                                                                   2013 WI 70

                  SUPREME COURT           OF    WISCONSIN
CASE NO.:               2011AP394-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Demone Alexander,
                                  Defendant-Appellant-Petitioner.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 342 Wis. 2d 249, 816 N.W.2d 350
                                 (Ct. App. 2012 – Unpublished)

OPINION FILED:          July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 14, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Carl Ashley

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., concurs. (Opinion filed.)
                        CROOKS, J., ABRAHAMSON, C.J., BRADLEY concur.
                        (Opinion filed.)
                        ZIEGLER, J., concurs. (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there was a brief
by Hans P. Koesser and Koesser Law Office, S.C., Kenosha, with
oral argument by Hans P. Koesser.


       For      the    plaintiff-respondent,   the   cause   was   argued   by
Thomas Balistreri, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                         2013 WI 70
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.    2011AP394-CR
(L.C. No.   2008CF3168)

STATE OF WISCONSIN                             :            IN SUPREME COURT

State of Wisconsin,

                Plaintiff-Respondent,
                                                                      FILED
      v.
                                                                 JUL 12, 2013
Demone Alexander,
                                                                    Diane M. Fremgen
                Defendant-Appellant-Petitioner.                  Clerk of Supreme Court




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



      ¶1        MICHAEL J. GABLEMAN, J.         We are asked to determine
whether     a    defendant   must   be   physically    present      when    a judge

holds an in-chambers discussion with a juror during the middle
of a trial.        We recognize that a defendant has a constitutional

right to be present at his trial.            Kentucky v. Stincer, 482 U.S.
730, 745 (1987).          Whether this right to be present at trial

encompasses in-chambers meetings "admits of no categorical 'yes'
or 'no' answer.        A conference in chambers might well constitute

part of the trial depending upon what matters are discussed or
passed upon.        Likewise, such a conference might not be a part of
                                                                      No.   2011AP394-CR



the   trial in      the    sense   of     one's    constitutional       right     to    be

present."      Ramer v. State, 40 Wis. 2d 79, 84, 161 N.W.2d 209

(1968) (citation omitted).               The test for whether a defendant's

presence     is     required      at     an   in-chambers      hearing,      or   at     a

conference in the courtroom after the judge has emptied it of

spectators, is whether his absence would deny him a fair and

just hearing.       Id. at 85.

      ¶2     The    defendant,         Demone     Alexander,    was     charged    with

first-degree intentional homicide and his case was tried to a

jury.1     During the trial, two jurors at separate times approached

the bailiff to discuss a potential bias issue.                      One juror stated

that she knew a woman in the courtroom gallery, who turned out

to be the mother of Alexander's child, and another said that he

knew one of the defense's witnesses.                 To resolve the matter, the

judge held separate in-chambers discussions with both jurors to

determine the extent of the bias.                  Both of Alexander's attorneys

and   the    prosecutor        were      present     for   these      meetings,        but

Alexander was not.          The court ultimately struck the jurors, over

defense counsel's objections.
      ¶3     Alexander      was        convicted    and    sought      postconviction

relief, arguing that he had a constitutional and statutory right
to be present during the in-chambers discussions.                       He argued the

constitutional right is grounded in the Sixth and Fourteenth
Amendments     to    the   United       States     Constitution     and     Article    I,

Section 7 of the Wisconsin Constitution.                    The statutory right,

      1
          The Honorable Carl Ashley presiding.

                                              2
                                                             No.   2011AP394-CR



he   alleged,      stemmed    from   Wis.     Stat.   § 971.04(1)(c),2   which

provides    that    "the     defendant   shall   be   present . . . [d]uring

voir dire of the trial jury."                The circuit court denied the

motion and the court of appeals affirmed.

     ¶4     We hold that the circuit court's decision to exclude

Alexander from the in-chambers meetings with the jurors did not

deprive Alexander of a fair and just hearing.                 As the United

States Supreme Court has outlined, the factors a trial court

should consider in determining whether a defendant's presence is

required to ensure a fair and just hearing include whether the

defendant could meaningfully participate, whether he would gain

anything by attending, and whether the presence of the defendant

would be counterproductive.           United States v. Gagnon, 470 U.S.

522, 527 (1985) (per curiam).                Alexander would not have been

able to contribute anything to the circuit court's inquiry of

the jurors, and may in fact have intimidated them if he had been

present.      Additionally,       both   of    Alexander's   attorneys    were

present at the in-chambers meetings.              Alexander's absence thus

did not violate his constitutional right to be present at his

trial.

     ¶5     We also hold that Alexander's statutory right under

Wis. Stat. § 971.04(1)(c) to be present during voir dire was not

violated.    Voir dire is a preliminary examination of whether an

individual can serve on a jury.               In this case, the trial had


     2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version.

                                         3
                                                                               No.     2011AP394-CR



already commenced and the jurors had already been selected when

the bias issue arose.                    Section 971.04(1)(c) is thus inapplicable

here.        The decision of the court of appeals is affirmed.

                   I.        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        ¶6       Demone        Alexander         was       charged      with         first-degree

intentional homicide in the shooting death of Kelvin Griffin.

The facts surrounding the shooting are not at issue in this

case.        Instead, the questions presented center around the trial

judge's       separate         in-chambers         discussions       with   members         of   the

jury,         which          took        place     outside        Alexander's           presence.

Accordingly,            we     recite       only     the    facts       relating       to    those

discussions.

        ¶7       Near the end of Alexander's seven-day trial, Juror 10

approached the bailiff and informed him that she knew a woman

who was seated in the gallery.                      The trial judge then held an on-

the-record         meeting          in    his    chambers        with    the     juror.          The

prosecutor and both of Alexander's attorneys were present as

well.        At the outset of the gathering, the circuit court asked
Alexander's        counsel          if     she   would      be   willing       to     "waive     the

appearance of Mr. Alexander for purposes of this?"                                   The attorney
replied, "We do."3

        ¶8       The court proceeded to ask the juror how she knew the
woman       in   the     gallery.            Juror     10    identified         the     woman    as

"Monique," and said that "[s]he's an old friend of the family.

        3
       Alexander had two attorneys representing him at his trial.
To avoid unnecessary confusion and for the sake of brevity, we
will refer to them as "counsel" where appropriate.

                                                   4
                                                                     No.     2011AP394-CR



We grew up together."             As Juror 10 further elaborated, Monique

"went    to     school   with     my   sister . . . .          [S]he's       really    my

sister's friend."        However, due to a falling out between Monique

and Juror 10's sister, Juror 10 had not seen Monique in six

months.       Finally, Juror 10 stated that she did not know what

Monique's connection to the case was.

        ¶9    After Juror 10 left chambers, the court was informed

that Monique had a child with Alexander.                   Counsel for Alexander

argued that this fact was not a problem, as Juror 10 "doesn't

have any idea why Monique is even here.                   So if she doesn't know

anything about it, there's no relationship and no prejudice and

no bias and no nothing."           The prosecutor, though, argued that it

would be "dangerous to keep her on the jury" because she might

discover      the    connection    between      Monique      and    Alexander.        The

court then ordered Alexander's attorneys to talk to their client

about his relationship with Monique and his knowledge of Juror

10's     connection      with      Monique.          After     an     off-the-record

discussion with their client, counsel for Alexander confirmed
that Monique "is, in fact, his baby's momma.                         But he has not

seen her in sixteen months.               He's not close to her.               [And he]
does not know the juror.           He's never seen her before."

