State v. Avery, 804 N.W.2d 216

Avery was convicted as a party to first-degree intentional homicide and felon in possession of a firearm.
Avery challenged evidence from the November 8, 2005 trailer search, arguing it violated the Fourth Amendment; the court held it was a reasonable continuation of the original search and admissible under inevitable discovery.
The November 5–12, 2005 salvage-yard search yielded DNA and other evidence linking Avery to Halbach's death, including bone fragments, blood, and personal items; a key to Halbach's RAV4 was found during the sixth search of Avery's trailer.
Avery sought to introduce third-party liability evidence, but the trial court excluded it under the legitimate tendency (Denny) test.
Avery challenged the deliberating juror’s dismissal; the court replaced the juror with an alternate juror after voir dire and with the parties’ consent, following Lehman guidance.
A postconviction motion (2009) challenged the juror substitution and suppression rulings; the court denied relief, and the appellate court affirmed the judgments of conviction and the postconviction order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of November 8 search evidence	Avery argues it was an improper separate search.	State argues it was a reasonable continuation and inevitable discovery.	Admissible; search was a reasonable continuation and inevitable discovery upheld.
Exclusion of third-party liability evidence under Denny	Avery contends constitutional defense rights trump Denny.	State contends evidence fails legitimate tendency test.	Exclusion upheld; evidence did not satisfy motive and opportunity and direct connection.
Substitution of a deliberating juror with consent	Lehman procedures not properly followed; substitution flawed.	Consent by Avery and adherence to Lehman authorized substitution.	Permissible with consent; substitution upheld.
Ex parte communication with excused juror	Right to be present during voir dire violated.	Contact was harmless under Doherty.	Harmless error; no reasonable possibility it contributed to verdict.

State v. Sveum, 328 Wis. 2d 369 (Wis. 2010) (reasonableness of ongoing warrants and continuation doctrine)
State v. Squillacote, 221 F.3d 542 (4th Cir. 2000) (multi-day searches not require new warrants)
State v. Denny, 120 Wis. 2d 614 (Wis. Ct. App. 1984) (legitimate tendency test for third-party defense evidence)
State v. Lehman, 108 Wis. 2d 291 (Wis. 1982) (discretion to discharge juror during deliberations)
State v. Richardson, 210 Wis. 2d 694 (Wis. 1997) (frame-up evidence; legitimate tendency discussion not adopted for all contexts)
State v. Knapp, 2003 WI 121 (Wis. 2003) (adopts legitimate tendency test for third-party defense evidence)
Holmes v. South Carolina, 547 U.S. 319 (U.S. 2006) (recognition of admissibility standards for third-party evidence)
United States v. Gagnon, 470 U.S. 522 (U.S. 1985) (defendant need not be present at every juror interaction)
United States v. Doherty, 867 F.2d 47 (1st Cir. 1989) (harmless error for ex parte juror communications)