that Spencer’s due process rights were violated when trial counsel 

was not present when the trial court questioned the juror about her ability to 

continue serving on the jury and then dismissed the juror, contrary to our supreme 

court’s holdings in State v. Alexander, 2013 WI 70, ¶24, 349 Wis. 2d 327, 833 

N.W.2d 126. Therefore, I would remand this matter for a new trial and I 

respectfully dissent. I join in the Majority opinion in its conclusion that Spencer 

was denied effective assistance of counsel for failing to object to certain testimony 

that he argues is inadmissible hearsay. See Majority, ¶¶22-27.

¶31 Although the Majority concedes that Spencer’s constitutional rights 

may have been violated, it concludes that the violation was harmless error because 

there were no allegations that the final jury panel was not impartial. I believe this 

considers the wrong question. A defendant’s constitutional right to presence 

during criminal proceedings exists independently of a defendant’s constitutional 

 

1

 The Majority considers trial counsel’s motion for mistrial and Swain objection 

insufficient for this court to review his arguments on appeal. Majority ¶15; see Swain v. 

Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986). I 

disagree. As I consider the trial court’s ex parte communication with and discharge of Juror 

No. 2 to implicate violations of Spencer’s due process rights and constitutional rights to 

assistance of counsel, I consider his objections sufficient to avoid forfeiture. See State v. 

Albright, 96 Wis. 2d 122, 129-30, 291 N.W.2d 487 (1980), holding modified by State v. Weed, 

2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485. 
No. 2018AP942-CR(CD)

2

right to an impartial jury. The Majority conflates the two rights, determining that 

as long as Spencer’s deliberating jury panel was not alleged to be unfair, then the 

due process violations that occurred in selecting the final jury are not prejudicial. 

I cannot ignore the trial court’s failure to comply with due process and Wisconsin 

precedent. 

¶32 “The constitutional right to presence is rooted to a large extent in the 

Confrontation Clause of the Sixth Amendment ... but we have recognized that this 

right is protected by the Due Process Clause in some situations where the 

defendant is not actually confronting witnesses or evidence against him.” United 

States v. Gagnon, 470 U.S. 522, 526 (1985) (citations omitted). Both the United 

States and Wisconsin Constitutions contain a right to due process. U.S. CONST. 

amend. XIV, WIS. CONST. art. I, § 8. “Due process guarantees a defendant ‘the 

right to be present at any stage of the criminal proceeding that is critical to its 

outcome if his presence would contribute to the fairness of the procedure.’” 

Alexander, 349 Wis. 2d 327, ¶20 (quoting Kentucky v. Stincer, 482 U.S. 730, 745 

(1987)).

¶33 “A criminal defendant’s right to an impartial jury, on the other hand, 

flows from the Sixth Amendment to the U.S. Constitution and Article I, Section 7 

of the Wisconsin Constitution.” Alexander, 349 Wis. 2d 327, ¶21.

2

 There are no 

 

2

 I consider the Majority’s reliance on State v. Tulley to be misplaced. See id., 2001 WI 

App 236, ¶3, 248 Wis. 2d 505, 635 N.W.2d 807. Tulley challenged his conviction because “the 

circuit court examined three members of the venire outside the presence of the defendant, his 

counsel and the prosecuting attorney, without objection from anyone.” Id., ¶8. In contrast, 

Spencer’s trial was at a completely different stage: Juror No. 2 was selected for the jury panel, 

the trial phase had ended, and deliberations were set to begin. The analysis of harmless error 

caused by ex parte communication during voir dire of jurors not selected to the panel does not 

implicate a defendant’s due process rights.
No. 2018AP942-CR(CD)

3

allegations here that Juror No. 2 was biased or that Spencer’s preemptory 

challenges were ignored or improper.3 The issue here is Spencer’s right to due 

process and his right to have counsel present during a critical stage in the legal 

proceeding, namely when a juror selected at voir dire was dismissed for cause 

before deliberations began.4 

¶34 As our supreme court shaped the law on the constitutional right of 

defendant’s presence, it concluded over and over that the presence of counsel 

safeguarded defendant’s due process rights. “All that the Constitution requires at 

such a conference is the presence of defense counsel.” Alexander, 349 Wis. 2d 

 

