State v. Spencer
| Decision Date | 09 March 2021 |
| Docket Number | Appeal No. 2018AP942-CR |
| Citation | 397 Wis.2d 241,959 N.W.2d 74 (Table),2021 WI App 27 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert Daris SPENCER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Robert Daris Spencer appeals from the order of the trial court to deny his postconviction motion without a hearing. 1 He argues that the trial court's decision to dismiss a juror for cause violated his right to due process and equal protection and was an erroneous exercise of the trial court's discretion. He further argues that he is entitled to a new trial because his constitutional right to counsel was violated when the trial court questioned a juror regarding her illness without his trial counsel present. Last, Spencer argues that his trial counsel was ineffective for failing to object to certain testimony that he argues is inadmissible hearsay.
¶2 Upon review, we conclude that Spencer forfeited his ability to challenge the trial court's decision to dismiss the juror based on any alleged violation of his right to due process or equal protection or any alleged erroneous exercise of the trial court's discretion. We further conclude that any error by the trial court that violated Spencer's right to counsel was harmless. We, accordingly, affirm the trial court's order dismissing Spencer's postconviction motion without a hearing as to these grounds of Spencer's motion.
¶3 By contrast, we reverse the trial court's order denying Spencer's motion, without a hearing, on the grounds that he received ineffective assistance of counsel. We conclude that Spencer alleged sufficient material facts in his postconviction motion to warrant a Machner2 hearing, and we remand for the trial court to conduct a hearing on Spencer's claim of ineffective assistance of counsel.
¶4 On September 28, 2014, police responded to a report of shots fired in the area of 3402 North 23rd Street in Milwaukee, Wisconsin. When police arrived at the scene, they discovered T.M. laying on the sidewalk in a pool of blood with a gun shot wound to the head. An investigation into the shooting indicated that, prior to any shots being fired, Spencer and T.M. approached their friend, R.S., in front of his house located at 3398 North 23rd Street. Spencer and T.M. attempted to rob R.S. to settle a debt and then drag R.S. to a van located across the street. When R.S. broke free and ran back towards his house, shots followed. The investigation indicated that there were two shooters: one shooter near the van who shot at R.S. as he ran away, and one shooter who fired shots at Spencer and T.M. from a kitchen window at 3398 North 23rd Street. Spencer was charged on November 17, 2014, with one count of felony murder and one count of possession of a firearm by a felon, based on the State's theory that Spencer attempted to rob R.S., shot at R.S. as R.S. ran away, and, as a result of the robbery, caused T.M.’s death.
¶5 The case proceeded to a jury trial, which began on June 22, 2015. On June 26th, the final day of the trial, the proceedings began at 8:59 a.m. with a discussion about jury instructions. A bailiff advised the trial court that one of the jurors was ill. After a recess of approximately forty-five minutes, the proceedings resumed at about 10:05 a.m., whereupon, after allowing the parties to make any motions they deemed appropriate and state their positions on the record in response to the trial court's decision to dismiss the juror the trial court dismissed the ill juror for cause. The State agreed that the juror should be dismissed for cause. However, Spencer's trial counsel objected to the dismissal of the juror and moved for a mistrial based on her concern that this presented an issue under Swain3 given the fact that the juror was the only African-American member of the jury.
¶6 The proceedings continued with closing arguments with the remaining twelve jurors, and the jury began deliberations following closing arguments. The jury ultimately returned a guilty verdict on all counts, and the trial court sentenced Spencer to a global sentence of thirty-eight years of imprisonment, composed of twenty-three years of initial confinement and fifteen years of extended supervision.
¶7 Spencer filed a postconviction motion on January 25, 2018, wherein he argued that he was entitled to a new trial. Spencer contended that he was denied his Sixth Amendment right to counsel at a critical stage of the proceedings when the trial court questioned the juror about her illness without his trial counsel present. In addition, Spencer argued that he was entitled to a new trial because his trial counsel was ineffective when she failed to object to hearsay testimony indicating that Daniel McKinney, R.S.’s roommate, saw R.S. being dragged across the street and fired shots from the kitchen window to protect R.S.
¶8 In response, the State argued that Spencer forfeited his ability to object to any interaction between the trial court and the juror because trial counsel failed to voice any contemporaneous objection and, in fact, implicitly consented to the trial court's questioning of the juror when trial counsel asked the trial court to ask the juror a follow-up question about her condition. The State additionally argued that the interaction did not occur at a critical stage of the proceedings or, in the alternative, that any error in the interaction between the trial court and the juror was harmless. The State also argued that Spencer's counsel was not ineffective for failing to object to hearsay testimony because Spencer's allegations of deficient performance and prejudice were conclusory.
¶9 The trial court denied Spencer's motion without a hearing. The trial court found that Spencer's right to counsel was not violated because the period of time after the close of evidence and before deliberations in which the trial court questioned the juror about her illness was not a critical stage of the proceedings for which Spencer "needed assistance with a legal problem and where counsel's presence was essential." Further, the trial court found that any error in the trial court's questioning the juror about her illness outside the presence of Spencer's counsel was harmless. As to Spencer's argument relative to ineffective assistance of counsel, the trial court found that Spencer suffered no prejudice because, even if trial counsel had objected, "there is simply not a reasonable probability that the defendant would have been acquitted of the crimes with which he was charged because there was absolute overwhelming evidence of his guilt."
¶10 This appeal followed. Spencer has renewed his same arguments on appeal, as well as brought three additional arguments challenging the trial court's decision to dismiss the juror for cause.
¶11 Spencer argues that the trial court's decision to dismiss the juror for cause violated his rights to due process and equal protection and was an erroneous exercise of the trial court's discretion. As the basis for his argument, Spencer points to the trial court's explanation of its decision in which the trial court noted that the juror and many of the trial participants were African-American.
¶12 We conclude that Spencer has forfeited these claims and decline to address them because Spencer failed to raise them below, either by objecting at the time of trial or by addressing them in his postconviction motion. In other words, Spencer raises his claims that the trial court's decision to dismiss the juror for cause violated his right to due process, his right to equal protection, and was an erroneous exercise of the trial court's discretion for the first time in his opening brief in this appeal.
¶13 "The general rule is that issues not presented to the [trial] court will not be considered for the first time on appeal." State v. Caban , 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997). This rule serves several important functions, including, that "[r]aising issues at the trial court level allows the trial court to correct or avoid the alleged error in the first place, eliminating the need for appeal." State v. Huebner , 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727. The rule applies to constitutional claims, so long as the defendant knew of the trial court's action. See State v. Pinno , 2014 WI 74, ¶57, 356 Wis. 2d 106, 850 N.W.2d 207.
¶14 In this case, Spencer failed to raise these as arguments below when trial counsel made a Swain objection during the trial and then he failed to raise these arguments in his postconviction motion. Specifically, trial counsel objected on the basis of Swain and moved for a mistrial saying: Spencer then failed to revisit the Swain objection in his postconviction motion or make any argument on the basis of his rights to due process and equal protection or an argument on the basis of an erroneous exercise of discretion.
¶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. The trial court, therefore, had no chance to address or correct any possible error, whether of a constitutional nature or not, in its decision to dismiss the juror or explain its reference to the race of the juror and the trial participants...
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