STATE of Wisconsin, Plaintiff-Respondent, v. Brent T. Novy, Defendant-Appellant-Petitioner.
No. 2011AP407-CR, 2011AP408-CR & 2011AP409-CR.
Supreme Court
Oral argument October 9, 2012. —Decided March 14, 2013.
2013 WI 23 | 289 Wis. 2d 289 | 827 N.W.2d 610
For the plaintiff-respondent, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1. PATIENCE DRAKE ROGGENSACK, J. This is a review of a decision of the court of appeals1 that affirmed a judgment of the circuit court for Kenosha County.2 Novy raises two issues. First, Novy claims that the trial court erred when it allowed the State to use certain fingerprint evidence and related testimony in rebuttal, which the court had previously excluded from the State‘s case-in-chief due to a
¶ 2. We conclude that, with regard to the admission of fingerprint-related testimony on rebuttal, the circuit court did not erroneously exercise its discretion. The circuit court initially determined that the State had failed to comply with its discovery obligations
¶ 3. With regard to the circuit court‘s treatment of the allegedly sleeping juror, the circuit court did not find that the juror was sleeping; therefore, Novy failed to establish a finding necessary to his contention. The circuit court‘s findings are not clearly erroneous, and therefore, we will not overturn the circuit court‘s refusal to strike the juror. Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND4
¶ 4. For conduct that occurred between May 2008 and January 2009, Novy was charged in Kenosha County with two counts of stalking, 11 counts of felony bail jumping, and one count of violating a harassment injunction. All of the charges related to Novy‘s conduct 4
¶ 5. In early May 2008, Novy was charged with one count of stalking, in violation of
¶ 6. Then, on November 12, 2008, Novy was charged with another count of stalking under
¶ 7. Relevant for purposes of this appeal, one of the eight counts of bail jumping in case number 08-CF-1307 (Count 7) alleged that, on the night of November 9, 2008, Julie received a hang-up call from a payphone at L&M Meats in Kenosha, which was close to Novy‘s residence. Julie had previously noticed Novy‘s vehicle near L&M Meats, and had called her sister from that payphone to determine the phone number associated with that phone. After receiving the hang-up call on the night of November 9, Julie called the police, who went to the payphone at L&M Meats and verified that was the number from which Julie had recently received the phone call. Officers also lifted fingerprints from the receiver of the payphone. Police analysts later determined that these fingerprints matched Novy‘s fingerprints.
¶ 8. On January 14, 2009, Novy was charged with three additional bail jumping counts, as well as one count of violating the harassment injunction, contrary to
¶ 9. In late May 2010, a jury trial was held in Kenosha County, wherein the three separate cases were joined and Novy was tried on all 14 counts. During opening statements, counsel for the State referred to testimony about fingerprint evidence that would tend
¶ 10. The circuit court concluded that the State had failed in its obligation to properly disclose the fingerprint evidence, as required by
¶ 11. After the State completed its case-in-chief, the defense moved to dismiss Count 7 in case number 08-CF-1307, the bail jumping charge relating to the alleged phone call from the L&M Meats payphone, arguing that without fingerprint-related testimony, the State no longer had any evidence linking Novy to the phone on the night in question. The State conceded that, without the fingerprint-related testimony, the State would be unable to prove the elements of bail jumping for Count 7. Accordingly, the circuit court granted the defendant‘s motion to dismiss that count.
¶ 12. During the defense‘s case, Novy chose to testify. Prior to his testimony, defense counsel sought to prevent any questions regarding the phone call from L&M Meats on November 9, 2008, on the ground that the alleged call related solely to the dismissed bail
¶ 13. During cross-examination of Novy, counsel for the State asked Novy, “[D]id you call Julie from L and M Meats here in Kenosha on November 9th of 2008 at approximately 8:00 p.m.?” Novy responded, “No, I did not.” During Novy‘s redirect, defense counsel did not ask Novy any clarifying questions regarding his use of the payphone at L&M Meats on the night in question.
¶ 14. As the State prepared to present its case-in-rebuttal, counsel for the State asked whether the fingerprint evidence from L&M Meats and related testimony would be allowed at that point, given Novy‘s denial of having called Julie from that phone. Defense counsel protested, arguing that the fingerprint-related testimony showed only that Novy had at some point used the payphone at L&M Meats, not that he had necessarily used it that night. Additionally, defense counsel argued that the discovery statute,
¶ 15. In its case-in-rebuttal, the State presented the testimony of two officers from the Kenosha Police Department, Officers Hamilton and Primmer. Officer
¶ 16. Defense counsel did not cross-examine Officer Primmer. On surrebuttal, however, defense counsel re-called Novy. Novy testified that, although he had previously denied calling Julie from the payphone at L&M Meats, he had used that phone “quite a few times” in the past. In particular, Novy stated that he had used the phone to call a friend in the Philippines because his cell phone did not have an international calling plan.
¶ 17. After closing arguments and immediately before the selection of the alternate juror, defense counsel sought a sidebar. The record reflects that defense counsel alleged that one of the jurors had been sleeping during the defense‘s closing argument, and that the juror therefore should be struck. The circuit court denied the motion, and noted that she makes an effort “to keep track of what‘s going on with the jurors,” and that she had not seen the juror sleeping.