3

 The importance of an impartial jury cannot be overstated; however, the concerns it 

raises are not issues in Spencer’s trial. For example, “[i]f a juror is not indifferent in the case, the 

juror shall be excused.” WIS. STAT. § 805.08(1) (2017-18); see State v. Brunette, 220 Wis. 2d 

431, 439, 583 N.W.2d 174 (Ct. App. 1998). There is no allegation that Juror No. 2 was biased. 

“Any claim that a jury is not impartial must focus not on the jurors who were removed by 

peremptory challenges but on the jury that actually sat in the case.” State v. Traylor, 170 Wis. 2d 

393, 400, 489 N.W.2d 626 (Ct. App. 1992). See State v. Lindell, 2001 WI 108, ¶81, 245 Wis. 2d 

689, 629 N.W.2d 223; State v. Lepsch, 2017 WI 27, ¶58, 374 Wis. 2d 98, 892 N.W.2d 682. 

There is no allegation that the twelve jurors who deliberated on the case were not impartial. 

There is no allegation that Spencer was denied access to preemptory challenges in the 

composition of the jury panel. 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.

4

 I fully acknowledge that Juror No. 2 may have become the alternate through random 

chance. Deliberations had not yet begun and by law, “the court shall determine by lot which 

jurors shall not participate in deliberations and discharge them. WIS. STAT. § 972.10(7). That 

Juror No. 2 was not guaranteed to serve on the jury does not negate my due process concerns.
No. 2018AP942-CR(CD)

4

327, ¶29.

5

 The overarching message is that a defendant’s right of presence may be 

limited in certain situations, but defendant’s right to counsel and accordingly, 

counsel’s presence cannot and should not be limited. 

¶35 Our supreme court clarified that a defendant’s constitutional rights 

are safeguarded by the presence of counsel even when the defendant is denied 

access. In Alexander, two jurors notified the trial court separately that the juror 

recognized someone connected to the case, the first a person in the gallery and the 

second a witness at trial. Alexander, 349 Wis. 2d 327, ¶¶10-11. The trial court 

met with trial counsel, the State, and the jurors in three separate meetings; the 

defendant was not present. Id., ¶¶7-8, 10, 12. The trial court struck each of the 

jurors from the panel for cause before deliberations began. Id., ¶14. Alexander 

argued that his due process rights were violated because he was excluded from 

these meetings. But our supreme court held that “[a]ll that due process ... 

required was that the defendant’s attorney be present.” Id., ¶24. Our supreme 

court cited to federal case law to support that the defendant’s absence could be 

safeguarded by the presence of counsel. See United States v. Provenzano, 620 

F.2d 985, 998 (3d Cir. 1980) (“Examination of the record reveals that counsel 

vigorously safeguarded appellants’ interests, to the extent of insisting on 

 

5

 See May v. State, 97 Wis. 2d 175, 183-184, 293 N.W.2d 478, (1980) (“[C]ounsel 

should have been given the opportunity to confer with the court about the appropriate response to 

be given to the jury’s question. It was error for the trial court to answer the question without 

notifying counsel.”); State v. Burton, 112 Wis. 2d 560, 564-65, 334 N.W.2d 263 (1983), 

overruled on other grounds by State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 

126) (“The [S]tate and defendant agree that this judge’s comments to the jury in the jury room 

outside the presence of defendant and defense counsel constitute constitutional error.”); State v. 

