                                                                       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.

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                                    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,

counsel for the State asked whether the fingerprint evidence

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
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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.

                              1.    General principles

       ¶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.

                                 2.    Application

      ¶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

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

      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



§ 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.

     ¶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.

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

     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.

§ 971.23(1)(g).

        ¶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.

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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.

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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.

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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.

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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.




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