2005 WI App 238

court of appeals of wisconsin

published opinion

 


 

Case No.:

2004AP2010-CR

 

Complete Title of Case:

ÜPetition for Review Filed.


 

 

State of Wisconsin,

 

††††††††††††††††††††††† Plaintiff-Respondent,

††††††††††† v.

 

Lionel N. Anderson,Ü

 

††††††††††††††††††††††† Defendant-Appellant.

 

 


 

Opinion Filed:

October 11, 2005

Submitted on Briefs:

August 2, 2005

Oral Argument:

---

 

 

JUDGES:

Fine, Curley and Kessler, JJ.

††††††††††† Concurred:

Kessler, J.; Fine, J.

††††††††††† Dissented:

Kessler, J.

 

 

Appellant

 

ATTORNEYS:

On behalf of the defendant-appellant, the cause was submitted on the brief of Harry R. Hertel of Hertel & Gibbs, S.C., of Eau Claire.

 

 

Respondent

 

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.

 

 

 

 



2005 WI App 238

 


COURT OF APPEALS

DECISION

DATED AND FILED

October 11, 2005

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.If published, the official version will appear in the bound volume of the Official Reports.

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.See Wis. Stat. ß 808.10 and Rule 809.62.

 

 

 

 

Appeal No.

2004AP2010-CR

Cir. Ct. No.2001CF5442

STATE OF WISCONSIN†††

IN COURT OF APPEALS

 

 

 

 

 

 

State of Wisconsin,

 

††††††††††††††††††††††† Plaintiff-Respondent,

 

††††††††††† v.

 

Lionel N. Anderson,

 

††††††††††††††††††††††† Defendant-Appellant.

 

 

 

††††††††††† APPEAL from a judgment and an order of the circuit court for Milwaukee County:Richard J. Sankovitz, Judge.Affirmed.

††††††††††† Before Fine, Curley and Kessler, JJ.

1††††††††††† CURLEY, J.    Lionel N. Anderson appeals the judgment convicting him of first-degree sexual assault of a child, contrary to Wis. Stat. ß 948.02(1) (2001‑02).[1]Anderson submits that he is entitled to a new trial because the trial court declined two requests by the jury for Andersonís testimony without Andersonís knowledge or input, violating his constitutional rights, and because he claims he was entitled to have his testimony reread to the jury.Alternatively, Anderson submits that because his attorney rendered ineffective assistance, he is entitled to a Machner hearing.[2]After reviewing the record, we conclude that because Andersonís attorney failed to object to the trial courtís unilateral decision to require the jury to specify exactly which parts of Andersonís testimony it wished read back, we must review these actions under the Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel standard.Inasmuch as Anderson has not shown that he was prejudiced by any of his attorneyís actions, we affirm.

I.  Background.

††††††††††† 2††††††††††† Charlene Anderson, the legal guardian of nine-year-old M.L. and the wife of Anderson, called the police after she received a phone call late one night from her sister who told her that she had reason to believe that M.L. may have been sexually assaulted by Anderson.After first denying that Anderson had assaulted her, M.L. eventually revealed to Charlene that Anderson made her suck his penis when Charlene was in the hospital in February 2001.M.L. claimed that Anderson called her into the kitchen and asked her if she wanted to play with his ďtail.ĒWhen she answered ďno,Ē he forced her to get down on her knees next to where he was sitting, and demanded that she suck his penis.She did as she was told.

††††††††††† 3††††††††††† After hearing about the assault, Charlene confronted her husband and told him to leave.Anderson left, and traveled to Kentucky where he was arrested.He later agreed to be returned to Milwaukee.After the police were contacted, M.L. was interviewed by a social worker, and the entire interview was recorded on videotape.During the interview, M.L. described the sexual assault in detail.After Anderson waived his right to a preliminary hearing and changed attorneys, a number of pretrial conferences were held.The case eventually proceeded to a jury trial.At it, the State called six witnesses and the defense called three.

††††††††††† 4††††††††††† Shortly after the trial began, the State presented the video of M.L.ís interview with the social worker.Although notice of the Stateís intention to introduce the tape at the preliminary hearing had been sent to then-defense counsel, no notice was sent to Andersonís trial attorney that it would be introduced at trial, and neither Anderson nor his trial attorney saw the video before trial.Before the trial, the State filed a motion in limine seeking to introduce evidence concerning the effects of sexual assault through an expert witness.At trial, no objection was raised to the fact that no notice was sent to defense counsel or that the video had not been viewed by the defense.The tape was shown to the jury before M.L. testified.Andersonís attorney did not object to this procedure.