Anderson, 2006 WI 77, ¶¶68-70, 291 Wis. 2d 673, 717 N.W.2d 74, overruled on other grounds 

by Alexander, 349 Wis. 2d 327 (“The assistance of counsel when a court communicates with the 

jury during deliberations may be necessary to a meaningful defense.... The circuit court thus 

erred by failing to have defense counsel present when it communicated with the jury.”). 
No. 2018AP942-CR(CD)

5

procedures [that] counsel thought would yield the best chance for acquittal.”); 

United States v. McCoy, 8 F.3d 495, 497 (7th Cir. 1993) (“McCoy’s interests were 

sufficiently protected by his counsel’s presence at the conferences. McCoy 

therefore had no due process right to attend.”); Ellis v. Oklahoma, 430 F.2d 1352, 

1355 (10th Cir. 1970) (“By deciding that a criminal defendant does not have an 

absolute constitutional right to be a participant in such in camera discussions 

where his lawyer is present, the question narrows itself to whether the 

communication itself, as related in the in camera proceeding, was actually 

prejudicial.”) 

¶36 My analysis focuses on four concerns: (1) the record is insufficient 

for meaningful review; (2) the trial court’s ex parte communication was 

consequential; (3) Spencer was denied the right to counsel at a critical stage; and 

(4) the removal of Juror No. 2 was not harmless error. 

I. The record

¶37 Here, critical information is missing from the record because the trial 

court was alone when it assessed Juror No. 2. The record itself notes that a fortyfive minute recess was taken. The trial court stated “The record should reflect ... 

[i]t’s been over a half an hour at least, maybe 45 minutes, since we went off the 

record earlier.” As the Majority recounts, the trial court explained that a juror had 

become ill and the court sent that juror to lie down in chambers. Majority, ¶18. 

The court asked the juror about her potential return “about 15, 20 minutes ago.” 

The trial court also stated: “We met in the back. I advised the attorneys going 

along what was the cause for the delay and what was being done to assist the juror 

and we agreed to wait.” The record is unclear if the trial court had the juror alone 

for twenty-five to thirty minutes before the trial court “conferred with the 
No. 2018AP942-CR(CD)

6

attorneys” or exactly how long the trial court met with the juror without the 

presence of counsel. 

¶38 In reviewing the record, I was struck by the trial court’s description 

that it conferred with counsel regarding the discharge of Juror No. 2. The record 

does not make clear what that meant in a practical way or whether it complied 

with the duties set forth for trial courts when faced with the need to discharge 

jurors in State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212 (1982). In 

Lehman, when a juror became ill during several hours into deliberations, an 

alternate juror that had been released was recalled to service without notifying the 

defendant, counsel or the State. Id. at 293. When the defense objected to 

substituting the alternate or having a jury of eleven people, the circuit court 

ordered that the alternate be impaneled. Id. On appeal, our supreme court held 

that a trial court had discretion to discharge a juror before or during deliberations; 

however, “it is the circuit court’s duty, prior to the exercise of its discretion to 

excuse the juror, to make careful inquiry into the substance of the request and to 

exert reasonable efforts to avoid discharging the juror.” Id. at 300. Relevant here, 

the circuit court’s inquiry “generally should be made out of the presence of the 

jurors and in the presence of all counsel and the defendant.” Id. (emphasis added). 

This inquiry depends on the facts and circumstances of the case. The trial court 

must be extremely cautious to “avoid a mistrial by either needlessly discharging 

the juror or by prejudicing in some manner the juror potentially subject to 

discharge or the remaining jurors.” Id.

¶39 The Lehman court noted that the record was “totally devoid” of how 

the circuit court became aware of the ill juror, who discharged the juror, what 

inquiries were made of the ill juror, and whether discharge was the only option. 

Id. at 301. Relevant to our discussion here, our supreme court highlighted that 
No. 2018AP942-CR(CD)

7

“neither the defendant nor the [S]tate was given an opportunity to be present when 

the ill juror was discharged.” Id. It continued, “[w]e can not determine from the 

record ... whether or not the circuit court exercised its discretion to discharge the 

juror or on what basis the court reached its decision.” Id. The Lehman court then 

stated that under these facts and circumstances, it could only conclude “that the 

circuit court abused its discretion in discharging the regular juror.” Id. Similarly, 

Spencer’s counsel was denied the opportunity to be present during the meeting 

with Juror No. 2, and I consider the record to be inadequate to support the trial 

court’s exercise of discretion. 

