State v. Brent T. Novy

• Court: Wisconsin Supreme Court
• Decided: March 14, 2013
• Docket: 2011AP000409-CR
• Status: Published

Opinion

2013 WI 23

SUPREME COURT OF WISCONSIN CASE NO.: 2011AP407-CR, 2011AP408-CR & 2011AP409-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Brent T. Novy, Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 338 Wis. 2d 439, 809 N.W.2d 889 (Ct. App. 2012 - Published) PDC No: 2012 WI App 10

OPINION FILED: March 14, 2013 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 9, 2012

SOURCE OF APPEAL: COURT: Circuit COUNTY: Kenosha JUDGE: Barbara A. Kluka

JUSTICES: CONCURRED: Abrahamson, C.J., Bradley, J., concur (Opinion filed). DISSENTED: NOT PARTICIPATING: Prosser, J., did not participate.

ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by Gerald P. Boyle and Boyle, Boyle & Boyle, S.C., Milwaukee, and oral argument by Gerald P. Boyle. For the plaintiff-respondent, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. 2013 WI 23 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR (L.C. No. 2008CF500, 2008CF1307 & 2009CF58)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. MAR 14, 2013 Brent T. Novy, Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant-Petitioner.

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

¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a

decision of the court of appeals1 that affirmed a judgment of the

circuit court for Kenosha County.2 Novy raises two issues.

First, Novy claims that the trial court erred when it allowed

the State to use certain fingerprint evidence and related

testimony in rebuttal, which the court had previously excluded

from the State's case-in-chief due to a Wis. Stat. § 971.23

1 State v. Novy, 2012 WI App 10, 338 Wis. 2d 439, 809 N.W.2d 889. 2 The Honorable Barbara A. Kluka presided. No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

(2009–10) discovery violation.3 Second, Novy asserts that he was

deprived of his right to a fair trial by an impartial jury

because, he claims, one of the jurors was sleeping during a

portion of defense counsel's closing argument.

¶2 We conclude that, with regard to the admission of

fingerprint-related testimony on rebuttal, the circuit court did

not erroneously exercise its discretion. The circuit court

initially determined that the State had failed to comply with

its discovery obligations under Wis. Stat. § 971.23(1); and

therefore, the court excluded fingerprint evidence and related

testimony from the State's case-in-chief pursuant to

§ 971.23(7m)(a). However, after Novy testified such that the

excluded fingerprint evidence and related testimony would

controvert his testimony, the circuit court concluded that it

could be presented in rebuttal. The circuit court properly

interpreted § 971.23 under the facts of this case, and given the

significant discretion afforded circuit courts on evidentiary

matters, we cannot say that the circuit court erroneously exercised its discretion in permitting the rebuttal use of the

fingerprint evidence and related testimony. ¶3 With regard to the circuit court's treatment of the

allegedly sleeping juror, the circuit court did not find that the juror was sleeping; therefore, Novy failed to establish a

3 Although the charged events occurred between 2007 and 2009, the relevant statutory provisions are identical to the current version of the statutes, and therefore, all subsequent references to the Wisconsin Statutes are to the 2009—10 edition unless otherwise indicated.

2 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

finding necessary to his contention. The circuit court's

findings are not clearly erroneous, and therefore, we will not

overturn the circuit court's refusal to strike the juror.

Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND4

¶4 For conduct that occurred between May 2008 and January

2009, Novy was charged in Kenosha County with two counts of

stalking, 11 counts of felony bail jumping, and one count of

violating a harassment injunction. All of the charges related

to Novy's conduct toward his ex-fiancé, Julie N. The two had

dated on and off for approximately five years, until September

of 2007, when Julie ended the relationship. After the

relationship ended, Novy continued to contact Julie, to the

point where, in November 2007, Julie sought and obtained a

harassment injunction against Novy under Wis. Stat.

§ 813.125(4). The injunction prohibited Novy from contacting

Julie in any way, and required that he avoid her residence.

¶5 In early May 2008, Novy was charged with one count of stalking, in violation of Wis. Stat. § 940.32(2)(a), (b), and

(c). The complaint (case no. 08-CF-500) alleged that, between October 17, 2007, and February 4, 2008, Novy had engaged in a

4 Novy's trial involved 14 separate charges, but only two of those charges are relevant to this appeal: one count of bail jumping and one stalking charge. Therefore, we will briefly summarize the facts leading up to and including the trial, focusing on the two relevant charges, as well as the facts related to Novy's allegation that a juror was sleeping during defense counsel's closing argument.

3 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

course of conduct, directed at Julie, which had caused Julie to

suffer serious emotional distress, and that Novy knew or should

have known that his conduct would cause such distress.

Generally, Novy's alleged conduct included following and

harassing Julie in public places, calling Julie at work and

hanging up, accessing Julie's voicemail and prowling around

Julie's house. Novy was released on a $1,000 signature bond,

which provided that he was to have "No [c]ontact w/ Julie [N.];

not to be within 1000 feet of her residence."

¶6 Then, on November 12, 2008, Novy was charged with

another count of stalking under Wis. Stat. § 940.32(2) and eight

counts of felony bail jumping, in violation of Wis. Stat.

§ 946.49(1)(b). These charges (case no. 08-CF-1307) all

involved a course of conduct in which Novy allegedly had engaged

between May 4, 2008, and November 10, 2008. Similar to the

conduct underlying the previous stalking charge, the alleged

conduct involved hang-up calls to Julie's home, following her in

public (including waiting for her outside her place of work), lurking around Julie's house and in her neighborhood, and

repeatedly calling Julie's friends. Again, Novy was released on bond, this time a $5,000 cash bond, which also provided that he

was to have no contact with Julie or her residence. ¶7 Relevant for purposes of this appeal, one of the eight

counts of bail jumping in case number 08-CF-1307 (Count 7) alleged that, on the night of November 9, 2008, Julie received a

hang-up call from a payphone at L&M Meats in Kenosha, which was

close to Novy's residence. Julie had previously noticed Novy's 4 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

vehicle near L&M Meats, and had called her sister from that

payphone to determine the phone number associated with that

phone. After receiving the hang-up call on the night of

November 9, Julie called the police, who went to the payphone at

L&M Meats and verified that was the number from which Julie had

recently received the phone call. Officers also lifted

fingerprints from the receiver of the payphone. Police analysts

later determined that these fingerprints matched Novy's

fingerprints.

¶8 On January 14, 2009, Novy was charged with three

additional bail jumping counts, as well as one count of

violating the harassment injunction, contrary to Wis. Stat.

§ 813.125(7). The complaint (case no. 09-CF-58) alleged that

Novy had been seen driving slowly past Julie's house, in

violation of the harassment injunction and the conditions of his

bonds for the prior charges. Novy was again released on a cash

bond ($20,000), which reiterated the prohibition on contacting

Julie or being within 1,000 feet of her residence. ¶9 In late May 2010, a jury trial was held in Kenosha

County, wherein the three separate cases were joined and Novy was tried on all 14 counts. During opening statements, counsel

for the State referred to testimony about fingerprint evidence that would tend to show that Novy had called Julie from L&M

Meats on November 9, 2008. After opening statements, defense counsel moved to exclude the fingerprint evidence and related

testimony on the ground that the defense had requested all

evidence subject to disclosure under Wis. Stat. § 971.23(1), but 5 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

the State failed to provide access to the cards on which the

fingerprints were exhibited.5

¶10 The circuit court concluded that the State had failed

in its obligation to properly disclose the fingerprint evidence,

as required by Wis. Stat. § 971.23(1)(g). Therefore, the court

granted the defendant's motion to exclude the evidence. When

counsel for the State asked whether the fingerprint evidence

would be available for rebuttal, Judge Kluka responded, "I don't

know."

¶11 After the State completed its case-in-chief, the

defense moved to dismiss Count 7 in case number 08-CF-1307, the

bail jumping charge relating to the alleged phone call from the

L&M Meats payphone, arguing that without fingerprint-related

testimony, the State no longer had any evidence linking Novy to

the phone on the night in question. The State conceded that,

without the fingerprint-related testimony, the State would be

unable to prove the elements of bail jumping for Count 7.

Accordingly, the circuit court granted the defendant's motion to dismiss that count.

¶12 During the defense case, Novy chose to testify. Prior to his testimony, defense counsel sought to prevent any

questions regarding the phone call from L&M Meats on November 9, 2008, on the ground that the alleged call related solely to the

5 Although the State had provided defense counsel with an expert's report relating to the fingerprint evidence, the actual fingerprint cards were not available when defense counsel went to review the materials at the evidence bureau.

6 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

dismissed bail jumping charge. The State responded that the

phone call from L&M Meats was a proper subject for questioning

because the call related to the course of conduct supporting the

second count of stalking, which allegedly occurred between

May 4, 2008, and November 10, 2008 (case no. 08-CF-1307). The

circuit court agreed with the State and concluded that such

questioning was relevant to the second stalking count.