        ¶10   The court put off the decision on whether to remove
Juror 10 and proceeded to address another potential juror bias

issue    that    arose   that     day.      The   defense      had    just    called    a
witness named Jesse Sawyer to dispute the statement of one of

the    State's      witnesses   who      testified    that    Alexander       gave    the

murder weapon to Sawyer to hide.                     After Sawyer finished his
                                            5
                                                                      No.    2011AP394-CR



testimony      that   day,    Juror   33     told    the   bailiff     that    he    knew

Sawyer.        The    circuit   court,       repeating       the   process     it    used

earlier, invited the attorneys and Juror 33 into chambers to

inquire on the record as to the juror's relationship with the

witness.       Upon inquiry from the court, Juror 33 described his

relationship with Sawyer as one based on a mutual interest in

Harley-Davidson motorcycles.               Sawyer does custom work on the

motorcycles, Juror 33 continued, and Juror 33 would "go by his

house because I'm interested in how he does the bikes because I

want to purchase me a Harley-Davidson.                   I wanted him to do some

work on my bike."            Juror 33 further stated that he had known

Sawyer for three years, and had seen him recently at a party and

at a Harley-Davidson event.            Juror 33 did not, however, consider

Sawyer a personal friend, but rather an acquaintance he would go

to if he needed work done on his motorcycle.

     ¶11       Following     Juror    33's       departure     from    chambers,         the

judge asked each side to state a position on whether he needed

to be removed.          Defense counsel argued against removal, while
the prosecutor equivocated: "I'm uncomfortable with any juror

knowing    a    witness . . . .        [B]ut       I'm   not   asking       that    he   be
struck at this time, and I reserve.                   If we make it to the end

with 14 [jurors], I don't know what I would do at that point."4
The court then decided it would wait until the conclusion of


     4
       Fourteen jurors were selected so that two could be
designated as alternates.    If at the end of the trial all 14
jurors still remained, the circuit court planned to randomly
pick two to be removed before deliberations.

                                             6
                                                                          No.     2011AP394-CR



Alexander's trial to determine whether it had to remove either

juror.

       ¶12    After a weekend break, the trial resumed for closing

arguments.      That morning, however, Juror 10 called another juror

to report that she would not be able to make it to court that

day because her boyfriend had been in a car accident.                               Juror 10

subsequently arrived, and the judge decided to conduct another

in-chambers      discussion          with    her     to    ask     her    about     the    car

accident      and     to     further      inquire         into     any    potential       bias

resulting from her relationship with Monique.                             Once again the

lawyers——but not Alexander——were present.

       ¶13    When asked by the court whether she could be impartial

in light of her relationship with Monique, Juror 10 replied, "I

definitely can . . . .              I don't talk to her at all.                  It doesn't

bother me.       I'll be able to go ahead and directly have my own

decision."          The     prosecutor       asked    her        why    she    reported    her

relationship with Monique to the bailiff and Juror 10 replied,

"I felt it was very important because I didn't know if she was
going to try to retaliate and try to contact me and ask me about

some   things       [about    the    case]     or    not."         And    in    response    to
further questions from the prosecutor, Juror 10 said she thought

Monique was somehow connected to Alexander's murder trial.
       ¶14    The circuit court, pointing to Juror 10's concern that

Monique might "retaliate" against her, struck her from the jury.
Defense      counsel       noted    her     objection      on     the    record,    and    the

discussion moved to Juror 33.                  The State requested removal and

Alexander's      attorney          objected,       stating       that    "I     don't   think
                                               7
                                                                           No.       2011AP394-CR



there's      any     basis   on    this      record   for    him      to       be    struck   for

cause."       The court sided with the prosecution and removed Juror

33   for     cause     based      on   his     relationship        with        the    defense's

witness.

       ¶15     Alexander was found guilty of first-degree intentional

homicide       and     possession         of    a   firearm      by        a    felon.        He

subsequently filed a motion for postconviction relief, arguing

that he had a constitutional and statutory right to be present

when the court questioned Jurors 10 and 33.5                           According to the

motion,      the     circuit      court's      in-chambers      discussions            with   the

jurors violated his due-process rights and his right to a fair

and impartial jury.               See U.S. Const. amends. VI, and XIV, § 1;

Wis.       Const.    art.    I,    § 7.        As   for   the   statutory            violation,

Alexander pointed to Wis. Stat. § 971.04(1)(c), which provides

that "the defendant shall be present . . . [d]uring voir dire of

the trial jury."            The circuit court denied the motion, reasoning

that because the in-chambers conversations were not part of the

jury-selection process, Alexander's constitutional and statutory

rights were not violated.

       ¶16     Alexander appealed and the court of appeals affirmed

in an unpublished opinion.                   State v. Alexander, No. 2011AP394-

CR, unpublished slip. op. (Wis. Ct. App. May 8, 2012).                                        The

court of appeals concluded that because the in-chambers meetings

with the jurors occurred after voir dire, they were permissible,


       5
       Alexander raised other issues which are not germane to
this appeal.

                                                8
                                                                        No.     2011AP394-CR



for Alexander's attorney "was entitled to make the strategic

decision    to     waive     Alexander's       presence          at    the     in-chambers

meetings with the jurors."            Id., ¶17 (citation omitted).

     ¶17    We   granted      Alexander's       petition         for    review    and   now

affirm his conviction, although on different grounds than the

court of appeals.

                               II.    STANDARD OF REVIEW

     ¶18    This case requires us to determine whether Alexander

had a constitutional or statutory right to be present during the

court's    in-chambers        discussions       with       the    two    jurors.        The

interpretation and application of constitutional and statutory

provisions are questions of law that we review de novo.                               State
v. Hamdan, 2003 WI 113, ¶19, 264 Wis. 2d 433, 665 N.W.2d 785.

                                      III. DISCUSSION

     ¶19    We conclude that on the facts of this case, Alexander

was not denied a fair and just hearing by virtue of his absence

from the circuit court's separate in-chambers discussions with

two jurors.        Moreover, we hold that Alexander did not have a

statutory   right       to   attend    the     discussions            under    Wis.   Stat.

§ 971.04(1)(c)      because      removal       of    the    jurors       did    not   occur

during voir dire.

      A.     Alexander's Absence From the In-Chambers Hearings Did

   Not Violate His Constitutional Right to be Present at Trial

                   1.      Applicable Constitutional Provisions

    ¶20     Both    the      United   States        and    Wisconsin         Constitutions

contain a right to due process.                The Fourteenth Amendment to the

United States Constitution prevents a state from depriving "any
                                           9
                                                                             No.        2011AP394-CR



person of life, liberty, or property, without due process of

law," while Article I, Section 8 of the Wisconsin Constitution

reads:      "No person may be held to answer for a criminal offense

without due process of law . . . ."                           Due process guarantees a

defendant "the right to be present at any stage of the criminal

proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure."6                          Stincer, 482 U.S.

at 745.

      ¶21     A criminal defendant's right to an impartial jury, on

the   other     hand,    flows    from    the          Sixth    Amendment          to       the    U.S.

Constitution      and      Article       I,     Section          7     of    the         Wisconsin

Constitution.         State    v.      Mendoza,         227    Wis.    2d    838,           847,    596
N.W.2d    736    (1999).         The    Sixth       Amendment,         in    relevant             part,

states:      "In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the   State     and     district       wherein         the     crime    shall           have       been

committed . . . ."            Similarly,           Article      I,     Section          7    of     the

Wisconsin Constitution provides:                       "In all criminal prosecutions

the   accused     shall     enjoy       the     right . . . in              prosecutions             by

indictment,      or     information,      to       a    speedy       public    trial           by    an

impartial jury of the county or district wherein the offense

      6
       A defendant's right to be present at his trial is also
rooted in the Sixth Amendment's Confrontation Clause.     United
States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam). But in
a situation (such as the one at issue in this case) where the
defendant is not confronting witnesses or evidence against him,
the right is located in the Due Process Clause of the Fourteenth
Amendment.    Kentucky v. Stincer, 482 U.S. 730, 745 (1987);
United States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993).

                                              10
                                                                      No.    2011AP394-CR



shall have been committed . . . ."                  When "the language of [a]

provision in the state constitution is virtually identical to

that of the federal provision or where no difference in intent

is   discernible,          Wisconsin   courts    have     normally     construed      the

state       constitution     consistent      with   the      United   States    Supreme

Court's construction of the federal constitution."                             State v.