¶ 18. The jury found Novy guilty of both counts of stalking, six counts of bail jumping, and the one count of violating the harassment injunction. Novy was sentenced to 90 days in jail for violating the injunction, and two years of imprisonment for the second stalking offense, consisting of one year of confinement and one year of extended supervision. For the remainder of the charges, Novy was placed on probation for five years, with the sentences withheld.
¶ 19. On appeal to the court of appeals, Novy raised the two issues currently before this court, seeking vacation of his sentence and a remand for a new trial.6 The court of appeals affirmed the circuit court‘s decision regarding the rebuttal evidence and the allegedly sleeping juror, concluding that both matters were within the broad discretion of the circuit court, and that there was nothing in the record to suggest that the court had erroneously exercised its discretion. See State v. Novy, 2012 WI App 10, ¶¶ 18, 23, 338 Wis. 2d 439, 809 N.W.2d 889.
¶ 20. Novy petitioned for review, and we granted his petition.
II. DISCUSSION
A. Standard of Review
¶ 21. Novy raises two issues for review. The first issue—whether the circuit court erred by allowing the State to present evidence in rebuttal when that evidence previously had been excluded as a sanction for a discovery violation—relates to the circuit court‘s decision on an evidentiary matter. Consideration of this issue begins with statutory interpretation and application, which present questions of law for our independent review, although we benefit from the previous interpretations of the court of appeals and the circuit court. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis. 2d 541, 749 N.W.2d 581. In addition, whether to admit or deny evidence rests in the sound 6
¶ 22. Second, Novy argues that the circuit court erred by failing to strike a juror whom defense counsel alleged was sleeping during the defense‘s closing argument. The circuit court did not find that the juror was sleeping. We will uphold a circuit court‘s findings of fact unless they are clearly erroneous. See State v. Funk, 2011 WI 62, ¶¶ 29-30, 335 Wis. 2d 369, 799 N.W.2d 421.
B. Rebuttal Evidence
¶ 23. Novy argues that the circuit court erred when it allowed the State to rebut Novy‘s testimony using fingerprint evidence and related testimony that the court had previously excluded for a discovery violation under
(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
....
(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
(e) Any relevant written or recorded statements of a witness named on a list under par. (d), including ... any reports or statements of experts made in connection with the case ... and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.
....
(g) Any physical evidence that the district attorney intends to offer in evidence at the trial.
....
(7m) Sanctions for failure to comply. (a) The court shall exclude any ... evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply.
(Emphasis added.)
1. General principles
¶ 24. When interpreting the meaning of
¶ 25. Wisconsin Stat.
¶ 26. Appellate courts also have concluded that the State has no obligation under
¶ 27. Notwithstanding that the State has no statutory discovery obligation to disclose rebuttal evidence, where the circuit court determines that the State has failed to comply with the initial requirements set forth in
¶ 28. Such an initial order under
¶ 29. Furthermore, in addition to statutory provisions governing disclosure of evidence by the State, we
¶ 30. We have set forth a relatively broad general rule to define rebuttal evidence. We have explained that rebuttal evidence is that “which squarely meets and controverts some affirmative fact or facts which the adversary has attempted to prove.” State v. Watson, 46 Wis. 2d 492, 499, 175 N.W.2d 244 (1970) (internal quotation marks omitted).
¶ 31. Furthermore, even with this general rule for rebuttal evidence, we have consistently reaffirmed a circuit court‘s broad discretion to admit “evidence of any acts or circumstances which are inconsistent with the relevant testimony of [a] witness. Any evidence, otherwise proper, which in any respect tends to contradict the witness, is admissible for this purpose.” Id. at 500 (internal quotation marks omitted).
¶ 32. Indeed, we have affirmed circuit courts’ discretion to admit evidence in rebuttal even if the evidence tends to corroborate the case-in-chief, see McGowan, 91 Wis. at 154, and where the evidence could have been submitted in the State‘s case-in-chief, see Watson, 46 Wis. 2d at 500. In those instances, we have recognized that the admission of such evidence may be “necessary to achieve justice,” and the determination of what is necessary in those instances is subject to the circuit court‘s discretion. Id. at 499 (internal quotation marks omitted).
¶ 33. However, appellate courts have implied that evidence is not appropriate in rebuttal where it is plain that the evidence was withheld from the case-in-chief
¶ 34. Wisconsin courts have come to refer to evidence that is proper for rebuttal as “bona fide rebuttal evidence.” See Lunde, 85 Wis. 2d at 91; State v. Sandoval, 2009 WI App 61, ¶ 30, 318 Wis. 2d 126, 767 N.W.2d 291. Specifically, appellate courts have defined bona fide rebuttal evidence as that which (1) was not necessary to the State‘s (or plaintiff‘s) case-in-chief, and (2) which became necessary and appropriate when the defense made its case. See Lunde, 85 Wis. 2d at 91-92. Bona fide rebuttal evidence is not determined by asking whether the evidence could have been admitted in the State‘s case-in-chief, but rather whether the evidence became necessary and appropriate because it controverts the defendant‘s case. See Konkol, 256 Wis. 2d 725, ¶ 18; Lunde, 85 Wis. 2d at 91-92.