¶13 During cross-examination of Novy, counsel for the

State asked Novy, "[D]id you call Julie from L and M Meats here

in Kenosha on November 9th of 2008 at approximately 8:00 p.m.?"

Novy responded, "No, I did not." During Novy's redirect,

defense counsel did not ask Novy any clarifying questions

regarding his use of the payphone at L&M Meats on the night in

question.

¶14 As the State prepared to present its case-in-rebuttal,

from L&M Meats and related testimony would be allowed at that

point, given Novy's denial of having called Julie from that phone. Defense counsel protested, arguing that the fingerprint-

related testimony showed only that Novy had at some point used the payphone at L&M Meats, not that he had necessarily used it

that night. Additionally, defense counsel argued that the discovery statute, Wis. Stat. § 971.23(1) and (7m), mandated

that evidence that had been excluded for discovery violations be excluded throughout the trial, not solely for the State's case-

in-chief. The circuit court, however, disagreed and allowed the

State to present the fingerprint evidence and related testimony, 7 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

calling it "bona fide rebuttal evidence" as to the second

stalking charge.

¶15 In its case-in-rebuttal, the State presented the

testimony of two officers from the Kenosha Police Department,

Officers Hamilton and Primmer. Officer Hamilton testified that

he was an evidence technician; that he had been dispatched to

examine the payphone at L&M Meats on the night of November 9,

2008; and that he had recovered two fingerprints from that

phone. Additionally, Officer Primmer testified that he had

conducted an analysis of the fingerprints that had been lifted

from the payphone at L&M Meats, and that he had determined that

those prints matched the fingerprints that the department had on

file for Novy.

¶16 Defense counsel did not cross-examine Officer Primmer.

On surrebuttal, however, defense counsel re-called Novy. Novy

testified that, although he had previously denied calling Julie

from the payphone at L&M Meats, he had used that phone "quite a

few times" in the past. In particular, Novy stated that he had used the phone to call a friend in the Philippines because his

cell phone did not have an international calling plan. ¶17 After closing arguments and immediately before the

selection of the alternate juror, defense counsel sought a sidebar. The record reflects that defense counsel alleged that

one of the jurors had been sleeping during the defense's closing argument, and that the juror therefore should be struck. The

circuit court denied the motion, and noted that she makes an

8 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

effort "to keep track of what's going on with the jurors," and

that she had not seen the juror sleeping.

¶18 The jury found Novy guilty of both counts of stalking,

six counts of bail jumping, and the one count of violating the

harassment injunction. Novy was sentenced to 90 days in jail

for violating the injunction, and two years of imprisonment for

the second stalking offense, consisting of one year of

confinement and one year of extended supervision. For the

remainder of the charges, Novy was placed on probation for five

years, with the sentences withheld.

¶19 On appeal to the court of appeals, Novy raised the two

issues currently before this court, seeking vacation of his

sentence and a remand for a new trial.6 The court of appeals

affirmed the circuit court's decision regarding the rebuttal

evidence and the allegedly sleeping juror, concluding that both

matters were within the broad discretion of the circuit court,

and that there was nothing in the record to suggest that the

court had erroneously exercised its discretion. See State v.

Novy, 2012 WI App 10, ¶¶18, 23, 338 Wis. 2d 439, 809 N.W.2d 889.

¶20 Novy petitioned for review, and we granted his

petition.

6 In the court of appeals, Novy also raised another issue relating to "other acts" evidence that he has not raised before this court.

9 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

II. DISCUSSION

A. Standard of Review

¶21 Novy raises two issues for review. The first issue——

whether the circuit court erred by allowing the State to present

evidence in rebuttal when that evidence previously had been

excluded as a sanction for a discovery violation——relates to the

circuit court's decision on an evidentiary matter.

Consideration of this issue begins with statutory interpretation

and application, which present questions of law for our

independent review, although we benefit from the previous

interpretations of the court of appeals and the circuit court.

Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d

541, 749 N.W.2d 581. In addition, whether to admit or deny

evidence rests in the sound discretion of the circuit court,

which we will not overturn absent an erroneous exercise of

discretion. See State v. Smith, 2005 WI 104, ¶28, 283 Wis. 2d

57, 699 N.W.2d 508.

¶22 Second, Novy argues that the circuit court erred by

failing to strike a juror whom defense counsel alleged was

sleeping during the defense's closing argument. The circuit

court did not find that the juror was sleeping. We will uphold

a circuit court's findings of fact unless they are clearly

erroneous. See State v. Funk, 2011 WI 62, ¶¶29–30, 335 Wis. 2d

369, 799 N.W.2d 421.

B. Rebuttal Evidence

¶23 Novy argues that the circuit court erred when it

allowed the State to rebut Novy's testimony using fingerprint 10 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

evidence and related testimony that the court had previously

excluded for a discovery violation under Wis. Stat.

§ § 971.23(1) and (7m)(a). The State contends that its use of

the fingerprint-related evidence is clearly permitted under

§ 971.23(1)(d). We therefore begin our discussion with the

relevant portions of the discovery statute, § 971.23, which

provide in relevant part:

(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:

. . . .

(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

(e) Any relevant written or recorded statements of a witness named on a list under par. (d), including . . . any reports or statements of experts made in connection with the case . . . and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.

(g) Any physical evidence that the district attorney intends to offer in evidence at the trial.

11 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

(7m) Sanctions for failure to comply. (a) The court shall exclude any . . . evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. (Emphasis added.)

1. General principles

¶24 When interpreting the meaning of Wis. Stat. § 971.23,

we begin with the language of the statute. State ex rel. Kalal

v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d

633, 681 N.W.2d 110. "If the meaning of the statute is plain,

we ordinarily stop the inquiry," and the statute will be applied

according to that plain meaning. Id., ¶¶45–46 (internal quotation marks omitted). Statutes are interpreted in context,

as they relate to each other. Id., ¶46.

¶25 Wisconsin Stat. § 971.23(1)(d) has an exception for

disclosure of rebuttal evidence that has been interpreted by

appellate courts on other occasions. Such interpretations have

concluded that the plain meaning of § 971.23(1)(d) does not

require the State to disclose "rebuttal witnesses or those

called for impeachment only." See Lunde v. State, 85 Wis. 2d

80, 91, 270 N.W.2d 180 (1978). ¶26 Appellate courts also have concluded that the State

has no obligation under Wis. Stat. § 971.23(1)(d) to disclose rebuttal evidence, even when the State anticipates before trial

that certain evidence may be used for rebuttal. State v. Konkol, 2002 WI App 174, ¶1, 256 Wis. 2d 725, 649 N.W.2d 300.

¶27 Notwithstanding that the State has no statutory

discovery obligation to disclose rebuttal evidence, where the

12 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

circuit court determines that the State has failed to comply

with the initial requirements set forth in Wis. Stat.

§ 971.23(1), the court "shall exclude any witness not listed or

evidence not presented for inspection or copying required by

this section, unless good cause is shown for failure to comply."

§ 971.23(7m)(a).

¶28 Such an initial order under Wis. Stat. § 971.23(7m)(a)

was made by the circuit court in this case when the fingerprint

evidence and related testimony that would have been used for the

State's case-in-chief was excluded. Notwithstanding this order,

after Novy testified, the State asserts that the fingerprint

evidence and related testimony became rebuttal evidence. No

appellate court has determined what, if any, effect paragraph

(7m)(a) has on paragraph (1)(d)'s exception for discovery of

rebuttal testimony.

¶29 Furthermore, in addition to statutory provisions

governing disclosure of evidence by the State, we have long

recognized the circuit court's discretion on evidentiary matters, including the exclusion and admission of evidence on

rebuttal. See Howard v. Beldenville Lumber Co., 129 Wis. 98,

110-11, 108 N.W. 48 (1906); McGowan v. Chi. & Nw. Ry. Co., 91

Wis. 147, 153–54, 64 N.W. 891 (1895).

¶30 We have set forth a relatively broad general rule to

define rebuttal evidence. We have explained that rebuttal

evidence is that "which squarely meets and controverts some

affirmative fact or facts which the adversary has attempted to

13 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

prove." State v. Watson, 46 Wis. 2d 492, 499, 175 N.W.2d 244

(1970) (internal quotation marks omitted).

