State v. Robert Daris Spencer

2022 WI 56

SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP942-CR

COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Cross Petitioner,
v.
Robert Daris Spencer,
Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 397 Wis. 2d 241, 959 Wis. 2d 241
(2021 – unpublished)

OPINION FILED: July 6, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 2, 2022

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Stephanie Rothstein

JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion,
in which DALLET and KAROFSKY, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined.
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed by John J. Grau and Grau Law Office, Waukesha. There was
an oral argument by John J. Grau.

For the plaintiff-respondent-cross petitioner, there were
briefs filed by Kara L. Janson, assistant attorney general, with
whom on the briefs was Joshua L. Kaul, attorney general. There
was an oral argument by Kara L. Janson.
 2022 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP942-CR
(L.C. No. 2014CF5088)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Cross FILED
Petitioner,
JUL 6, 2022
v.
Sheila T. Reiff
Robert Daris Spencer, Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion,
in which DALLET and KAROFSKY, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed in

part, reversed in part.

¶1 REBECCA GRASSL BRADLEY, J. This is a review of an

unpublished decision of the court of appeals1 affirming in part

and reversing in part the circuit court's2 denial of a

1State v. Spencer, No. 2018AP942-CR, unpublished slip op.
(Wis. Ct. App. Mar. 9, 2021).
2The Honorable Stephanie Rothstein, Milwaukee County
Circuit Court, presided.
 No. 2018AP942-CR

postconviction motion. Following a jury trial, Robert Daris

Spencer was convicted of one count of felony murder and one

count of felon in possession of a firearm. After the close of

evidence——but before deliberations——the circuit court met in

chambers with a juror who had become ill, without counsel

present. Upon determining the juror would not be able to

continue serving, the judge dismissed the juror for cause.

¶2 Spencer filed a postconviction motion asserting the

judge's ex parte contact with the juror violated his Sixth

Amendment right to counsel and claiming his counsel was

ineffective for failing to object to hearsay testimony. The

circuit court denied the motion without an evidentiary hearing.

Spencer appealed, raising due process and equal protection

challenges to the juror's dismissal in addition to the Sixth

Amendment and ineffective assistance claims. The court of

appeals affirmed the denial of his motion, concluding Spencer

forfeited his due process and equal protection claims and any

error implicating the Sixth Amendment was harmless, but reversed
and remanded on the ground that Spencer was entitled to an

evidentiary hearing on the ineffective assistance claim.

¶3 Before this court, Spencer argues the judge's ex parte

meeting with the juror violated his Sixth Amendment right to

counsel, the judge's dismissal of the juror violated his equal

protection and due process rights and constituted an erroneous

exercise of discretion, and he was entitled to an evidentiary

hearing on his claim that counsel's failure to object to hearsay
testimony constituted ineffective assistance of counsel. The
2
 No. 2018AP942-CR

State cross-petitioned on the evidentiary hearing decision,

arguing Sholar3 does not mandate a hearing if the record

conclusively shows the defendant is not entitled to relief.

¶4 We hold the judge's meeting with the ill juror was not

a critical stage of the proceedings at which the right to

counsel attached, and even if there were an error, it was

harmless. Accordingly, we affirm the court of appeals on this

issue.4 We reverse the court of appeals' decision to reverse the

circuit court's denial of an evidentiary hearing. If the record

as a whole conclusively demonstrates the defendant is not

entitled to relief, an evidentiary hearing is not mandatory.

State
3 v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912
N.W.2d 89.

Before the court of appeals, in addition to his Sixth
4

Amendment and ineffective assistance claims, Spencer also
alleged the circuit court erroneously exercised its discretion
by dismissing the juror over Spencer's objection, in violation
of his Fourteenth Amendment right to due process and equal
protection. The court of appeals determined Spencer forfeited
his claims relating to the dismissal of the juror because he
"failed to raise them below, either by objecting at the time of
trial or by addressing them in his postconviction motion."
Spencer, No. 2018AP942–CR, at ¶¶11–12. We agree and conclude
Spencer forfeited his claims relating to the dismissal of the
juror. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501
(1997) ("The general rule is that issues not presented to the
circuit court will not be considered for the first time on
appeal. . . . [E]ven the claim of a constitutional right will
be deemed waived unless timely raised in the circuit court.")
(citations omitted). At trial, defense counsel moved for a
mistrial and renewed a Swain objection, but Spencer's
postconviction motion neither mentioned the Swain objection nor
argued the juror's dismissal was an erroneous exercise of
discretion or a violation of Spencer's due process or equal
protection rights. See Swain v. Alabama, 380 U.S. 202 (1965).

3
 No. 2018AP942-CR

See State v. Ruffin, 2022 WI 34, ¶3, __ Wis. 2d __, 974

N.W.2d 432. The circuit court properly exercised its discretion

in denying an evidentiary hearing under this standard and the

court of appeals erred in reversing that decision.

I. BACKGROUND

A. The Incident and the Trial

¶5 The State charged Spencer with one count of felony

murder and one count of possession of a firearm by a felon for

his involvement in an armed robbery resulting in the death of

his accomplice, T.M. On the night of the crime, police officers

responded to reports of a shooting in Milwaukee, where they

found the victim lying face down and observed a number of bullet

holes and shell casings, later determined to be from two

different guns. The exchange of gunfire on the night of the

incident was confirmed by neighbors, ShotSpotter, and officers

at the scene, and forensic evidence indicated there were two

shooters.

¶6 At trial, the State's theory was that Spencer had a
debt to settle with R.S., a friend of Spencer and T.M. The

State contended that Spencer and T.M. approached R.S. as he

stood outside a residence, and Spencer, armed with a firearm,

robbed R.S. by grabbing him and "go[ing] through his pockets,

tak[ing] money, tak[ing] his cell phone." As R.S. broke away

and began running, the State asserted Spencer shot at R.S. as "a

second person with a firearm" located "right in front of the

residence or out, or inside the residence shooting from a

4
 No. 2018AP942-CR

window" began to return fire "to protect [R.S.]." As a result

of this exchange of gunfire, T.M. was shot and killed.

¶7 The State relied on witness testimony from Lerone

Towns, a tow truck driver who testified he received a call for a

tow that night from a Mr. Green. He testified that when he

reached the vehicle pickup location, he encountered an

individual, later identified as R.S., waiting in a vehicle

behind the one to be towed. R.S. arranged for the vehicle to be

towed to a house on the corner of 23rd and Townsend. Upon

arriving at the drop-off location, Towns testified he spoke with

R.S. about writing his receipt and entering his information into

the company system. According to Towns, R.S. said he had to get

the money for the payment, and "went straight to the back door,"

where he stood "for some amount of time." While Towns was

taking down information about the vehicle, he said he "turned

around, heard somewhat of a commotion at the back door," and saw

"two gentlemen standing in front of [R.S.]" with their backs

turned toward Towns. He did not see their faces, but stated
"one of the individuals was lighter skinned than the other one"

and they both appeared to be males. He testified that "the

lighter complected gentleman" pulled out a handgun and proceeded

to "reach into [R.S.'s] pockets," and "proceeded to grab [R.S.]

by the back of his shirt and drug him across the street, across

Townsend in front of the residence on 23rd Street." After

"between 20 seconds to a full minute," Towns testified "there

was nothing but gunfire after that" but he "did not see anyone
shooting." He saw R.S. run past him, and testified the gunfire
5
 No. 2018AP942-CR

stopped "once [R.S.] got pretty much to the alley." Towns said

he then left——with the vehicle still attached to his truck——and

received a call en route from R.S. to drop the vehicle off at a

different location, where R.S. arrived with the individual

identified as Mr. Green to pick it up.

¶8 In addition to Towns' testimony, the jury heard from

R.S., who said he knew T.M. and Spencer——identified as "D or D-

Dog." R.S. testified he and Spencer "were involved in business

together," and he owed Spencer $5,000. R.S. testified that he

heard Spencer was looking for him because he had not paid this

debt.5 R.S. also identified Mr. Green as his friend, Errion

Green-Brown. R.S. said he lived at the residence where the

incident occurred, along with Green-Brown and another individual

he identified as Danny McKinney. R.S. testified that McKinney

was present "in the upper unit of the residence" at the time the

tow truck arrived.

¶9 R.S. confirmed he was robbed by two individuals, T.M.

and a "lighter complected" individual whom he "couldn't
recognize." R.S. noted the second individual had a firearm and

asked R.S., "Where is the money at?" R.S. testified the

individuals then "[w]ent in [his] pockets," took a cell phone

and a "couple dollars," "snatched [him] up" by his shirt, and

dragged him across the street toward a gold mini-van. The

5 Although initially R.S. agreed he told the detective he
"never paid that debt," on cross-examination he confirmed he
"had already paid Mr. Spencer $3,000." R.S. acknowledged later
that "[t]he amount of the debt wasn't the same in each of the
interviews" with the detectives.

6
 No. 2018AP942-CR

investigation revealed Spencer's fingerprints on the van, and a

traffic citation and receipt in Spencer's name were found inside

the van. Forensic evidence demonstrated one of the shooters

shot from the residence and the other shooter was near the gold

mini-van, in the area where T.M.'s body had been found.

¶10 During his testimony, R.S. acknowledged he had

identified Spencer as the second individual to the detectives

during three separate interviews. Additionally, R.S. identified

Spencer as the second individual to others——even before he told

the detectives. He told "one of [his] girlfriends it was a

person by the name of Spencer, who may be involved but not

actually with a gun." Two of T.M.'s sisters also testified

regarding the incident. One sister, K.G., testified she had

dinner with both T.M. and Spencer on the night of the robbery.

She said they left together hours before the shooting, in the

same van later found at the scene of the crime. Another sister,

Q.G., testified that R.S., prior to his interview with the

detectives, told her Spencer was involved in the robbery. She
said she called R.S. shortly after T.M. died, and when R.S.

returned her call, he told her "D'Dog" was responsible. Q.G.

denied that she knew who D'Dog was. She testified R.S. told her

T.M. and D'Dog "pulled up in a van and D'Dog and [T.M.] got out

[of] the van. [T.M.] stood a little further off away from them

with his hands behind the back and his head down and said D'Dog

walked up to him and grabbed him by his shirt with a gun and

told him . . . you're going to die today and tried to drag him
down the street." Q.G. recounted that she "asked [R.S.] would
7
 No. 2018AP942-CR

he tell that same story to detectives and he said yes," and that

she called the detectives immediately after her phone call with

R.S. and told them what he had said. During his testimony, R.S.

denied that he told Q.G. that D'Dog was involved; instead, he

said she told him "it was D-dog." The prosecutor summed up:

Q: So, just so I'm clear, you told detectives that it
was D-Dog because you felt threatened. Correct?