Agnello, 226 Wis. 2d 164, 180, 593 N.W.2d 427 (1999) (internal

quotation          marks   and   citations      omitted);      see    also    State   v.

Schaefer, 2008 WI 25, ¶62, 308 Wis. 2d 279, 746 N.W.2d 457

(determining that the compulsory-process clauses in the Sixth

Amendment and Article I, Section 7 of the Wisconsin Constitution

are cognate provisions).               Wisconsin courts may also look for

guidance       from    lower     federal   courts       in    interpreting      cognate

constitutional provisions.7            See Rao v. WMA Secs., Inc., 2008 WI

73, ¶¶47-50, 310 Wis. 2d 623, 752 N.W.2d 220.

              2.     Alexander's Right to be Present at Trial Was Not

                                       Violated

        ¶22    An accused has a constitutional right "to be present

during his trial, and his right to be present at the trial

includes the right to be present at proceedings before trial at


        7
       "Cognate provision" refers to the parts of a state
constitution that are modeled on the federal Bill of Rights.
Stanley E. Adelman, Towards an Independent State Constitutional
Jurisprudence or How to Disagree with the Supreme Court and How
Not To, 2002 Ark. L. Notes 1, 1 ("State constitutions typically
contain 'cognate' provisions which are based on and worded
similarly, if not identically, to the various guarantees of
liberty contained in the Bill of Rights of the United States
Constitution.") (footnote omitted).

                                           11
                                                                         No.    2011AP394-CR



which     important        steps   in    a     criminal      prosecution        are     often

taken."       Leroux v. State, 58 Wis. 2d 671, 689, 207 N.W.2d 589

(1973) (emphasis added) (citation omitted).                         As for conferences

during the trial, we have "recommended" that these "rarely" be

held    without      the     defendant       present.        Id.    at    690    (internal

quotation marks and citation omitted).                       "However, the presence

of [a] defendant is constitutionally required only to the extent

a fair and just hearing would be thwarted by his absence. . . .

The constitution does not assure 'the privilege of presence when

presence would be useless, or the benefit but a shadow.'"                                Id.
(quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934)),

overruled      on    other    grounds        by    Malloy   v.     Hogan,      378    U.S.   1

(1964)).       Furthermore, "whether the defendant has a right to

attend a conference in chambers . . . admits of no categorical

'yes'    or   'no'    answer.       A    conference         in   chambers       might   well

constitute part of the trial depending upon what matters are

discussed or passed upon.               Likewise, such a conference might not

be part of the trial in the sense of one's constitutional right

to be present."        Ramer, 40 Wis. 2d at 84.

        ¶23   We acknowledge that some of the language in our case

law has been in tension with the concept that a defendant does

not have an absolute constitutional right to attend every in-

chambers conference.           For example, in State v. Burton, 112 Wis.

2d     560,   563,     334     N.W.2d        263    (1983),        the   circuit        court

communicated twice with the jury——outside the presence of either

the prosecutor or defense counsel——during deliberations.                                 Id.

The    discussions      concerned        the      process    for    turning      over    the
                                              12
                                                                            No.     2011AP394-CR



sealed verdict to the court as well as scheduling dinner and

hotel    arrangements         in    the   event      the   jury       could       not   reach   a

verdict by the end of the day.                       Id. at 563-64.            We held that

"communication between a judge and a jury, while the jury is

deliberating, outside the courtroom and outside the presence of

the    defendant       and     defense        counsel    constitutes          constitutional

error, if the defendant has not waived the constitutional right

to be present."         Id. at 570.

        ¶24    This holding, however, was in direct contradiction to

our decision just three years earlier in May v. State, 97 Wis.

2d    175,     293     N.W.2d       478       (1980).          In    that     case,      during

deliberations the jury asked the circuit court the following

question       related       to    the     charged       offense       of     delivering        a

controlled substance as a party to a crime:                               "'By withdrawing

from a conspiracy has a person removed themselves (sic) from

aiding and abetting the commission of a crime?'"                                   Id. at 180

(quoting the jury note) ("sic" in original).                          The court answered

the     question      "no,"       without      informing       the     defendant        or   his

attorney.       Id.     Two issues related to this incident were raised

on    appeal:    (1)     did      the    circuit     court      err    in     answering      the

question in the absence of counsel?; and (2) did the circuit

court    err    in     answering        the    question    in       the    absence      of   the

defendant?       Id.     As to the first question, we held that because

"there was no waiver in this case, counsel should have been

given    the    opportunity         to     confer       with    the       court     about    the

appropriate response to be given to the jury's question.                                 It was

error    for    the     trial      court       to    answer     the       question      without
                                                13
                                                                      No.       2011AP394-CR



notifying counsel."             Id. at 183-84.         On the second question,

however, we held that, "[a] fair and just trial was not thwarted

by the court's answering that question outside the defendant's

presence.     The question posed by the jury dealt with a question

of law and the trial court answered it correctly."                          Id. at 186.

Additionally,       "[n]othing        transpired      which    was    prejudicial         or

harmful to the defendant's cause, especially in view of the fact

that   the    trial      court    subsequently        reread    to     the       jury    the

instructions concerning party to a crime."                      Id.     All that due
process      and     Wis.     Stat.      § 971.04      required       was       that     the

defendant's attorney be present.                Id. at 185-88.

       ¶25   As Burton and May are in conflict, we must overrule

one of them.       We now hold that May is more soundly reasoned and

more consistent with the precedent of this court and that of the

U.S. Supreme Court.             As we have stated, "the presence of [a]

defendant is constitutionally required only to the extent a fair

and just hearing would be thwarted by his absence . . . .                                The

constitution does not assure 'the privilege of presence when

presence     would      be    useless,    or    the   benefit     but       a    shadow.'"

Leroux, 58 Wis. 2d at 690 (quoting Snyder, 291 U.S. at 106-07).

Adopting a requirement that a defendant must always be present

whenever a court speaks with members of the jury would render

the    above-quoted          language    from     Leroux      meaningless.              More

importantly,       it   would    impose    an    unreasonable        and     unnecessary

burden upon trial judges, who would be forced to ensure the

presence of defendants at meetings where they had nothing to

contribute to their own cause, and where their presence could in
                                           14
                                                           No.     2011AP394-CR



fact be highly counterproductive.            The Constitution does not

require criminal proceedings to be undermined so significantly

in this way, and for so little benefit to the defendant.                  That

is why our better-reasoned         case   law   provides   that    whether   a

defendant must be present when a court meets with members of the

jury "admits of no categorical 'yes' or 'no' answer."               Ramer, 40

Wis. 2d at 84.        All that is required when the court communicates

with members of the jury is that the defendant's attorney be

present.     See May, 97 Wis. 2d at 183-84.

       ¶26   Our carelessness in Burton also led this court astray

in State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d

74, a case Alexander relies on heavily.          In that case, the issue

once again was the propriety of "the circuit court's ex parte

communications with the jury during deliberations outside the

presence of the defendant and without notice to or consultation

with the defendant."        Id., ¶23.     We began our analysis on this

issue by quoting the U.S. Supreme Court edict that "[o]ne of the

most basic of the rights guaranteed by the Confrontation Clause

is the accused's right to be present in the courtroom at every

stage of his trial."        Id., ¶39 (quoting Illinois v. Allen, 397

U.S.    337,    338     (1970)   (alteration     in   original)).          The

Confrontation Clause, however, does not apply when the defendant

is not confronting witnesses or evidence against him.                  United

States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993).                 As Anderson

centered on the defendant's right to be present when the trial

court spoke with the jury during deliberations, its reliance

upon a Confrontation Clause case was incorrect.
                                     15
                                                                             No.     2011AP394-CR



       ¶27    We then moved to a discussion of Burton and Williams

v. State, 40 Wis. 2d 154, 161 N.W.2d 218 (1968), and concluded

that    "an       accused      has     a    right     to    be    present         whenever    any

substantive step is taken in the case."                           Anderson, 291 Wis. 2d

673,    ¶42        (emphasis         added).            This      court      never      defined

"substantive step," but nonetheless concluded——ipse dixit——that

"[a] substantive step in a trial for which an accused has a

right to be present includes the circuit court's communications

with    the       jury     during      deliberations."                Id.,    ¶43     (footnote
omitted).         For support of this statement we cited to Burton and

a   slew     of    court      of   appeals      cases      relying     on    that     decision.