¶31 Furthermore, even with this general rule for rebuttal

evidence, we have consistently reaffirmed a circuit court's

broad discretion to admit "evidence of any acts or circumstances

which are inconsistent with the relevant testimony of [a]

witness. Any evidence, otherwise proper, which in any respect

tends to contradict the witness, is admissible for this

purpose." Id. at 500 (internal quotation marks omitted). ¶32 Indeed, we have affirmed circuit courts' discretion to

admit evidence in rebuttal even if the evidence tends to

corroborate the case-in-chief, see McGowan, 91 Wis. at 154, and

where the evidence could have been submitted in the State's

case-in-chief, see Watson, 46 Wis. 2d at 500. In those

instances, we have recognized that the admission of such

evidence may be "necessary to achieve justice," and the

determination of what is necessary in those instances is subject

to the circuit court's discretion. Id. at 499 (internal

quotation marks omitted).

¶33 However, appellate courts have implied that evidence

is not appropriate in rebuttal where it is plain that the

evidence was withheld from the case-in-chief for dramatic effect

or to ambush the defendant, although this rule would be subject

to the necessities of justice. See Lunde, 85 Wis. 2d at 91–92;

McGowan, 91 Wis. at 154; cf. Konkol, 256 Wis. 2d 725, ¶¶15–19

(rejecting circuit court's determination that an expert's

14 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

testimony was "not really rebuttal" and that it "could have been

proffered during the case in chief").

¶34 Wisconsin courts have come to refer to evidence that

is proper for rebuttal as "bona fide rebuttal evidence." See

Lunde, 85 Wis. 2d at 91; State v. Sandoval, 2009 WI App 61, ¶30,

318 Wis. 2d 126, 767 N.W.2d 291. Specifically, appellate courts

have defined bona fide rebuttal evidence as that which (1) was

not necessary to the State's (or plaintiff's) case-in-chief, and

(2) which became necessary and appropriate when the defense made

its case. See Lunde, 85 Wis. 2d at 91–92. Bona fide rebuttal evidence is not determined by asking whether the evidence could

have been admitted in the State's case-in-chief, but rather

whether the evidence became necessary and appropriate because it

controverts the defendant's case. See Konkol, 256 Wis. 2d 725,

¶18; Lunde, 85 Wis. 2d at 91–92.

¶35 Moreover, rebuttal evidence is no less bona fide when

the State is able to anticipate the defense's theory or

particular pieces of evidence. See Konkol, 256 Wis. 2d 725,

¶15. Once the defendant raises a particular theory, the

defendant's veracity and the credibility of that theory become

relevant issues in the case. See id., ¶17. The State's ability

to predict or anticipate the defendant's theory does not

diminish the necessity or propriety of otherwise bona fide

rebuttal evidence. See id., ¶17 & n.6. To the extent that the

State is better able to prepare a strong rebuttal to the defense

theory, the truth-seeking function of litigation is better

served, in that the possibility of such rebuttal will keep the 15 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

defendant honest, or at least afford the State an opportunity to

shed light upon questions raised by the defense's case. See

id., ¶17 n.6.

2. Application

¶36 As we apply the principles set out above, we will

uphold a circuit court's decision to admit or exclude evidence

if the circuit court examined the relevant facts, applied a

proper legal standard, and, using a demonstrated rational

process, reached a reasonable conclusion. Miller v. Hanover Ins. Co., 2010 WI 75, ¶29, 326 Wis. 2d 640, 785 N.W.2d 493.

¶37 The circuit court's discussion of whether the

fingerprint evidence and related testimony was proper rebuttal

evidence shows consideration of the relevant facts and is

consistent with the discovery statute, Wis. Stat. § 971.23, as

interpreted by appellate courts. Following opening statements,

Novy objected to the use of the fingerprint evidence and related

testimony based on the State's failure to provide the defense

with access to the fingerprint cards that were to be used by the

State's witnesses.7 The circuit court agreed with Novy and held

that, under § 971.23(7m)(a), the State could not use the

7 The parties do not dispute that the State provided the defense with a report of the State's expert, Todd Thorne, detailing the conclusions of his analysis of the fingerprints. The circuit court concluded, however, that the report was insufficient under Wis. Stat. § 971.23(1)(g), which requires the State to provide access to "[a]ny physical evidence that the district attorney intends to offer in evidence at the trial." On that basis, the court excluded from the State's case-in-chief both the physical fingerprint evidence and the State's expert's testimony.

16 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

fingerprint evidence in its case-in-chief, although the court

reserved judgment on whether the evidence would be admissible in

rebuttal.

¶38 The circuit court's interpretation of Wis. Stat.

§ 971.23——including the State's discovery obligations and the

applicable sanctions for discovery violations——is supported by

the plain meaning of the statute as interpreted by appellate

courts. Section 971.23(1)(g) requires the State to disclose

"any physical evidence" that the State intends to offer in

evidence at trial, and upon failure to comply with that

provision, § 971.23(7m)(a) requires that the court "shall

exclude any . . . evidence not presented for inspection or

copying required by [§ 971.23]." Accordingly, the court's

initial decision to exclude the fingerprint evidence and related

testimony from the State's case-in-chief was in accord with the

plain language of the statute.

¶39 Novy contends that once the circuit court excluded the

fingerprint evidence and related testimony, the court was without discretion to allow the evidence or testimony on

rebuttal. Novy relies on Wis. Stat. § 971.23(7m)(a)'s statement that, upon finding that the State has violated its discovery

obligations, "[t]he court shall exclude any witness not listed

or evidence not presented for inspection . . . unless good cause

is shown for failure to comply." He asserts that this provision

withdraws the circuit court's discretion to later allow such

evidence for purposes of rebuttal. Appellate court decisions,

however, have suggested otherwise. 17 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

¶40 As noted above, the discretion afforded circuit courts

has been reaffirmed numerous times since the enactment of the

discovery statute. See Konkol, 256 Wis. 2d 725, ¶¶15–18. In

Konkol, the court of appeals determined that the circuit court

had erroneously excluded rebuttal evidence, where the circuit

court had concluded that the State's use of the evidence in

rebuttal was an attempt to circumvent the disclosure

requirements of Wis. Stat. § 971.23(1)(d). Id., ¶¶5–7, 18.

Relying on our decision in Lunde, 85 Wis. 2d at 91–92, the court

of appeals in Konkol reaffirmed the principle that the proper

analysis for determining whether evidence is "bona fide rebuttal

evidence" is not whether the evidence could have been admitted

in the State's case-in-chief, but rather whether the evidence

became necessary and appropriate upon presentation of the

defense's case. Konkol, 256 Wis. 2d 725, ¶18.

¶41 This test for bona fide rebuttal evidence effectively

harmonizes the plain language of the sanctions provision in the

discovery statute and the discretion of the circuit court. The

sanctions provision of the discovery statute, Wis. Stat.

§ 971.23(7m)(a), provides that "[t]he court shall exclude"

evidence for which the State failed to comply with the

disclosure requirements. Here, the circuit court did just that:

upon determining that the State failed to provide proper access

to the fingerprint cards, that evidence and related testimony

was excluded from the State's case-in-chief.

¶42 However, notwithstanding the initial exclusion, such

an exclusion need not be absolute because circuit courts retain 18 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

significant discretion to admit rebuttal evidence, even when

such evidence was not disclosed for use in the case-in-chief.

See id. (relying on Lunde, 85 Wis. 2d at 91–92); cf. Wold v.

State, 57 Wis. 2d 344, 355, 204 N.W.2d 482 (1973) (recognizing

that in the context of impeachment of a defendant by a prior

inconsistent statement that was obtained in violation of the

warnings required under Miranda v. Arizona, 384 U.S. 436 (1966),

the proper focus is on the statement's trustworthiness, or lack

thereof, not on whether the statement was excluded from the

State's case-in-chief). Moreover, as relevant here, the circuit

court's discretion to admit evidence on rebuttal is particularly

broad "when the evidence is necessary to achieve justice."

Watson, 46 Wis. 2d at 499 (internal quotation marks omitted). ¶43 During the defense's case, Novy testified that he did

not call Julie from the payphone at L&M Meats on the night of

November 9, 2008. This statement raised an issue of credibility

between Novy's and Julie's accounts of what occurred that

evening because Julie had previously testified that she had

received such a phone call and implicated Novy. Accordingly,

after Novy's testimony, admission of testimony related to the

fingerprint evidence became necessary and appropriate as

rebuttal testimony to contradict Novy's testimony.

¶44 Furthermore, neither the State's pointed question

(whether Novy called Julie from the payphone that night) nor the

fact that Novy might have used the phone on other occasions

diminished the propriety of the State's use of the fingerprint

evidence and related testimony in rebuttal. As we have said, 19 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

the standard for rebuttal evidence is quite broad: any evidence

otherwise admissible that "in any respect tends to contradict

the witness, is admissible" for rebuttal. Id. at 500 (internal

quotation marks omitted). On this standard, we cannot say that

the circuit court erroneously exercised its discretion in

allowing the State to offer testimony that tended to undermine

or contradict Novy's testimony regarding his use of the payphone

at L&M Meats on November 9, 2008.8

¶45 Accordingly, we conclude that the circuit court's

interpretation of the statute was consistent with prior

appellate decisions, and that the circuit court's decision to

allow testimony relating to fingerprint evidence on rebuttal was

not an erroneous exercise of discretion.