A: Yes.

Q: You told one of your girlfriends it was a person
by the name of Spencer, who may be involved but not
actually with a gun. Correct?

A: Yes.

Q: And you told [Q.G.] that, who the robbers were,
but you don't remember saying it was D-Dog?

A: She told me it was D-Dog.
¶11 At trial, numerous discrepancies surfaced between the

story R.S. provided to detectives and his trial testimony.

Detectives interviewed R.S. three times about the incident,

during which R.S. identified Spencer as the other individual

with T.M. R.S. changed his story at trial, saying he "couldn't

recognize" the individual with T.M. R.S. admitted he had

previously identified Spencer, or "D-Dog," and that he told the

detective "Spencer walked up and stated, Where is the money at,"

took $400 from him, grabbed him by his collar and told him

"[c]ome with me, you are going to die," and "pull[ed] out a dark

gray large semi-automatic handgun from his left side and

point[ed] it at [R.S.]" He also testified that he remembered
telling the detective Spencer dragged him across the street

8
 No. 2018AP942-CR

toward a gold mini-van, and he broke away because he thought the

men were going to put him in the van. R.S. recounted that as he

ran away, "[s]hots were fired," and he remembered telling the

detective Spencer raised his firearm and fired one shot at him,

and he heard more gunshots as he ran. R.S. claimed Danny told

him afterward he "was firing from the residence in an attempt to

protect [R.S.]." R.S. testified he did not call T.M. because he

was "scared because [T.M.] was with [Spencer]."

¶12 To explain the discrepancies, R.S. stated, "[the

detectives] threatened me if I didn't cooperate, they would lock

me up and charge me with the crime." R.S. explained he used

Spencer's name because "[t]he detectives told me if I didn't

give up Mr. Spencer they would charge me with the crime." R.S.

reiterated throughout his testimony that he had "no idea who the

individual was" and he "couldn't recognize him." R.S. also

admitted he lied to detectives about Green-Brown being at the

second location, because Green-Brown "was on probation" and he

"didn't want to get him involved." He also said he was not "at
first up front about Danny McKinney telling [him] he had fired

to protect [him] as [he] ran away." Additionally, R.S. stated

he "didn't go to the back door to get money for the tow truck

driver" because he had money in his pocket.6 Earlier in his

testimony, however, R.S. indicated the two men took a "[c]ouple

dollars" from his pockets, which again conflicted with both his

6 Earlier in his testimony, R.S. said he "went in the
house . . . to use the bathroom."

9
 No. 2018AP942-CR

testimony that he had enough money in his pocket for the tow

truck driver and his statement to the detective that the men

took $400 from him.

¶13 The detective who conducted the first interview

testified he never threatened R.S. into disclosing Spencer’s

involvement, and that R.S. provided the names of the individuals

who robbed him. Throughout the detective's testimony, portions

of his interview with R.S. were played for the jury. In

response to the prosecutor's questioning about whether the story

R.S. gave to the detectives was true, R.S. explained:

A: I didn't say it's not true. I never said it ain't
true.

Q: So, you did hear, you did see the defendant put a
gun in your stomach tell you you were going to die and
shoot at you?

A: I didn't recognize the second person, but that is
what happened.

Q: So, everything is true, except for the identity of
the defendant as being the person who did all this?

A: Yes.

Q: Just so we are clear, a guy you owe money to?

. . .

A: Yes.
B. The Judge's Meeting with Juror 2

¶14 On the fifth and last day of trial, which began at

8:59 a.m., a discussion about jury instructions was interrupted

by a bailiff informing the judge that Juror 2 was ill. The
record reflects the court took a 45-minute recess, during which

10
 No. 2018AP942-CR

the judge sent Juror 2 to the judge's chambers to rest. The

judge met with Juror 2 in her chambers, without counsel or the

defendant, but "conferred with the attorneys" outside of the

courtroom. Following the meeting, at 10:05 a.m., the judge went

back on the record to explain what had transpired:

It's been over a half an hour at least, maybe 45
minutes, since we went off the record earlier. The
Court went off the record because I was advised that
we had a juror who was not feeling well. And when I
inquired and with the assistance of one of the
bailiffs, we had the juror come out of the jury room,
go into my chambers where there's a quiet place for
her to rest to see whether she would be feeling
better.

She is not feeling well enough to proceed. And when I
asked her about 15, 20 minutes ago if she thought she
would feel well enough to proceed in any particular
length of time, her answer was very tentative and she
said unlikely basically and she didn't know how long
she would need before she could participate. She is,
if you want to know the details, queasy, light headed,
just unwell generally.

I did inquire. She said she's been having some health
issues as of late and believes that these are——her
words——"the reminisce" of some health issues that have
been going on I think last week.
¶15 Although counsel was not in the room for the judge's

interactions with Juror 2, the judge relayed at least one

question from counsel. The judge described the juror's response

while documenting her handling of the situation:

I conferred with the attorneys. We met in the back.
I advised the attorneys going along what was the cause
for the delay and what was being done to assist the
juror and we agreed to wait and we've now waited a
significant period of time. And I have to be mindful
that we have the remaining 12 sitting back in the jury
room waiting to move forward.

11
 No. 2018AP942-CR

I understand the significance of this for both sides,
frankly. This is the only African-American juror on
the panel. But I am not prepared to put her health at
risk by having her continue and go to deliberations
when she is so unwell. After we met, the defense
asked a question for purposes of the record which I do
not find inappropriate. I did ask——I inquired along
the lines of the concern that the defense had. I
asked the juror if her stress or her not being well
enough to proceed had anything to do with her service
as a juror or with the behavior of any of the other
jurors. Her response to me was "Oh, no. This has
nothing to do with the trial." So I'm satisfied with
that response. I've made my record.
Additionally, the judge noted, "the remainder of the jurors

already were aware [the] juror was not feeling well, that she

had been laying down . . . in the jury room. She had been

resting in there before she was excused to chambers. So they're

aware of the situation. They're aware that it's regarding her

health."

C. The Dismissal of the Juror

¶16 After meeting with the juror and explaining the nature

of that meeting on the record, the judge provided opportunity

for counsel to bring motions on the dismissal. The judge

explained, "At this point I will tell you I have resolved that

we will go forward with the 12. I understand that each of you——

one of you might have some motions to bring and I'll allow you

to state your positions succinctly for the record[.]" The

prosecutor requested the juror be struck "for cause," which the

circuit court granted. Defense counsel moved for a mistrial and

renewed her Swain challenge, both of which the judge denied.7

7Defense counsel had argued in a pretrial motion that
Milwaukee County's procedure of using driver's licenses to
12
 No. 2018AP942-CR

The trial proceeded with the 12 remaining jurors. The jury

returned a guilty verdict on each count.

D. Spencer's Postconviction Motion

¶17 Spencer filed a postconviction motion arguing the

circuit court violated his Sixth Amendment right to counsel by

interviewing the juror ex parte and maintaining trial counsel

was ineffective for failing to object to the meeting with the

juror and failing to object to hearsay testimony. Regarding the

hearsay testimony, Spencer asserted R.S. "told the police that

Mr. McKinney had told him that he, Mr. McKinney, had been

shooting to protect [R.S.]" and that the testimony was used "to

prove the truth of the matters asserted" because it was used "to

show that Mr. McKinney was shooting to protect [R.S.]" Spencer

claimed this testimony was "key evidence in the State's theory

of felony murder."

¶18 The circuit court denied the motion without an

evidentiary hearing. With respect to the judge's interactions

with the juror, the court concluded it could not find "the
juror's health issue which arose in this case prior to closing

arguments constituted a critical stage of the proceedings in

which the defendant needed assistance with a legal problem and

where counsel's presence was essential." The court determined

that even if it were error to meet with the juror outside the

summon jurors resulted in an unconstitutional racial composition
of the jury panel, which in this case consisted of 2 Black
citizens on the panel of 35, in violation of Swain v. Alabama,
380 U.S. 202 (1965). The circuit court denied the motion.

13
 No. 2018AP942-CR

presence of the parties, it was harmless because the error did

not prejudice Spencer's case or contribute to the guilty

verdict. With respect to the hearsay testimony, the court

concluded, "even if trial counsel had objected and the testimony

was struck, there is simply not a reasonable probability that

the defendant would have been acquitted . . . because there was

absolute overwhelming evidence of guilt."

E. Court of Appeals Proceedings

¶19 Spencer appealed the denial of his postconviction

motion. With respect to Spencer's Sixth Amendment claim, the

court of appeals assumed the circuit court's discussion with the

juror violated Spencer's right to counsel, but concluded "any

such violation was harmless" because "counsel was still included

in the process of deciding what to do in response to the juror

falling ill." State v. Spencer, No. 2018AP942-CR, unpublished

slip op., ¶19 (Wis. Ct. App. Mar. 9, 2021). The court noted

counsel "agreed to wait" while the juror rested, and, upon

resuming the record, the circuit court "made the decision, with
counsel present, to dismiss the juror for cause," at which point

counsel objected and moved for a mistrial. Id. The court

further concluded Spencer received "a fair and impartial jury,

and the communications cannot be said to have influenced the

jury's verdict."8 Id., ¶21.

8Judge White concurred in part and dissented in part.
Judge White disagreed that the due process and equal protection
claims were forfeited. Spencer, No. 2018AP942-CR, at ¶30 n.1
(White, J., concurring/dissenting). She concluded the dismissal
of the juror was a critical stage of the proceedings,
implicating both due process and the right to counsel, id., ¶33,
14
 No. 2018AP942-CR

¶20 Having affirmed the denial of the postconviction

motion on the foregoing grounds, the court reversed the order

with respect to Spencer's ineffective assistance claim. Id.,

¶29. The court remanded for a hearing on this claim, concluding

"Spencer alleged sufficient material facts [in his

postconviction motion] that would entitle him to relief, and the

trial court was required to grant Spencer a Machner9 hearing."

