State v. Demone Alexander
833 N.W.2d 126
Wis.2013Background
- Defendant Demone Alexander was tried for first-degree intentional homicide; during the trial two sitting jurors separately reported potential connections to persons in the case (one knew the mother of Alexander’s child; one knew a defense witness).
- The judge conducted separate on-the-record in-chambers interviews of each juror with prosecutor and both defense attorneys present; Alexander was not present; both jurors were later struck (as alternates) over defense objection.
- Alexander was convicted and moved for postconviction relief arguing his constitutional right to be present (Due Process/Sixth Amendment/ Wisconsin Const.) and a statutory right under Wis. Stat. § 971.04(1)(c) to be present during voir dire were violated.
- The circuit court denied relief; the court of appeals affirmed; the Wisconsin Supreme Court granted review.
- The Supreme Court majority held (1) no constitutional violation because absence did not deny a "fair and just hearing"—counsel were present, defendant could not meaningfully assist and might have intimidated jurors; and (2) no statutory violation because the exchanges occurred during trial after jurors had been selected, not during voir dire.
Issues
| Issue | Plaintiff's Argument (Alexander) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether defendant must be physically present for in-chambers juror interviews during trial | Alexander: Constitution (Due Process, Sixth) and Wis. Const. require presence because removal of jurors affects right to impartial jury and fairness | State: No automatic right; presence required only if absence would thwart a fair and just hearing; counsel present suffices | Held: No constitutional violation—absence did not deny fair and just hearing (counsel present; defendant could not aid and might intimidate jurors) |
| Whether Wis. Stat. § 971.04(1)(c) (presence during voir dire) required Alexander’s presence for these in-trial juror interviews | Alexander: § 971.04(1)(c) entitles defendant to be present when jury composition is being determined; in-chambers juror questioning is part of jury selection | State: § 971.04(1)(c) applies to voir dire (pre-trial selection), not mid-trial questioning of already seated jurors | Held: Statute inapplicable—exchanges occurred after jurors were selected and trial had commenced, so § 971.04(1)(c) does not require presence |
| Whether prior Wisconsin precedent requires per se presence at all judge–juror communications | Alexander: Relies on Anderson and other authority suggesting broad right to be present at substantive steps | State: Precedent (May, Ramer, Leroux) supports fact-specific due-process inquiry; no categorical rule | Held: Court rejects categorical rule; overrules parts of Burton and limits Anderson language—focus on whether absence thwarts fairness |
| Whether defendant waived any statutory or constitutional right by counsel’s waiver/voluntary absence | Alexander: Contends rights were not waived or insufficiently waived | State: Counsel waived and defendant voluntarily absent; counsel present satisfied protections | Held: Majority: not necessary to reach waiver because no violation; concurring justices conclude record shows waiver in any event |
Key Cases Cited
- Kentucky v. Stincer, 482 U.S. 730 (constitutional right to be present at critical stages; due process analysis)
- United States v. Gagnon, 470 U.S. 522 (bench factors for when defendant’s presence is required; no right to attend every judge–juror interaction)
- Ramer v. State, 40 Wis. 2d 79 (test whether absence denies a fair and just hearing)
- Leroux v. State, 58 Wis. 2d 671 (defendant’s presence required only when absence would thwart fairness)
- May v. State, 97 Wis. 2d 175 (court may answer pure legal questions to jury without defendant present if counsel is present)
- Burton v. State, 112 Wis. 2d 560 (prior case finding error for judge–jury communications during deliberations without defendant; the court narrows/overrules parts)
- State v. Anderson, 291 Wis. 2d 673 (discussed and limited by the majority for treating presence as categorical)
- United States v. Provenzano, 620 F.2d 985 (3d Cir.) (no constitutional right to be present at in-chambers juror-dismissal conferences)
- Snyder v. Massachusetts, 291 U.S. 97 (presence not required when it would be useless)