C. Juror Inattentiveness

¶46 The second issue Novy raises is that the circuit court

erred by denying Novy's motion to strike a juror whom defense

counsel claimed was sleeping during the defense's closing

8 Novy also argues that the fingerprint-related testimony became irrelevant once the applicable bail jumping charge (Count 7) was dismissed. However, the nature of the offense of stalking suggests that Novy's conduct relevant to the bail jumping charge (viz., calling Julie at home) was equally relevant to demonstrate the course of conduct for stalking. See State v. Conner, 2011 WI 8, ¶28, 331 Wis. 2d 352, 795 N.W.2d 750 (discussing the nature of the offense of stalking). This is so because if the jury believed that Novy called Julie from L&M Meats on the night in question, such facts would tend to support the State's theory that Novy had engaged in a course of conduct that Novy knew or should have known would cause Julie to suffer serious emotional distress, and that did in fact cause such distress. See Wis. Stat. § 940.32(2)(a), (b), and (c) (setting forth elements of the offense of stalking).

20 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

argument. This argument is based on the constitutional right to

an impartial jury and due process, as guaranteed by the Sixth

and Fourteenth Amendments to the United States Constitution and

Article I, Section 7 of the Wisconsin Constitution. See State

v. Kettner, 2011 WI App 142, ¶23, 337 Wis. 2d 461, 805 N.W.2d

132.

¶47 The right to a fair trial by an impartial jury

underlies the requirement that jurors have heard all of the

material portions of the trial. See id. "The absence of this condition, whether it is due to a hearing deficiency or a state

of semi-consciousness, could imperil the guarantees of

impartiality and due process." Id. (quoting State v. Hampton

(Hampton I), 201 Wis. 2d 662, 668, 549 N.W.2d 756 (Ct. App.

1996) (internal quotation marks omitted). Review of an

allegation of juror inattentiveness involves a twofold inquiry:

First, the circuit court must determine, as a question of fact,

whether the juror was actually inattentive to the point of

potentially undermining the fairness of the trial; here, whether

the juror was sleeping. See State v. Hampton (Hampton II), 217

Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998). Second, if

the circuit court finds that the juror was in fact sufficiently

inattentive, the court must determine whether the defendant

suffered prejudice as a result of the juror's inattentiveness.

See id.

¶48 As with evidentiary issues, questions involving juror

conduct and attentiveness implicate the circuit court's broad 21 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

discretion. See id. Accordingly, although we review a circuit

court's prejudice analysis as a matter of law, we will uphold a

circuit court's factual findings regarding the conduct and

attentiveness of the jurors, unless those findings are clearly

erroneous. See Kettner, 337 Wis. 2d 461, ¶12.

¶49 Our decision on this issue rests on the absence of a

necessary factual finding by the circuit court that a juror was

sleeping. See id. Without such a finding, we need not address the question of law this issue presents, i.e., whether the

juror's alleged sleeping prejudiced Novy.

¶50 After completion of closing arguments, defense counsel

sought a sidebar during which he moved to strike the allegedly

sleeping juror. Judge Kluka denied the motion and, after the

jury left the courtroom, counsel was afforded an opportunity to

make a record of his objection. During that discussion, Judge

Kluka noted that she considered the defense counsel's request,

but that she did not see the juror sleeping. Additionally,

Judge Kluka also noted that she had kept "track of what's going

on with the jurors fairly well," and that she had "paid very[,]

very close attention to the demeanor and conduct of the jurors."

¶51 In explaining the reason for her ruling, the circuit

court did not find that the juror was sleeping, and therefore,

Novy did not establish a fact necessary to his motion to strike.

On this record, we cannot say that the circuit court's findings

are clearly erroneous because they did not include a finding

that the juror was sleeping. Because we accept such findings, 22 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

we do not discuss this legal challenge further.9 Accordingly, we

affirm the circuit court's denial of Novy's motion to strike the

allegedly sleeping juror from further participation in his

trial.

III. CONCLUSION

¶52 We conclude that, with regard to the admission of

rebuttal fingerprint-related testimony, the circuit court did

initially determined that the State had failed to comply with

therefore, the court excluded fingerprint evidence and related

9 At oral argument, counsel for Mr. Novy was questioned about whether the circuit court made findings regarding the allegedly sleeping juror. Justice Roggensack said that it seemed "the trial court made a finding that she didn't see that there was any juror sleeping." Counsel for Mr. Novy responded, "You know, judge, I read that, and that certainly is true, but I don't think the judge in [her] decision made that the issue. I think [she] made the issue that you just don't have to have a juror listen to closing arguments if they choose not to listen." Oral Argument at 4:40, State v. Novy, 2011AP407-CR, available at http://www.wiseye.org/Programming/VideoArchive/ArchiveList.aspx? cv=34.

Counsel for the State noted defense counsel's concession on the trial court's finding, and reiterated that it was the State's position that "the circuit court made a finding that the juror was not sleeping," but that the court also "went that step further and said 'Even if the juror was sleeping, then [the court doesn't] find any prejudice because this wasn't testimonial.'" Underscoring this point, counsel for the State concluded that "On these facts, [although] there was no . . . explicit finding, . . . I think it can definitely be interpreted as a finding of fact that the juror was not asleep." Id. at 27:00.

23 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR

controvert his testimony, the circuit court concluded that it

interpreted § 971.23 under the facts of this case, and given the

significant discretion afforded circuit courts on evidentiary

matters, we cannot say that the circuit court erroneously

exercised its discretion in permitting the rebuttal use of the

fingerprint evidence and related testimony.

¶53 With regard to the circuit court's treatment of the

allegedly sleeping juror, the circuit court did not find that

the juror was sleeping; and therefore, Novy failed to establish

a finding necessary to his contention. The circuit court's

findings are not clearly erroneous; and therefore, we will not

overturn the circuit court's refusal to strike the juror.

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

affirmed. ¶54 DAVID T. PROSSER, J., did not participate.

24 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶55 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I write

separately for two reasons. First, I disagree with the majority

opinion's interpretation and application of Wis. Stat. § 971.23

to the undisputed facts in the present case. Second, I disagree

with the majority opinion's approach to the second issue, namely

the allegedly sleeping juror.

I

¶56 The majority opinion does not address the difficult

issue of law facing the court, namely interpreting and applying

the text of Wis. Stat. § 971.23 to the undisputed facts of the

case. The majority opinion carefully reprints the text of the

statute but then ignores the words themselves. Indeed, the

majority opinion masks, avoids, and seems oblivious to the

difficult statutory interpretation issue by failing to

distinguish between witness testimony, which is governed by Wis.

Stat. § 971.23(1)(d) and physical evidence, which is governed by

§ 971.23(1)(g).

¶57 The question presented in the instant case is,

according to the court of appeals,1 the State, and the defendant,

whether fingerprint evidence (physical evidence)2 excluded from

the State's case-in-chief as a discovery sanction may later be

1 State v. Novy, 2012 WI App 10, ¶9, 338 Wis. 2d 439, 809 N.W.2d 889. 2 It is undisputed that the fingerprint evidence in this case is "physical evidence." Fingerprint evidence has been categorized as "physical evidence" on multiple occasions. See, e.g., State v. Martin, 2012 WI 96, ¶63, 343 Wis. 2d 278, 816 N.W.2d 270; State v. Armstrong, 2005 WI 119, ¶63, 283 Wis. 2d 639, 700 N.W.2d 98; State v. Stuart, 2005 WI 47, ¶54, 279 Wis. 2d 659, 695 N.W.2d 259.

1 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

used by the State in its rebuttal witnesses' testimony to

challenge the defendant's testimony. In other words, the issue

is not whether the expert witnesses can be rebuttal witnesses.

They can under the statute at issue and relevant case law. The

issue, rather, is whether the State can, while questioning its

rebuttal expert witnesses, introduce into evidence and have the

witnesses testify about the physical fingerprint evidence that

has been excluded under Wis. Stat. § 971.23.

¶58 The majority opinion does not directly answer the

question presented in the instant case. Instead, the majority

opinion states a different question: whether the trial court

erred when it allowed the State to use certain fingerprint

evidence and related testimony in rebuttal. Majority op., ¶1.

The majority opinion seems to answer yet another question

(changing the phrase "fingerprint evidence and related

testimony" in the question to "fingerprint-related testimony" in

the answer): "We conclude that, with regard to the admission of

fingerprint-related testimony on rebuttal, the circuit court did not erroneously exercise its discretion [to admit the rebuttal

testimony]." Majority op., ¶2.3

¶59 The majority opinion meshes physical evidence (the

fingerprint cards) and the witnesses' testimony and thus shifts

the focus of inquiry from physical evidence to testimony.