††††††††††† 5††††††††††† As anticipated, the State called an expert witness who explained the dynamics of child sexual abuse to the jury.This witness was not listed on the Stateís witness list.No objection was raised to her testifying because of the failure to list her as a potential witness.One of the areas discussed by the expert was the delay in reporting often seen in intra-family sexual abuse cases.During Charleneís testimony, she mentioned that after the sexual assault allegations became known, Anderson left the state and went to Kentucky.Andersonís attorney did not object to her testimony regarding Andersonís fleeing the state.

††††††††††† 6††††††††††† During the trial, the trial court, apparently in error, admitted an exhibit that neither attorney had requested.It was written by the social worker who taped M.L.ís video and summarized M.L.ís testimony on the video.This exhibit was later allowed into the jury room during deliberations.

††††††††††† 7††††††††††† After the jury had deliberated for some time, the jury alerted the bailiff that it had reached a verdict.However, before reading the verdict, the trial court advised the parties that the jury had twice requested certain testimony to be read back and that the trial court had refused to provide it unless the jury could be more specific.These communications with the jury occurred without the trial court informing or consulting with the attorneys or Anderson.According to the trial courtís recollection, the jury sent a note asking to have Andersonís and M.L.ís testimonies read back.The trial court asked the jury to be more specific.The jury then sent another note informing the court that it wanted Andersonís testimony read back because it did not understand his testimony.Again, the trial court asked the jury to be more specific.Nothing more was heard from the jury until it reached a verdict.Andersonís attorney raised no objection to the trial courtís actions.Anderson was convicted of the charge and sentenced to twelve years of initial confinement and six years of extended supervision.He brought a postconviction motion which was denied.


II.  Analysis.

A.  Andersonís attorney was not ineffective for failing to object to the trial courtís
     communicating with the jury without his knowledge.

††††††††††† 8††††††††††† Anderson argues that the trial courtís communications with the jurors without his input were errors of constitutional magnitude and, as a result, he is entitled to a new trial.In support of his argument, Anderson notes that before conferring with the jurors concerning their request to hear Andersonís testimony, the trial court granted the juryís request to view M.L.ís video interview and provided a TV and VCR for the jury with which to view it.He contends that the trial courtís refusal to reread his testimony denied him a fair and balanced jury deliberation and thus, the error is not harmless.Further, Anderson submits that we should have little confidence in the trial courtís recollections because very little is known about the juryís requests or the trial courtís responses, as the juryís questions and the trial courtís answers were thrown away by the jurors, and are thus not part of the record.[3]Because Anderson has presented nothing to contradict the trial courtís recollections, we accept them as being accurate.

††††††††††† 9††††††††††† It is settled law that when a trial defense lawyer does not object, the test is not whether the alleged trial court error was ďharmless beyond a reasonable doubt,Ē with the burden on the State to show this, State v. Stuart, 2005 WI 47, ∂40, 279 Wis. 2d 659, 695 N.W.2d 259 (citation omitted) (state has burden), but, rather, whether, under an ineffective-assistance-of-counsel analysis, the defendant has shown prejudice under Strickland, 466 U.S. at 687.See Kimmelman v. Morrison, 477 U.S. 365, 374‑75 (1986); State v. Carprue, 2004 WI 111, ∂∂49‑53, 274 Wis. 2d 656, 683 N.W.2d 31.

††††††††††† 10††††††††††† The rule that objections are generally waived if not made at trial applies equally to constitutional and non-constitutional objections.See State v. Huebner, 2000 WI 59, ∂10, 235 Wis. 2d 486, 611 N.W.2d 727 (ďIt is a fundamental principle of appellate review that issues must be preserved at the circuit court.Ē); State v. Edelburg, 129 Wis. 2d 394, 401, 384 N.W.2d 724 (Ct. App. 1986) (ďThe waiver doctrine applies even to the claim of a constitutional rightĒ) (citing State v. Marshall, 113 Wis. 2d 643, 653, 335 N.W.2d 612 (1983)).

