State v. Robert Daris Spencer, 2018AP942-CR, District 1, 3/9/21 (not recommended for publication); case activity (including briefs)

Spencer challenges the trial court’s decision to dismiss a juror for cause just before deliberations began, but over a dissent the court of appeals holds his claims are forfeited or that any error was harmless. However, Spencer is entitled to a Machner hearing on his claim that trial counsel was ineffective for failing to object to hearsay evidence.

Before the start of the last day of Spencer’s trial the only Black juror complained she was feeling ill. The judge questioned the juror alone in chambers, without counsel or the defendant, and eventually dismissed the juror for cause after the juror said she was feeling “queasy, light headed, just unwell generally” and was too ill to participate.  After dismissing the juror the court made a brief record of its ex parte conversation and gave a rationale for dismissing the juror. (¶¶5, 18). Spencer’s lawyer objected—but, says the majority, not with the due process, equal protection, and erroneous exercise of discretion arguments Spencer raises on appeal. (¶11). Instead, the majority reads trial counsel’s objection and mistrial motion as renewing the objection trial counsel made when the jury was impaneled. That objection, based on Swain v. Alabama, 380 U.S. 202 (1965), overruled in part by Batson v. Kentucky, 476 U.S. 79 (1986), argued the method for creating the jury pool underrepresented minorities. (¶¶5 n.3, 14).

¶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. ….

Spencer also argues the trial court’s ex parte examination of the juror deprived him of the right to the assistance of counsel at a critical stage of the proceedings. Assuming that’s true, the majority holds the error was harmless because Spencer hasn’t shown the jurors who deliberated to a verdict were biased or partial. (¶¶16-22).

A dissenting judge sees things very differently. “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.” (¶30). The dissent stresses that trial counsel raised concerns about whether the juror has been stressed by the experience of being on the jury or the trial itself, yet the trial court did not evidently explore these concerns and its ex parte questioning 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. “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.” (¶43). The dissent also concludes the record is insufficient to determine whether the removal of the juror was harmless error. (¶¶37, 40, 44, 53-58). Certainly it’s clear the court’s action wasn’t minimal or inconsequential, for “the consequence of this ex parte 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.” (¶49).

All three judges agree that Spencer is entitled to a Machner hearing on his allegation that trial counsel was ineffective for failing to object to hearsay evidence about the crime that he asserted was “key evidence” in the state’s case to prove the most serious charge, felony murder. (¶¶22-27, 59).

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