Id., ¶26 (citing State v. Sholar, 2018 WI 53, ¶51, 381

Wis. 2d 560, 912 N.W.2d 89).

¶21 Spencer appealed the affirmance of the circuit court's

denial of his postconviction motion. The State cross-

petitioned, arguing the case should not have been remanded for a

Machner hearing. We granted both petitions for review. We now

affirm the denial of the postconviction motion and reverse the

decision to remand for an evidentiary hearing.

II. STANDARD OF REVIEW

¶22 This case requires us to determine whether Spencer had

a constitutional right to be represented by counsel during the
circuit court's ex parte meeting with the ill juror. We review

independently the interpretation and application of

and disagreed that the ex parte meeting was harmless error
because the court's analysis was "devoid of 'a fact-specific
due-process inquiry' that is required to determine if 'the
communication between the judge and jury [denied] the defendant
a fair and just hearing.'" Id., ¶53 (quoting State v.
Alexander, 2013 WI 70, ¶28, 349 Wis. 2d 327, 833 N.W.2d 126).
9 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).

15
 No. 2018AP942-CR

constitutional provisions. State v. Alexander, 2013 WI 70, ¶18,

349 Wis. 2d 327, 833 N.W.2d 126 (citing State v. Hamdan, 2003 WI

113, ¶19, 264 Wis. 2d 433, 665 N.W.2d 785); see also State v.

Chambers, 2021 WI 13, ¶13, 395 Wis. 2d 770, 955 N.W.2d 144

("This court independently reviews whether deprivation of a

constitutional right has occurred." (quoting State v. Jones,

2010 WI 72, ¶23, 326 Wis. 2d 380, 797 N.W.2d 378)).

¶23 We apply a mixed standard of review to the court of

appeals' determination that the circuit court erroneously

exercised its discretion when it denied Spencer's postconviction

motion without holding an evidentiary hearing. Ruffin, __

Wis. 2d __, ¶26 (citing State v. Allen, 2004 WI 106, ¶9, 274

Wis. 2d 568, 682 N.W.2d 433). We first independently consider

"whether the motion on its face alleges sufficient material

facts that, if true, would entitle the defendant to relief."

Id., ¶27 (citing Allen, 274 Wis. 2d 568, ¶9). "Whether the

record conclusively demonstrates that the defendant is entitled

to no relief is also a question of law we review independently."
Id. (citing State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225,

880 N.W.2d 659). If the record conclusively demonstrates the

defendant is not entitled to relief, the circuit court has the

discretion to decide whether to hold a hearing, which we review

for an erroneous exercise of discretion. Id., ¶28.

III. DISCUSSION

A. No Sixth Amendment Violation

¶24 This challenge involves ex parte contact between the
circuit court and a juror after the close of evidence but prior
16
 No. 2018AP942-CR

to deliberations, concerning the juror's health. Considering

both the substance and the timing of the meeting, we conclude

the judge's communications with the juror did not violate

Spencer's Sixth Amendment rights because the meeting did not

constitute a critical stage at which the presence of counsel was

required. Trial counsel was present for the court's decision to

dismiss the juror, which was made on the record and with

counsel's participation. Even if the ex parte meeting were a

violation, any error was harmless.

1. The ex parte meeting was not a critical stage

¶25 The Sixth Amendment provides, in relevant part: "In

all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defense."

U.S. Const. amend. VI. The historical underpinnings of this

right are reflected in its "core purpose . . . to assure

'Assistance' at trial, when the accused [i]s confronted with

both the intricacies of the law and the advocacy of the public

prosecutor." United States v. Ash, 413 U.S. 300, 309 (1973).
The United States Supreme Court has accordingly applied a test

"call[ing] for examination of the event in order to determine

whether the accused required aid in coping with legal problems

or assistance in meeting his adversary." Id. at 313.

¶26 The right to counsel attaches "at all critical stages

of the criminal process." Iowa v. Tovar, 541 U.S. 77, 80–81

(2004) (citing Maine v. Moulton, 474 U.S. 159, 170 (1985);

United States v. Wade, 388 U.S. 218, 224 (1967)). Not every
point in the criminal process is a "critical stage"; the
17
 No. 2018AP942-CR

constitutional right to counsel has been expanded "only when new

contexts appear presenting the same dangers that gave birth

initially to the right itself." Ash, 413 U.S. at 311. The

United States Supreme Court has identified as critical stages

"proceedings between an individual and agents of the State

(whether 'formal or informal, in court or out,' . . .) that

amount to 'trial-like confrontations,' at which counsel would

help the accused 'in coping with legal problems or . . . meeting

his adversary.'" Rothgery v. Gillespie County, 554 U.S. 191,

212 n.16 (2008) (citing United States v. Wade, 388 U.S. 218, 226

(1967); Ash, 413 U.S. at 312–13; Massiah v. United States, 377

U.S. 201 (1964)) (internal citations omitted). Points in the

process are not critical if "there is minimal risk that

[defendant's] counsel's absence at such stages might derogate

from his right to a fair trial." Wade, 388 U.S. at 228.

¶27 Wisconsin courts have determined that voir dire, jury

instructions, and jury deliberations constitute critical stages

at which the right to counsel attaches. See, e.g., State v.
Tulley, 2001 WI App 236, ¶¶6, 11, 248 Wis. 2d 505, 635

N.W.2d 807 (voir dire); State v. Mills, 107 Wis. 2d 368, 370,

320 N.W.2d 38 (Ct. App. 1982) (jury instructions); State v.

Koller, 2001 WI App 253, ¶62, 248 Wis. 2d 259, 635 N.W.2d 838

(jury deliberations). In Koller, the court of appeals

emphasized that "a trial court's communication with a

deliberating jury in the absence of . . . defendant's counsel

violates the defendant's constitutional right . . . to have
counsel at every stage where he or she needs aid in dealing with
18
 No. 2018AP942-CR

legal problems." 248 Wis. 2d 259, ¶62 (citing State v. Burton,

112 Wis. 2d 560, 565, 334 N.W.2d 263 (1983), overruled on other

grounds by Alexander, 349 Wis. 2d 327)).

¶28 In State v. Lehman, 108 Wis. 2d 291, 301, 321

N.W.2d 212 (1982), we held the circuit court erroneously

exercised its discretion by discharging ex parte a juror who

became ill during jury deliberations. We decided the case on

purely statutory grounds, concluding the discharge of the juror

violated Wis. Stat. § 972.02(1) (1979–80), governing the

defendant's right to jury trial by twelve persons, and Wis.

Stat. § 972.05 (1979–80), governing the process for replacing

regular jurors with alternates. Id. at 301 n.6, 318 n.17.

Additionally, we detailed the procedure a circuit court must

follow before discharging a juror. Id. at 300. The record in

Lehman was "totally devoid of any indication" as to the

circumstances of the juror's illness and subsequent discharge,

including "whether the circuit judge questioned the juror prior

to her discharge." Id. at 293–94, 301. Given a deficient
record, we declared, "[I]t is the circuit court's duty, prior to

the exercise of its discretion to excuse the juror, to make

careful inquiry into the substance of the request and to exert

reasonable efforts to avoid discharging the juror." Id. at 300.

We noted the efforts of the circuit court "depend on the

circumstances of the case." Id. Although Lehman did not

implicate the Sixth Amendment, and the procedure outlined in

that case is not a constitutional requirement, the court's

19
 No. 2018AP942-CR

discussion of the nature of jury deliberations provides useful

context for our constitutional analysis.

¶29 Removing a juror during deliberations "poses a very

difficult question for the fair and efficient administration of

justice" because it impedes the deliberative process. Id. at

307–08. We explained in Lehman:

If, during deliberations, a juror is discharged and
another substituted, the eleven regular jurors will
have had the benefit of the views of the discharged
juror while the alternate will not. The eleven
regular jurors will have formed views without the
benefit of the views of the alternate juror, and the
alternate juror who is unfamiliar with the prior
deliberations will participate without the benefit of
the prior group discussion.
Id. The court of appeals in State v. Avery, 2011 WI App 124,

337 Wis. 2d 351, 804 N.W.2d 216, also addressed the discharge of

a juror during jury deliberations. In Avery, the court assumed

it was error for the judge to conduct ex parte communications

with the juror.10 Avery, 337 Wis. 2d 351, ¶56. In that case,

the sheriff called the judge at his home late in the evening to

relay a request from a juror to be excused due to an "unforeseen
family emergency" and marital difficulties. Id., ¶51. After

this conversation, the judge contacted the special prosecutor

and defense counsel, who agreed the judge should speak with the

juror and that the juror should be excused if the information

could be verified. Id. Because the trial judge's discussion

The court assumed the ex parte contact violated Avery’s
10

constitutional right to be present, but did not provide a
detailed analysis on the constitutional claim. State v. Avery,
2011 WI App 124, ¶56, 337 Wis. 2d 351, 804 N.W.2d 216.

20
 No. 2018AP942-CR

with the juror, who was ultimately excused, could not have

influenced the remaining jurors——who had no further contact with

the excused juror——the appellate court concluded Avery received

a fair trial and the error was harmless. Id., ¶58.

¶30 In United States v. Schiro, the Seventh Circuit

addressed a judge's ex parte discussion with a juror during the

trial.11 679 F.3d 521 (7th Cir. 2012). After learning the juror

was uncomfortable serving on the jury and observing that she

seemed "anxious and even panicky," the judge "met with her in

private and asked her whether everything was okay." Id. at 531.

Although she confirmed it was, the juror asked follow-up

questions——including whether the trial was almost over and

whether threats were made against her——which prompted the judge

to remove her from the jury. Id. The Seventh Circuit

determined counsel's absence from the meeting was not

constitutionally problematic:

Given her anxieties it would not have been a good idea
to confront her with the defendants' lawyers——that is,
agents of the defendants; she would have been
intimidated by their presence. A defendant's interest
in being present at all stages of his trial is limited
by the need for orderly administration of criminal
trials.
Id. (internal citations omitted). The court concluded, however,

that "before dismissing her the judge should have told the

As in Lehman, the court in United States v. Schiro did
11

not consider whether the meeting was a "critical stage" under
the Sixth Amendment; instead, the court determined "[t]he
judge's failure to consult the lawyers was thus a harmless
error." 679 F.3d 521, 531 (7th Cir. 2012).