††††††††††† 11††††††††††† A defendant claiming ineffective assistance of counsel must prove both that his or her lawyerís representation was deficient, and, as a result, the defendant suffered prejudice.See Strickland, 466 U.S. at 687.To prove deficient performance, the defendant must show specific acts or omissions of his attorney that fall ďoutside the wide range of professionally competent assistance.ĒId. at 690.To show prejudice, the defendant must demonstrate that the result of the proceeding was unreliable.Id. at 687.If the defendant fails on either prongódeficient performance or prejudiceóhis ineffective assistance of counsel claim fails.Id. at 697.We ďstrongly presume[]Ē counsel has rendered adequate assistance.Id. at 690.

††††††††††† 12††††††††††† ďWhether a defendantís trial counsel provided ineffective assistance of counsel is a mixed question of law and fact.ĒState v. Guerard, 2004 WI 85, ∂19, 273 Wis. 2d 250, 682 N.W.2d 12 (citing Strickland, 466 U.S. at 698); see State v. Franklin, 2001 WI 104, ∂12, 245 Wis. 2d 582, 629 N.W.2d 289.A reviewing court will not disturb the circuit courtís factual findings unless they are clearly erroneous.Franklin, 245 Wis. 2d 582, ∂12.ďWhether the trial counselís conduct was deficient and whether it was prejudicial to the defendant are questions of law reviewed by this court de novo.ĒId.Because we are satisfied from our review of the record that Anderson suffered no prejudice, we decline to examine whether his attorneyís actions were deficient.

††††††††††† 13††††††††††† Wisconsin Stat. ß 805.13(1) obligates the trial court to conduct any communications with the jury on the record.Section 805.13(1), in pertinent part, reads:ďStatements by judge.After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record.ĒAdditionally, in criminal cases, a defendant has a constitutional right to be present during any communications between the judge and the jury.See State v. Burton, 112 Wis. 2d 560, 565, 334 N.W.2d 263 (1983).Here, there is no question that the trial court erred.Given that Andersonís attorney did not object, we look to see if Anderson was prejudiced by the trial courtís actions.[4]We conclude he was not.

††††††††††† 14††††††††††† The trial court recollected that:

Since the last time we were on the record, I received two other requests from the jury for information which I answered unilaterally.

I gave a standard answer which I donít believe would be objectionable and, in fact, which I think is the only reasonable answer.

The jury asked for the entire testimony of Mr. Anderson and [M.L.] to be read back.My standard answer and the one that I gave the jury was because itís cumbersome to read back that amount of testimony and because it may be unnecessary, please tell us what parts, if any, you canít remember and we would be happy to provide you with that information and I urged them to rely on their collective memory.Then I received a follow-up question saying that the jury didnít understand all of Mr. Andersonís testimony and to that response -- and to that question I said if thereís [sic] any parts that you canít understand, list them for us and we would be able to provide you with the testimony read back on those points.[5]

(Footnote added.)As noted, the jury sent no additional notes before reaching a verdict.

††††††††††† 15††††††††††† After reviewing the trial transcript, we are satisfied that the trial courtís communications regarding the reading back of Andersonís testimony did not prejudice Anderson.First, the State had a strong case against Anderson.The jury had the opportunity to view the video interview of M.L., in which she convincingly recounted the sexual assault.In it, M.L.ís physical description of Andersonís penis suggested that Anderson was not circumcised.Anderson admitted later that, in fact, he was not circumcised.M.L. also testified before the jury that what she said on the tape was true.

††††††††††† 16††††††††††† Other witnesses that the jury could find credible also testified for the State.Charlene Anderson told the jury about her efforts to get M.L. to finally reveal the sexual assault, and what actions she took once M.L. revealed the assault.Also corroborating M.L.ís testimony were the testimonies of two of M.L.ís young female cousins, who both claimed that months before this matter became public, M.L. had told them Anderson had been ďmessingĒ with her, and had asked them not to tell anyone.The jury also heard from the expert witness, who explained to the jury that in cases of child sexual assault by a family member, it is quite common for a child to delay reporting the assault.

††††††††††† 17††††††††††† In contrast, Andersonís defense was weak.It consisted of Andersonís rambling, and often confusing, version of the events, in which he denied having any sexual contact with M.L.Essential to Andersonís defense was the testimony of his first cousin, who claimed not to know Anderson had been arrested for sexual assault when he went to Charlene Andersonís house and had, the cousin alleged, a conversation with M.L. in which M.L. had told him that ďpapa didnít do that,Ē and that Charlene Anderson had whipped her until she said that Anderson sexually assaulted her.

††††††††††† 18††††††††††† In rebuttal, Charlene Anderson testified that while Andersonís cousin did come over to the house to retrieve a letter addressed to Anderson, he was never inside the house and M.L. was not home at the time of his visit.M.L. testified that she never saw or talked to the cousin after Anderson was arrested.