3 Yet sometimes the majority opinion seems to address the admissibility of the fingerprint evidence itself. See, e.g., majority op., ¶37.

2 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶60 Throughout the opinion the majority uses the words

"testimony" and "evidence" either interchangeably4 or in

combination in some phrase,5 all the while stating that it is

applying the plain meaning of Wis. Stat. § 971.23. The case law

upon which the majority relies, case law that is pre- and post-

the present version of § 971.23, addresses only testimony; the

case law does not address physical evidence or testimony related

to physical evidence. Yet § 971.23 treats testimony and

physical evidence separately——and differently. That's the rub.

¶61 I look first at Wis. Stat. §§ 971.23(1)(d) and (1)(g).6

Wisconsin Stat. § 971.23(1)(d) requires that before trial, the

4 See, e.g., majority op., ¶25, in which the majority states that Wis. Stat. § 971.23(1)(d) "has an exception for disclosure of rebuttal evidence." Not true. Section 971.23(1)(d) excepts rebuttal testimony. 5 The majority opinion repeatedly refers to the State's use of "certain fingerprint evidence and related testimony in rebuttal" or some such mixed reference to fingerprint physical evidence and testimony of a witness. See, e.g., majority op., ¶¶1, 2, 11, 14, 23, 28, 37, 39, 43, 44, 52. 6 Wis. Stat. § 971.23, Discovery and Inspection:

(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:

(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.

3 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

district attorney must disclose to the defendant a list of all

witnesses whom the district attorney intends to call at trial.

Wisconsin Stat. § 971.23(1)(g) requires the district attorney to

disclose any physical evidence that the district attorney

intends to use at trial.

¶62 The statute governing discovery of the witness list,

§ 971.23(1)(d), makes an exception for a rebuttal or impeachment

witness. Such a witness need not be included on the list of

witnesses disclosed before trial.

¶63 In contrast, the statutory provision governing

discovery of physical evidence, § 971.23(1)(g), does not provide

a similar exception for rebuttal or impeachment evidence.

¶64 What are we to make of this different treatment in the

statute of testimony and physical evidence? Testimony and

physical evidence are not synonymous. "Testimony" and "physical

evidence" are different types of evidence.

¶65 I begin my discussion by reciting what happened at the

trial court.

¶66 The physical evidence at issue was two "cards"

containing fingerprints. One card contained the defendant's

known fingerprints; the other card contained fingerprints lifted

from the pay phone. Prior to trial, the State failed to

disclose to the defendant the physical evidence——the fingerprint

cards——it intended to use at trial. Disclosure of physical

(g) Any physical evidence that the district attorney intends to offer in evidence at trial.

4 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

evidence prior to trial is required by Wis. Stat.

¶67 The defendant moved to exclude the physical

fingerprint evidence. The trial court granted the defendant's

motion and prohibited the State from introducing this physical

fingerprint evidence at trial. The ruling comports with Wis.

Stat. § 971.23(1)(g), although the circuit court did not

specifically refer by number to this paragraph of the statute.

The State does not challenge the trial court's exclusion of the

physical fingerprint evidence from its case-in-chief.

¶68 Even though the trial court had excluded the physical

fingerprint evidence from the State's case-in-chief, the State

still sought to call the fingerprint experts in its case-in-

chief. The experts would have testified about their examination

of the fingerprints on the two cards and their conclusion that

the known fingerprints matched the fingerprints lifted from the

pay phone. The trial court refused to allow the experts to

testify in the State's case-in-chief because their testimony

relied on the physical fingerprint evidence that had been

excluded. The trial court concluded that without the physical

fingerprint evidence, none of the experts' testimony was

relevant to the case. The State does not challenge the trial

court's exclusion of the witnesses from its case-in-chief.

¶69 Indeed, the majority opinion concludes, as do I, that

the trial court validly excluded the fingerprint cards and the

expert testimony that would have been based on the cards from

the State's case-in-chief. Majority op., ¶38.

5 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶70 The problem arose when the State sought to introduce

the previously excluded physical fingerprint evidence in

rebuttal. According to the text of the statute, Wis. Stat.

§ 971.23(7m)(a) provides the sanction for failure to disclose

physical evidence: "The court shall exclude any witness not

listed or evidence not presented for inspection or copying

required by this section, unless good cause is shown for failure

to comply. The court may in appropriate cases grant the

opposing party a recess or a continuance" (emphasis added).

¶71 Despite Wis. Stat. § 971.23(7m)(a) excluding the

physical fingerprint evidence that wasn't presented for

inspection, the circuit court, without any analysis of the

statute or case law, simply announced that there was no

distinction between a witness and physical evidence and that a

rebuttal witness can bring in any kind of physical evidence that

the State may wish to use in connection with that witnesses'

testimony.7 The circuit court laid down a rule of law that the

bench and bar could readily apply.

¶72 Because the majority opinion does not analyze the

relationship between testimony and physical evidence and the

application of the text of Wis. Stat. § 971.23(7m)(a) to both,

7 The defendant did not see the fingerprint cards before they were introduced into the record on rebuttal, and therefore the defendant was unable to procure his own expert to challenge the State's experts' testimony.

Although the State had not listed the names of the witnesses who would testify about the fingerprints, the defendant had a copy of the fingerprint report and knew the names of the fingerprint experts.

6 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

the majority opinion, unlike the ruling of the circuit court, is

muddled and fails to give proper guidance to the bench and bar.

¶73 For help in interpreting the present statute, I have

examined the cases cited in the majority opinion. Although past

cases upon which the majority opinion relies sometimes used the

words "testimony" and "evidence" interchangeably in rebuttal

witness cases,8 none of the cases is relevant for resolving the

issue presented here because each case dealt with testimony, not

physical evidence.9

8 That the words "testimony" and "evidence" are sometimes used interchangeably should not be surprising. After all, testimony is one type of evidence. In many instances it might not matter whether a court uses the word "evidence" or "testimony." In the present case, however, the applicable statute treats the two separately and differently. 9 See, e.g., cases cited at majority op., ¶¶25, 26, 29-35, 40, 42, 44.

State v. Lunde, 85 Wis. 2d 80, 270 N.W.2d 180 (1978) (State was permitted to present bona fide rebuttal witness testimony from a witness who had not been previously identified to the defendant because the rebuttal witness's testimony was only necessary and appropriate once the defendant testified. State action was permitted under old Wis. Stat. § 971.23(3)(a), which is now § 971.23(1)(d)).

State v. Watson, 46 Wis. 2d 492, 499-500, 175 N.W.2d 244 (1970) (Decided before the statute was enacted. State could present "rebuttal evidence" through "rebuttal witnesses" to impeach the credibility of a testifying defendant).

Howard v. Beldenville Lumber Co., 129 Wis. 98, 108 N.W. 48 (1906) (Decided before the statute was enacted. The plaintiff had wide discretion to present rebuttal testimony to contradict the defendant's testimony. The court used the term "evidence" to refer to rebuttal "testimony" that did not include any "physical evidence.").

7 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶74 I have also reviewed the history of Wis. Stat.

§ 971.23 going back to the 1969 enactment of the first version

of the statute.10 What is clear from the statutory history is

that since the statute's enactment, the defendant's discovery of

the list of witnesses and discovery of physical evidence were

treated differently in two distinct statutes.11 The statute

McGowan v. Chicago & N.W. Ry. Co., 91 Wis. 147, 64 N.W. 891 (1895) (Decided before the statute was enacted. The plaintiff could call witnesses on rebuttal even though the plaintiff had known the witnesses existed before trial and had considered calling them in the case-in-chief.).

State v. Sandoval, 2009 WI App 61, ¶¶30-31, 318 Wis. 2d 126, 767 N.W.2d 291 (State could call a rebuttal witness whose testimony about what he saw included exculpatory evidence that had not been disclosed to the defendant before trial pursuant to Wis. Stat. § 971.23(1)(h)).

State v. Konkol, 2002 WI App 174, ¶18, 256 Wis. 2d 725, 649 N.W.2d 300 (State had no duty to list a rebuttal witness under Wis. Stat. § 971.23(1)(d) even if the prosecutor knew before trial that the witness would be called. Testimony, not physical evidence, was admitted.). 10 The current statute requiring a district attorney to provide pretrial discovery to a defendant was created by ch. 255, Laws of 1969, a complete redraft of the criminal procedure statutes undertaken by the Criminal Rules Committee established by the Judicial Council. 11 Wis. Stat. § 971.23(3)(a) (1969-70), List of Witnesses:

A defendant may, not less than 15 days nor more than 30 days before trial, serve upon the district attorney an offer in writing to furnish the state a list of all witnesses the defendant intends to call at the trial, whereupon within 5 days after the receipt of such offer, the district attorney shall furnish the defendant a list of all witnesses and their addresses whom he intends to call at the trial. Within 5 days after the district attorney furnishes such list, the defendant shall furnish the district attorney a list of all witnesses and their addresses whom the defendant intends to call at the trial. This section 8 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

governing discovery of witnesses included an exception for

rebuttal and impeachment witnesses, while the statute governing

discovery of physical evidence did not include such an

exception.12 The 1969 statute and the revisions, including the

present version, preserve this distinction.