¶ 35. Moreover, rebuttal evidence is no less bona fide when the State is able to anticipate the defense‘s theory or particular pieces of evidence. See Konkol, 256 Wis. 2d 725, ¶ 15. Once the defendant raises a particular theory, the defendant‘s veracity and the credibility of that theory become relevant issues in the case. See id., ¶ 17. The State‘s ability to predict or anticipate the defendant‘s theory does not diminish the necessity or propriety of otherwise bona fide rebuttal evidence. See id., ¶ 17 & n.6. To the extent that the State is better able to prepare a strong rebuttal to the defense‘s theory,
2. Application
¶ 36. As we apply the principles set out above, we will uphold a circuit court‘s decision to admit or exclude evidence if the circuit court examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion. Miller v. Hanover Ins. Co., 2010 WI 75, ¶ 29, 326 Wis. 2d 640, 785 N.W.2d 493.
¶ 37. The circuit court‘s discussion of whether the fingerprint evidence and related testimony was proper rebuttal evidence shows consideration of the relevant facts and is consistent with the discovery statute,
¶ 38. The circuit court‘s interpretation of
¶ 39. Novy contends that once the circuit court excluded the fingerprint evidence and related testimony, the court was without discretion to allow the evidence or testimony on rebuttal. Novy relies on
¶ 40. As noted above, the discretion afforded circuit courts has been reaffirmed numerous times since the enactment of the discovery statute. See Konkol, 256 Wis. 2d 725, ¶¶ 15-18. In Konkol, the court of appeals 2
determined that the circuit court had erroneously excluded rebuttal evidence, where the circuit court had concluded that the State‘s use of the evidence in rebuttal was an attempt to circumvent the disclosure requirements of
¶ 41. This test for bona fide rebuttal evidence effectively harmonizes the plain language of the sanctions provision in the discovery statute and the discretion of the circuit court. The sanctions provision of the discovery statute,
¶ 42. However, notwithstanding the initial exclusion, such an exclusion need not be absolute because circuit courts retain significant discretion to admit rebuttal evidence, even when such evidence was not disclosed for use in the case-in-chief. See id. (relying on Lunde, 85 Wis. 2d at 91-92); cf. Wold v. State, 57 Wis. 2d 344, 355, 204 N.W.2d 482 (1973) (recognizing that in the context of impeachment of a defendant by a prior inconsistent statement that was obtained in violation of the warnings required under Miranda v. Arizona, 384 U.S. 436 (1966), the proper focus is on the statement‘s trustworthiness, or lack thereof, not on whether the statement was excluded from the State‘s case-in-chief). Moreover, as relevant here, the circuit court‘s discretion to admit evidence on rebuttal is particularly broad “when the evidence is necessary to achieve justice.” Watson, 46 Wis. 2d at 499 (internal quotation marks omitted).
¶ 43. During the defense‘s case, Novy testified that he did not call Julie from the payphone at L&M Meats on the night of November 9, 2008. This statement raised an issue of credibility between Novy‘s and Julie‘s accounts of what occurred that evening because Julie had previously testified that she had received such a phone call and implicated Novy. Accordingly, after Novy‘s testimony, admission of testimony related to the fingerprint evidence became necessary and appropriate as rebuttal testimony to contradict Novy‘s testimony.
¶ 44. Furthermore, neither the State‘s pointed question (whether Novy called Julie from the payphone that night) nor the fact that Novy might have used the phone on other occasions diminished the propriety of the State‘s use of the fingerprint evidence and related testimony in rebuttal. As we have said, the standard for rebuttal evidence is quite broad: any evidence otherwise admissible that “in any respect tends to contradict the witness, is admissible” for rebuttal. Id. at 500 (internal quotation marks omitted). On this standard, we cannot say that the circuit court erroneously exercised its discretion in allowing the State to offer testimony that tended to undermine or contradict Novy‘s
¶ 45. Accordingly, we conclude that the circuit court‘s interpretation of the statute was consistent with prior appellate decisions, and that the circuit court‘s decision to allow testimony relating to fingerprint evidence on rebuttal was not an erroneous exercise of discretion.
C. Juror Inattentiveness
¶ 46. The second issue Novy raises is that the circuit court erred by denying Novy‘s motion to strike a juror whom defense counsel claimed was sleeping during the defense‘s closing argument. This argument is based on the constitutional right to an impartial jury and due process, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. See State v. Kettner, 2011 WI App 142, ¶ 23, 337 Wis. 2d 461, 805 N.W.2d 132.
¶ 47. The right to a fair trial by an impartial jury underlies the requirement that jurors have heard all of the material portions of the trial. See id. “The absence of this condition, whether it is due to a hearing deficiency or a state of semi-consciousness, could imperil the guarantees of impartiality and due process.” Id. (quoting State v. Hampton (Hampton I), 201 Wis. 2d 662, 668, 549 N.W.2d 756 (Ct. App. 1996) (internal quotation marks omitted). Review of an allegation of juror inattentiveness involves a twofold inquiry: First, the circuit court must determine, as a question of fact, whether the juror was actually inattentive to the point of potentially undermining the fairness of the trial; here, whether the juror was sleeping. See State v. Hampton (Hampton II), 217 Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998). Second, if the circuit court finds that the juror was in fact sufficiently inattentive, the court must determine whether the defendant suffered prejudice as a result of the juror‘s inattentiveness. See id.