††††††††††† 19††††††††††† In sum, the jury could have easily found that the State presented a variety of solid witnesses, while Andersonís defense was unpersuasive and his version of the events confusing.Thus, we conclude that Anderson suffered no prejudice because there was no reasonable possibility that the error affected the trialís outcome.[6]Moreover, the jury indicated they wanted Andersonís testimony read back to them because they did not understand it, not that they could not remember it.Had the testimony been read back, it would not have become more understandable, and it is likely that the rereading would have hurt Anderson more than it would have helped him.

††††††††††† 20††††††††††† With regard to Andersonís argument that he had a constitutional right to have his testimony read to the jury, we note that such a request is subject to the trial courtís discretion.See State v. Simplot, 180 Wis. 2d 383, 404, 509 N.W.2d 338 (Ct. App. 1993).Here, the trial court properly exercised its discretion by requiring the jury to specify just what testimony of Andersonís they wanted read back.Thus, we are satisfied that no error occurred.

B.  Andersonís attorney was not ineffective in any other respect.

††††††††††† 21††††††††††† Next, Anderson submits that if he is unsuccessful in obtaining a new trial because of the trial courtís errors in communicating with the jury, then he is entitled to have the matter remanded for a Machner hearing to determine if he is entitled to a new trial because of his trial attorneyís ineffectiveness.First, Anderson contends that his attorney rendered ineffective assistance when he failed to object to the introduction of M.L.ís video because he was not given formal notice required by Wis. Stat. ß 908.08 that it would be introduced at trial and, in any event, it should not have been introduced before M.L.ís testimony.Further, he claims that admitting it in the manner in which it was done violated the rule promulgated in Crawford v. Washington, 541 U.S. 36 (2004).Second, Anderson also argues that his attorneyís assistance was ineffective because no objection was lodged when the State called an expert witness who was not on the Stateís witness list.[7]Third, no objection was raised when the trial court admitted into evidence an exhibit neither attorney requested and the exhibit was later sent to the jury.Fourth, no objection was raised when Charlene Anderson testified that Anderson fled the state and went to Kentucky after the sexual assault was reported to the police.[8]As noted, Anderson must prove both that his attorneyís representation was deficient and that he was prejudiced by his attorneyís actions.

††††††††††† 22††††††††††† Anderson complains that his attorney was ineffective for failing to object to the viewing of M.L.ís video.Although the State may not have given Andersonís attorney formal notice of the Stateís intention to introduce the videotape at trial, the State did give formal notice that the tape would be introduced at the preliminary hearing.Additionally, it is apparent from the record that Andersonís attorney was aware of the existence of the tape.Several pretrial conferences discussing the upcoming trial were held before the trial.The social worker who interviewed M.L. and taped the video was on the Stateís list of witnesses, and it is evident that Andersonís attorney was prepared to cross-examine this witness.We also note that nowhere in the record does trial counsel state that he was taken by surprise by the Stateís intention to show the tape to the jury or that he was unaware of the tape.Further, it is not surprising that Anderson never viewed the tape before trial because he was incarcerated.Although Anderson complains that he should have seen the tape before trial, he has not stated what important information he could have relayed to his attorney if he had viewed the video before trial.Consequently, no prejudice has been shown because no formal notice was given, or because Anderson did not see the video before trial.

††††††††††† 23††††††††††† Anderson also complains that the showing of the tape before the live testimony of M.L. was error, requiring his attorney to object.He is wrong.Wisconsin Stat. ß 908.08(5) actually proscribes this procedure:

Videotaped statements of children.  Ö(a) If the court or hearing examiner admits a videotape statement under this section, the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the videotape statement is shown to the trier of fact.Except as provided in par. (b), if that party does not call the child, the court or hearing examiner, upon request by any other party, shall order that the child be produced immediately following the showing of the videotape statement to the trier of fact for cross-examination.

(Underlining supplied.)[9]See State v. James, 2005 WI App 188, ___ Wis. 2d ___, 703 N.W.2d 727.

††††††††††† 24††††††††††† Next, Anderson claims that the viewing of the tape violated the holding in the landmark Crawford case.Again, he is incorrect.The holding in Crawford stands for the proposition that:ďTestimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.Ē541 U.S. at 59 (footnote omitted).Here, the witness, M.L., who made the out-of-court statement, was in court and was cross-examined.Therefore, the holding enunciated in Crawford is not relevant.See James, 703 N.W.2d 727.