¶75 I conclude that Wis. Stat. § 971.23(1) does not

explicitly authorize a trial court to admit physical evidence on

rebuttal. Perhaps other legal principles can support the

admission of the previously excluded physical fingerprint

evidence in the State's case on rebuttal. The majority opinion

hints that perhaps admissibility should hinge on

trustworthiness, and that the general principles of impeachment

shall not apply to rebuttal witnesses or those called for impeachment only.

Wis. Stat. § 971.23(4) (1969-70) Inspection of Physical Evidence:

On a motion of a party subject to s. 971.31(5), all parties shall produce at a reasonable time and place designated by the court all physical evidence which each party intends to introduce in evidence. Thereupon, any party shall be permitted to inspect or copy such physical evidence in the presence of a person designated by the court. The order shall specify the time, place and manner of making the inspection, copies or photographs and may prescribe such terms and conditions as are just. 12 The current criminal discovery statute took its present form in 1996 after the enactment of 1995 Wisconsin Act 387, which repealed, renumbered, and recreated certain portions of the old statute. The analysis of 1995 Assembly Bill 721 (which became 1995 Act 387) by the Legislative Reference Bureau indicates that the new bill aimed to eliminate old arduous procedure requirements in favor of simpler, more responsive discovery of witness lists and physical evidence.

9 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

testimony should apply to the present case. See majority op.,

¶42.13

¶76 In any event, I concur in the mandate because I agree

with the State that if the admission of the fingerprint evidence

in rebuttal was error, it was harmless error in the present

case.

II

¶77 I turn now to the second issue, the allegedly sleeping

juror.

¶78 The majority embarks on its own new theory about the

allegedly sleeping juror——a theory that was neither briefed nor

argued by the parties. This theory asserts that the circuit

court based its decision on findings of fact. I disagree with

the majority opinion.

¶79 The circuit court did not base its decision on any

factual findings. Rather, the circuit court based its decision

on a legal conclusion: Even if the defendant's factual

allegations that the juror was sleeping were true, the defendant

was not prejudiced.

¶80 Rather than addressing the actual legal basis of the

decision of the circuit court, the majority opinion fails to

even mention it. Because the majority opinion's analysis

arrives at conflicting conclusions, mischaracterizes the circuit

court record and ultimately fails to provide guidance to circuit

courts on how they should proceed when confronted with a

13 See also Novy, 338 Wis. 2d 439, ¶¶14, 15.

10 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

challenge that a juror was sleeping, I write separately to

address this issue.

A

¶81 The majority's theory and analysis of the sleeping

juror issue rests on its discussion of the circuit court's

findings of facts——findings that the circuit court never made.

¶82 At the outset of its discussion of the sleeping juror

issue, the majority opinion states that review of the issue

involves a twofold inquiry. First, the circuit court must

determine, as a question of fact, whether the juror was

sleeping. Majority op., ¶47. Second, the circuit court must

determine whether the defendant suffered prejudice as a result

of the juror's inattentiveness. Id.

¶83 After this set-up of the inquiry, the majority opinion

then provides the standard of review: "[A]lthough we review a

circuit court's prejudice analysis as a matter of law, we will

uphold a circuit court's factual findings regarding the conduct

and attentiveness of the jurors, unless those findings are clearly erroneous." Majority op., ¶48.

¶84 Throughout its opinion, the majority repeatedly

concludes that the circuit court "did not find that the juror

was sleeping." Majority op., ¶¶3, 22, 51, 53. The majority

opinion also states that its decision "rests on the absence of a

necessary factual finding by the circuit court that a juror was

sleeping." Majority op., ¶49. Nevertheless, the majority

opinion simultaneously applies the standard of review to the

non-existent finding and concludes that the circuit court's

11 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

"findings are not clearly erroneous." See majority op., ¶¶3,

22, 51, 53.

¶85 The majority opinion emphasizes that the circuit court

"had not seen the juror sleeping," majority op., ¶¶17, 50, and

mentions the circuit court's statement that it tries "to keep

track of what's going on with the jurors." Majority op., ¶17.

Ultimately, the majority opinion concludes that "[o]n this

record, we cannot say the circuit court's findings are clearly

erroneous because they did not include a finding that the juror

was sleeping." Majority op., ¶51.

¶86 Thus, on the one hand, the majority opinion concludes

that the circuit court made no finding that the juror was

sleeping. Majority op., ¶¶3, 22, 51, 53. The circuit court

also made no finding that the juror was not sleeping. In other

words, the circuit court made no finding of fact about whether

the juror was or was not sleeping. Nevertheless, the majority

opinion paradoxically concludes that the circuit court's

findings on the issue are not clearly erroneous.

¶87 In order to determine whether a finding of historical

fact is clearly erroneous, it is axiomatic that there must first

be a finding of historical fact.14 Yet the majority opinion does

not mention any other findings of fact that the circuit court

made related to this issue of juror inattentiveness. The

14 See, e.g., State v. Owens, 148 Wis. 2d 922, 926-27, 436 N.W.2d 869 (1989).

12 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

majority opinion appears to review a sole finding of fact that

it acknowledges never occurred.15

¶88 Even a cursory review of the record reveals that the

circuit court undertook no factual inquiry into whether the

juror was sleeping. The circuit court did not voir dire the

allegedly sleeping juror, did not take any testimony, and did

not consider other admissible evidence in the record on this

fact.

¶89 Furthermore, the majority opinion's reliance on the

circuit court's statements that it did not see the juror

sleeping similarly cannot be the basis for the elusive

"findings" on which the majority opinion rests its conflicting

conclusions. This court has held that a "circuit court may not

rely on its own personal observations of events not contained in

the record." State v. Anson, 2005 WI 96, ¶33, 282 Wis. 2d 629,

698 N.W.2d 776. Furthermore, a judge presiding at a trial

cannot testify as a witness.16

¶90 It is the majority's misplaced focus on non-existent findings of fact that gets the majority into analytical trouble.

The only reference to a finding of fact related to a sleeping

15 "On this record, we cannot say that the circuit court's findings are clearly erroneous because they did not include a finding that the juror was sleeping. Because we accept such findings, we do not discuss this legal challenge further." Majority op., ¶51. 16 State v. Anson, 282 Wis. 2d 629, ¶¶33, 34 & n.3, 698 N.W.2d 776 (citing Wis. Stat. §§ 906.05 & 902.01(2)); State v. Hampton (Hampton I), 201 Wis. 2d 662, 672-73, 549 N.W.2d 756 (Ct. App. 1996). For additional discussion on the issue of a circuit court's personal observation and judicial notice, see ¶¶105-119, infra.

13 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

juror in the majority's entire opinion is its reference to what

it describes as a non-existent finding.

¶91 Although the majority acknowledges that the first step

when presented with an sleeping juror issue is to determine

whether the juror was in fact sleeping, the majority fails to

acknowledge that such a determination never occurred in the

present case.

B

¶92 The majority's approach to "facts" and its

contradictory conclusions appear to stem from its

mischaracterization of the record. The circuit court determined

that "even assuming what [the defense attorney alleged about the

sleeping juror] is correct," the law does not automatically

require the juror's removal.

¶93 The majority selectively quotes the circuit court to

make it appear as if the circuit court found that the juror was

not sleeping, without actually stating that the circuit court

found that the juror was not sleeping. However, the context of

what occurred before the circuit court is different from what

the majority appears to describe.

¶94 The defendant's attorney raised the issue about the

juror before the circuit court by advising the court that he had

seen a juror sleeping during his closing argument. The

defendant's attorney described what he saw as follows:

MR. CICCHINI: Just for the record. I saw his eyes closed and his head nod down on one occasion[], and I saw his eyes closed on several occasions.

14 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶95 In response, the State acknowledged that the juror may

not have been paying rapt attention during closing arguments,

but noted that she had not seen any indication that the juror

was sleeping during the presentation of evidence:

MS. JAY: I certainly observed that he was not paying rapt attention, but I——I'll just take it personally. I didn't see anything during the trial during evidence that indicated to me that he was asleep during the evidence portion. So, I just didn't think it was necessary to make him the 13th juror. ¶96 The circuit court then stated its reasoning for

denying the defendant's motion to strike the alleged sleeping

juror. It observed that it was aware of case law that may

require removal if the juror is sleeping during the presentation

of evidence. Here, however, the allegation was that the juror

was sleeping during closing arguments. The circuit court

determined that "even assuming what [the defendant's attorney

alleged about the sleeping juror] is correct," the law does not

automatically require the juror's removal. Counsels'

presentation and the full reasoning of the circuit court are as

follows:

MR. CICCHINI: Would you like to do the juror issue real quick? I'd like to make a record real quick that I brought up at the side bar?