¶ 48. As with evidentiary issues, questions involving juror conduct and attentiveness implicate the circuit court‘s broad discretion. See id. Accordingly, although we review a circuit court‘s prejudice analysis as a matter of law, we will uphold a circuit court‘s factual findings regarding the conduct and attentiveness of the jurors, unless those findings are clearly erroneous. See Kettner, 337 Wis. 2d 461, ¶ 12.
2. Application
¶ 49. Our decision on this issue rests on the absence of a necessary factual finding by the circuit court that a juror was sleeping. See id. Without such a
¶ 50. After completion of closing arguments, defense counsel sought a sidebar during which he moved to strike the allegedly sleeping juror. Judge Kluka denied the motion and, after the jury left the courtroom, counsel was afforded an opportunity to make a record of his objection. During that discussion, Judge Kluka noted that she considered the defense counsel‘s request, but that she did not see the juror sleeping. Additionally, Judge Kluka also noted that she had kept “track of what‘s going on with the jurors fairly well,” and that she had “paid very[,] very close attention to the demeanor and conduct of the jurors.”
¶ 51. In explaining the reason for her ruling, the circuit court did not find that the juror was sleeping, and therefore, Novy did not establish a fact necessary to his motion to strike. On this record, we cannot say that the circuit court‘s findings are clearly erroneous because they did not include a finding that the juror was sleeping. Because we accept such findings, we do not discuss this legal challenge further.9 Accordingly, we affirm the circuit court‘s denial of Novy‘s motion to
III. CONCLUSION
¶ 52. We conclude that, with regard to the admission of rebuttal fingerprint-related testimony, the circuit court did not erroneously exercise its discretion. The circuit court initially determined that the State had failed to comply with its discovery obligations under
¶ 53. With regard to the circuit court‘s treatment of the allegedly sleeping juror, the circuit court did not find that the juror was sleeping; and therefore, Novy failed to establish a finding necessary to his contention. Counsel for the State noted defense counsel‘s concession on the trial court‘s finding, and reiterated that it was the State‘s position that “the circuit court made a finding that the juror was not sleeping,” but that the court also “went that step further and said ‘Even if the juror was sleeping, then [the court doesn‘t] find any prejudice because this wasn‘t testimonial.‘” Underscoring this point, counsel for the State concluded that “On these facts, [although] there was no explicit finding, I think it can definitely be interpreted as a finding of fact that the juror was not asleep.” Id. at 27:00.
By the Court.—The decision of the court of appeals is affirmed.
¶ 54. DAVID T. PROSSER, J., did not participate.
¶ 55. SHIRLEY S. ABRAHAMSON, C.J. (concurring). I write separately for two reasons. First, I disagree with the majority opinion‘s interpretation and application of
I
¶ 56. The majority opinion does not address the difficult issue of law facing the court, namely interpreting and applying the text of
¶ 57. The question presented in the instant case is, according to the court of appeals,1 the State, and the defendant, whether fingerprint evidence (physical evi-
¶ 58. The majority opinion does not directly answer the question presented in the instant case. Instead, the majority opinion states a different question: whether the trial court erred when it allowed the State to use certain fingerprint evidence and related testimony in rebuttal. Majority op., ¶ 1. The majority opinion seems to answer yet another question (changing the phrase “fingerprint evidence and related testimony” in the question to “fingerprint-related testimony” in the answer): “We conclude that, with regard to the admission of fingerprint-related testimony on rebuttal, the circuit court did not erroneously exercise its discretion [to admit the rebuttal testimony].” Majority op., ¶ 2.3
¶ 60. Throughout the opinion the majority uses the words “testimony” and “evidence” either interchangeably4 or in combination in some phrase,5 all the while stating that it is applying the plain meaning of
¶ 61. I look first at
¶ 62. The statute governing discovery of the witness list,
¶ 63. In contrast, the statutory provision governing discovery of physical evidence,
¶ 64. What are we to make of this different treatment in the statute of testimony and physical evidence? Testimony and physical evidence are not synonymous. “Testimony” and “physical evidence” are different types of evidence.
¶ 65. I begin my discussion by reciting what happened at the trial court.
¶ 66. The physical evidence at issue was two “cards” containing fingerprints. One card contained the defendant‘s known fingerprints; the other card contained fingerprints lifted from the pay phone. Prior to trial, the State failed to disclose to the defendant the physical evidence—the fingerprint cards—it intended to use at trial. Disclosure of physical evidence prior to trial is required by
(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
....
(g) Any physical evidence that the district attorney intends to offer in evidence at trial.
¶ 68. Even though the trial court had excluded the physical fingerprint evidence from the State‘s case-in-chief, the State still sought to call the fingerprint experts in its case-in-chief. The experts would have testified about their examination of the fingerprints on the two cards and their conclusion that the known fingerprints matched the fingerprints lifted from the pay phone. The trial court refused to allow the experts to testify in the State‘s case-in-chief because their testimony relied on the physical fingerprint evidence that had been excluded. The trial court concluded that without the physical fingerprint evidence, none of the experts’ testimony was relevant to the case. The State does not challenge the trial court‘s exclusion of the witnesses from its case-in-chief.
¶ 69. Indeed, the majority opinion concludes, as do I, that the trial court validly excluded the fingerprint cards and the expert testimony that would have been based on the cards from the State‘s case-in-chief. Majority op., ¶ 38.