¶40 Here, Spencer was denied the safeguards of counsel when the trial 

court acted alone in its meeting with the juror. The Majority ably recites the trial 

court’s description of what happened that day. Majority, ¶18. However, I must 

reiterate the point that the trial court is the only record for what happened. There 

is no testimony from the juror, no court reporter record, no colloquy with counsel. 

Two additional parts of the record stand out as well. The first issue is that the trial 

court appeared unaware that removing Juror No. 2 would be “for cause.” The 

conversation went as follows:

[THE STATE]: I would simply indicate, Your 

Honor, that I do agree that based on health issues that she 

should be struck for cause. I think it would be very—

THE COURT: She’s excused is what we’re going 

to say.

[THE STATE]: The only reason I was going to say 

“for cause” is because I do know that the statutes do say 

that alternates can only be picked at random. So we can’t 

designate her as an alternate per statute but we can excuse 

her for a good reason.

THE COURT: For cause.
No. 2018AP942-CR(CD)

8

[THE STATE]: Yeah, for cause. And the only 

reason I’m saying that is because that is allowed. So I 

agree with the Court’s resolution or determination.

THE COURT: All right.

¶41 This record raises concerns whether the process under Lehman to 

discharge Juror No. 2 at this stage of trial was followed. If a careful inquiry in 

accordance with Lehman leads the trial court to require removing a juror for 

cause, the “trial court has the discretion to remove a juror for cause during a trial 

proceeding.” State v. Gonzalez, 2008 WI App 142, ¶20, 314 Wis. 2d 129, 758 

N.W.2d 153. If this occurs prior to deliberations, then the trial court may 

determine that the excused juror was the alternate. Id., ¶20. Here, the State 

appears to remind the trial court about this procedure when it told the trial court 

that Juror No. 2 would need to be excused for cause, but the record is insufficient 

to show that the trial court fulfilled its duty of careful inquiry and reasonable 

efforts to avoid discharging the juror. 

¶42 The second issue is the court’s reaction to trial counsel’s attempt to 

make a record on its concerns. 

[TRIAL COUNSEL]: At the outset of this trial 

when the panel was impaneled and after the composition of 

the potential jurors was revealed, I expressed to the [c]ourt 

concern about the underrepresentation of minorities at that 

point in the room. The following morning I brought a 

Swain challenge based on the pool of people that is from 

the Department of Transportation’s photo ID and state ID 

records and that it underrepresented African-Americans. 

The [c]ourt denied the challenge ruling that I had not met 

my burden of proof. 

We’re now in a situation where we have no 

African-American jurors. And in a trial where the 

defendant is African-American, I inquired specifically of—

I believe she was Juror No. 2.

THE COURT: Yes.
No. 2018AP942-CR(CD)

9

[TRIAL COUNSEL]: —whether or not she would 

be able to handle the pressure if she were the only AfricanAmerican juror. I believe what these events demonstrate is 

not that the juror was not—

THE COURT: That the juror was what?

[TRIAL COUNSEL]: The juror was in any way 

dishonest with any of us or herself but that there are—that 

our bodies are under lots of pressure from lots of things and 

that this is not unpredictable. I’m moving for a mistrial. I 

understand the [c]ourt is going to deny it but I have to 

move for a mistrial to protect the record.

THE COURT: Yes.

[TRIAL COUNSEL]: I’m also renewing my 

challenge under Swain. And finally, the research shows, 

and I have it in my car, not here in front of me, that even 

the presence of one African-American on a jury can make a 

difference in terms of reducing systemic bias. And I’d be 

happy to get the article to complete the record but I don’t 

have it in front of me. It’s in the car with the rest of the 

stuff. And I would like permission to supplement that just 

to put it in the record. So I’m moving for a mistrial. 

THE COURT: Okay. Your motion is noted and it 

will be denied for the reasons that I’ve stated. I will add 

and thank you but I’m not gonna allow you to supplement 

the record at this point with additional research materials. 

I’m not saying that they’re not valid. I haven’t read them. 

But at this point they’re not part of the record and they 

don’t—they’re not part of the [c]ourt’s decision making 

process in this.