21
 No. 2018AP942-CR

lawyers about his discussions with her . . . , for they might

have suggested that he question her further, albeit outside

their presence." Id. (internal citations omitted). The court

determined the error was harmless, acknowledging that "[s]he had

already answered the essential questions . . . by saying she

hadn't been threatened . . . and hadn't discussed her anxieties

with the other jurors. What more was there to ask her?" Id.

¶31 Guided by this precedent and having the benefit of a

detailed record documenting the judge's communications with the

juror as well as counsel, we conclude the judge's meeting with

Juror 2 regarding her health did not constitute a critical stage

of the proceedings because the meeting (1) occurred prior to

deliberations and (2) involved only a discussion of the juror's

health and ability to proceed. Both the timing and substance of

the communications dictate that counsel's absence did not result

in a constitutional violation.

¶32 As to timing, the meeting took place after the close

of evidence but before deliberations began. As the circuit
court explained, the alternate juror had been present for the

trial and had not been excluded from any juror deliberations.

Whereas the concerns animating the court's reasoning in Lehman,

Avery, and other jury deliberation cases arose from the

difficulty in replicating the deliberative process with the

substitution of an alternate juror, substitution prior to

deliberations does not implicate these problems.12

Our conclusion is reinforced by Wisconsin's decision not
12

to recognize "alternate" jurors. See Wis. Stat. § 972.10(7)
22
 No. 2018AP942-CR

¶33 As to substance, the judge's conversation with Juror 2

regarding her health was not one in which Spencer "required aid

in coping with legal problems or assistance in meeting his

adversary." See Ash, 413 U.S. at 313; see also United States v.

Gagnon, 470 U.S. 522, 526 (1985) ("[T]he mere occurrence of an

ex parte conversation between a trial judge and a juror does not

constitute a deprivation of any constitutional right. The

defense has no constitutional right to be present at every

interaction between a judge and a juror, nor is there a

constitutional right to have a court reporter transcribe every

such communication." (quoting Rushen v. Spain, 464 U.S. 114,

125–26 (1983) (Stevens, J., concurring in judgment)));

Alexander, 349 Wis. 2d 327, ¶22 ("A conference in chambers might

well constitute part of the trial depending upon what matters

are discussed or passed upon." (quoting Ramer v. State, 40

Wis. 2d 79, 84, 161 N.W.2d 209 (1968)). The record shows the

communications centered on the nature of Juror 2's health

issues. The juror had been "laying down . . . in the jury room"
and was brought to chambers to rest. The judge communicated

(2019–20) ("If additional jurors have been selected under
s. 972.04(1) . . . , the court shall determine by lot which
jurors shall not participate in deliberations and discharge
them."). The legislature repealed the alternate juror provision
in 1984 and amended related provisions to instead reference
"additional jurors" in order to "promote an attentive attitude
and a collegial relationship among all jurors." See 1983 Wis.
Act 226, §§ 3–5; Judicial Council Note, 1983, Wis. Stat.
§ 972.04. This attempt to increase attentiveness and
collegiality among all jurors minimizes if not eliminates any
consequences of discharging any particular juror before
deliberations.

23
 No. 2018AP942-CR

Juror 2 was "not feeling well enough to proceed" and she would

be "unlikely" to proceed "in any particular length of time."

The judge described the "details" of her symptoms as "queasy,

light headed, just unwell generally." Additionally, the judge

conveyed that Juror 2 "said she's been having some health issues

as of late and believes that these are——her words——'the

reminisce' of some health issues that have been going on I think

last week."

¶34 Spencer contends "there were legal issues to be

addressed where trial counsel could have acted on behalf of her

client, thus making the ex parte meeting a critical stage in the

proceedings." As one example, Spencer says counsel "could have

thoroughly explored whether the nature of the juror's illness

rose to the level of cause for dismissal, or whether her

discomfort might have warranted a request for a continuance for

a few hours, if appropriate, or even a day." Spencer asserts

counsel "could have thoroughly investigated whether the fact the

juror was the lone African-American on the panel contributed to
her discomfort."

¶35 We are skeptical of the utility or propriety of this

sort of adversarial approach to a juror's health status——

particularly because counsel could pose questions through the

judge and deliberations had not begun. The judge in fact

relayed a question from defense counsel concerning the source of

the juror's symptoms. The court stated, "I did ask——I inquired

along the lines of the concern that the defense had. I asked
the juror if her stress or her not being well enough to proceed
24
 No. 2018AP942-CR

had anything to do with her service as a juror or with the

behavior of any of the other jurors." The judge indicated, "Her

response to me was 'Oh, no. This has nothing to do with the

trial.'"

¶36 The United States Supreme Court has recognized as

"critical stages" those "step[s] of a criminal proceeding" which

involve some adversarial confrontation, such as postindictment

interrogations, plea hearings, preliminary hearings, and

sentencing. See Schmidt v. Foster, 911 F.3d 469, 480 (7th Cir.

2018); see also Wade, 388 U.S. at 226 ("[T]he accused is

guaranteed that he need not stand alone . . . where counsel's

absence might derogate from the accused's right to a fair

trial . . . . The presence of counsel at such critical

confrontations, as at the trial itself, operates to assure that

the accused's interests will be protected consistently with our

adversary theory of criminal prosecution."). The meeting

between the juror and the judge in this case was not an

adversarial event in which "defense counsel was powerless to
prime the pump of persuasion." United States v. Parent, 954

F.2d 23, 26 (1st Cir. 1992). Indeed, Juror 2's response does

not invite the force of the adversarial process to ferret out an

answer that might better serve the defendant's interests. This

juror had been "laying down" in the jury room, the other jurors

were aware that she had health concerns, and she told the judge

she was "unlikely" to be able to continue. At least under the

facts of this case, when the juror became ill before
deliberations and trial counsel was aware of the meeting,
25
 No. 2018AP942-CR

"agreed to wait," and had the opportunity to relay questions,

the adversarial process would not serve any proper role. In

fact, it may have subjected Juror 2 to more stress and soured

her opinion of the criminal justice system. The investigative

and adversarial probing of jurors' symptoms——particularly when

substitute jurors are available and the deliberative process is

not compromised——is far afield of the Sixth Amendment's

protections and antithetical to the idea of an orderly

courtroom.13

2. Trial counsel was present for the decision to dismiss

¶37 Having determined the ex parte meeting between the

judge and Juror 2 did not offend the Constitution, we turn to

the trial court's decision to dismiss the ill juror——a related

but procedurally independent event.14 In Alexander, we concluded

Consistent with the reasons underlying the constitutional
13

protections, as a best practice lawyers should be present if
possible. See, e.g. Alexander, 349 Wis. 2d 327, ¶76 n.2
(Ziegler, J., concurring) ("[I]t is a good practice to include
defendants and counsel, if possible, when matters arise during
trial."); State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212
(1982) ("Such inquiry [into the substance of the discharge
request] generally should be made out of the presence of the
jurors and in the presence of all counsel and the defendant."
(emphasis added)). Nonetheless, the deviation from this
practice under the circumstances of this case, which for the
reasons set forth above counseled against the lawyers' presence,
did not rise to a constitutional violation entitling Spencer to
a new trial.

At the court of appeals, Judge White dissented based on
14

"Spencer's right to due process and his right to have counsel
present during a critical stage in the legal proceeding, namely
when a juror selected at voir dire was dismissed for cause
before deliberations began." Spencer, No. 2018AP942-CR, ¶33
(White, J., concurring/dissenting). This conflates the judge's
ex parte communications with the juror and the judge's decision
26
 No. 2018AP942-CR

the defendant "had no automatic constitutional right to be

present during the circuit court's in-chambers discussions" with

two of the jurors. Alexander, 349 Wis. 2d 327, ¶30. In our

discussion on that point, we cited a Third Circuit Court of

Appeals case holding "there is no constitutional right for a

defendant to be present at a conference in chambers concerning

dismissal of a juror." Id., ¶29 (quoting United States v.

Provenzano, 620 F.2d 985, 997–98 (3d Cir. 1980)). We

emphasized, "[a]ll that the Constitution requires at such a

conference is the presence of defense counsel." Id. (citing

Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir. 1970))

(emphasis added). In this case, defense counsel was present "at

such a conference" "concerning dismissal of a juror." See id.

¶38 Prior to the discussion on the juror's dismissal, the

judge was notified that a juror was feeling ill and laying down

in the jury room, had Juror 2 moved to her chambers where there

was "a quiet place for her to rest," proceeded to check on Juror

2 in her chambers——meanwhile "conferr[ing]" with counsel who
"agreed to wait"——and asked a question on behalf of defense

counsel regarding the nature of the illness. That was the

extent of the ex parte meeting. After roughly 45 minutes, the

judge went back on the record and documented what transpired

during her interaction with Juror 2, stated that she decided to

dismiss the juror, and invited counsel to make any motions on

to dismiss, which was made on the record while counsel was
present and had the opportunity to make motions and object——
which Spencer's counsel did.

27
 No. 2018AP942-CR

the issue. This decision to dismiss occurred on the record, in

the presence of counsel, and with counsel's participation. That

is all the Constitution requires.

B. Harmless Error

¶39 Even if the judge's meeting with Juror 2 were a

critical stage, any Sixth Amendment violation was harmless

error. "Ordinarily, the absence of counsel at a critical stage

of the trial is not subject to harmless error analysis." State

v. Anderson, 2006 WI 77, ¶74, 291 Wis. 2d 673, 717 N.W.2d 74,

overruled on other grounds by Alexander, 349 Wis. 2d 327, ¶¶26–

29. However, we have held "a harmless error analysis may apply

to certain violations of the Sixth Amendment right to counsel"

including "when the circuit court has had ex parte

communications with the jury." Id., ¶76. In determining whether

any error was harmless, "[w]e examine the circumstances and

substance of the communication in light of the entire trial[.]"

Koller, 248 Wis. 2d 259, ¶62 (citing State v. Bjerkaas, 163

Wis. 2d 949, 957–58, 472 N.W.2d 615 (Ct. App. 1991)). "An error
is harmless if there is no reasonable possibility that the error

affected the outcome of the trial."15 Id. (citing Bjerkaas, 163

Wis. 2d at 958).

