State v. Alexander

• Decision Date: 12 July 2013
• Docket Number: No. 2011AP394–CR.,2011AP394–CR.
• Citation: 349 Wis.2d 327,833 N.W.2d 126,2013 WI 70
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Demone ALEXANDER, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

349 Wis.2d 327

833 N.W.2d 126

2013 WI 70

STATE of Wisconsin, Plaintiff–Respondent,

v.Demone ALEXANDER, Defendant–Appellant–Petitioner.

No. 2011AP394–CR.

Supreme Court of Wisconsin.

Argued March 14, 2013.

Decided July 12, 2013.

For the defendant-appellant-petitioner, there was a brief by Hans P. Koesser and Koesser Law Office, S.C., Kenosha, with oral argument by Hans P. Koesser.

For the plaintiff-respondent, the cause was argued by Thomas Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

MICHAEL J. GABLEMAN, J.

[349 Wis.2d 330]¶ 1 We are asked to determine whether a defendant must be physically present when a judge holds an in-chambers discussion with a juror during the middle of a trial. We recognize that a defendant has a constitutional right to be present at his trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). Whether this right to be present at trial encompasses in-chambers meetings “admits of no categorical ‘yes' or ‘no’ answer. A conference in chambers might well constitute part of the trial depending upon what matters are discussed or passed upon. Likewise, such a conference might not be a part of the trial in the sense of one's constitutional right to be present.” Ramer v. State, 40 Wis.2d 79, 84, 161 N.W.2d 209 (1968) (citation omitted). The test for whether a defendant's presence is required at an in-chambers hearing, or at a conference in the courtroom after the judge has emptied it of spectators, is whether his absence would deny him a fair and just hearing. Id. at 85, 161 N.W.2d 209.

¶ 2 The defendant, Demone Alexander, was charged with first-degree intentional homicide and his case was tried to a jury.¹ During the trial, two jurors at separate times approached the bailiff to discuss a potential bias issue. One juror stated that she knew a woman in the courtroom gallery, who turned out to be the mother of Alexander's child, and another said that he knew one of the defense's witnesses. To resolve the matter, the judge held separate in-chambers discussions with both jurors to determine the extent of the bias. Both of Alexander's attorneys and the prosecutor were present for these meetings, but Alexander was not. The court ultimately struck the jurors, over defense counsel's objections.

¶ 3 Alexander was convicted and sought postconviction relief, arguing that he had a constitutional and statutory right to be present during the in-chambers discussions. He argued the constitutional right is grounded in the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. The statutory right, he alleged, stemmed from Wis. Stat. § 971.04(1)(c),² which provides that “the defendant shall be present ... [d]uring voir dire of the trial jury.” The circuit court denied the motion and the court of appeals affirmed.

¶ 4 We hold that the circuit court's decision to exclude Alexander from the in-chambers meetings with the jurors did not deprive Alexander of a fair and just hearing. As the United States Supreme Court has outlined, the factors a trial court should consider in determining whether a defendant's presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether he would gain anything by attending, and whether the presence of the defendant would be counterproductive. United States v. Gagnon, 470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam). Alexander would not have been able to contribute anything to the circuit court's inquiry of the jurors, and may in fact have intimidated them if he had been present. Additionally, both of Alexander's attorneys were present at the in-chambers meetings. Alexander's absence thus did not violate his constitutional right to be present at his trial.

¶ 5 We also hold that Alexander's statutory right under Wis. Stat. § 971.04(1)(c) to be present during voir dire was not violated. Voir dire is a preliminary examination of whether an individual can serve on a jury. In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose. Section 971.04(1)(c) is thus inapplicable here. The decision of the court of appeals is affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 6 Demone Alexander was charged with first-degree intentional homicide in the shooting death of Kelvin Griffin. The facts surrounding the shooting are not at issue in this case. Instead, the questions presented center around the trial judge's separate in-chambers discussions with members of the jury, which took place outside Alexander's presence. Accordingly, we recite only the facts relating to those discussions.