¶43 Trial counsel’s argument gets to the heart of the importance of 

representation when the trial court communicates with jurors. Trial counsel raises 

concerns about whether the juror has been stressed by the experience of being on 

the jury or the trial itself. Trial counsel’s concerns about the racial makeup of the 

jury pool and a Swain challenge are questions that reach the fairness of a jury.6 

 

6

 I do not follow this argument any further other than to note that defense has raised the 

issue, made an objection, and has not forfeited Spencer’s claims. I do not inquire or assess 

Spencer’s potential success at showing an equal protection violation. 
No. 2018AP942-CR(CD)

10

See Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 

476 U.S. 79 (1986); Powers v. Ohio, 499 U.S. 400, 411 (1991) (“Jury selection is 

the primary means by which a court may enforce a defendant’s right to be tried by 

a jury free from ethnic, racial, or political prejudice.” (citations omitted)). When 

the trial court announced that Juror No. 2 had been released, the trial court 

mentioned the concern about losing the only African-American member of the 

jury panel. However, the trial court’s process by which Juror No. 2 was released 

foreclosed trial counsel’s opportunity to see the juror’s demeanor or to ask 

whether accommodations might allow her to remain on the jury panel. “Unless a 

defendant and his or her lawyer are present when potential jurors are questioned, 

the subtleties of responses are lost-even if a transcript is made available to the 

defendant and defense counsel.” State v. Harris, 229 Wis. 2d 832, 844, 601 

N.W.2d 682 (Ct. App. 1999).

7

 

¶44 It is critical that the trial court left no record by anyone who could 

testify to what happened that morning with Juror No. 2. The Majority concludes 

that Spencer forfeited his right to challenge the trial court’s decision to dismiss the 

ill juror because he failed to object on the basis of due process violation and equal 

protection directly to the trial court or in his postconviction motion. Majority, 

¶¶11-15. The Majority concludes that trial counsel’s Swain objection did not 

satisfy those objectives. I disagree and I conclude that Spencer has not forfeited 

his claims. An overly narrow reading of Spencer’s objections denies him legal 

recourse. A trial court judge cannot serve dual roles under our adversarial system: 

 

7

 State v. Harris, 229 Wis. 2d 832, 844, 601 N.W.2d 682 (Ct. App. 1999), addresses due 

process concerns in voir dire, but its characterization of the importance of interactions between 

juror and counsel or juror and judge are applicable here.
No. 2018AP942-CR(CD)

11

the judge cannot represent the defendant’s or State’s interests; the judge must not 

invade the province of counsel or the jury. If the trial court makes the only record, 

then there is no one who can be questioned about the proceedings. This directly 

leads to why the presence of counsel is of critical importance. A defendant denied 

counsel faces violations of constitutional rights without objection or recourse. 

II. Ex parte communication

¶45 Wisconsin courts have concluded that ex parte communication 

between the jury and judge constitutes harmless error when the communication 

was an incidental encounter, a “short interlude in a complex trial,” Gagnon, 470 

U.S. at 527, or it “concern[ed] situations where, in the context of the case, the 

deprivations were essentially de minimis.” Harris, 229 Wis. 2d at 841. The 

Wisconsin appellate courts have frequently admonished and warned trial courts 

that ex parte communication with jurors is a potentially dangerous and inadvisable 

path. “There is always a risk of the conference exceeding a nonconstitutional 

scope or causing misunderstanding.” Ramer v. State, 40 Wis. 2d 79, 85-86, 161 

N.W.2d 209 (1968). This supreme court warning remains prescient:

While we do not question the good faith or the motives of a 

judge, like the one in this case, who communicates with the 

jury about supper and other matters relating to the jurors’ 

physical comfort and well-being, we do not condone the 

practice of a judge entering the jury room or 

communicating with a jury outside of the presence of the 

defendant and of counsel for the defendant both and the 

state, even when the judge scrupulously takes a court 

reporter with him or her to the jury room to record the 

comments. The judge is a figure of authority and respect 

during the trial; his or her intrusions into the sanctity of 

jury deliberations may affect those deliberations. Even a 

transcript of the judge’s communication cannot reveal a 

judge’s facial expressions or tone of voice. Defense 

counsel and defendant must be present to have the 

opportunity to observe the judge’s demeanor first-hand, to 
No. 2018AP942-CR(CD)

12

object to statements or request curative statements in the 

event that the communication may be improper in any way.