The principal dissent's misplaced emphasis on the record
15

of the ex parte communications fails to properly contextualize
Anderson, on which it relies. See Justice Ann Walsh Bradley's
Dissent, ¶75 ("In light of the absence of a sufficient record,
an appellate court will have great difficulty concluding that
the circuit court's erroneous procedure in communicating with
the jury was harmless error." (quoting State v. Anderson, 2006
WI 77, ¶81, 291 Wis. 2d 673, 717 N.W.2d 74, overruled on other
grounds by Alexander, 349 Wis. 2d 327, ¶¶26–29)). That
28
 No. 2018AP942-CR

¶40 This case reflects the practical realities of running

a courtroom. "Judges face tough calls in the courtroom each

day." Alexander, 349 Wis. 2d 327, ¶77 (Ziegler, J., concurring)

(citations omitted). The United States Supreme Court has

statement concerned the circuit court's violation of the
statutory requirement that "all statements or comments by the
judge to the jury or in their presence relating to the case
shall be on the record." Anderson, 291 Wis. 2d 673, ¶78
(quoting Wis. Stat. § 805.13(1) (2003–04).

In Anderson, the circuit court responded to two notes from
the jury during deliberations——neither of which were in the
record and both of which concerned evidence introduced during
trial——without consulting counsel. Id., ¶14. After
deliberations ended, the court informed counsel of the ex parte
communications and "reconstructed from memory" the substance of
the contact. Id., ¶15. We determined the lack of a record and
the circuit court's decision not to read to the jury testimony
it requested be read "combin[ed] 'to contribute to the verdict
obtained.'" Id., ¶117. We concluded when ex parte
communications occur "during the deliberative phase of a
criminal prosecution, the absence of a complete record as to the
alleged communications has been held a factor weighing heavily
in favor of reversal," because it deprives the appellate court
"of an opportunity to make an assessment of the prejudicial
effect of the communication." Id., ¶118 n.72 (quoting 43 A.L.R.
4th 410, § 24) (emphasis added). This was particularly so in
Anderson, in which "[t]he circuit court could have improperly
influenced the jury deliberations, even if such influence was
accidental." Id., ¶118. The jury's request to hear the
testimony indicated "it had serious doubts about the outcome of
the case and wanted to hear the testimony again to determine
whether a guilty verdict was appropriate." Id., ¶122.
"Combin[ed]" with the lack of a record of the communications,
the court could not determine "beyond a reasonable doubt" the
errors did not contribute to the verdict. Id., ¶¶117, 123. The
same combination of factors is not present in this case: The ex
parte communications occurred between the judge and a juror who
did not participate in deliberations, and concerned the juror's
health but not the case itself. Unlike in Anderson, the judge
in this case consulted counsel regarding the court's handling of
the situation.

29
 No. 2018AP942-CR

observed, "There is scarcely a lengthy trial in which one or

more jurors do not have occasion to speak to the trial judge

about something, whether it relates to a matter of personal

comfort or to some aspect of the trial." Rushen, 464 U.S. at

118. Concluding "that an unrecorded ex parte communication

between trial judge and juror can never be harmless error

ignores these day-to-day realities of courtroom life and

undermines society's interest in the administration of criminal

justice." Id. at 119; see also United States v. Bertoli, 40

F.3d 1384, 1399 (3d Cir. 1994) ("While it may have been

preferable to have counsel present, . . . we cannot say that

[the defendant] was prejudiced by the trial court's decision to

conduct the interviews [with the jurors] without counsel

present.").

¶41 The State emphasizes that the "specific inquiry" in

this case concerns "whether there's a reasonable possibility

that counsel's absence during the ex parte discussions affected

the outcome of Spencer's trial." We agree with this narrow
formulation and conclude any error was harmless. In order to

affect the outcome of the trial, counsel's presence at the

meeting would have had to result in Juror 2's retention.

Because the nature of the discussion concerned Juror 2's health,

there is no reason on this record to believe counsel's presence

would have had any impact on the juror's ability to proceed.

The juror had been laying down in the jury room before being

moved to the judge's chambers to rest, felt "queasy, light
headed, just unwell generally," and said she was "unlikely" to
30
 No. 2018AP942-CR

be able to continue after any particular length of time. The

judge relayed defense counsel's question about whether the

illness was related to the trial, and Juror 2 responded no. As

the Seventh Circuit queried in Schiro, "What more was there to

ask her?" Schiro, 679 F.3d at 531.

¶42 Had counsel's presence at the meeting resulted in

Juror 2 remaining on the panel, there is no reasonable

possibility her retention would have affected the outcome of the

trial. Juror 2 was removed prior to deliberations, so the kind

of concerns inherent to the deliberative process were not

implicated. Spencer cites Hinton v. United States, 979 A.2d 663

(D.C. Cir. 2009), for the proposition that "jurors are not

fungible after they have heard the evidence." In Hinton, the

D.C. Circuit determined the trial court abused its discretion in

removing an empaneled juror. Hinton, 979 A.2d at 692. The

court emphasized it was not concluding "the erroneous

replacement of an empaneled juror can never be found

harmless[.]" Id. at 689, 691–92 ("In many cases, where twelve
impartial jurors have voted unanimously to find the defendant

guilty beyond a reasonable doubt, we might be persuaded that the

erroneously removed thirteenth juror would not have viewed the

evidence differently. Thus, for example, we would suppose that

if the government's case is strong and there is no reason

apparent in the record to think the erroneously removed juror

would have dissented, a reviewing court could be satisfied that

the juror substitution had no substantial influence on the
outcome."). In that case, the court had "some information
31
 No. 2018AP942-CR

concerning the removed juror's thoughts about the evidence"

based on the juror's "pointed, probing inquiries" of the

witnesses. Id. at 692.

¶43 Borrowing the language of Hinton, "this is not such a

case." Id. The State's case was strong and there was no

indication the discharged juror would have voted to acquit

Spencer. Instead, the State's case shows overwhelming evidence

of Spencer's guilt. The only fact disputed by R.S. during his

trial testimony was whether Spencer was the second individual

involved in the robbery. Regarding R.S.'s story, the prosecutor

asked, "So, everything is true, except for the identity of the

defendant as being the person who did all this?" to which R.S.

responded "Yes."

¶44 Despite R.S.'s recantation on the stand of statements

he made identifying Spencer during multiple interviews with the

police, the jury heard testimony from a series of other

individuals placing Spencer at the scene. In addition to

telling the detectives Spencer was involved, R.S. told "one of
[his] girlfriends it was a person by the name of Spencer, who

may be involved but not actually with a gun." T.M.'s sister,

K.G., testified she had dinner with both "D-Dog" and T.M. just

hours before the robbery and shooting, and that "D-Dog" and T.M.

both left together in the same van later found at the scene.

Another sister, Q.G., testified R.S. told her after the

incident——but before speaking to detectives——that D-Dog was

responsible. She said R.S. told her "D'Dog came to his block
with [T.M.] and he said he tried to——that they tried to
32
 No. 2018AP942-CR

kill. . . . He said they pulled up in a van and D'Dog and

[T.M.] got out [of] the van" and "D'Dog walked up to him and

grabbed him by his shirt with a gun[.]" She testified that R.S.

told her he "pulled away from D'Dog," and "took off running down

the street and D'Dog starting shooting at him." Q.G. said R.S.

told her he would tell the same story to detectives, and that

she called the detectives immediately after her phone call with

R.S. Although R.S. testified he identified Spencer to

detectives because they threatened him, Q.G.'s testimony

indicates he had already told her and had voluntarily agreed to

identify Spencer to the detectives. Not only did the detective

testify he never threatened R.S., but the interview was recorded

and portions of it were played for the jury during the trial.

¶45 Additionally, Towns testified that Green-Brown, who

showed up with R.S. after the incident to complete the tow and

whom Spencer suggested might be involved, was not one of the

individuals he had seen during the robbery. R.S. repeatedly

told detectives D-Dog had robbed him, which he acknowledged
during his testimony. R.S. also testified he owed Spencer a

debt of several thousand dollars, he had heard Spencer was

looking for him regarding this debt, and the individual who

robbed him said, "Where is the money at?" Detective O'Day

testified R.S. told him in the first of these interviews that

Spencer "went into his pockets and pulled out $400 in U.S.

currency," "grabbed him by the front of his shirt," "pulled out

a gun with his left hand and stated, you're going to die," and
"drag[ged] him northbound across Townsend to North 23rd Street."
33
 No. 2018AP942-CR

He testified R.S. said he realized he was in trouble and began

to run when he saw the gold mini-van, he saw Spencer shoot at

him once, and he heard seven more gunshots. The report of

gunshots was corroborated by multiple witnesses, ShotSpotter,

and forensic evidence, which placed Spencer at the scene through

fingerprints lifted from the gold van and a traffic citation and

receipt in his name found inside the van.

¶46 Given this record, there is no reasonable possibility

that trial counsel's absence during the judge's meeting with

Juror 2 affected the outcome of the trial. There is no reason

to believe counsel would have altered Juror 2's symptoms somehow

or asked more probing questions enabling Juror 2 to remain on

the panel. There is no reason to believe Juror 2's presence on

the panel would have altered the outcome of the trial in the

face of overwhelming evidence of Spencer's guilt and with no

disruption to the deliberative process.

C. No Evidentiary Hearing Required

¶47 The court of appeals erred in concluding Spencer was
entitled to a Machner hearing on his ineffective assistance

claim. See Spencer, No. 2018AP942-CR, at ¶29. The court of

appeals' analysis on this issue mirrors the court of appeals'

analysis described in State v. Ruffin, decided this term. 2022

WI 34, ¶¶39–41, __ Wis. 2d __, 974 N.W.2d 432. In reversing the

court of appeals' decision in Ruffin that the defendant was

entitled to a Machner hearing, we reaffirmed the "well-

established" standard on this issue: "[A]n evidentiary hearing
is not mandatory if a defendant's motion presents only
34
 No. 2018AP942-CR

conclusory allegations or if the record as a whole conclusively

demonstrates that the defendant is not entitled to relief."

Id., ¶¶35, 38.