Anderson, 291 Wis. 2d 673, ¶43 n.20.                        At the end of that string

cite, though, we tacitly acknowledged but did not confront the

fact that May and Burton conflicted.                       Anderson, 291 Wis. 2d 673,

¶43 n.20.

       ¶28    What       is    more,       Anderson   never       cited      to    Leroux,    nor

Ramer, which made clear that a defendant has a due-process right

to be present at an in-chambers meeting only if his absence

would deny him a "fair and just hearing."                             See Leroux, 58 Wis.

2d at 690; Ramer, 40 Wis. 2d at 85.                        With a sleight of its hand,

Anderson      changed         what   should      have      been   a    fact-specific         due-

process inquiry (did the communication between the judge and

jury   deny       the    defendant         a   fair   and      just    hearing?)       into   an

absolute Confrontation Clause right to be present whenever the

trial court speaks with members of the jury.                              We thus withdraw

all language from Anderson intimating such a right.                                     See 291

Wis. 2d 673, ¶¶35-44.
                                                16
                                                                                 No.    2011AP394-CR



       ¶29       Federal    case    law     also     supports         our    conclusion        that

Burton and Anderson are outliers.                         The U.S. Supreme Court has

said   that        the    "mere    occurrence        of    an    ex     parte          conversation

between      a     trial    judge     and      a    juror       does    not        constitute      a

deprivation of any constitutional right.                               The defense has no

constitutional right to be present at every interaction between

a judge and juror, nor is there a constitutional right to have a

court reporter transcribe every such communication."                                       Gagnon,

470 U.S. at 526 (internal quotation marks and citation omitted).

And    in    a     case    where    the       defendants         were       excluded       from    a

conference concerning whether to dismiss a group of jurors, the

United States Court of Appeals for the Third Circuit put it

persuasively and succinctly:                       "It is clear that there is no

constitutional            right    for    a    defendant         to     be       present     at    a

conference in chambers concerning dismissal of a juror."                                    United

States v. Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980); see

also McCoy, 8 F.3d at 497.                    All that the Constitution requires

at such a conference is the presence of defense counsel.                                          See

Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir. 1970).

                   3.     Alexander Received a Fair and Just Hearing

       ¶30       While Alexander had no automatic constitutional right

to be present during the circuit court's in-chambers discussions

with Jurors 10 and 33, his presence was required "to the extent

a   fair     and    just    hearing       would     be    thwarted          by    his    absence."

Leroux, 58 Wis. 2d at 690 (citation omitted).                                Factors a trial

court may consider in determining whether a defendant's presence

is required at an in-chambers conference with a juror to ensure
                                               17
                                                                  No.     2011AP394-CR



a "fair and just hearing" include whether the defendant could

meaningfully        participate,       whether   he   would     gain    anything   by

attending, and whether the presence of the defendant would be

counterproductive.8           See Gagnon, 470 U.S. at 527.         In a situation

such as the present case, where a judge is conducting an in-

chambers meeting to determine whether a juror is biased based on

an account of the juror's connection to the case, the presence

of the defendant would in no way help to resolve the issue and

may    actually       hinder    the    proceeding.       There    was     presumably

nothing Alexander could have contributed on either the subject

of     Juror       10's    relationship     with      Monique    or     Juror    33's

association with Sawyer, as Alexander has never alleged that he

was aware of these connections.                In fact, both jurors may very

well        have    been    intimidated        and    deterred     from     speaking

forthrightly about their potential bias with Alexander seated

only a few feet away.                Cf. United States v. Bertoli, 40 F.3d
1384, 1397 (3d Cir. 1994) ("[W]e doubt whether the jurors would

have been as comfortable discussing their conduct [in chambers]

had [the defendant] been present.") (footnote omitted).                          This

concern is particularly acute in Juror 10's case, as she was

explicitly afraid of "retaliation" from a woman who turned out

to     be     the    mother     of    Alexander's      child.          Additionally,

Alexander's attorneys were permitted to leave chambers to speak

with him whenever they needed his input.                 Alexander was thus not


       8
       This list is not exhaustive, as future cases will present
circuit courts with facts that cannot be anticipated.

                                          18
                                                                          No.       2011AP394-CR



denied a "fair and just hearing" by virtue of his absence from

the judge's chambers.9

                   B. Wis. Stat. § 971.04(1)(c) Does Not Apply

     ¶31       Alexander        also    asserts    that   he   had        a       right   to    be

present       at     the   in-chambers        meetings       based    on           Wis.    Stat.

§ 971.04(1)(c),            which        mandates      that      a         defendant            "be

present . . .           [d]uring voir dire of the trial jury."                             "Voir

dire" is not defined in the statute, but Black's Law Dictionary

defines       it   as    "[a]    preliminary       examination       of       a    prospective

juror by a judge or lawyer to decide whether the prospect is

qualified and suitable to serve on a jury."                     1710 (9th ed. 2009)

(emphasis added).           Other sources define it similarly.                       See James

H. Gold, Voir Dire:                Questioning Prospective Jurors on Their

Willingness to Follow the Law, 60 Ind. L.J. 163, 163 (1985)

("During       the    pre-trial        jury   selection    process        known       as    voir

dire,       criminal     defendants      often     seek   to   question            prospective

jurors as to their willingness and ability to follow specific

rules of law.") (footnote omitted); Robert E. Larsen, Navigating

the Federal Trial, § 4:1 (2012 ed.) ("Voir dire is a preliminary

        9
        Rather than grappling with any of the factors articulated
by the Supreme Court in United States v. Gagnon, 470 U.S. 522,
527 (1985) (per curiam) to determine whether Alexander was
denied a fair and just hearing, Justice Crooks nakedly asserts
that "Alexander's presence at these conferences was critical to
the fairness of the proceedings." Justice Crooks's concurrence,
¶71.   Justice Crooks does not answer what Alexander could have
contributed to the in-chambers conferences, nor does he address
the threat that would have been posed to the jurors' candor had
they been forced to discuss their potential bias issues with an
accused murderer seated a few feet away.    See Gagnon, 470 U.S.
at 527.

                                              19
                                                                        No.    2011AP394-CR



examination        of    potential     jurors         by   a   judge     or    lawyer    to

determine     whether      the    prospect       is    qualified    and       suitable   to

serve on a jury.").              Here, the examination of Jurors 10 and 33

occurred during the trial and after both had been selected as

jurors.       The in-chambers hearings were thus not part of voir

dire.        The   court    of    appeals    cases         relied   on    by    Alexander

supporting the proposition that a defendant has a right to be

present during in-chambers voir dire are as a result inapposite.

See State v. David J.K., 190 Wis. 2d 726, 735-36, 528 N.W.2d 434
(Ct. App. 1994) (holding that the defendant had a constitutional

and   statutory         right    to   be   present         when   the    circuit     court

privately questioned three jurors in chambers during the middle

of voir dire); see also State v. Tulley, 2001 WI App 236, ¶¶6,

10, 248 Wis. 2d 505, 635 N.W.2d 807 (reaffirming David J.K.).10




        10
       Wisconsin Stat. § 971.04(1)(b) protects a defendant's
right to be present "[a]t trial." Justice Crooks contends that
Alexander had a right to attend the in-chambers discussions
pursuant to that provision.   Justice Crooks's concurrence, ¶58.
However, Alexander did not make that argument before this court.
We therefore do not address the question. See State v. Johnson,
153 Wis. 2d 121, 124, 449 N.W.2d 845 (1990) ("This court will
not consider the issues respondent wishes to have considered
unless they are asserted in the brief and fully discussed in
that brief to this court.").