State v. Burton, 112 Wis. 2d 560, 569, 334 N.W.2d 263 (1983), overruled on 

other grounds by Alexander, 349 Wis. 2d 327. If the entire recess was forty-five

minutes, it is unclear how long the juror was alone with the court and when 

counsel was notified. What is clear is that the trial court did not make a record of 

its conversation with the juror. The trial court did not invite counsel to see the 

juror or question her directly, instead it relayed questions and answers. This ex 

parte communication was not harmless because it was consequential: Juror No. 2 

was removed from the panel after that communication. 

¶46 In State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 

216, the court of appeals addressed a similar factual circumstance and illustrates 

how to avoid the due process violations found here. In Avery, the trial court 

communicated ex parte with a juror who had asked to leave the jury after the first 

day of deliberations. Id., ¶51. During the five-week trial, the trial court 

sequestered twelve jurors and an alternate. Id. After the first day of deliberations, 

Juror M asked the sheriff to be excused because a family emergency and marital 

problems. Id. The sheriff notified the trial court, who reached out by telephone to 

defendant’s counsel and the State that evening. Id. “Counsel agreed that the court 

should speak personally with Juror M. and, if the information provided by [the 

sheriff] was verified, the juror should be excused.” Id. The trial court spoke with 

the juror and heard genuine concern related to his marriage and excused the juror. 

Id.

¶47 The Avery trial court met again with counsel before the second day 

of deliberations began. “Both defense counsel and the trial court agreed that the 

procedure would be governed by” Lehman. Avery, 337 Wis. 2d 351, ¶52. After 
No. 2018AP942-CR(CD)

13

that meeting, defense counsel met with the defendant for twenty minutes. Id. 

Upon confirmation on the record in court, the defendant agreed to replace Juror M 

with the alternate juror; deliberations with the newly constituted panel began 

anew. Id.

¶48 In contrast, here the trial court did not notify counsel when the bailiff 

informed the court that a juror was feeling unwell. Although the Avery and 

Spencer trial courts each met with a juror alone to hear the juror’s concerns, in 

Avery, the trial court communicated with counsel before speaking to the juror and 

all parties had agreed to release the juror if his issues were verified. Here, the trial 

court did not notify counsel that the juror was unwell until that juror had been in 

chambers for some period of time. At some point, the trial court informed trial 

counsel and “conferred” on how to proceed. In contrast, the Avery court spoke 

with counsel in the evening as soon as it heard about the juror and before the trial 

court spoke with the juror. Here, the trial court relayed a question from trial

counsel, however, it is unclear if the trial court had reached an agreement from 

counsel to release the juror before the trial court discharged the juror.

¶49 Harmless error analysis is appropriate when counsel is not present 

for minimal, inconsequential interactions.8 Here, the consequence of this ex parte

 

8

 I believe there is a strong distinction between the ex parte communication that occurred 

here and the ex parte communication deemed harmless error in the cases relied upon by the 

Majority. Majority, ¶20. In Burton, 112 Wis. 2d at 563, overruled by Alexander, 349 Wis. 2d 

327, the judge entered the jury room to determine logistics for deliberations and to make 

arrangements for dinner. In State v. Koller, 2001 WI App 253, ¶61, 248 Wis. 2d 259, 635 

N.W.2d 838, holding modified by State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 

N.W.2d 760, the judge, without consulting counsel or the defendant, told the jury that two pieces 

of evidence it requested to view were not available during deliberations. In State v. Bjerkaas, 

163 Wis. 2d 949, 957, 472 N.W.2d 615 (Ct. App. 1991), the judge correctly answered the jury’s 

question on a point of law without consulting counsel. None of those interactions had 

consequence to the composition of the jury panel. 
No. 2018AP942-CR(CD)

14

communication was that the only African-American member of the jury panel was 

excused and Spencer was denied an opportunity for counsel to ensure that 

finalizing the jury panel was conducted with all due process. 