¶ 7 Near the end of Alexander's seven-day trial, Juror 10 approached the bailiff and informed him that she knew a woman who was seated in the gallery. The trial judge then held an on-the-record meeting in his chambers with the juror. The prosecutor and both of Alexander's attorneys were present as well. At the outset of the gathering, the circuit court asked Alexander's counsel if she would be willing to “waive the appearance of Mr. Alexander for purposes of this?” The attorney replied, “We do.” ³

¶ 8 The court proceeded to ask the juror how she knew the woman in the gallery. Juror 10 identified the woman as “Monique,” and said that “[s]he's an old friend of the family. We grew up together.” As Juror 10 further elaborated, Monique “went to school with my sister.... [S]he's really my sister's friend.” However, due to a falling out between Monique and Juror 10's sister, Juror 10 had not seen Monique in six months. Finally, Juror 10 stated that she did not know what Monique's connection to the case was.

¶ 9 After Juror 10 left chambers, the court was informed that Monique had a child with Alexander. Counsel for Alexander argued that this fact was not a problem, as Juror 10 “doesn't have any idea why Monique is even here. So if she doesn't know anything about it, there's no relationship and no prejudice and no bias and no nothing.” The prosecutor, though, argued that it would be “dangerous to keep her on the jury” because she might discover the connection between Monique and Alexander. The court then ordered Alexander's attorneys to talk to their client about his relationship with Monique and his knowledge of Juror 10's connection with Monique. After an off-the-record discussion with their client, counsel for Alexander confirmed that Monique “is, in fact, his baby's momma. But he has not seen her in sixteen months. He's not close to her. [And he] does not know the juror. He's never seen her before.”

¶ 10 The court put off the decision on whether to remove Juror 10 and proceeded to address another potential juror bias issue that arose that day. The defense had just called a witness named Jesse Sawyer to dispute the statement of one of the State's witnesses who testified that Alexander gave the murder weapon to Sawyer to hide. After Sawyer finished his testimony that day, Juror 33 told the bailiff that he knew Sawyer. The circuit court, repeating the process it used earlier, invited the attorneys and Juror 33 into chambers to inquire on the record as to the juror's relationship with the witness. Upon inquiry from the court, Juror 33 described his relationship with Sawyer as one based on a mutual interest in Harley–Davidson motorcycles. Sawyer does custom work on the motorcycles, Juror 33 continued, and Juror 33 would “go by his house because I'm interested in how he does the bikes because I want to purchase me a Harley–Davidson. I wanted him to do some work on my bike.” Juror 33 further stated that he had known Sawyer for three years, and had seen him recently at a party and at a Harley–Davidson event. Juror 33 did not, however, consider Sawyer a personal friend, but rather an acquaintance he would go to if he needed work done on his motorcycle.

¶ 11 Following Juror 33's departure from chambers, the judge asked each side to state a position on whether he needed to be removed. Defense counsel argued against removal, while the prosecutor equivocated: “I'm uncomfortable with any juror knowing a witness.... [B]ut I'm not asking that he be struck at this time, and I reserve. If we make it to the end with 14 [jurors], I don't know what I would do at that point.” ⁴ The court then decided it would wait until the conclusion of Alexander's trial to determine whether it had to remove either juror.

¶ 12 After a weekend break, the trial resumed for closing arguments. That morning, however, Juror 10 called another juror to report that she would not be able to make it to court that day because her boyfriend had been in a car accident. Juror 10 subsequently arrived, and the judge decided to conduct another in-chambers discussion with her to ask her about the car accident and to further inquire into any potential bias resulting from her relationship with Monique. Once again the lawyers—but not Alexander—were present.

¶ 13 When asked by the court whether she could be impartial in light of her relationship with Monique, Juror 10 replied, “I definitely can.... I don't talk to her at all. It doesn't bother me. I'll be able to go ahead and directly have my own decision.” The prosecutor asked her why she reported her relationship with Monique to the bailiff and Juror 10 replied, “I felt it was very important because I didn't know if she was going to try to retaliate and try to contact me and ask me about some things [about the case] or not.” And in response to further questions from the prosecutor, Juror 10 said she thought Monique was somehow connected to Alexander's murder trial.

¶ 14 The circuit court, pointing to Juror 10's concern that Monique might “retaliate” against her, struck her from the jury. Defense counsel noted her objection on the record, and the discussion moved to Juror 33. The State requested removal and Alexander's...