                                            20
                                                      No.     2011AP394-CR



                             IV. CONCLUSION

     ¶32   We hold that the circuit court's decision to exclude

Alexander from the in-chambers meetings with the jurors did not

deprive Alexander of a fair and just hearing.         Alexander would

not have been able to contribute anything to the circuit court's

inquiry of the jurors, and may in fact have intimidated them if

he   had   been   present.   Additionally,     both   of     Alexander's

attorneys were present at the in-chambers meetings.          Alexander's

absence thus did not     violate   his   constitutional     right   to   be

present at his trial.


     Nonetheless,    Justice    Crooks   considers     the   issue
sufficiently pled because Alexander's brief here cites to State
v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, and
"Anderson   considers    both   a   defendant's    statutory   and
constitutional right to be present 'at trial.'"            Justice
Crooks's concurrence, ¶47.     True enough.    But Anderson also
considered "whether the circuit court committed error by failing
to make a record of or preserve a record of its statements or
comments to the jury relating to the case" under Wis. Stat.
§ 805.13, 291 Wis. 2d 673, ¶¶77-78, and "whether the circuit
court erred by refusing the jury's requests to have the
defendant's and the victim's in-court testimony read to it while
allowing the jury during deliberations to see and hear the
victim's videotaped interview."    Id., ¶82.   Alexander cited 21
other cases in the same brief, each of which presented separate
issues. It would be aberrant indeed to consider an issue raised
because a case cited in a litigant's brief mentioned the
particular issue.      Appellate courts have higher pleading
standards than this. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel's work, create the ossature for the argument, and put
flesh on its bones."); Rivera-Gomez v. de Castro, 843 F.2d 631,
635 (1st Cir. 1988) ("Judges are not expected to be mindreaders.
Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly . . . , or else forever hold
its peace.") (internal quotation marks and citation omitted).

                                   21
                                                                No.   2011AP394-CR



        ¶33    We also hold that Alexander's statutory right under

Wis. Stat. § 971.04(1)(c) to be present during voir dire was not

violated.       Voir dire is a preliminary examination of whether an

individual can serve on a jury.              In this case, the trial had

already commenced and the jurors had already been selected when

the bias issue arose.            Section 971.04(1)(c) is thus inapplicable

here.

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

affirmed.




                                        22
                                                                        No.    2011AP394-CR.ssa




       ¶34       SHIRLEY S. ABRAHAMSON, C.J.                 (concurring).            I agree

with and join Justice Crooks' concurrence.

       ¶35       I write separately to address the majority opinion's

misreading of Wis. Stat. § (Rule) 971.04(1)(c), majority op.,

¶¶5,       19,   38,   40,   and    to     explain        that    Wis.        Stat.   § (Rule)

971.04(1)(c) has to be read to give a defendant the right to be

present "when the jury is being selected."                        Here is why.

       ¶36       Wisconsin    Stat.       § 971.04(1)(c)          was    created      by   the

legislature.1          When created, Wis. Stat. § 971.04(1)(c) read as

follows:

       971.04 Defendant to be present. (1) Except as provided
       in subs. (2) and (3), the defendant shall be present:

                 . . . .

       (c) At all proceedings when the jury is being selected
       (emphasis added).
       ¶37       In 1997, in the exercise of its rule-making powers and

at the request of the Judicial Council, the Supreme Court (by

Supreme Court Order 96-08, eff. July 1, 1997) adopted numerous

provisions relating to juror use and management and amended the

legislatively created Wis. Stat. § (Rule) 971.04(1)(c) to read

as follows:

       971.04 Defendant to be present. (1) Except as provided
       in subs. (2) and (3), the defendant shall be present:

                 . . . .

       (c) During          voir    dire    of       the   trial    jury       (emphasis
       added).

       1
           § 63, ch. 255, Laws of 1969 (eff. July 1, 1970).

                                                1
                                                                    No.    2011AP394-CR.ssa


        ¶38    As a result of the Supreme Court's amendment of Wis.

Stat.       § 971.04(1)(c),     a    defendant's         right     to     be    present      is

stated in terms of "voir dire" instead of "when the jury is

being selected."          "Voir dire" ordinarily refers to the selection

of jurors before trial.              If the term "voir dire" is given this

limited meaning, the Court's change of the legislative language

curtailed      the    defendant's      legislatively          granted          right   to   be

present at all proceedings when the jury is being selected.

        ¶39    Such   a     curtailment      of    a    defendant's        legislatively

granted right arguably exceeds the Court's powers.                              The Supreme

Court may not promulgate rules that "abridge, enlarge or modify

the     substantive         rights     of    any       litigant."               Wis.   Stat.

§ 751.12(1).

        ¶40    Furthermore,     it    is    obvious      that      the    Court     did     not

intend the rule to modify a defendant's substantive rights.2                                In

changing the language of Wis. Stat. § 971.04(1)(c), the court

did not have in mind a proceeding in which a challenge is made

to a juror mid-trial, as in the present case; such a challenge

is not a usual occurrence.

        ¶41    That   the    Supreme       Court   (and      the    Judicial        Council,

which       petitioned    for   the    change)         did   not    mean       to   limit    a

defendant's rights is clearly evidenced in the Judicial Council

Note appended to Supreme Court Order 96-08.



        2
       The court of appeals stated that it "perceive[d] no
substantive change in the statute" as a result of the rule
modification.   State v. Harris, 229 Wis. 2d 832, 839 n.3, 601
N.W.2d 682 (Ct. App. 1999).

                                             2
                                                                   No.    2011AP394-CR.ssa


       ¶42       The Judicial Council's proposed change in the language

of Wis. Stat. § 971.04(1)(c) explains that the change was meant

to clarify that a defendant has a right to be present only when

"the jurors themselves were present" and not during the initial

selection of names from lists, which ordinarily occurs before
                                                                                3
the defendant is charged or the trial jury is selected.

       ¶43       In   light    of   the    legislatively     created          right   of     a

defendant to be present at all proceedings when the jury is

being selected and the reason proffered by the Judicial Council

for the change of language in Wis. Stat. § 971.04(1)(c) proposed

to   the        Court,   I    conclude     that    the   language        of   Wis.    Stat.

§ (Rule) 971.04(1)(c) (incorporating the Supreme Court rule) has

to be interpreted to have the same meaning as the legislatively

created right of a defendant to be present at all proceedings

when the jury is being selected.

       ¶44       In-chambers        proceedings      with    jurors           present       to

determine which jurors will continue to serve on the jury, like

the one in the instant case, are proceedings during which the

jury       is   being    selected;    in   my     opinion,   the    defendant         had   a

statutory right to be present.


       3
           Judicial Council Note, 1996, Wis. Stat. § 971.04:

       This statute [sub. (1)(c)] defines the proceedings at
       which a criminal defendant has the right to be
       present.  The prior statute's [sub. (1)(c)] reference
       to "all proceedings when the jury is being selected"
       was probably intended to include only those at which
       the jurors themselves were present, not the selection
       of names from lists which occurs at several stages
       before the defendant is charged or the trial jury
       picked.

                                             3
                                                   No.   2011AP394-CR.ssa


     ¶45   With   this   explication   of   Wis.     Stat.     § (Rule)

971.04(1)(c), I join Justice Crooks' concurring opinion.4




     4
       I concur in the mandate because here the defendant chose
to waive his right (through counsel and his own actions) to be
present when the jury was being selected during trial.       Wis.
Stat. § 971.04(3).     The instant case does not present the
situation in which a defendant voluntarily absents himself
during jury selection before trial.    For a discussion of this
issue that is not presented in the instant case, see State v.
Koopmans, 210 Wis. 2d 670, 678-79, 563 N.W.2d 528 (1997); State
v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999);
State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (Ct. App. 1994).