††††††††††† 25††††††††††† Anderson next complains that his attorney was ineffective when he failed to object to the State calling an expert witness not listed on the witness list.While the State never gave the name of the specific witness it intended to call, the State did file a motion in limine alerting both Andersonís attorney and the court that such a witness would be called, and in the motion, the State outlined the type of expertise that would be elicited from the witness.In our view, in doing so, the State complied with the requirement of Wis. Stat. ß 971.23(1)(e) that a written summary of an expertís findings be made available to the defense.Further, while the witnessís name was not on the witness list, the State complied with the intent behind the discovery statutes that the opposition not be faced with surprise witnesses at trial.Since Andersonís attorney knew an expert would be called by the State, Anderson has not satisfied his burden of showing how he suffered prejudice when his attorney failed to object to the witness on that basis.

††††††††††† 26††††††††††† Andersonís last complaint regarding the expert witness is his claim that his attorneyís failure to request a psychological examination of the victim, after learning of the subject matter of the Stateís proposed expert witnessís testimony, constituted ineffective assistance of counsel.He claims that State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993), supports his position.Under the Maday holding, however, Anderson would not have been entitled to an examination of the victim.Maday permits such an examination when:

the state manifests an intent during its case-in-chief to present testimony of one or more experts, who have personally examined a victim of an alleged sexual assault, and will testify that the victimís behavior is consistent with the behaviors of other victims of sexual assault, a defendant may request a psychological examination of the victim. A defendant making such a request must present the court with evidence that he or she has a compelling need or reason for the psychological examinations.

Id. at 359-60.

††††††††††† 27††††††††††† Here, the expert witness testified that she never interviewed M.L. or viewed the videotape of M.L.ís interview.Therefore, had Andersonís attorney requested such an examination under Maday, it would have been denied.Consequently, Anderson suffered no prejudice for the failure to make such a request.

††††††††††† 28††††††††††† Anderson also fails to explain what prejudice he suffered by the trial courtís apparent error in admitting the exhibit which summarized the social workerís video interview with M.L.Although neither side asked that it be admitted, the trial court admitted it and later allowed it into the jury room.As the State notes, the report contains no new information and merely summarizes what is on the tape.Inasmuch as the exhibit would have been admitted had either side requested it, Anderson was not harmed by its admission.

††††††††††† 29††††††††††† Finally, Anderson submits that his attorney was ineffective for failing to object to Charlene Anderson testifying that Anderson fled the state after learning that the police had been contacted concerning M.L.ís complaint.Anderson characterizes this testimony as falling under Wis. Stat. ß 904.04(2) (other acts evidence), requiring a pretrial motion before it can be introduced.Again, we believe Anderson is mistaken because Andersonís evidence of flight is not other-acts evidence.See State v. Miller, 231 Wis. 2d 447, 462, 605 N.W 2d 567 (Ct. App. 1999).Rather, Ďďflight is an admission by conduct.íĒId. at 460 (citation omitted).Once again, had Andersonís attorney objected to this testimony, the objection would have been overruled.Andersonís attorney cannot be faulted for failing to make a meritless objection.See State v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d 235 (1987).

††††††††††† 30††††††††††† For the reasons stated, the trial court is affirmed.

††††††††††† ††††††††††† By the Court.óJudgment and order affirmed.

 


 

 


No.

2004AP2010(C)

 

31††††††††††††††††††††††† Fine, J. (concurring).I join fully in the Majority opinion, and write this in response to what I see as the Dissentís glissade around controlling law.

32††††††††††††††††††††††† As the Majority opinion points out, unobjected-to-trial-court errors are analyzed under the ineffective-assistance-of-counsel standards promulgated by Strickland v. Washington, 466 U.S. 668, 687 (1984), even though those errors deprive the defendant of a constitutional right.See Kimmelman v. Morrison, 477 U.S. 365, 374Ė375 (1986); State v. Carprue, 2004 WI 111, ∂47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 42Ė43.Relying on a pre-Strickland decision, State v. Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983), the Dissent contends, in essence, that the Burton harmless-error standard should apply because the defendant never discussed with his trial lawyer whether the trial lawyer should object to what the trial court had done, and, presumably, whether to seek a mistrial.In my view, this is where the Dissent falters.