III. Denied counsel at a critical stage

¶50 The trial court’s meeting with Juror No. 2 was a critical stage in the 

legal proceedings—the trial court does not get to pick and choose who is 

discharged from service. The trial court has a duty to transparency in justice: we 

all follow the same rules of law. The trial court may not obscure that process 

without violating a defendant’s constitutional rights. A critical stage has not been 

precisely defined by the United State Supreme Court, although it has been 

described as a stage with “significant consequences” or a time when the accused 

benefits from counsel’s legal assistance. See Schmidt v. Foster, 911 F.3d 469, 

479-480 (7th Cir. 2018) (citations omitted). “The Supreme Court has consistently 

limited the presumption of prejudice to cases where counsel is physically absent at 

a critical stage.” Morgan v. Hardy, 662 F.3d 790, 804 (7th Cir. 2011) (citations 

omitted). 

As one federal court has colorfully observed, the purpose of 

defense counsel’s presence in the context of a trial court’s

communication with the jury is to allow counsel to “prime 

the pump of persuasion” and, thus, potentially convince the 

court to address the jury communication in a manner that 

would support the defendant’s interests. 

Anderson, 291 Wis. 2d 673, ¶69. 

¶51 The State argues that removing Juror No. 2 was not a critical stage 

because Spencer cannot “point to a concrete example of prejudice counsel could 

have helped avoid during that limited discussion in chambers.” The State 

shortchanges Spencer’s due process rights with a conclusion that there was no 
No. 2018AP942-CR(CD)

15

prejudice because what could trial counsel have done to change the outcome of the 

conference with the juror. This ignores federal and state jurisprudence that 

safeguard due process through the presence of counsel. The meeting with Juror 

No. 2 was not innocuous communication or a de minimis interaction; it was not a 

foregone conclusion that Juror No. 2 would be removed from the jury. The trial 

court denied counsel face to face access to the juror and by doing so violated 

Spencer’s constitutional due process rights. 

¶52 Having counsel present does not guarantee any specific or positive 

outcome for the defendant, but counsel’s representation of defendant’s interests 

fulfills the requirements of due process. In Henderson v. Lane, a juror had a heart 

attack more than two hours into deliberations. Id., 613 F.2d 175, 179 (7th Cir. 

1980). The trial court called counsel to discuss using an alternate juror; trial 

counsel did not agree with the use of the alternate, but counsel was present and 

advocated for the defendant. Id. “The [alternate] juror was reinstated in the 

presence of the petitioner’s attorney only after reaffirming his ability to make a 

fair decision in the case.” Id. “Unlike many of the proceedings subject to 

constitutional scrutiny because of the defendant’s absence, the proceedings at 

issue here were transcribed, giving this court a precise record from which to 

determine prejudice.” Id. The record allowed the appellate court to fairly review 

the case. “The most obvious barrier to prejudice in this case was the presence of 

the petitioner's attorney.... Because of the attorney’s presence, the petitioner’s 

interests were properly represented.” Id. When the trial court makes a record and

includes counsel, the reviewing court can determine prejudice to the defendant and 

violation of due process rights.
No. 2018AP942-CR(CD)

16

IV. Harmless error

¶53 The Majority correctly explains that harmless error analysis is 

available when the defendant is denied his right to counsel. Majority, ¶17. My 

disagreement is not the interpretation of the available law, but the application. I 

do not claim that ex parte communication between judge and jury is reversible 

error for violating the Sixth Amendment right to counsel or due process in all 

cases. The majority’s harmless error analysis is conclusory because it is devoid of 

“a fact-specific due-process inquiry” that is required to determine if “the 

communication between the judge and jury [denied] the defendant a fair and just 

hearing.” Alexander, 349 Wis. 2d 327, ¶28.