                                 4
                                                                 No.   2011AP394-CR.npc




     ¶46    N. PATRICK CROOKS, J.               (concurring).          Alexander had

both a statutory and a constitutional right to be present at

each of the in-chambers conferences that occurred with sitting

jurors    during    his   trial    for    the     purpose   of     determining     the

composition of the jury.           His rights were waived for him by his

counsel and by his own actions in voluntarily absenting himself.

The Wisconsin legislature gave him the statutory right to be

present "at trial,"1 and the in-chambers conferences in question

clearly    occurred      "at    trial."        Additionally,      Alexander     had   a

constitutional right of due process to be present at the in-

chambers conferences because the circumstances of this case put

it into the category of cases where "a fair and just hearing

would be thwarted by his absence."2

     ¶47    I write separately to address a statutory requirement

that entitles a defendant to be present in a judge's chambers

when the judge communicates with members of the jury where, as

in this case, that communication is part of a determination of

which jurors will continue to serve on the jury.                       It would seem

disingenuous       for    the     court     not    to   consider         Wis.    Stat.

§ 971.04(1)(b) when discussing whether Alexander has a statutory

right to be present at the                in-chambers   conferences         at issue


     1
       Wis. Stat. § 971.04(1)(b). All citations to the Wisconsin
Statutes reference the 2011-2012 version.
     2
       Snyder      v. Massachusetts, 291 U.S. 97, 108 (1934),
overruled on       other grounds by Malloy v. Hogan, 378 U.S. 1
(1964).

                                           1
                                                                         No.   2011AP394-CR.npc


under Section 971.04.            Counsel for Alexander relied on State v.

Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, in both

his   brief    and      at   oral     argument.         Anderson         considers    both    a

defendant's statutory and constitutional right to be present "at

trial."

      ¶48     The    statute     at      issue      today    is    not      complicated;     it

simply provides a defendant with the right to be present at

trial.        In     fact,      the      State      agreed     that         the   in-chambers

discussions in question happened "at trial."                             The definition of

what constitutes "at trial" is settled and uncontroversial, and

it certainly encompasses the in-chambers conferences at issue in

this case.

      ¶49     The majority errs in concluding that Alexander had no

constitutional          right       to     be       present        at    the      in-chambers

conferences        at   issue.        In   doing      so,     it     abandons      principles

articulated in State v. Anderson,3 which is a longstanding, well-

reasoned precedent from this court.                         An in-chambers conference

that deals with the ability of sworn jurors to continue to serve
on the jury is an exceedingly important occurrence in a criminal

trial, and a defendant's absence from it could frustrate his or

her ability to have a fair and just hearing.                            Therefore, I would

hold that Alexander had a constitutional due process right to be

present at the in-chambers conferences at issue.

      ¶50     Even      though      Alexander        had      both      a      statutory   and

constitutional right to be present at all of the in-chambers


      3
          State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d
74.

                                                2
                                                            No.   2011AP394-CR.npc


discussions concerning an individual juror's ability to remain

on the jury, he chose to waive those rights through counsel and

through    his   own    actions.      Therefore,      the   court    of    appeals

correctly    denied     Alexander's   motion    for    a    new   trial,    and   I

respectfully concur.

                       I. ALEXANDER'S STATUTORY RIGHT

     ¶51    Wisconsin     Stat.    § 971.04    provides      a    defendant   the

right to be present during certain enumerated proceedings, at

trial, and at sentencing.4         This statutory right clearly includes

a right to be present at trial and at voir dire.




     4
         Wis. Stat. § 971.04 provides:

      (1) Except as provided in subs. (2) and (3), the defendant
shall be present:

     (a) At the arraignment;

     (b) At trial;

     (c) During voir dire of the trial jury;

     (d) At any evidentiary hearing;

     (e) At any view by the jury;

     (f) When the jury returns its verdict;

     (g) At the pronouncement of judgment and the imposition of
     sentence;

     (h) At any other proceeding when ordered by the court.

      (2) A defendant charged with a misdemeanor may authorize
his or her attorney in writing to act on his or her behalf in
any manner, with leave of the court, and be excused from
attendance at any or all proceedings.

                                       3
                                                                   No.    2011AP394-CR.npc


       ¶52      We    have    interpreted        the    language     in     Wis.   Stat.

§ 971.04        and   explicitly      held       that   the   statute       provides    a

defendant with enumerated statutory rights and further explains

when       a   defendant     may   voluntarily      absent    himself      or   herself.

State v. Koopmans, 210 Wis. 2d 670, 679, 563 N.W.2d 528 (1997).

In Koopmans, the court concluded that the use of "shall" in the

statutory language means "mandatory" unless one of the statutory

exceptions found in Section 971.04(2)-(3) applies.5                             In other




     (3) If the defendant is present at the beginning of the
trial and thereafter, during the progress of the trial or before
the verdict of the jury has been returned into court,
voluntarily absents himself or herself from the presence of the
court without leave of the court, the trial or return of verdict
of the jury in the case shall not thereby be postponed or
delayed, but the trial or submission of said case to the jury
for verdict and the return of verdict thereon, if required,
shall proceed in all respects as though the defendant were
present in court at all times. A defendant need not be present
at the pronouncement or entry of an order granting or denying
relief under s. 974.02, 974.06, or 974.07. If the defendant is
not present, the time for appeal from any order under ss.
974.02, 974.06, and 974.07 shall commence after a copy has been
served upon the attorney representing the defendant, or upon the
defendant if he or she appeared without counsel. Service of such
an order shall be complete upon mailing. A defendant appearing
without counsel shall supply the court with his or her current
mailing address. If the defendant fails to supply the court with
a current and accurate mailing address, failure to receive a
copy of the order granting or denying relief shall not be a
ground for tolling the time in which an appeal must be taken.
       5
        Wisconsin Stat. § 971.04(2) provides an exception for
misdemeanor charges and is inapplicable to this case.

                                             4
                                                          No.   2011AP394-CR.npc


words, the use of "shall" in Section 971.04 conveys a right to a

defendant to be present at his or her trial.6

     ¶53    As the majority opinion outlines, the circuit judge

met with two sitting jurors separately and in chambers toward

the end of Alexander's trial.             All of these conferences took

place in the presence of the Assistant District Attorney and

defense counsel, but Alexander was not present for any of the

conferences.     In the first in-chambers conference, the circuit

judge questioned Juror 10 about her relationship with a woman

that the juror had recognized in the courtroom's gallery.                   The

second     in-chambers   conference       involved     Juror    33.       After

observing a particular witness's testimony, this juror indicated

that he and the witness were acquainted.              In a third in-chambers

conference, the court posed additional questions to juror 10

regarding her relationship with the woman she knew who had been

observing the trial.       All   three     of   the    conferences    occurred

after the jury had been sworn and, in fact, dealt with questions

surrounding    whether   the   two   particular       sitting   jurors    could

continue their jury service.

     ¶54    The separate in-chambers conferences with two sitting

jurors at issue today certainly took place during Alexander's

trial.     We have previously defined the meaning of trial for the

purposes of Wis. Stat. § 971.04(1)(b).           State v. Anderson, 2006


     6
       Whether Alexander waived his right to be present at trial
ultimately depends    on   whether  he “voluntarily absent[ed]
himself” from his trial as permitted by Wis. Stat. § 971.04(3).
I am satisfied that Alexander did, in fact, voluntarily absent
himself from the in-chambers conferences at issue here.