33††††††††††††††††††††††† This appeal is not about a pre-event waiver (as it might be if the defendantís trial lawyer had told the trial court not to seek defense input if the jury had any questions), but, rather, about the trial lawyerís failure to object to what the trial court had already done.This is thus a straight ineffective-assistance-of-counsel situation, and, unlike a harmless-error analysis where the State has the burden of proof, the defendant cannot prevail unless he shows Strickland prejudice.He has not and, significantly, the Dissent points to nothing in the transcript of the defendantís testimony that contradicts the Majority opinionís assessment of that testimony.

34††††††††††††††††††††††† The Dissentís view that the command of Kimmelman and Carprue applies in cases of constitutional error only when the defendant personally agrees to what the lawyer does, not only ignores the rule recognized by those two decisions but, also, if adopted, would gut Strickland and make it the rare case where it applied.


 

 

 


No.

2004AP2010-CR(CD)

 

35††††††††††††††††††††††† KESSLER, J. (concurring in part; dissenting in part).   The record discloses no attempt by the trial court to contact the State and defense counsel when faced with obviously significant requests from the jury during its deliberations.The trial court, without consulting counsel, twice decided not to grant the juryís request to have Andersonís testimony read to the jurors unless the jurors could specify which portions of his relatively short testimony they wanted to hear.They wanted to hear it all, so they heard nothing.

36††††††††††††††††††††††† Earlier in the deliberations, the trial court consulted with counsel and over defense counsel objections allowed the jurors to view a videotaped statement of one of the victims.The net effect of the trial courtís later unilateral decisions was to permit the jurors to hear again only testimony unfavorable to Anderson.I believe the supreme courtís decision in Franklin v. State, 74 Wis. 2d 717, 724, 247 N.W.2d 721 (1976), which cautions against the dangers of overemphasizing the value of a recorded statement relative to the testimony from the witness stand, and the process required for fairness when the jury requests reading of testimony explained in Kohlhoff v. State, 85 Wis. 2d 148, 159, 270 N.W.2d 63 (1978), require reversal and remand for a new trial.Consequently, I respectfully dissent from that portion of the Majority opinion involving the juryís requests to review Andersonís testimony, and from the Majorityís conclusion that the trial courtís action resulted in no error for which Anderson can obtain relief.

37††††††††††††††††††††††† The record discloses a written request by the jury for all exhibits.Counsel were present and consulted.Andersonís counsel objected to allowing the jury to view a videotape of one victimís testimony on grounds that it unduly emphasized the statement, which was unfavorable to Anderson.The trial court determined it would send the videotape to the jury, but instructed them to view it only once.The trial court also agreed to provide the jury with all of the other exhibits that had been admitted into evidence.These events occurred at some unknown time during the afternoon when the jury began its deliberations.

38††††††††††††††††††††††† There is no record of subsequent jury requests, nor are the notes the jury sent making those requests available.They were apparently inadvertently destroyed.[10]However, when the jury returned its verdict on the second day of deliberations, the trial court for the first time advised counsel and Anderson that the jury had twice requested that Andersonís testimony be read.The first request the trial court described as a request that all of Andersonís testimony and one victimís testimony be read.The trial court indicated that it had responded by telling the jury that it had to specify the parts the jurors wished to hear, and that it urged the jurors to rely on their ďcollective memory.Ē

39††††††††††††††††††††††† The trial court also disclosed that the jury later made a second request to have Andersonís testimony read.The jury, as reported by the trial court, indicated this time that it ďdid not understand all of [defendantís] testimony.ĒWithout providing any opportunity for input from counsel, the trial court again refused to grant the request unless the jury specified what parts it did not understand.The jury was again unable to clarify its request, so it was not permitted to hear Andersonís testimony.

40††††††††††††††††††††††† The trial courtís decision to deny the juryís request to hear Andersonís testimony was especially damaging to Andersonís case because, as is apparent from the record, he had difficulty communicating.After careful review of the mere twenty-five pages of transcript, which compose Andersonís entire testimony, it is obvious why the jury had difficulty understanding portions of his testimony.Anderson, who testified he has a fourth grade education, was not an articulate witness.Several pages of the transcript involve obvious confusion between the questioner and Anderson as to dates when he became aware of certain material facts.Parts of Andersonís testimony are unclear and confusing.From its reading of his testimony, the Majority concludes that Anderson was helped by not having the testimony repeated.I see that as a question the jury had a right to decide, but was erroneously not permitted to do so.

