COURT OF APPEALS DECISION DATED AND FILED September 30, 2008 David R. Schanker Clerk of Court of Appeals |
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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. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Terence Anthony Lee, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Terence Anthony Lee appeals from the judgment of conviction entered against him. He argues that the trial court committed reversible error during the jury’s deliberations. Because we conclude that any error committed by the trial court was harmless, we affirm.
¶2 Lee was convicted after a jury trial of one count of repeated
acts of sexual assault of a child.
During the jury’s deliberations, the trial court received a note from
the jury asking: “If we can’t come to a
unanimous decision, what do we do?” The
parties agreed that the court should read to the jury the Supplemental
Instruction on Agreement,
¶3 The deliberations continued the next day. Shortly after lunch that day, the judge
informed the parties that just before lunch, he had asked his clerk “to go to
the jury and ask the state of their deliberations.” When he reported this to the parties, he
asked the clerk; “Is that what you asked?” to which the clerk responded: “That’s exactly what I asked.” The judge said that he had asked the clerk to
check with the jury because he wanted to know “whether it made any
sense to take them to lunch and bring them back this afternoon as the snow
continues to fall throughout our community.”
¶4 The judge then explained that the response from the jury was a note that said “how many were voting guilty and how many were voting not guilty.” The trial court and the parties then discussed whether the judge should disclose to them the exact number of votes for each position. Defense counsel stated at one point: “Well, I guess there has been communication with the jury. It was done without consulting with counsel. Information has been passed from the jury to other individuals. We don’t have that information.”
¶5 The court eventually disclosed to the parties that “eight people were voting for guilty and four people for not guilty.” The trial court then sent a note to the jury asking if the jury required additional time to deliberate. The foreperson sent a note back that said “no.” The jury was called back into the courtroom. The jury informed the trial court that it did need more time to consider the case. The trial court sent the jury back to deliberate. Defense counsel then moved for a mistrial, stating that the jury “indicated on two occasions that they are deadlocked.” The trial court denied the motion.
¶6 Later that afternoon, the trial court and the parties discussed telling the jury that deliberations would be ended, when the court was informed that the jury had reached a verdict. The jury found the defendant guilty. After the jury was dismissed, defense counsel renewed his motion for a mistrial. Counsel stated:
Well, your Honor, I would renew the grounds I had regarding mistrial. I have certain questions as to the manner in which this protracted deliberation occurred. I think it is certainly from the defendant’s standpoint frustrating. But given the time that they came back knowing that they probably would not be coming back much longer, I’m not sure what pressure was put upon those who were standing for a verdict of not guilty given the information we had earlier in the day.
Other than that, your Honor, I would like to reserve for appellate purposes, conviction purposes any other grounds that may occur that I’m not thinking of at this time.
The trial court again denied the motion for a mistrial.
¶7 Lee argues that the trial court erred when it responded to the question presented by the jury, when it read the jury Wis JI—Criminal 520, and when it sent the clerk to communicate with the jury outside the presence of the parties. Lee further argues that the error was not harmless. We conclude that Lee waived any objection to the reading of the jury instruction, that the trial court did err when it communicated with the jury, but that the error was harmless.
¶8 First, Lee argues that the trial court erred when it read
¶9 Lee next argues that the trial court erred because of the ex parte communication it had with the jury through its clerk. The State responds that Lee waived any argument he has on this issue because his counsel did not object at trial to this specific error. We do not agree. The record discloses that defense counsel stated an objection to the way “this protracted deliberation occurred.” We conclude that this statement was sufficient to preserve this issue for appellate review.
¶10 We further conclude that the trial court erred when it
communicated with the jury through its clerk.
A criminal defendant is entitled to be present at his or her trial, and
have counsel present at every stage. State
v.
¶11 An error is harmless “if the beneficiary of the error proves
‘beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained,’” or “it is ‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error.’”
¶12 In this case, the trial court’s error was inquiring into the
status of the jury’s deliberations ex
parte. The question did not concern
the substance of the case, and was based at least in part, on the court’s
concern about the weather conditions.
This is far different from the errors in
¶13 The supreme court concluded that the communications suggested
that “the jury was obviously having difficulty sorting [the testimony] all out
and wanted to be able to re-examine the evidence.”
¶14 This is in sharp contrast to this case and the question the trial
court sent its clerk to ask. The
potential prejudice Lee suggests the court’s question may have caused is that
the members of the jury who were for acquittal may have felt pressured to join
the majority. The events that followed,
however, contradict this theory. After
the question was asked and answered, the jury first said it did not need more
time to deliberate, but then soon after said that it did. The court then sent the jury back to
deliberate. The jury deliberated for an
entire afternoon after the improper communication took place. In light of this sequence of events, as well
as the evidence presented at the trial, we conclude that the State has
demonstrated that the error complained of did not contribute to the verdict
obtained. Because the error was
harmless, we affirm the judgment of conviction.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1]
You jurors are as competent to decide the disputed issues of fact in this case as the next jury that may be called to determine such issues.
You are not going to be made to agree, nor are you going to be kept out until you do agree. It is your duty to make an honest and sincere attempt to arrive at a verdict. Jurors should not be obstinate; they should be open-minded; they should listen to the arguments of others, and talk matters over freely and fairly, and make an honest effort to come to a conclusion on all of the issues presented to them.
You will please retire again to the jury room.