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06/01/83 STATE WISCONSIN v. SAMUEL BURTON

June 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
SAMUEL BURTON, JR., DEFENDANT-APPELLANT-PETITIONER



Review of a decision of the Court of Appeals. Affirming Shirley S. Abrahamson, J. Ceci and Bablitch, JJ., took no part.

The opinion of the court was delivered by: Abrahamson

This is a review of an unpublished decision of the court of appeals filed September 21, 1982, affirming a judgment of conviction and order denying a motion for a new trial of the circuit court for Milwaukee county, Robert W. Landry, Circuit Judge. The issue raised on review is whether the circuit court Judge's entries into the jury room and comments to the jury outside the presence of the defendant and defense counsel constitute grounds for a new trial in this case. We conclude that the circuit court Judge's actions constitute constitutional error, but the error in this case was harmless beyond a reasonable doubt. We therefore affirm the decision of the court of appeals.

I.

Defendant Burton was charged with one count of delivery of a controlled substance (cocaine), contrary to secs. 161.41(1) (b) and 161.16(4), Stats. 1979-80. The complaint, issued six months after the alleged offense occurred, recites that the defendant delivered the cocaine to an undercover police officer on July 15, 1980. The defendant's identity was the sole contested issue at the jury trial. The defendant testified that he had not committed the crime charged, that he had never seen the testifying officer, and that he could not remember where he was on July 15, 1980.

The jury began its deliberations at 12:30 p.m. on April 23, 1981, and reached a verdict that evening, although the record does not indicate what time the verdict was reached. The jury announced its verdict of guilty in open court the following morning.

Appellate counsel filed a post-conviction motion requesting a new trial on the grounds that the circuit court Judge's communications to the jury during its deliberations constituted reversible error.

While the jury was deliberating, the circuit court Judge, taking a court reporter with him, entered the jury room twice, once at 4:27 p.m. and again at 4:55 p.m. On both occasions the circuit court Judge briefly spoke to the jury; his comments are part of the record. Neither the defendant nor defense counsel nor the state's attorney was present on either occasion, even though all were available. The defendant was in custody, and defense counsel, as instructed by the circuit court Judge, had left information with the court clerk to enable the Judge to contact him.

The first time the circuit court Judge entered the jury room he said that he had "stopped in to check with" the jury and he noted on the record that the attorneys were not present. He explained that the deputy, having spoken with the jury about seven minutes earlier, had advised him that "you have not been able to arrive at a unanimous verdict not withstanding the fact that the case was submitted to you at about 12:30." The circuit court Judge stated that he was advising the jury "so that you can let the bailiffs know who you want to contact that I will entertain your verdict at any time that you have reached a verdict; and in the event that you have not reached a verdict by 10:00 o'clock, I'll determine whether or not you will be put in a hotel for tonight or whether you will be released to come back tomorrow morning at 8:30." The circuit court Judge also informed the jury that if it had "any messages that you want to pass onto the bailiff" so that family could be notified, "why, feel free to do so because we want nobody at home worrying about you." The circuit court Judge concluded his brief communication saying: "I ask you to do your best, to go over all of the evidence that was presented to you and consider that in the light of the Court's instructions; and I wish you well."

The circuit court Judge re-entered the jury room at 4:55 p.m., stating, "Folks, I don't suppose you have any news for me." He then stated that the court would take a sealed verdict if the jury arrived at a verdict before 10:00 p.m. He explained that the verdict could be put in a sealed envelope, the jury would be excused until the morning, and the jury was not to discuss the case with anybody until it returned to the court. The circuit court Judge further explained that in the event the jury did not reach a verdict by 10 o'clock that night, the jury would be excused at that time to return the next morning at 8:30 to continue deliberations and he would admonish the jury not to discuss the case with anybody. The circuit court Judge then stated that he was trying "to make some decent arrangements for dinner." The Judge stated, "Unfortunately, we can't provide dinner here because there are other juries who are deliberating," and there was not enough room at the court. He said that he "had not anticipated that you would run into this long deliberation, but please take as much time as you believe is necessary to spend on the matter, and we'll arrange for you to go to some dinner place. I think McDonald's is just down the street." A juror asked whether there was any particular time that they could have the bailiffs call their homes, and the circuit court Judge responded that if the jurors made up their minds that they would "not be able to reach a verdict soon enough to break into dinner," they should let the bailiffs know and the bailiffs would make the calls while the jury continued with deliberations.

The circuit court, viewing its remarks as "purely of logistics of securing a place for the jury to deliberate into the evening and also to determine whether or not a meal should be served for them," denied the motion for a new trial. On appeal the court of appeals concluded that the Judge's comments were not coercive or prejudicial and that the circuit court had not abused its discretion in denying the defendant's motion for a new trial.

The state and defendant agree that this Judge's comments to the jury in the jury room outside the presence of defendant and defense counsel constitute constitutional error. Wis. Const. art. I, sec. 7; U.S. Const. amends. VI, XIV. A criminal defendant is entitled to be present at his trial and to have counsel at every stage where he needs aid in dealing with legal problems. Rogers v. United States, 422 U.S. 35, 38 (1975); Spencer v. State, 85 Wis. 2d 565, 570, 271 N.W.2d 25 (1978); State v. Mills, 107 Wis. 2d 368, 370, 320 N.W.2d 38 (Ct. App. 1982). The court's comments to the deliberating jury without the defendant and his counsel being present (unless the defendant has waived that right) deny the defendant his constitutional right to be present at trial.

The contested issue on appeal is whether the constitutional error here mandates a new trial. The defendant argues that the Judge's entries into the jury room and comments to the jury outside the presence of defendant and defense counsel in this case constitute automatic grounds for a new trial under the rule set forth in Havenor v. State, 125 Wis. 444, 104 N.W. 116 (1905). In the alternative, he argues that if the harmless error rule applies to this situation, the error was not harmless beyond a reasonable doubt.

The state argues that this court has abandoned the Havenor rule, that the error in this case does not automatically entitle the defendant to a new trial, and that the error was harmless beyond a reasonable doubt.

We agree with the state. We conclude that this court has abandoned the Havenor rule, and we therefore expressly overrule Havenor v. State, 125 Wis. 444, 104 N.W. 116 (1905), and cases adhering to it. While the circuit court Judge's actions constituted constitutional error, the error does not automatically entitle the defendant to a new trial. After analyzing the error in this case in light ...


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