¶ 70. The problem arose when the State sought to introduce the previously excluded physical fingerprint evidence in rebuttal. According to the text of the statute,
¶ 71. Despite
¶ 72. Because the majority opinion does not analyze the relationship between testimony and physical evidence and the application of the text of
¶ 73. For help in interpreting the present statute, I have examined the cases cited in the majority opinion. Although past cases upon which the majority opinion relies sometimes used the words “testimony” and “evidence” interchangeably in rebuttal witness cases,8 none
of the cases is relevant for resolving the issue presented here because each case dealt with testimony, not physical evidence.9
¶ 74. I have also reviewed the history of
¶ 75. I conclude that
¶ 76. In any event, I concur in the mandate because I agree with the State that if the admission of the fingerprint evidence in rebuttal was error, it was harmless error in the present case.
II
¶ 77. I turn now to the second issue, the allegedly sleeping juror.
¶ 78. The majority embarks on its own new theory about the allegedly sleeping juror—a theory that was neither briefed nor argued by the parties. This theory asserts that the circuit court based its decision on findings of fact. I disagree with the majority opinion.
¶ 79. The circuit court did not base its decision on any factual findings. Rather, the circuit court based its
¶ 80. Rather than addressing the actual legal basis of the decision of the circuit court, the majority opinion fails to even mention it. Because the majority opinion‘s analysis arrives at conflicting conclusions, mischaracterizes the circuit court record and ultimately fails to provide guidance to circuit courts on how they should proceed when confronted with a challenge that a juror was sleeping, I write separately to address this issue.
A
¶ 81. The majority‘s theory and analysis of the sleeping juror issue rests on its discussion of the circuit court‘s findings of facts—findings that the circuit court never made.
¶ 82. At the outset of its discussion of the sleeping juror issue, the majority opinion states that review of the issue involves a twofold inquiry. First, the circuit court must determine, as a question of fact, whether the juror was sleeping. Majority op., ¶ 47. Second, the circuit court must determine whether the defendant suffered prejudice as a result of the juror‘s inattentiveness. Id.
¶ 83. After this set-up of the inquiry, the majority opinion then provides the standard of review: “[A]lthough we review a circuit court‘s prejudice analysis as a matter of law, we will uphold a circuit court‘s factual findings regarding the conduct and attentiveness of the jurors, unless those findings are clearly erroneous.” Majority op., ¶ 48.
¶ 84. Throughout its opinion, the majority repeatedly concludes that the circuit court “did not find that
¶ 85. The majority opinion emphasizes that the circuit court “had not seen the juror sleeping,” majority op., ¶¶ 17, 50, and mentions the circuit court‘s statement that it tries “to keep track of what‘s going on with the jurors.” Majority op., ¶ 17. Ultimately, the majority opinion concludes that “[o]n this record, we cannot say the circuit court‘s findings are clearly erroneous because they did not include a finding that the juror was sleeping.” Majority op., ¶ 51.
¶ 86. Thus, on the one hand, the majority opinion concludes that the circuit court made no finding that the juror was sleeping. Majority op., ¶¶ 3, 22, 51, 53. The circuit court also made no finding that the juror was not sleeping. In other words, the circuit court made no finding of fact about whether the juror was or was not sleeping. Nevertheless, the majority opinion paradoxically concludes that the circuit court‘s findings on the issue are not clearly erroneous.
¶ 87. In order to determine whether a finding of historical fact is clearly erroneous, it is axiomatic that there must first be a finding of historical fact.14 Yet the majority opinion does not mention any other findings of fact that the circuit court made related to this issue of
¶ 88. Even a cursory review of the record reveals that the circuit court undertook no factual inquiry into whether the juror was sleeping. The circuit court did not voir dire the allegedly sleeping juror, did not take any testimony, and did not consider other admissible evidence in the record on this fact.
¶ 89. Furthermore, the majority opinion‘s reliance on the circuit court‘s statements that it did not see the juror sleeping similarly cannot be the basis for the elusive “findings” on which the majority opinion rests its conflicting conclusions. This court has held that a “circuit court may not rely on its own personal observations of events not contained in the record.” State v. Anson, 2005 WI 96, ¶ 33, 282 Wis. 2d 629, 698 N.W.2d 776. Furthermore, a judge presiding at a trial cannot testify as a witness.16
¶ 90. It is the majority‘s misplaced focus on non-existent findings of fact that gets the majority into analytical trouble. The only reference to a finding of fact related to a sleeping juror in the majority‘s entire opinion is its reference to what it describes as a non-existent finding.
B
¶ 92. The majority‘s approach to “facts” and its contradictory conclusions appear to stem from its mischaracterization of the record. The circuit court determined that “even assuming what [the defense attorney alleged about the sleeping juror] is correct,” the law does not automatically require the juror‘s removal.
¶ 93. The majority selectively quotes the circuit court to make it appear as if the circuit court found that the juror was not sleeping, without actually stating that the circuit court found that the juror was not sleeping. However, the context of what occurred before the circuit court is different from what the majority appears to describe.
¶ 94. The defendant‘s attorney raised the issue about the juror before the circuit court by advising the court that he had seen a juror sleeping during his closing argument. The defendant‘s attorney described what he saw as follows:
MR. CICCHINI: Just for the record. I saw his eyes closed and his head nod down on one occasion[], and I saw his eyes closed on several occasions.