                                      5
                                                                  No.   2011AP394-CR.npc


WI 77, ¶42, 291 Wis. 2d 673, 717 N.W.2d 74.                        In Anderson, the

court defined trial as beginning with "the commencement of jury

selection" and going "through the final discharge of the jury

and at any time an action is taken affecting the accused." Id.

(citing Williams v. State, 40 Wis. 2d 154, 160, 161 N.W.2d 218

(1968)); see also State v. Miller, 197 Wis. 2d 518, 521-22, 541

N.W.2d 153 (Ct. App. 1995) ("[I]n a jury trial, 'the beginning

of the trial' occurs when jeopardy attaches; i.e., 'when the

selection of the jury has been completed and the jury sworn.'")

and Wis. Stat. § 972.07(2) (explaining that jeopardy attaches

"when the selection of the jury has been completed and the jury

sworn").           These   definitions   vary       slightly,     but    both   clearly

comport with the common understanding of the meaning of a trial.

In    addition,      both   definitions      squarely      place    the   in-chambers

conferences at issue, which occurred after the jury had been

sworn in and before the jury had been discharged, as occurring

during Alexander's trial.             Furthermore, the State's brief agreed

that the in-chambers conferences at issue occurred "at trial"

within the meaning of Section 971.04(1)(b).

          ¶55    We have never held that Wis. Stat. § 971.04(1)(b) does

not    or       cannot   encompass   circumstances        where    a    circuit   court

communicates with individual members of the jury for purposes of

determining whether these individual jurors will remain on the

jury.       In May v. State, 97 Wis. 2d 175, 293 N.W.2d 478 (1980),

this       court     considered      whether       Section   971.04       requires     a

defendant's presence for the court to respond to questions posed

by    a    deliberating      jury.     The       jury's   question      concerned    the

                                             6
                                                                        No.    2011AP394-CR.npc


"withdrawing from a conspiracy."                        Id. at 180.           May held that

"the   communication           between      the      judge     and   jury     related      to    a

question of law, and therefore the defendant's absence at the

time of the communication did not result in a non-compliance

with the provisions of sec. 971.04."                       Id. at 188.

       ¶56     The holding in May simply provides that a defendant's

statutory right to be present during trial does not extend to

communications         between       a    judge      and     juror   or    jury     when    that

communication relates to a pure question of law submitted to the

court by a deliberating jury, and thus May is inapplicable to

this   case.          Here,    the       in-chambers         conferences      that    occurred

between      the circuit judge             and       the   individual      jurors     did not

relate    to    a     pure     question      of       law.      While      the     in-chambers

conferences at issue in this case could be viewed as presenting

a mixed question of law and fact to the circuit judge, the

conferences did not concern a pure question of law and did not

originate from the deliberating jury.                         Therefore, May is clearly

not controlling in this case.
       ¶57     The facts in May can be further distinguished from the

circumstances of this case.                  As noted, in May the court applied

Wis. Stat. § 971.04 to communications between a court and a

deliberating        jury      regarding          a    pure     question       of   law.         In

contrast,       the     case     at       hand       deals    with    three        in-chambers

conferences each with an individual sitting juror to consider

the appropriateness of each such juror continuing his or her

jury   service.         The communications                 between   the      judge   and   the

deliberating jury in May regarding a pure question of law merely

                                                 7
                                                                            No.   2011AP394-CR.npc


required the judge to communicate a yes or no answer to the

jury.     In contrast, the in-chambers conferences at issue today

relate    to       the   composition          of       the    jury,    an     issue    of    great

importance to any defendant.                  Communications between a judge and

juror(s) that could affect the jury's composition are distinct

from    communications           between      a    judge       and    a   deliberating       jury

relating to a pure question of law.                           These factual distinctions

further       support      the   conclusion            that    the    statutory       limitation

presented in May should not extend to this case.

        ¶58    I    agree        with     the          State     that       the     in-chambers

discussions         with    jurors       at       issue       occurred       "at    trial"    for

purposes of Wis. Stat. § 971.04.                        I would therefore hold that a

defendant has a clear statutory right under Section 971.04 to be

present at in-chambers discussions with jurors that occur during

the defendant's trial when those in-chambers conferences concern

the    appropriateness           of     sitting        jurors    continuing         their    jury

service.

       ¶59     While Wis. Stat. § 971.04(1)(b) provides a defendant
with a statutory right to be present at trial, which encompasses

all of the in-chambers conferences at issue here, there is a

statutory exception to this right that is applicable to this

case. Under Wis. Stat. § 971.04(3) a defendant may voluntarily

absent himself or herself from trial, as long as he or she was

present at the start of the trial.                            Here, the record indicates

that Alexander did, in fact, voluntarily absent himself from all

three in-chambers conferences.



                                                   8
                                                                                    No.    2011AP394-CR.npc


        ¶60    The record indicates that Alexander knew about each of

the in-chambers conferences that occurred with the two jurors.

In addition, there is no indication that Alexander objected to

being       absent      from     any      of    the       conferences.                Defense         counsel

represented Alexander in each of the conferences and during the

first       in-chambers        conference            waived         the    defendant's            presence

when asked by the circuit judge.                           A similar colloquy between the

circuit judge and Alexander's attorney does not appear on the

record        in    reference            to    either          of        the     other       in-chambers

conferences;            however,       there        is    no    indication                that   Alexander

asserted       his       right      to    be        present         in    the       second       or     third

conference.

       ¶61     The       record          indicates          that          Alexander's            attorney

conferred with him privately in reference to the in-chambers

conference with Juror 10.                           Additionally, the record reflects

that     Alexander's           attorney         informed            him        of    the     information

discussed          in    the     first        and     second        in-chambers             conferences.

Although the record does not disclose Alexander's conversations

about the third in-chambers conference with his attorney, there

is     no     indication         that         Alexander         did        anything          other       than

voluntarily             absent      himself              from       the         third        in-chambers

conference,          just      as   he        had    for    the          prior      two     conferences.

Strong inferences to that effect can properly be drawn from the

facts of record.

       ¶62     Although I would hold that Alexander had a statutory

right to be present at the in-chambers conferences that took

place during his trial, I believe the record demonstrates that

                                                      9
                                                                   No.      2011AP394-CR.npc


Alexander waived his statutory right by voluntarily absenting

himself knowing that his counsel would be present.

                   II. ALEXANDER'S CONSTITUTIONAL RIGHT

     ¶63    As    the    majority    opinion     indicates,           the    Due    Process

Clauses    of     the    Fourteenth    Amendment        of       the     United     States

Constitution       and    Article     I,     Section        8    of      the      Wisconsin

Constitution both provide a defendant with a right to be present

at trial.        Majority op. ¶20.          The United States Supreme Court

has characterized a defendant's due process right as a right to

be present at trial where "a fair and just hearing would be

thwarted by his absence."           Snyder v. Massachusetts, 291 U.S. 97,

108 (1934), overruled on other grounds by Malloy v. Hogan, 378

U.S. 1 (1964).           I write separately to emphasize that an in-

chambers conference that deals with the ability of sworn jurors

to continue to serve on the jury is an exceedingly important

occurrence in a criminal trial, and a defendant's absence from

it could frustrate his or her ability to have a fair and just

hearing.         Therefore,    I     would      hold   that        Alexander        had     a
constitutional      due    process    right      to    be       present      at    the    in-

chambers conferences at issue but that he ultimately waived that

right.

     ¶64         Wisconsin case law recognizes that a defendant may

have a due process right to be present during an in-chambers

conference depending on what is discussed during the conference.

Ramer v. State, 40 Wis. 2d 79, 84-85, 161 N.W.2d 209 (1968). In

Ramer, this court held that a defendant's due process right to

be present at trial did not extend to proceedings that involved

                                           10
                                                                           No.    2011AP394-CR.npc


questions of law because fairness would not be thwarted by a

defendant's absence at proceedings that involved pure questions

of   law.         See     id.    at    85;     see    also    May,    97       Wis.    2d   at     186

(providing that a fair and just trial occurred even though the

court      answered        a     question       of      law   from        the     jury      in     the

defendant's absence).                 In doing so, however, this court has also

stated "that conferences of the court and attorneys outside the

presence of the accused should be rarely held during the trial."