41††††††††††††††††††††††† Not only was the decision to deny the juryís two requests to hear Andersonís testimony erroneously made without consulting counsel, it is particularly troubling because the trial court allowed the jury to hear a victimís testimony twice.In Franklin, the court explained that the risk of sending an audiotape and tape recorder to the jury room was that it would overemphasize the tape at the expense of testimony from the witness stand.74 Wis. 2d at 724.Here, the jury was granted the opportunity to hear and view one victimís taped interview.After the jury viewed the videotape, it requested that Andersonís testimony be read to it.This request came after extensive deliberation.The second request attempted to explain why the jurors wanted Andersonís testimony read.However, the trial court still did not permit Andersonís testimony to be read to the jury, and it made this decision without any consultation with counsel.

42††††††††††††††††††††††† Given the trial courtís decision to allow the jury to hear one victimís testimony again, it faced an especially important decision when the jury then asked to hear Andersonís version of events again.ďWhen, during its deliberations, a jury poses a question regarding testimony that has been presented, the jury has a right to have that testimony read to it, subject to the discretion of the trial judge to limit the reading.ĒKohlhoff, 85 Wis. 2d at 159.The trial court was faced with a matter of significance to the outcome of the deliberations, and was empowered to exercise its discretion.However, discretion in such a circumstance cannot fairly be exercised ex parte.Where the trial courtís discretion to limit the reading of testimony to the jury, or even to summarize the requested testimony for the jury, has been upheld, it has always been after the trial court gave both counsel the opportunity to be heard.See id. at 159-61 (no erroneous exercise of discretion where both counsel and defendant participated in a conference in chambers prior to court reading back testimony); Jones v. State, 70 Wis. 2d 41, 57, 233 N.W.2d 430 (1975) (jury in criminal case has the right to have testimony read to it by the reporter, although extent of the reading is within discretion of trial court).This is not a ministerial matter, such as a request for lunch or coffee.The jury made a legitimate request to hear certain testimony again, and the trial court had an obligation to both attempt to give counsel and Anderson an opportunity to be heard, and to provide the jury with the testimony, ďsubject to the discretion of the trial judge to limit the reading.ĒSee Kohlhoff, 85 Wis. 2d at 159.The trial court did not, under the teachings of Kohlhoff, have the right to completely deny the request.However, that is the effect of the trial courtís actions here.

43††††††††††††††††††††††† In response to Andersonís postconviction motion, the trial court spoke of the need to conserve the reporterís time, and the length of Andersonís testimony as justification for refusing to permit the entire testimony to be read.However, Andersonís testimony was contained in a mere twenty-five double-spaced pages.Although it had not been transcribed at the time of the request, it was evident that Anderson was the last of six witnesses to testify during one morning of trial.While the challenges of calendar management, with which this court certainly sympathizes, are well known to both the court and the bar, this was not particularly lengthy testimony.The fact that the jury was unable to either identify specific parts of Andersonís testimony it wished to hear, or to explain more specifically to the trial court what subjects it found confusing, paints an eloquent picture of the juryís strongly felt need to simply hear the testimony again.The refusal to permit that reading in the circumstances where the jury was already allowed to view a videotape of testimony adverse to Anderson was, in my opinion, an erroneous exercise of discretion.

44††††††††††††††††††††††† The Majority concedes that the trial courtís decision to communicate with the jury without consulting the parties was erroneous.The Majority does not discuss this in terms of the constitutional right of Anderson to be present during all court proceedings.As the supreme court instructed in State v. Burton, 112 Wis. 2d 560, 570, 334 N.W.2d 263 (1983),

[C]ommunication between a judge and a jury, while the jury is deliberating, outside the courtroom and outside the presence of the defendant and defense counsel constitutes constitutional error, if the defendant has not waived the constitutional right to be present.The court must consider whether the constitutional error is harmless beyond a reasonable doubt.

45††††††††††††††††††††††† Instead, the Majority implies that Anderson (not his counsel) knowingly waived a constitutionally protected right because his counsel failed to object to the trial courtís actions when counsel learned of them long after the fact, and after the jury had reached its verdict.The ďwaiverĒ is then analyzed in the context of ineffective assistance of counsel, as to which the Majority concludes that there was no showing that Anderson was prejudiced.I cannot agree.