¶ 95. In response, the State acknowledged that the juror may not have been paying rapt attention during closing arguments, but noted that she had not seen any indication that the juror was sleeping during the presentation of evidence:
MS. JAY: I certainly observed that he was not paying rapt attention, but I—I‘ll just take it personally. I didn‘t see anything during the trial during evidence that indicated to me that he was asleep during the evidence portion. So, I just didn‘t think it was necessary to make him the 13th juror.
¶ 96. The circuit court then stated its reasoning for denying the defendant‘s motion to strike the alleged sleeping juror. It observed that it was aware of case law that may require removal if the juror is sleeping during the presentation of evidence. Here, however, the allegation was that the juror was sleeping during closing arguments. The circuit court determined that “even assuming what [the defendant‘s attorney alleged about the sleeping juror] is correct,” the law does not automatically require the juror‘s removal. Counsels’ presentation and the full reasoning of the circuit court are as follows:
herself; but she noticed similar and opposed the motion. The court denied the motion. And I think that summarizes it.MR. CICCHINI: Would you like to do the juror issue real quick? I‘d like to make a record real quick that I brought up at the side bar?
THE COURT: Oh, sure.
MR. CICCHINI: During the side bar, I made a motion to strike as the—or have removed or strike as the 13th juror—Miss Jay [the prosecuting attorney] can maybe confirm this—I think his name was [juror‘s name]?
MS. JAY: Correct.
MR. CICCHINI: Okay. He was in the lower right hand corner. He had a Cubs shirt on, dark hair; and noticed him sleeping during the closing—my closing argument—and because I—I was trying to make eye contact with him, and I noticed that. I move to strike. I believe that Miss Jay concurred that she—well she can speak for
THE COURT: The motion to strike him as the alternate juror.
MR. CICCHINI: Yes, alternate juror. Yes.
THE COURT: Attorney Jay.
MS. JAY: I certainly observed that he was not paying rapt attention, but I—I‘ll just take it personally. I didn‘t see anything during the trial during evidence that indicated to me that he was asleep during the evidence portion. So I just didn‘t think it was necessary to make him the 13th juror.
MR. CICCHINI: Oh, I‘m sorry. I guess—could I just describe in brief detail what I saw?
THE COURT: Sure.
MR. CICCHINI: Just for the record. I saw his eyes closed and his head nod down on one occasion, and I saw his eyes closed on several occasions.
THE COURT: During your closing.
MR. CICCHINI: Yes. Thank you.
THE COURT: Did you see it during Attorney Jay‘s closing?
MR. CICCHINI: I—one time what I think I first noticed that his—his head was down but he was rubbing his forehead and came up back up, and I did not see it then. I saw it during my closing.
THE COURT: Okay. Your observations are noted. I did consider this request at the side bar just before sending the jurors out to deliberate. I myself [] didn‘t
I—I didn‘t notice any of those kinds of problems while testimony was coming in during which I think I paid very—very close attention to the demeanor and conduct of the jurors.
So, even assuming what you say is correct, it does not automatically require removal of that juror; and for that reason I did not grant your request and we selected the alternate randomly instead (emphasis added).
¶ 97. Both parties describe the circuit court‘s statement as a legal conclusion reached by the circuit court‘s assuming the factual question. Indeed, when pressed at oral argument before this court about whether the circuit court based its decision on factual findings, the defendant‘s attorney rebuffed such an assertion. He responded that the issue the circuit court addressed was not the factual question of whether the juror was sleeping, but rather it was the legal question addressing the import of any juror sleeping when it allegedly occurred during closing arguments.17
¶ 98. After Justice Roggensack raised the issue with the defendant‘s attorney, the State‘s attorney briefly addressed the issue. The State concluded that the circuit court did not make an “explicit finding” of fact on the record regarding the sleeping juror and asked the court “to conclude that there was no prejudice.”18
C
¶ 100. The majority‘s mischaracterizations do not stop with the record and the circuit court‘s decision.
¶ 101. The majority opinion declares: The court of appeals concluded that the issue of the allegedly sleeping juror was “within the broad discretion of the circuit court, and that there was nothing in the record to suggest that the court had erroneously exercised its discretion.” Majority op., ¶ 19 (citing Novy, 338 Wis. 2d 439, ¶ 23).
¶ 102. Not so! The court of appeals treated the circuit court as having based its conclusion on prejudice, not on any finding of whether the juror was in fact sleeping. The court of appeals stated: “We know of no Wisconsin case, and Novy has not cited one, in which a juror was removed for nodding off during closing arguments. We therefore reject Novy‘s argument that the trial court erred in failing to conduct a further inquiry into whether the juror was sleeping.”19
¶ 103. As a result of relying on a finding of fact that does not exist and mischaracterizing the record and the decisions of the circuit court and court of appeals, the majority opinion ultimately fails to undertake the ultimate question of whether the defendant‘s constitutional right to a fair trial was violated by juror inattentiveness.
¶ 104. By short-circuiting the analysis, the majority further fails to provide guidance on how circuit courts are to handle an allegation of a sleeping juror.