THE COURT: Oh, sure.

MR. CICCHINI: During the side bar, I made a motion to strike as the——or have removed or strike as the 13th juror——Miss Jay [the prosecuting attorney] can maybe confirm this——I think his name was [juror's name]?

MS. JAY: Correct.

MR. CICCHINI: Okay. He was in the lower right hand corner. He had a Cubs shirt on, dark hair; and 15 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

noticed him sleeping during the closing——my closing argument——and because I——I was trying to make eye contact with him, and I noticed that. I move to strike. I believe that Miss Jay concurred that she—— well she can speak for herself; but she noticed similar and opposed the motion. The court denied the motion. And I think that summarizes it.

THE COURT: The motion to strike him as the alternate juror.

MR. CICCHINI: Yes, alternate juror. Yes.

THE COURT: Attorney Jay.

MS. JAY: I certainly observed that he was not paying rapt attention, but I——I'll just take it personally. I didn't see anything during the trial during evidence that indicated to me that he was asleep during the evidence portion. So I just didn't think it was necessary to make him the 13th juror.

MR. CICCHINI: Oh, I'm sorry. I guess——could I just describe in brief detail what I saw?

THE COURT: Sure.

MR. CICCHINI: Just for the record. I saw his eyes closed and his head nod down on one occasion, and I saw his eyes closed on several occasions.

THE COURT: During your closing.

MR. CICCHINI: Yes. Thank you.

THE COURT: Did you see it during Attorney Jay's closing?

MR. CICCHINI: I——one time what I think I first noticed that his——his head was down but he was rubbing his forehead and came up back up, and I did not see it then. I saw it during my closing.

THE COURT: Okay. Your observations are noted. I did consider this request at the side bar just before sending the jurors out to deliberate. I myself [] didn't notice it. I try to keep track of what's going on with the jurors fairly well. I am aware of case law which says if a juror is sleeping during testimony, during the presentation of evidence, that 16 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

can warrant the dismissal of that juror or [] raise some issues with respect to deliberations in the sense that the juror [] doesn't have the same basis for deliberations as the other jurors.

I——I didn't notice any of those kinds of problems while testimony was coming in during which I think I paid very——very close attention to the demeanor and conduct of the jurors.

So, even assuming what you say is correct, it does not automatically require removal of that juror; and for that reason I did not grant your request and we selected the alternate randomly instead (emphasis added). ¶97 Both parties describe the circuit court's statement as

a legal conclusion reached by the circuit court's assuming the

factual question. Indeed, when pressed at oral argument before

this court about whether the circuit court based its decision on

factual findings, the defendant's attorney rebuffed such an

assertion. He responded that the issue the circuit court

addressed was not the factual question of whether the juror was

sleeping, but rather it was the legal question addressing the

import of any juror sleeping when it allegedly occurred during

closing arguments.17

17 The complete exchange occurred as follows:

Justice Roggensack: Counselor, as I read the arguments and the materials provided, I thought that the trial court made a finding that she didn't see that there was any juror sleeping.

Defendant's Attorney: You know, [Justice Roggensack], I read that and um, that certainly is true but I don't think the judge in [her] decision made that the issue. I think [s]he made the issue that you just don't have to have a juror listen to closing argument if they choose not to listen. I mean, let's face facts, jurors may be thinking about the Green Bay Packer game during the entire closing argument and we wouldn't 17 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶98 After Justice Roggensack raised the issue with the

defendant's attorney, the State's attorney briefly addressed the

issue. The State concluded that the circuit court did not make

an "explicit finding" of fact on the record regarding the

sleeping juror and asked the court "to conclude that there was

no prejudice."18

know that but it wouldn't really make any difference because what's important is that they listen to all the testimony and then make their decision on the testimony. Does that answer your honor's . . . ?

Justice Roggensack: Well, I thought that, to me it was a finding and we adhere to the findings of the circuit court, unless they are clearly erroneous and I thought the judge was asked about this, it was brought to her attention and she said she didn't see any jurors sleeping and I thought she said she watched the jury quite closely. So if it's a finding of fact, that's a different kind of an issue than if it's a question of law about whether we want to do something with a juror who was sleeping, you gotta get over the first step which was, was there a juror sleeping before you can get to the second step?

Defendant's Attorney: I understand that, [Justice Roggensack]. I'm not gonna disagree with that. Thank you. [The defendant's attorney proceeded to argue the issue of the rebuttal evidence.] 18 The Assistant Attorney General's full statement is as follows:

I will do the same as defense counsel did and start with the sleeping juror issue. There weren't many questions on it but I did want to clear up something. I think he [the defendant's attorney] made the statement that it was obvious or something to that effect that the juror was sleeping or appeared to be sleeping in this case. To Justice Roggensack's point, I do believe that the circuit court made a finding that the juror was not sleeping but went that step further and said that even if the juror was sleeping, I [the circuit court] don't find any prejudice because 18 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶99 In any event, whether a circuit court can make a

finding of fact regarding the attentiveness of a juror under the

circumstances of the present case is problematic. No evidence

was presented on the issue, and it is ordinarily inappropriate

for a circuit court to take judicial notice of the fact that a

juror was inattentive without further inquiry. See ¶¶105-122,

infra.

C

¶100 The majority's mischaracterizations do not stop with

the record and the circuit court's decision.

¶101 The majority opinion declares: The court of appeals

concluded that the issue of the allegedly sleeping juror was

"within the broad discretion of the circuit court, and that

there was nothing in the record to suggest that the court had

erroneously exercised its discretion." Majority op., ¶19

(citing Novy, 338 Wis. 2d 439, ¶23).

¶102 Not so! The court of appeals treated the circuit

court as having based its conclusion on prejudice, not on any finding of whether the juror was in fact sleeping. The court of

appeals stated: "We know of no Wisconsin case, and Novy has not

cited one, in which a juror was removed for nodding off during

this wasn't testimonial. On these facts, there was no, it was not an explicit finding but I think it can definitely be interpreted as a finding of fact that the juror was not asleep and I think, so I just wanted to clear up that the State on the sleeping juror issue would ask this court to affirm and conclude that there was no prejudice and that the defendant failed to meet his burden on that issue. [The State then proceeded to argue the rebuttal evidence issue]. (Emphasis added.)

19 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

closing arguments. We therefore reject Novy's argument that the

trial court erred in failing to conduct a further inquiry into

whether the juror was sleeping."19

D

¶103 As a result of relying on a finding of fact that does

not exist and mischaracterizing the record and the decisions of

the circuit court and court of appeals, the majority opinion

ultimately fails to undertake the ultimate question of whether

the defendant's constitutional right to a fair trial was

violated by juror inattentiveness.

¶104 By short-circuiting the analysis, the majority further

fails to provide guidance on how circuit courts are to handle an

allegation of a sleeping juror.

E

¶105 Unlike the majority opinion, I acknowledge the circuit

court's stated reasoning for denying the defendant's motion to

strike. The circuit court did not determine whether the

defendant's allegation of a sleeping juror was true. Instead

the circuit court determined that "even assuming what [Novy's

attorney alleged about the sleeping juror] is correct," the law

does not automatically require the juror's removal. The circuit

19 Novy, 338 Wis. 2d 439, ¶23.

After reaching this conclusion, the court of appeals went on to state that defense counsel did not ask the circuit court to conduct further inquiry into whether the juror was asleep; that it would not fault the circuit court for failing to undertake a further inquiry under the circumstances of the present case; and that the circuit court did not erroneously exercise its discretion in failing to conduct a further inquiry into whether the juror was sleeping. Id.

20 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

court concluded that even if the juror was sleeping, as alleged,

it did not prejudice the defendant.

¶106 Here, the defendant's attorney alleged that he "saw

[the juror's] eyes closed and his head nod down on one

occasion[]" and "saw his eyes closed on several occasions." The

alleged inattentiveness occurred during defense counsel's

closing argument.

¶107 The constitutional right to an impartial jury requires

that the jurors "have heard all of the material testimony."20

When a party seeks to have a juror discharged, whether it is due

to sleep or for another cause, it is the circuit court's duty to

"make careful inquiry into the substance of the request and to

exert reasonable efforts to avoid discharging the juror."21

Upholding juror integrity is a task assigned to the courts.22

The ultimate question of whether the defendant's constitutional

right to a fair trial was violated by juror inattentiveness is a

question of law that a reviewing court determines

independently.23

¶108 A circuit court must "approach the issue [of a

sleeping juror] with extreme caution."24

20 Hampton I, 201 Wis. 2d at 668. 21 State v. Lehman, 108 Wis. 2d 291, 300, 321 N.W.2d 212 (1982). 22 State v. Gonzalez, 2008 WI App 142, ¶9, 314 Wis. 2d 129, 758 N.W.2d 153. 23 State v. Hampton (Hampton II), 217 Wis. 2d 614, 621-22, 579 N.W.2d 260 (Ct. App. 1998). 24 Lehman, 108 Wis. 2d at 300.