46††††††††††††††††††††††† There is nothing in the record to suggest that Anderson ever had an opportunity to discuss the trial courtís action with his counsel before the verdict was read.There is no evidence that the constitutional right to be present at all stages of the trial was ever knowingly and voluntarily waived by Anderson.There was no court colloquy with Anderson on the subject of his right to be present, nor was there any affirmative representation by his counsel that the right had been discussed and was intentionally being waived.Because the right to be present is of a constitutional magnitude, I do not understand it to be a right that can be waived by an agent (counsel) without a showing by the State that the waiver, or the delegation of the right to make the waiver, was knowingly and voluntarily made by Anderson.

47††††††††††††††††††††††† Finally, the Majority concludes that there was so much evidence against Anderson that he was not prejudiced by the trial courtís actions.I disagree with that conclusion.As explained above, this jury twice indicated a strong desire to hear Andersonís testimony againóthis request should have been carefully considered and, in my opinion, granted.It is not reasonable to conclude that ďthe error complained of did not contribute to the verdict obtained.ĒSee State v. Hale, 2005 WI 7, ∂60, 277 Wis. 2d 593, 691 N.W.2d 637 (citation omitted).Because we cannot know what brought about the juryís ultimate decision, but because we do know that it was twice denied testimony it considered importantótestimony that was favorable to AndersonóAnderson is entitled to a new trial.

48††††††††††††††††††††††† For all the foregoing reasons, I respectfully dissent from the parts of the Majority opinion involving the trial courtís contact with the jury outside the presence of Anderson and counsel.

 


 

 



[1]  All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

[2]  State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

[3]  We are disturbed by the trial courtís violation of long-standing precedent forbidding the trial court from communicating with the jury without input from the parties and their counsel.We urge trial courts to either obtain a waiver from the defendants of their right to be present during any communications with the jury or to make prior arrangements with the attorneys as to where they can be located.We do not understand why the trial court elected not to confer with Anderson and the attorneys concerning the juryís requests.Given todayís world of text messaging and the ubiquitous cell phone, this requirement should not pose a significant problem.

[4]  Had his attorney objected, we would then determine if the error was harmless.When such a communication occurs, the supreme court held in State v. Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983):

[C]ommunication between a judge and a jury, while the jury is deliberating, outside the courtroom and outside the presence of the defendant and defense counsel constitutes constitutional error, if the defendant has not waived the constitutional right to be present.The court must consider whether the constitutional error is harmless beyond a reasonable doubt.

Id. at 570 (citation omitted).Later, in State v. Koller, 2001 WI App 253, ∂62, 248 Wis. 2d 259, 635 N.W.2d 838, this court explained that when an improper communication has occurred, ď[w]e examine the circumstances and substance of the communication in light of the entire trial to determine whether the error was harmless.An error is harmless if there is no reasonable possibility that the error affected the outcome of the trial.ĒId. (citations omitted).The error must be harmless beyond a reasonable doubt.See State v. Hale, 2005 WI 7, ∂60, 277 Wis. 2d 593, 691 N.W.2d 637.After our review of the record, we conclude that because there is no reasonable possibility that the error affected the outcome of the case, the error was harmless.

[5]  We observe that, contrary to Andersonís claim, the trial court did not refuse to read back his testimony.Rather, the judge asked the jurors to identify which parts they wished reread.The jurors apparently chose to rely on their collective memories.

[6]  Citing Franklin v. State, 74 Wis. 2d 717, 724, 247 N.W.2d 721 (1976), the dissent stresses that because the jury was permitted to view the victimís videotape a second time in the jury room, but was not permitted to have Andersonís testimony reread, this overemphasized testimony adverse to Anderson.Dissent, ∂∂1-6.This does not, however, change the fact that the Stateís case was strong, and Andersonís defense was weak, which convinces us that Anderson did not suffer any prejudice.

[7]  In fact, Andersonís attorney did object to the State calling the expert witness on the grounds that no expert was needed.His objection was overruled.

[8]  Additionally, Anderson claims that his attorneyís failure to object when the trial court advised the parties that it had answered the juryís questions without any input from Anderson or his attorney constituted ineffective assistance of counsel.Inasmuch as we have concluded that the trial courtís error in doing so was harmless, we decline to further address this argument.

[9]  Anderson also argues that because it was not introduced as a ďprior inconsistent statementĒ under Wis. Stat. ß 908.01(4)(a)2., his attorney was ineffective.Since a specific statutory provision lays out the introduction of the videotape, we conclude the general rule set forth in ß 908.01(4)(a)2. does not apply.

[10]  Apparently these notes were left in the jury room and removed by people cleaning the room for another juryís use.