E
¶ 105. Unlike the majority opinion, I acknowledge the circuit court‘s stated reasoning for denying the defendant‘s motion to strike. The circuit court did not determine whether the defendant‘s allegation of a sleeping juror was true. Instead the circuit court determined that “even assuming what [Novy‘s attorney alleged about the sleeping juror] is correct,” the law does not automatically require the juror‘s removal. The circuit court concluded that even if the juror was sleeping, as alleged, it did not prejudice the defendant.
¶ 106. Here, the defendant‘s attorney alleged that he “saw [the juror‘s] eyes closed and his head nod down on one occasion[]” and “saw his eyes closed on several occasions.” The alleged inattentiveness occurred during defense counsel‘s closing argument.
¶ 107. The constitutional right to an impartial jury requires that the jurors “have heard all of the
¶ 108. A circuit court must “approach the issue [of a sleeping juror] with extreme caution.”24
¶ 109. As a threshold issue, parties must timely object in order to properly raise the issue before the circuit court. When parties notice a sleeping juror, they must bring the issue to the circuit court‘s attention during trial “as soon as practicable” after they notice the sleeping juror.25 If the objection is not timely, it may be considered “waived” or “forfeited“.26 No one argues that the objection was not timely in the instant case.
¶ 110. When a timely objection is made, the circuit court may proceed in different ways depending on the circumstances of the case. The circuit court may have to decide whether the juror was sleeping. Because
¶ 111. The issue in the present case was raised in a substantially similar manner to that which occurred in Hampton I, in which the defendant also raised the issue orally at trial outside the presence of a jury. The Hampton I court determined that when there is a “sufficient demonstration of juror sleepiness,” the circuit court should undertake further factual inquiry.30
¶ 112. In Hampton I, the attorney noticed a juror sleeping during witness testimony and raised the issue outside the presence of the jury.31 Although the circuit court acknowledged that the juror was “drowsy” during portions of the testimony, it did not undertake any further inquiry into whether the juror was actually sleeping. The court of appeals concluded that there was a sufficient demonstration of juror sleepiness to warrant further factual inquiry and remanded the matter to the circuit court for an evidentiary hearing.32
¶ 114. In order for a circuit court to make a finding of fact regarding the inattentiveness of a juror, there must be facts in the record to support such a finding.
¶ 115. It is problematic for a circuit court to take judicial notice of the juror‘s inattentiveness or to rely on its own observations.
¶ 116. Case law from other jurisdictions suggests that a trial court may on “informed judicial knowledge” take judicial notice of the fact that a juror was sleeping when the circuit judge actually observes the juror sleeping.35 Wisconsin case law, including Hampton I, warns that taking judicial notice of the fact that a juror was or was not sleeping without further inquiry is ordinarily inappropriate.36
¶ 117. The procedures for judicial notice are set forth in
¶ 118. In making the required factual determinations, circuit courts should take care not to act as witnesses. Although a circuit court may make credibility determinations when making its factual findings, the case law indicates a circuit court may not rely on its personal knowledge of events not appearing in the record.37 A circuit court that relies on its own personal observations of events not in the record as the basis for a factual finding “is essentially acting as a witness in the
¶ 119. I recognize there is some tension within the case law regarding the circuit court‘s role in determining the fact of whether a juror was inattentive. I conclude that the safest and best practice is for the party challenging the juror‘s attentiveness to put evidence in the record so that the circuit court may make a factual determination of a juror‘s attentiveness (or lack thereof) on the basis of evidence in the record. A circuit court may then have to determine whether a juror‘s inattention prejudiced the defendant to the extent that the defendant did not receive a fair trial.
F
¶ 120. Here, the circuit court did not undertake any factual inquiry about the juror sleeping. It did not have to do so. Instead the circuit court determined that even if the juror were sleeping, the defendant was not prejudiced. In making that determination, the circuit court recognized that the ultimate focus of the analysis is to determine whether a defendant is prejudiced.39 As the Hampton I court noted, “it is universally recognized that before inattentiveness warrants a mistrial, there must be a determination regarding prejudice.”40 The same logic holds true regarding a motion to strike a sleeping juror.
¶ 121. To satisfy the prejudice requirement, a defendant must establish that the juror missed enough
¶ 122. In the present case, there is no indication that the sleeping juror missed a pivotal or significant portion of the proceeding. Furthermore, it is undisputed that the juror heard all material testimony. The defendant has therefore failed to establish that the allegedly sleeping juror was prejudicial to the defense.
¶ 123. Because there is no indication that the defendant was prejudiced, the circuit court‘s discretionary refusal to strike the juror was reasonable. Therefore, I conclude that the circuit court did not erroneously exercise its discretion when it denied the defendant‘s motion to strike.
¶ 124. Unfortunately, the majority opinion‘s analysis is confusing and fails to provide guidance on how circuit courts should proceed when confronted with the challenge that the defendant‘s constitutional right to an impartial jury is being denied based on an assertion that a juror was sleeping.
¶ 125. For the reasons set forth, I write separately.
¶ 126. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Notes
(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
....
Although the State had not listed the names of the witnesses who would testify about the fingerprints, the defendant had a copy of the fingerprint report and knew the names of the fingerprint experts.