¶48 As in Ruffin, the court of appeals in this case

correctly stated the legal standard for holding an evidentiary

hearing. See Spencer, No. 2018AP942-CR, at ¶22; Ruffin, __

Wis. 2d __, ¶40. The court below explained if the

postconviction motion states sufficient material facts that, if

true, would entitle the defendant to relief, "the circuit court

must hold an evidentiary hearing." Spencer, No. 2018AP942-CR,

at ¶22 (quoting State v. Allen, 2004 WI 106, ¶¶9, 14, 274

Wis. 2d 568, 682 N.W.2d 433). "'[I]f the [postconviction]

motion does not raise facts sufficient to entitle the movant to

relief, or presents only conclusory allegations, or if the

record conclusively demonstrates that the defendant is not

entitled to relief,' a trial court may, in its discretion, deny

a postconviction motion without a hearing." Id. (quoting Allen,

274 Wis. 2d 568, ¶9).
¶49 As we emphasized in Ruffin, __ Wis. 2d __, ¶3, "even

if the motion alleges sufficient facts, an evidentiary hearing

is not mandatory if the motion presents only conclusory

allegations or if the record as a whole conclusively

demonstrates that the defendant is not entitled to relief."

Nevertheless, in both cases "the court of appeals neglected the

'record conclusively demonstrates' analysis." Ruffin, __

Wis. 2d __, ¶41. The court below determined only that Spencer
pled facts sufficient to entitle him to a Machner hearing.
35
 No. 2018AP942-CR

Spencer, No. 2018AP942-CR, at ¶26 (citing Sholar, 381

Wis. 2d 560, ¶51). The court "thus perform[ed] only half of the

required analysis." Ruffin, __ Wis. 2d __, ¶39.

¶50 Applying this longstanding two-step framework, we

conclude Spencer is not entitled to a Machner hearing on his

ineffective assistance claim because "the record as a whole

conclusively demonstrates that [Spencer] is not entitled to

relief." Id., ¶3; see also Sholar, 381 Wis. 2d 560, ¶50. The

circuit court determined "even if trial counsel had objected and

the testimony was struck, there is simply not a reasonable

probability that [Spencer] would have been acquitted of the

crimes with which he was charged because there was absolute

overwhelming evidence of his guilt." We agree. For the reasons

set forth in the harmless error analysis above——which does not

rely on the challenged hearsay testimony——the record

conclusively shows Spencer is not entitled to relief.

IV. CONCLUSION

¶51 Under the circumstances of this case, the judge's ex
parte meeting with Juror 2 did not constitute a critical stage

at which the presence of counsel was required. The meeting's

timing and substance——the nature of Juror 2's health concerns

and her ability to continue, prior to deliberations——did not

implicate Spencer's need for "aid in coping with legal problems

or assistance in meeting his adversary." Ash, 413 U.S. at 313.

The judge informed counsel of the situation, relayed a question

from trial counsel, and after this meeting made the decision to
dismiss the juror on the record with counsel's participation.
36
 No. 2018AP942-CR

We accordingly decline to recognize as a constitutional

violation counsel's inability to personally subject the ill

juror to a "thorough[] explor[ation]" of the extent and nature

of her symptoms in an adversarial setting. Even if the ex parte

meeting was error, it was harmless. There is no reasonable

probability that counsel's presence at the meeting would have

changed the outcome of the trial.

¶52 We further clarify that an evidentiary hearing is not

required when "the record as a whole conclusively demonstrates

that the defendant is not entitled to relief." Ruffin, __

Wis. 2d __, ¶3; see also Sholar, 381 Wis. 2d 560, ¶50. The

record in this case conclusively demonstrates that Spencer is

not entitled to relief on his ineffective assistance claim. We

reverse the court of appeals decision remanding for an

evidentiary hearing.

By the Court.—The decision of the court of appeals is

affirmed in part and reversed in part.

37
 No. 2018AP942-CR.awb

¶53 ANN WALSH BRADLEY, J. (dissenting). The Sixth

Amendment to the United States Constitution ensures that the

accused shall have the assistance of counsel. To this end, the

right to counsel attaches at all critical stages of a trial.

United States v. Wade, 388 U.S. 218, 224 (1967).

¶54 The issue before the court is whether the circuit

court's in chambers, off-the-record communications with an ill

juror, resulting in the juror's dismissal for cause, constituted

a critical stage of the trial at which the right to counsel

attaches. If Spencer did have a right to counsel at the

meetings between the circuit court and ill juror, then he is

entitled to a new trial unless the State can prove beyond a

reasonable doubt that the constitutional error did not

contribute to the verdict.

¶55 In disposing of the Sixth Amendment claim, the

majority errs in two ways. First, it wrongly separates the

circuit court's communications with the juror from the juror's
dismissal, concluding that the communications between the

circuit court and the juror without counsel present did not

constitute a critical stage at which the right to counsel

attaches. Majority op., ¶4. Second, it determines that this

constitutional error was harmless by overlooking gaps in the

record and ignoring the State's burden to prove beyond a

reasonable doubt that the constitutional error was harmless.

See id., ¶41.

1
 No. 2018AP942-CR.awb

¶56 Contrary to the majority, I determine that the

circumstances presented here constitute a critical stage of the

trial. Spencer's Sixth Amendment right to counsel was violated

because his counsel was not present at this critical stage.

Additionally, I conclude that, assuming harmless error applies,

the State failed to meet its burden to prove beyond a reasonable

doubt that this constitutional violation did not contribute to

the verdict. Accordingly, I respectfully dissent.1

I

¶57 Spencer was charged with one count of felony murder

and one count of possession of a firearm by a felon. Majority

op., ¶5. The case went to trial, and after the close of

evidence but before deliberations, the bailiff informed the

judge that a juror had fallen ill. Id., ¶14. As a result, the

court took a 45-minute recess, during which time the judge met

with the ill juror in chambers. Id. Neither the prosecutor nor

Spencer's counsel was present for the meetings. Id. Nothing

was on the record.
¶58 After the communications outside the presence of

counsel occurred, the court went on the record to recreate what

had transpired in the 45-minute interval. It memorialized the

determination it had made before allowing the attorneys to state

their positions for the record or make any motions. At the

outset, the circuit court indicated that it had made its

decision that the juror would not proceed to deliberations,

Because I determine that Spencer's Sixth Amendment right
1

was violated and the error was not harmless, I need not address
the other issues presented.

2
 No. 2018AP942-CR.awb

explaining that the juror was "not feeling well enough to

proceed" and that the court was "not prepared to put her health

at risk by having her continue and go to deliberations when she

is so unwell."

¶59 The circuit court continued making the record,

advising the attorneys about the juror's condition: "She is, if

you want to know the details, queasy, light headed, just unwell

generally." It further explained that it had advised the

attorneys of the reason for the delay, that it conferred with

the attorneys, and that the court waited "a significant period

of time." The circuit court also recognized that the ill juror

was the only African-American juror on the panel and that the

defendant was African-American.

¶60 Additionally, the circuit court stated for the record

that it had asked the ill juror a question "along the lines of

the concern that the defense had." The question asked was

whether "her stress or her not being well enough to proceed had

anything to do with her service as a juror or with the behavior
of any of the other jurors." The ill juror responded, "Oh, no.

This has nothing to do with the trial." Id. Ultimately, the

circuit court said, "I've made my record."2

2The State explained to the circuit court that the juror
could not be excused but instead should be dismissed for cause.
It reasoned that the court could not designate the ill juror as
an alternate because "alternates can only be picked at random"
and therefore the court "can't designate her as an alternate per
statute but [the court] can excuse her for a good reason." See
Wis. Stat. § 972.10(7) ("If additional jurors have been
selected . . . and the number remains more than required at
final submission of the cause, the court shall determine by lot
which jurors shall not participate in deliberations and
discharge them.").
3
 No. 2018AP942-CR.awb

¶61 Nothing else was presented to illuminate the juror's

condition or otherwise speak to the communications that took

place between the court and the juror. It was not until after

the circuit court made a record of its prior decision to dismiss

the juror for cause that the court invited the parties to bring

motions and "state [their] positions succinctly for the record."

¶62 At that time, defense counsel moved for a mistrial and

renewed her Swain challenge.3 Id. Subsequently, the jury

convicted Spencer on both counts. Id., ¶16. Spencer filed a

postconviction motion, arguing both that his Sixth Amendment4

3 In Swain v. Alabama, the United States Supreme Court held
that, "Although a [Black] defendant is not entitled to a jury
containing members of his race, a State's purposeful or
deliberate denial to [Black people] on account of race of
participation as jurors in the administration of justice
violates the Equal Protection Clause." 380 U.S. 202, 203-04
(1965). Earlier in this trial, Spencer's attorney argued that
"Milwaukee County's procedures when impaneling jury arrays
systemically excluded African-Americans and, therefore, violated
Spencer's right to equal protection of the law. The trial court
found that Spencer failed to prove that Milwaukee County's
procedures systemically excluded African-Americans from jury
service and denied Spencer's motion." State v. Spencer, No.
2018AP942-CR, unpublished slip op., ¶5 n.3 (Wis. Ct. App. Mar.
9, 2021). When Spencer's counsel renewed her Swain challenge,
she argued that "the research shows . . . that even the presence
of one African-American on a jury can make a difference in terms
of reducing systemic bias."
4 The Sixth Amendment provides in full:

In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
4
 No. 2018AP942-CR.awb

right to counsel was violated and that his counsel was

ineffective. The circuit court denied the motion. Id., ¶18.

¶63 Spencer appealed,5 and the court of appeals affirmed

the circuit court's denial of Spencer's postconviction motion on

Sixth Amendment grounds. However, it reversed the circuit court

on Spencer's ineffective assistance of counsel claim and

remanded the case for a Machner hearing.6 Id., ¶¶19-20.

II

¶64 The majority's first mistake is that it concludes the

communications between the circuit court and the ill juror,

taking place immediately before jury deliberations and resulting

in the juror's dismissal for cause, did not constitute a

critical stage of the proceedings at which the right to counsel

attached. See majority op., ¶4. "A critical stage is any point

in the criminal proceedings when a person may need counsel's

assistance to assure a meaningful defense. The assistance of

counsel when a court communicates with the jury during

favor, and to have the Assistance of Counsel for his
defence.

Article I, Section 7 of the Wisconsin Constitution also
provides for the right to counsel.
5Spencer also argued at the court of appeals and at this
court that the dismissal of the juror was an erroneous exercise
of discretion and violated his due process and equal protection
rights. The court of appeals determined that Spencer had
forfeited those claims. I need not reach these claims or
address whether they were forfeited because, as noted, I would
reverse on the basis of the Sixth Amendment violation.
6 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).