21 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶109 As a threshold issue, parties must timely object in

order to properly raise the issue before the circuit court.

When parties notice a sleeping juror, they must bring the issue

to the circuit court's attention during trial "as soon as

practicable" after they notice the sleeping juror.25 If the

objection is not timely, it may be considered "waived" or

"forfeited".26 No one argues that the objection was not timely

in the instant case.

¶110 When a timely objection is made, the circuit court may

proceed in different ways depending on the circumstances of the

case. The circuit court may have to decide whether the juror

was sleeping. Because the circuit court in the instant case did

not address this question, the parties did not argue in their

briefs how the circuit court should have handled the question.

I write to remind the bench and bar that Hampton I27 and Hampton

II28 are instructive about what a circuit court is to do to make

a finding about juror attentiveness.29

25 State v. Saunders, 2011 WI App 156, ¶32, 338 Wis. 2d 160, 807 N.W.2d 679. 26 See Hampton I, 201 Wis. 2d at 669. 27 Id. 28 Hampton II, 217 Wis. 2d at 621-24. See also Anson, 282 Wis. 2d 629, ¶¶33-34. 29 For a discussion of the numerous cases across the country on juror inattentiveness, see George L. Blum, Annotation, Inattention of Juror from Sleepiness or Other Cause As Ground for Reversal or New Trial, 59 A.L.R. 5th 1 (2003) (made current by weekly addition of relevant new cases).

22 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

¶111 The issue in the present case was raised in a

substantially similar manner to that which occurred in Hampton

I, in which the defendant also raised the issue orally at trial

outside the presence of a jury. The Hampton I court determined

that when there is a "sufficient demonstration of juror

sleepiness," the circuit court should undertake further factual

inquiry.30

¶112 In Hampton I, the attorney noticed a juror sleeping

during witness testimony and raised the issue outside the

presence of the jury.31 Although the circuit court acknowledged

that the juror was "drowsy" during portions of the testimony, it

did not undertake any further inquiry into whether the juror was

actually sleeping. The court of appeals concluded that there

was a sufficient demonstration of juror sleepiness to warrant

further factual inquiry and remanded the matter to the circuit

court for an evidentiary hearing.32

¶113 Following a remand for an evidentiary hearing in

Hampton I, the circuit court found that the juror was drowsy for

ten minutes and fell asleep for one or two minutes.33 On appeal

from the evidentiary hearing, the court of appeals concluded in

Hampton II that Hampton's due process rights to a fair trial

30 Hampton I, 201 Wis. 2d at 673. 31 Id. at 666-67. 32 Id. at 673-74. 33 Hampton II, 217 Wis. 2d at 622.

23 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

were not violated because the testimony that was missed was not

pivotal to the case.34

¶114 In order for a circuit court to make a finding of fact

regarding the inattentiveness of a juror, there must be facts in

the record to support such a finding.

¶115 It is problematic for a circuit court to take judicial

notice of the juror's inattentiveness or to rely on its own

observations.

¶116 Case law from other jurisdictions suggests that a

trial court may on "informed judicial knowledge" take judicial

notice of the fact that a juror was sleeping when the circuit

judge actually observes the juror sleeping.35 Wisconsin case

law, including Hampton I, warns that taking judicial notice of

the fact that a juror was or was not sleeping without further

inquiry is ordinarily inappropriate.36

¶117 The procedures for judicial notice are set forth in

Wis. Stat. § 902.01 (2009-10). Judicial notice of whether a

juror is sleeping does not fit easily with the kinds of adjudicative facts that may be judicially noticed under Wis.

Stat. § 902.01(2). See Anson, 282 Wis. 2d 629, ¶33 & n.3

(holding that a circuit court cannot take judicial notice of

facts it observes); Lemke v. Lemke, 2012 WI App 96, ¶21, 343

34 Id. at 624. 35 Hampton I, 201 Wis. 2d at 669 n.5. 36 Id. at 671-72 (quoting United States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983)). See also Anson, 282 Wis. 2d 629, ¶¶33-34. Compare Hampton II, 217 Wis. 2d at 619- 20.

Wis. 2d 748, 820 N.W.2d 470 (declaring that "[a] trial court

sitting as a fact-finder may derive inferences from the

testimony and take judicial notice of a fact that is not subject

to reasonable dispute, but it may not establish as an

adjudicative fact that which is known to the judge as an

individual."); State v. Peterson, 222 Wis. 2d 449, 457-58, 588

N.W.2d 84 (Ct. App. 1998) (stating a trial court "may not

establish as an adjudicative fact that which is known to the

judge as an individual."); II McCormick on Evidence § 329 at 373

(John W. Strong ed., 5th ed. 1999) ("What a judge knows and what

facts a judge may judicially notice are not identical data

banks.").

¶118 In making the required factual determinations, circuit

courts should take care not to act as witnesses. Although a

circuit court may make credibility determinations when making

its factual findings, the case law indicates a circuit court may

not rely on its personal knowledge of events not appearing in

the record.37 A circuit court that relies on its own personal observations of events not in the record as the basis for a

37 An example of this principle is set forth in Anson, which stated that a circuit court may not state "its opinion [that] the witness was being intimidated by the presence of several well-known gang members in the courtroom, if the presence and behavior of these individuals was not documented in the record." Anson, 282 Wis. 2d 629, ¶34 (emphasis in original).

Compare and contrast Hampton II, in which the court of appeals concluded that the circuit court's opinion about the attentiveness of the juror did not transform the circuit court into a material witness, requiring the judge's disqualification under Wis. Stat. § 757.19(2)(b). Hampton II, 217 Wis. 2d at 619-20.

25 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

factual finding "is essentially acting as a witness in the case

by providing testimony."38 Acting as a witness is contrary to

Wis. Stat. § 906.05, which provides that a judge "presiding at

the trial may not testify in that trial as a witness."

¶119 I recognize there is some tension within the case law

regarding the circuit court's role in determining the fact of

whether a juror was inattentive. I conclude that the safest and

best practice is for the party challenging the juror's

attentiveness to put evidence in the record so that the circuit

court may make a factual determination of a juror's

attentiveness (or lack thereof) on the basis of evidence in the

record. A circuit court may then have to determine whether a

juror's inattention prejudiced the defendant to the extent that

the defendant did not receive a fair trial.

F

¶120 Here, the circuit court did not undertake any factual

inquiry about the juror sleeping. It did not have to do so.

Instead the circuit court determined that even if the juror were

sleeping, the defendant was not prejudiced. In making that

determination, the circuit court recognized that the ultimate

focus of the analysis is to determine whether a defendant is

prejudiced.39 As the Hampton I court noted, "it is universally

recognized that before inattentiveness warrants a mistrial,

38 Anson, 282 Wis. 2d 629, ¶33. 39 Hampton I, 201 Wis. 2d at 668.

26 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

there must be a determination regarding prejudice."40 The same

logic holds true regarding a motion to strike a sleeping juror.

¶121 To satisfy the prejudice requirement, a defendant must

establish that the juror missed enough of the proceeding to

prejudice the defense.41 Generally, a defendant is prejudiced if

a juror misses hearing "material testimony."42 Likewise, a

defendant can be prejudiced by a sleeping juror if the juror

misses a "pivotal" or "significant" part of the case.43

¶122 In the present case, there is no indication that the

sleeping juror missed a pivotal or significant portion of the

proceeding. Furthermore, it is undisputed that the juror heard

all material testimony. The defendant has therefore failed to

establish that the allegedly sleeping juror was prejudicial to

the defense.

¶123 Because there is no indication that the defendant was

prejudiced, the circuit court's discretionary refusal to strike

the juror was reasonable. Therefore, I conclude that the

circuit court did not erroneously exercise its discretion when

it denied the defendant's motion to strike.

¶124 Unfortunately, the majority opinion's analysis is

confusing and fails to provide guidance on how circuit courts

should proceed when confronted with the challenge that the

40 Id. at 670. 41 Id. at 668. 42 Id. at 668. 43 Hampton II, 217 Wis. 2d at 621, 624.

27 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa

defendant's constitutional right to an impartial jury is being

denied based on an assertion that a juror was sleeping.

¶125 For the reasons set forth, I write separately.

¶126 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

28 No. 2011AP407-CR & 2011AP408-CR & 2011AP409-CR.ssa