¶54 “The State has the burden of persuasion that the error was

harmless ... that is, that counsel was not necessary to protect the accused’s 

substantive rights.” Anderson, 291 Wis. 2d 673, ¶76. Here, I conclude that the 

State failed in its burden of persuasion. The State contends that Spencer has not 

shown what prejudice he suffered by this due process violation; however, it is the 

State’s burden to show the lack of prejudice. Further, this argument fails because 

this conference between the judge and Juror No. 2 was not inconsequential; the 

trial court did not satisfy its duties under Lehman to make a careful inquiry before 

discharging a juror; and the trial court left an insufficient record of its process. 

¶55 The State’s conclusion that Spencer experienced no prejudice suffers 

from the same issues as the Majority opinion: the lack of record. When an “error 

occurs at trial and its scope is readily identifiable ... the reviewing court can 

undertake with some confidence its relatively narrow task of assessing the 

likelihood that the error materially affected the deliberations of the jury.” 

Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (citations omitted). Here, the 
No. 2018AP942-CR(CD)

17

scope and impact of the trial court’s error is difficult to assess because of the lack 

of record. The “absence of a complete record of the communication” between the 

judge and jury weighed heavily as a factor in favor of a finding of prejudice 

because the reviewing court was “deprived of an opportunity to make an 

assessment of the prejudicial effect of the communication.” Anderson, 291

Wis. 2d 673, ¶118 (citations omitted). There is a similar problem here. The 

record is insufficient for the reviewing court to meaningfully assess the prejudice 

to Spencer’s trial. 

¶56 I was struck by the trial court’s words in response to trial counsel’s 

inquiry, when the trial court stated that Juror No. 2, was “if you want to know the 

details, queasy, light headed, just unwell generally.” The trial court made the 

inquiry. Addressing the parties and the record with the words “if you want to 

know the details”—is the trial court’s fundamental misunderstanding of its duties. 

In our legal system, trial counsel and the State are zealous advocates of their 

respective clients. Here, the trial court invaded counsel’s responsibility. Trial 

counsel had a duty to her client: a duty to inquire vigorously about the fitness of 

the jury panel members. The juror’s words and demeanor should not be filtered 

by the judge. Spencer’s rights should not be filtered by the judge. Spencer’s 

rights cannot be considered rights if he is only granted them as filtered by the trial 

court. Trial counsel needs to have an opportunity to represent her client’s legal 

interests and the trial court must not overstep. 

¶57 Trial counsel made a record about the defense’s concern that there 

was a racism component to the juror’s illness. Our trial courts have a duty to 

preserve each defendant’s rights. This duty springs from the basis of justice, flows 

through our state and federal constitutions, and is repeatedly pronounced in our 

supreme court decisions. 
No. 2018AP942-CR(CD)

18

¶58 This issue comes down to the law and the record. The law is simple. 

The trial court should make a careful inquiry before discharging a juror for cause 

during the trial or deliberations. Lehman, 108 Wis. 2d at 300. The trial court’s 

meetings with jurors should occur in the presence of counsel to safeguard a 

defendant’s constitutional rights, particularly when it comes to removing jurors. 

See Alexander, 349 Wis. 2d 327, ¶29. The record should be clear and 

unambiguous to allow a reviewing court to determine whether there is any 

reasonable doubt that the ex parte communication impacted the fairness of the 

trial. Avery, 337 Wis. 2d 351, ¶52, see also Moore v. Knight, 368 F.3d 936, 944

(7th Cir. 2004). Here, the record was insufficient. 

¶59 I concur in the Majority opinion that Spencer was denied effective 

assistance of counsel for failing to object to certain testimony that he argues is 

inadmissible hearsay. I am also persuaded that Spencer’s rights were also violated 

when the trial court failed to include his counsel at a critical stage in the case—a 

meeting with Juror No. 2 that led to the juror’s discharge—and this was not 

harmless error. I do not agree that he forfeited his right to appeal these issues. 

Therefore, I respectfully dissent and would reverse and remand this matter for a 

new trial.