State v. Lunde, 85 Wis. 2d 80, 270 N.W.2d 180 (1978) (State was permitted to present bona fide rebuttal witness testimony from a witness who had not been previously identified to the defendant because the rebuttal witness‘s testimony was only necessary and appropriate once the defendant testified. State action was permitted under old
State v. Watson, 46 Wis. 2d 492, 499-500, 175 N.W.2d 244 (1970) (Decided before the statute was enacted. State could present “rebuttal evidence” through “rebuttal witnesses” to impeach the credibility of a testifying defendant).
Howard v. Beldenville Lumber Co., 129 Wis. 98, 108 N.W. 48 (1906) (Decided before the statute was enacted. The plaintiff had wide discretion to present rebuttal testimony to contradict the defendant‘s testimony. The court used the term “evidence” to refer to rebuttal “testimony” that did not include any “physical evidence.“).
McGowan v. Chicago & N.W. Ry. Co., 91 Wis. 147, 64 N.W. 891 (1895) (Decided before the statute was enacted. The plaintiff could call witnesses on rebuttal even though the plaintiff had known the witnesses existed before trial and had considered calling them in the case-in-chief.).
State v. Sandoval, 2009 WI App 61, ¶¶ 30-31, 318 Wis. 2d 126, 767 N.W.2d 291 (State could call a rebuttal witness whose testimony about what he saw included exculpatory evidence that had not been disclosed to the defendant before trial pursuant to
State v. Konkol, 2002 WI App 174, ¶ 18, 256 Wis. 2d 725, 649 N.W.2d 300 (State had no duty to list a rebuttal witness under
A defendant may, not less than 15 days nor more than 30 days before trial, serve upon the district attorney an offer in writing to furnish the state a list of all witnesses the defendant intends to call at the trial, whereupon within 5 days after the receipt of such offer, the district attorney shall furnish the defendant a list of all witnesses and their addresses whom he intends to call at the trial. Within 5 days after the district attorney furnishes such list, the defendant shall furnish the district attorney a list of all witnesses and their addresses whom the defendant intends to call at the trial. This section shall not apply to rebuttal witnesses or those called for impeachment only.
On a motion of a party subject to s. 971.31(5), all parties shall produce at a reasonable time and place designated by the court all physical evidence which each party intends to introduce in evidence. Thereupon, any party shall be permitted to inspect or copy such physical evidence in the presence of a person designated by the court. The order shall specify the time, place and manner of making the inspection, copies or photographs and may prescribe such terms and conditions as are just.
The complete exchange occurred as follows:
Justice Roggensack: Counselor, as I read the arguments and the materials provided, I thought that the trial court made a finding that she didn‘t see that there was any juror sleeping.
Defendant‘s Attorney: You know, [Justice Roggensack], I read that and um, that certainly is true but I don‘t think the judge in [her] decision made that the issue. I think [s]he made the issue that you just don‘t have to have a juror listen to closing argument if they choose not to listen. I mean, let‘s face facts, jurors may be
Justice Roggensack: Well, I thought that, to me it was a finding and we adhere to the findings of the circuit court, unless they are clearly erroneous and I thought the judge was asked about this, it was brought to her attention and she said she didn‘t see any jurors sleeping and I thought she said she watched the jury quite closely. So if it‘s a finding of fact, that‘s a different kind of an issue than if it‘s a question of law about whether we want to do something with a juror who was sleeping, you gotta get over the first step which was, was there a juror sleeping before you can get to the second step?
Defendant‘s Attorney: I understand that, [Justice Roggensack]. I‘m not gonna disagree with that. Thank you. [The defendant‘s attorney proceeded to argue the issue of the rebuttal evidence.]
The Assistant Attorney General‘s full statement is as follows:
I will do the same as defense counsel did and start with the sleeping juror issue. There weren‘t many questions on it but I did want to clear up something. I think he [the defendant‘s attorney] made the statement that it was obvious or something to that effect that the juror was sleeping or appeared to be sleeping in this case. To Justice Roggensack‘s point, I do believe that the circuit court made a finding that the juror was not sleeping but went that step further and said that even if the juror was sleeping, I [the circuit court] don‘t find any prejudice because this wasn‘t testimonial. On these facts, there was no, it was not an explicit finding but I think it can definitely be interpreted as a finding of fact that the juror was not asleep and I think, so I just wanted to clear up that the State on the sleeping juror issue would ask this court to affirm and conclude that there was no prejudice and that the defendant failed to meet his burden on that issue. [The State then proceeded to argue the rebuttal evidence issue]. (Emphasis added.)
Novy, 338 Wis. 2d 439, ¶ 23.
After reaching this conclusion, the court of appeals went on to state that defense counsel did not ask the circuit court to conduct further inquiry into whether the juror was asleep; that it would not fault the circuit court for failing to undertake a further inquiry under the circumstances of the present case; and that the circuit court did not erroneously exercise its discretion in failing to conduct a further inquiry into whether the juror was sleeping. Id.
An example of this principle is set forth in Anson, which stated that a circuit court may not state “its opinion [that] the witness was being intimidated by the presence of several well-known gang members in the courtroom, if the presence and behavior of these individuals was not documented in the record.” Anson, 282 Wis. 2d 629, ¶ 34 (emphasis in original).
Compare and contrast Hampton II, in which the court of appeals concluded that the circuit court‘s opinion about the attentiveness of the juror did not transform the circuit court into a material witness, requiring the judge‘s disqualification under