5
 No. 2018AP942-CR.awb

deliberations may be necessary to a meaningful defense." State

v. Anderson, 2006 WI 77, ¶68, 291 Wis. 2d 673, 717 N.W.2d 74,

overruled on other grounds by State v. Alexander, 2013 WI 70,

349 Wis. 2d 327, 833 N.W.2d 126.7

¶65 Although not precisely defined, a critical stage

generally includes proceedings that determine the composition of

the jury. See State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d

682 (Ct. App. 1999); State v. Spencer, No. 2018AP942-CR,

unpublished slip op., ¶50 (Wis. Ct. App. Mar. 9, 2021) (White,

J., concurring in part and dissenting in part). Examples of

"critical stages" are jury selection (including voir dire) and

communications between the circuit court and the jury during

deliberations. See, e.g., Harris, 229 Wis. 2d at 839; Gomez v.

United States, 490 U.S. 858, 873 (1989); Anderson, 291 Wis. 2d

673, ¶69. As particularly relevant here, "An in-chambers

conference that deals with the ability of sworn jurors to

continue to serve on the jury is an exceedingly important

occurrence in a criminal trial . . . " State v. Alexander, 349
Wis. 2d 327, ¶49 (Crooks, J., concurring).

¶66 The majority erroneously separates the off-the-record

communications from their ultimate outcome, i.e. the dismissal

of the juror. By considering only "the substance and the timing

State v. Alexander overruled State v. Anderson to the
7

extent that a defendant does not have a right to be present
during out of court communications between the judge and the
jury. State v. Alexander, 2013 WI 70, ¶¶28-29, 349 Wis. 2d 327,
833 N.W.2d 126. It remains true that "[a]ll that the
Constitution requires at such a conference is the presence of
defense counsel." Id., ¶29.

6
 No. 2018AP942-CR.awb

of the meeting," the majority concludes that "the meeting did

not constitute a critical stage at which the presence of counsel

was required." Majority op., ¶24. This analysis evaluates the

communications in a vacuum and as a result, minimizes the right

at issue. See id., ¶33.

¶67 To explain, the majority conclusively determines that

because the communications were about the health of the juror,

Spencer did not require aid in coping with legal problems. Id.

However, this takes too narrow of a view of the "legal problem"

with which Spencer required aid. Properly framed, the

communications between the court and the ill juror implicated

the juror's ability to serve on the jury and participate in

deliberations, a consequential event during which Spencer could

have benefited from the aid of counsel. See State v. Carter,

2010 WI App 37, ¶18, 324 Wis. 2d 208, 781 N.W.2d 527; see also

United States v. Ash, 413 U.S. 300, 313 (1973).

¶68 Here, the ill juror sat through the entire trial

except for the closing arguments. Even though deliberations had
not yet begun, they were soon to commence. I agree with court

of appeals Judge Maxine White's apt description of the

situation: "The meeting with Juror No. 2 was not innocuous

communication or a de minimis interaction; it was not a foregone

conclusion that Juror No. 2 would be removed from the jury."

Spencer, No. 2018AP942-CR, at ¶51 (White, J., concurring in part

and dissenting in part).

¶69 Spencer could have stood to benefit from his counsel's
assistance in this situation. At the very least, defense

7
 No. 2018AP942-CR.awb

counsel could have been apprised of the juror's condition

firsthand and more thoroughly investigated all options. For

example, this would have allowed defense counsel to be in a

better position to assess the import of this particular juror

and whether a longer break would result in the juror's ability

to continue serving.

¶70 The majority questions the "utility" and "propriety"

of an "adversarial approach to a juror's health status."

Majority op., ¶35. Once again, this distracts from the

substantive legal problem with which Spencer required the

assistance of counsel: the dismissal of a juror for cause who

observed the trial through the close of evidence.

¶71 By separating the communications between the court and

juror from the juror's dismissal and treating them as distinct

events, the majority paints the communications as a benign

interlude with no bearing on Spencer's rights. To the contrary,

the judge and juror were not merely discussing the juror's

health. They were discussing the juror's health to determine if
the juror should be dismissed from finishing the trial and

participating in deliberations.

¶72 These communications between the circuit court and

juror resulting in the juror's dismissal for cause were a

critical stage of trial at which the right to counsel attached.

Such communications affected the makeup of the jury, and Spencer

could have benefited from the aid of counsel being in the room,

at the very least to build a record. Thus, the majority is
wrong to conclude these communications were not a critical stage

8
 No. 2018AP942-CR.awb

and that Spencer was not entitled to his counsel's presence at

the discussions between the circuit court and the juror. It

brushes off the import of the communications and how they were

inseparable from the decision to dismiss the juror for cause.

III

¶73 Next, the majority stumbles again when it concludes

that even if the communications were a critical stage, the error

was harmless. See majority op., ¶4. The majority overlooks

gaps in the record and ignores the State's burden of proof in

making this determination.

¶74 Whether to apply a harmless error analysis to a

deprivation of counsel claim such as this has met with

inconsistent treatment. In some circumstances "[t]his court and

the court of appeals have applied harmless error analysis to the

denial of the Sixth Amendment right to counsel when the circuit

court has had ex parte communications with the jury." Anderson,

291 Wis. 2d 673, ¶76; see State v. Koller, 2001 WI App 253, ¶62,

248 Wis. 2d 259, 635 N.W.2d 838. Thus, assuming the harmless
error analysis8 applies to these communications between the

circuit court and juror, the error was certainly not harmless as

the majority claims.

8 Although in other circumstances courts have determined
that deprivation of the right to counsel at a critical stage
constitutes a structural error requiring automatic reversal, see
State v. Travis, 2013 WI 38, ¶61, 347 Wis. 2d 142, 832 N.W.2d
491, I do not decide whether structural error should apply to
this Sixth Amendment violation. Instead, I assume, without
deciding, that harmless error applies in response to the
majority's conclusion that the error was not harmless. See
majority op., ¶39.

9
 No. 2018AP942-CR.awb

¶75 Where the majority finds a record sufficient to

determine the error was harmless, I find a record utterly

lacking. See Anderson, 291 Wis. 2d 673, ¶81 ("In light of the

absence of a sufficient record, an appellate court will have

great difficulty concluding that the circuit court's erroneous

procedure in communicating with the jury was harmless error.").

As detailed below and as referenced in Anderson, this case

suffers from an insufficient record——an insufficiency which the

majority overlooks and which precludes a determination that the

State has met its burden of proof.

¶76 If an error is subject to harmless error analysis, the

beneficiary of the error must prove beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained. State v. Hale, 2005 WI 7, ¶60, 277 Wis. 2d 593, 691

N.W.2d 637; see also State v. Beamon, 2013 WI 47, ¶27, 347 Wis.

2d 559, 830 N.W.2d 681. In other words, the State here must

prove beyond a reasonable doubt that Spencer would still have

been convicted absent the Sixth Amendment violation.
¶77 Simply put, the State has failed to meet its burden of

proof to show beyond a reasonable doubt that the Sixth Amendment

violation did not contribute to the verdict. Neglecting to even

mention the State's burden of "beyond a reasonable doubt," the

majority determines that "there is no reason on this record to

believe counsel's presence would have had any impact on the

juror's ability to proceed." Majority op., ¶41.

¶78 Such a conclusion does not comport with our case law.
In State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982), we

10
 No. 2018AP942-CR.awb

were very specific about the procedure the circuit court must

follow before it dismisses a juror. It includes making careful

inquiry regarding the substance of the request and exerting

efforts to avoid dismissing the juror:

When a juror seeks to be excused, or a party seeks to
have a juror discharged, whether before or after jury
deliberations have begun, it is the circuit court's
duty, prior to the exercise of its discretion to
excuse the juror, to make careful inquiry into the
substance of the request and to exert reasonable
efforts to avoid discharging the juror. Such inquiry
generally should be made out of the presence of the
jurors and in the presence of all counsel and the
defendant. The juror potentially subject to the
discharge should not be present during counsel's
arguments on the discharge. The circuit court's
efforts depend on the circumstances of the case. The
court must approach the issue with extreme caution to
avoid a mistrial by either needlessly discharging the
juror or by prejudicing in some manner the juror
potentially subject to discharge or the remaining
jurors.
Id. at 300.

¶79 Lehman instructs how the circuit court should conduct

an inquiry before dismissing a juror even before deliberations

have begun. The 45-minute gap in the record does not reflect
the above inquiry, and the State has not otherwise proven the

error was harmless. It argues only that because the juror was

sick, she would have been dismissed no matter what.

¶80 There is no transcript of the off-the-record

communications which the State can reference in endeavoring to

meet its burden. And although "[t]he circuit court's efforts

depend on the circumstances of the case," the State has not
shown from the gaps in this record that the circumstances

11
 No. 2018AP942-CR.awb

indicate the result would have been the same absent the

constitutional error.

¶81 It is clear that before the circuit court went back on

the record, it had already made its determination that the juror

would not continue serving on the panel. What is not clear from

the transcript is whether the juror had already left the

courthouse before the court went back on the record——that is,

before counsel even had an opportunity to make or renew any

motions. See Spencer, No. 2018AP942-CR, at ¶48 (White, J.,

concurring in part and dissenting in part). A review of the

transcript shows the circuit court's concern for making a record

of the communications and its decision to dismiss the juror but

does not shed light on when the juror was actually allowed to

leave. This presents a significant gap in the record. The

possibility that the juror had already left the courthouse

before the court went on the record certainly would further

exacerbate the error.

¶82 Added to the mix, the communications between the
circuit court and the juror were neither brief nor

inconsequential. See Koller, 248 Wis. 2d 259, ¶¶61, 67

(assuming that the trial court erred when it responded through

the bailiff without the assistance of counsel that two items the

jury asked for were "not available," but finding the error

harmless); State v. Bjerkaas, 163 Wis. 2d 949, 957-58, 472

N.W.2d 615 (Ct. App. 1991) (noting the parties' agreement that

it was constitutional error when the trial court wrote back "no"
in response to a question posed by the jury without consulting

12
 No. 2018AP942-CR.awb

counsel, but finding no prejudice to the defendant). Instead,

it was an approximately 45-minute recess that determined the

composition of the jury after most of the trial had concluded.

A decision to dismiss a juror for cause can be consequential,

implicating significant constitutional rights. See State v.

Mendoza, 227 Wis. 2d 838, 849-50, 596 N.W.2d 736 (1999).

¶83 Admittedly, there may be occasions when a judge

communicating with a juror outside the presence of counsel

involve "the practical realities of running a courtroom,"

constituting harmless error. See majority op., ¶40. But this

is not one of them. Rather, the law provides a clear roadmap,

requiring the State to prove the error was harmless beyond a

reasonable doubt, which it has not done based on this deficient

record.

¶84 Judge White's separate writing at the court of appeals

is instructive. She explains that the dearth of a record of the

communications between the circuit court and juror precludes the

conclusion that the error was harmless. See Spencer, No.
2018AP942-CR, at ¶55 (White, J., concurring in part and

dissenting in part). I agree that "the scope and impact of the

trial court's error is difficult to assess because of the lack

of record." Id. We cannot know, and the State has not proven,

whether the outcome would have been the same absent the

constitutional violation. In sum, the State has failed to meet

its burden of proof that the error was harmless beyond a

reasonable doubt.
¶85 Accordingly, I respectfully dissent.

13
 No. 2018AP942-CR.awb

¶86 I am authorized to state that Justices REBECCA FRANK

DALLET and JILL J. KAROFSKY join this dissent.

14
 No. 2018AP942-CR.rfd

¶87 REBECCA FRANK DALLET, J. (dissenting). I join

Justice Ann Walsh Bradley's dissent in full. As she correctly

concludes, the circumstances under which the only Black juror

was dismissed for cause prior to deliberations violated

Spencer's Sixth Amendment rights. I write separately to

emphasize the importance of racially diverse juries to enhancing

both a jury's performance in criminal trials and the public's

perceptions of the fairness of the legal system.

¶88 Racial diversity on juries has both constitutional and

moral dimensions. For example, a categorical bar on jury

service by non-white citizens violates the Fourteenth Amendment.

See Strauder v. West Virginia, 100 U.S. 303, 307-08 (1879),

abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522,

536 n.19 (1975). Relatedly, the way potential jurors are

summoned "must not systematically exclude distinctive groups in

the community and thereby fail to be reasonably representative

thereof." Taylor, 419 U.S. at 538. Otherwise, that method of

summoning potential jurors violates the defendant's right to a

jury of his peers. See id. at 528 (explaining that "an
essential component of the Sixth Amendment right to a jury

trial" is that the pool of potential jurors is a "representative

1
 No. 2018AP942-CR.rfd

cross section of the community").1 The Constitution not only

requires that people of all races be included in the pool of

potential jurors, but it also prohibits practices designed to

keep jurors of any particular race off the final panel. See,

e.g., Batson v. Kentucky, 476 U.S. 79, 96 (1986) (racially

motivated peremptory challenges to potential jurors violate the

Fourteenth Amendment). Those principles, which are rooted in

the Constitution's text, flow from the Constitution's underlying

moral value of equality before the law: "The very idea of a

jury is a body . . . composed of the peers or equals of the

person whose rights it is selected or summoned to determine;

that is, of his neighbors, fellows, associates, persons having

the same legal status in society as that which he holds."

Strauder, 100 U.S. at 308. In short, "[e]qual justice under law

requires a criminal trial free of racial discrimination in the

jury selection process." Flowers v. Mississippi, 139 S. Ct.

2228, 2242 (2019). These precedents underscore the importance

of the circuit court's decision to dismiss the only Black juror

on the panel after the close of evidence, and why the events
leading up to that decision were a "critical stage" of the

1In Wisconsin, potential jurors are summoned from lists of
individuals with valid drivers' licenses or State IDs. This is
problematic because, in Milwaukee County, for instance, only 47%
of Black adults and 43% of Hispanic adults have a valid drivers'
license, as compared to 85% of white adults statewide. See John
Pawasarat, The Driver License Status of the Voting Age
Population in Wisconsin, Emp. & Training Inst., Univ. of Wis.-
Milwaukee (June 2005). Thus, that system excludes more than
half of the Black and Hispanic adult populations in Milwaukee
County from ever being summoned for jury duty, let alone being
placed on a final jury panel.

2
 No. 2018AP942-CR.rfd

trial. See generally United States v. Cronic, 466 U.S. 648, 659

(1984).

¶89 Setting aside the constitutional and moral dimensions

of jury diversity, research suggests that juries perform better

simply if they include non-white members. See, e.g., Samuel R.

Sommers, On the Obstacles to Jury Diversity, 21 Jury Expert 1, 7

(2009) ("[T]he nature and content of deliberations can actually

vary by a jury's racial composition."). Although there are many

ways to assess jury performance, the research focuses generally

on the length and breadth of jurors' discussions, the number of

factual errors made in deliberations, and the reduction of

jurors' individual biases, whether implicit or explicit. See

generally id.; see also Samuel R. Sommers, On Racial Diversity

and Group Decision-Making, 90 J. Personality & Soc. Psych. 597,

606 (2006) On each of these metrics, diverse juries perform

better than all-white ones. Specifically, juries that include

even one non-white member tend to deliberate longer and discuss

a wider range of evidence than all-white juries. See Sommers,

Racial Diversity, supra, at 608. White jurors on diverse juries
are generally more accurate in their discussion of the facts of

the case than if they were on an all-white jury; and they are

less likely to pre-judge the defendant's guilt, including before

deliberations begin. See id. at 606 (adding that diverse juries

are less likely to tolerate prejudicial statements in

deliberations than are all-white juries). Similarly, jurors

demonstrate "less biased reasoning when placed in a diverse

decisionmaking group." See Michael Selmi, Statistical
Inequality and Intentional (Not Implicit) Discrimination, 79 Law

3
 No. 2018AP942-CR.rfd

& Contemp. Probs. 199, 217 & n.92 (2016). These findings mirror

those in numerous other studies confirming that diversity has a

positive effect on group performance in other settings. See

generally Vivian Hunt, et al., Why Diversity Matters, McKinsey &

Co. (Jan. 2015) (finding that corporations with gender and

ethnic diversity were significantly more likely to outperform

their competitors); Lu Hong & Scott E. Page, Groups of Diverse

Problem Solvers Can Outperform Groups of High-Ability Problem

Solvers, 101 Proceedings of the Nat'l Academy of Scis. 16385

(2004).

¶90 There are many potential explanations for these

effects. One is that people bring their implicit biases with

them to the jury room. See generally Justin D. Levinson &

Danielle Young, Different Shades of Bias, 112 W. Va. L. Rev.

307, 326–31 (2010). For instance, Levinson and Young found that

mock jurors "who saw [a] photo of [a] perpetrator with a dark

skin tone judged ambiguous evidence to be significantly more

indicative of guilt than participants who saw [a] photo of a

perpetrator with a lighter skin tone." Id. at 337. Likewise,
people are more likely to remember "aggressive facts" about a

Black character in a story than a white one. See generally

Justin D. Levinson, Forgotten Racial Equality, 57 Duke L.J. 345,

398-99 (2007). But an even more fundamental explanation may be

that when jurors expect to have discussions with people who have

different perspectives than they do, they tend to listen to the

evidence more closely, prepare for deliberations more

thoroughly, and guard against preconceived notions more

4
 No. 2018AP942-CR.rfd

carefully.2 See Sommers, On Racial Diversity, supra, at 601.

Diverse juries might also outperform all-white juries as a

result of each juror contributing his or her own life experience

to deliberations. As Justice Thurgood Marshall put it:

When any large and identifiable segment of the
community is excluded from jury service, the effect is
to remove from the jury room qualities of human nature
and varieties of human experience, the range of which
is unknown and perhaps unknowable. It is not necessary
to assume that the excluded group will consistently
vote as a class in order to conclude, as we do, that
its exclusion deprives the jury of a perspective on
human events that may have unsuspected importance in
any case that may be presented.
Peters v. Kiff, 407 U.S. 493, 503-04 (1972).

¶91 Racial diversity on juries also has a meaningful

impact on the public's perceptions of the fairness and

legitimacy of jury verdicts. One study found that ordinary

citizens' perceptions about the fairness of a trial and the

correctness of a verdict varied depending on whether the jury

was all-white or racially diverse. See Leslie Ellis & Shari

Seidman Diamond, Race, Diversity, and Jury Composition, 78 Chi.-

Kent L. Rev. 1033, 1043-45 (2003). When participants were told
that a particular verdict was reached by a racially diverse

2 This point and others were discussed more fully in a
recent presentation by the National Center for State Courts
(NCSC) entitled "Jury Diversity and its Role in Promoting
Confidence in the Court System," which can be viewed here:
https://cdm16501.contentdm.oclc.org/digital/collection/juries/id
/339. The presentation was part of NCSC's ongoing "Blueprint
for Racial Justice" Project, which "is examining the systemic
changes needed to make equal justice under law an enduring
reality for all." See https://www.ncsc.org/information-and-
resources/improving-access-to-justice/racial-justice/blueprint-
for-racial-justice.

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jury, they perceived the trial to be equally fair regardless of

whether it ended in a conviction or an acquittal. Id. at 1049.

The same was not true, however, when the jury had no racially

diverse members: "[W]hen the jury did not include minority

members, observers viewed the trial as less fair when it

produces a guilty verdict than when it produced a not guilty

verdict." Id. The key takeaway from this study is that

participants thought a verdict was unfair "only when [they]

questioned the procedure that procured it, i.e., the racial

composition of the jury." Id.

¶92 I do not mean to suggest that discharging the only

juror of color is always erroneous, or that doing so here

prejudiced Spencer. After all, "[d]efendants are not entitled

to a jury of any particular composition." Taylor, 419 U.S. at

538. Instead, I write to emphasize the importance of racially

diverse juries to both the quality of verdicts and the

perception of fairness in the judicial system. Given that

"[t]he purpose of the jury system is to impress upon the

criminal defendant and the community as a whole that a verdict
of conviction or acquittal is given in accordance with the law

by persons who are fair," Powers v. Ohio, 499 U.S. 400, 413

(1991), juries themselves must be perceived as fair, and

therefore must reflect the communities from which they are

drawn.

¶93 I am authorized to state that Justice JILL J. KAROFSKY

joins this dissent.

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