Ramer, 40 Wis. 2d at 85 (emphasis added).

        ¶65      Here, the in-chambers conferences did not deal with

any questions of law.                   Instead these conferences pertained to

the appropriateness of sitting jurors continuing to serve on the

jury.      The conferences at issue are quite unlike the questions

of   law      that      the     court       answered     outside      of       the    defendant's

presence in Ramer and May.                     I would, consistent with Anderson,

hold that a defendant has a constitutional due process right to

be   at       in-chambers        conferences           dealing       with       the     continuing

service of sitting jury members that could ultimately affect the
composition          of   the    jury.         These     types       of    conferences           could

result      in    an      unjust       or    unfair     trial    if        held       without     the

defendant's presence, unless the defendant has waived his or her

constitutional right to be present.

      ¶66      In Anderson, 291 Wis. 2d 673, ¶37, this court also

addressed a defendant's constitutional right to be present at

his or her           criminal         trial.         Specifically,        we     confronted        the

issue of whether communication between the circuit court and a

deliberating           jury,     outside        the     presence          of    the     defendant,

                                                 11
                                                                 No.    2011AP394-CR.npc


violated the defendant's constitutional right to be present at

his   trial.    Id.       at   ¶¶35-40.       The   communication           between   the

circuit     judge     and      the    deliberating      jury    involved       numerous

questions from the jury regarding exhibits and the possibility

of having witness testimony read back to them.                         Id. at ¶10-19.

In Anderson, we held that both the defendant's constitutional

and statutory rights to be present at trial were violated when

the judge communicated with the deliberating jury outside of the

defendant's presence.            Id. at ¶36.        In reaching our decision on

the       constitutional        issue,       this      court     relied        on     the

constitutional rights granted to a defendant through both the

Confrontation Clause and the Due Process Clause.                            Id. at ¶38

("An accused's constitutional right to be present derives from

the   right    to    be    heard      and   confront    witnesses      and     from   the

accused's right to due process.").7

      ¶67     The    majority         unnecessarily      abandons       well-reasoned

precedent      set    forth      in    Wisconsin       case    law     to    reach    its

      7
       In doing so, we drew support from the United States
Supreme Court.   State v. Anderson, 291 Wis. 2d 673, ¶38 n.13,
¶39 (citing United States v. Gagnon, 470 U.S. 522, 526 (1985)
(“The constitutional right to presence is rooted to a large
extent in the Confrontation Clause of the Sixth Amendment, but
we have recognized that this right is protected by the Due
Process Clause in some situations where the defendant is not
actually confronting witnesses or evidence against him.”)
(citations omitted); Illinois v. Allen, 397 U.S. 337, 338
(1970)(“One of the most basic of the rights guaranteed by the
Confrontation Clause is the accused’s right to be present in the
courtroom at every stage of his trial.”). We also relied upon
the United States Constitution, as well as the Wisconsin
Constitution. Id. at ¶38 (“The constitutional right to be heard
and confront witnesses appears in the Sixth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 7 of the Wisconsin Constitution.” (footnotes omitted)).

                                            12
                                                                    No.     2011AP394-CR.npc


conclusion        today.           Specifically,       the     majority      casts     aside

longstanding precedent from Anderson and concludes that State v.

Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983), a case that

Anderson relied upon, must be overruled.8                        Its conclusion that

Burton and parts of Anderson must be overruled to decide the

case       at   issue    is    misguided     and     unnecessary       to    the     court's

holding.

       ¶68      Neither       Anderson     nor     Burton    need   be    overturned         to

reach       a   decision      in   this    case.       Both    cases,       in   fact,      are

factually distinct from the issue we have been asked to decide.

Both       Anderson     and    Burton     dealt     with    questions       surrounding       a

defendant's right to be present when a judge communicates with a

deliberating          jury.        In     contrast,     this    case      deals      with     a

       8
       The majority’s conclusion that State v. Burton must be
overruled is based on a supposed conflict between Burton and
May, that the majority cites, but does not explain. Considering
the factual differences between these two cases, no conflict
actually exists.    In Burton, our holding that constitutional
error occurred when the circuit judge communicated with a
deliberating jury stems from our concern with the judge in that
case repeatedly entering the jury room outside the presence of
the defendant or defendant’s counsel. A judge’s presence in the
jury room outside the defendant’s presence could easily cause
unfairness that would result in a violation of the defendant’s
due process rights.

     In contrast, in May v. State, 97 Wis. 2d 175 (1980), while
recognizing that an accused has the right under the Wisconsin
Constitution and the United States Constitution to be present
during her or her trial, we held that there was no reversible
error when the judge communicated an answer to a question of law
to a deliberating jury outside of the defendant’s presence. In
May, the judge simply communicated a yes or no answer to the
jury by note and did not enter the jury room or communicate
anything other than an answer to a question of law. Considering
these factual distinctions, it is easy to see how this court
found a constitutional violation in Burton, but not one in May.

                                              13
                                                             No.    2011AP394-CR.npc


factually distinct situation involving communications between a

court and sitting jury members concerning the appropriateness of

allowing each one to continue to serve as a member of the jury.

Due to this factual distinction, there is absolutely no need to

overrule Burton, and certainty we do not have to overrule or

withdraw portions of Anderson9 to decide the case at hand.                        We

should refrain from unnecessarily overturning well-established

and well-reasoned precedent.

     ¶69       Finally, the majority is persuaded by United States v.

Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980), which found

that "there is no constitutional right for a defendant to be

present at a conference in chambers concerning dismissal of a

juror."    (emphasis      omitted).     Such   an   approach       has   not    been

followed by other federal circuit courts.

    ¶70        I emphasize that the approach taken by several other

courts——one that allows for the possibility that a defendant's

absence from communications between a judge and juror or jury

could result in a constitutional violation if "a fair and just
hearing would be thwarted by [the defendant's] absence"——is the

better-reasoned case law. See Verdin v. O'Leary, 972 F.2d 1467,

1482 (7th       Cir.   1992) ("[I]f    Mr.   Verdin    had    a    constitutional

right to be present at the exchange [between the judge and the

jury],    it    stemmed   from   his   due   process   right       to   be   present

     9
       It should be noted that Anderson and May also do not
conflict   with  one another.      While  Anderson  dealt with
communication between a judge and a deliberating jury regarding
trial   exhibits  and   testimony,  May  addressed   a   judge’s
communication with a deliberating jury when that communication
related to a pure question of law.

                                        14
                                                                          No.    2011AP394-CR.npc


' . . . to the extent that a fair and just hearing would be

thwarted by his absence.'"); Ross v. Dist. Attorney of the Cnty.

of Allegheny, 672 F.3d 198, 212-13 (3d Cir. 2012) (considering

whether a defendant's absence from a conference between trial

judge,        counsel,       and     juror     resulted        in      unfairness           to   the

defendant);          United States v. Fernandez-Hernandez, 652 F.3d 56,

66     (1st    Cir.     2011)       cert.      denied,      132     S.    Ct.     353,       (2011)

(discussing factors relating to whether the defendant's absence

from    a     bench conference with              the   judge,       counsel,          and    jurors

deprived       him    of    his     due   process      right      to     be     present      during

trial); Moore v. Knight, 368 F.3d 936, 940-44 (7th Cir. 2004)

(evaluating          various       case-specific         circumstances           to     determine

whether the defendant's trial was fundamentally unfair due to

communications between the court and jury that occurred outside

of the defendant's presence); United States v. Peterson, 385

F.3d    127,     138       (2d     Cir.   2004)      (reviewing          whether      a     judge's

private        in-chambers          conference       with     a     juror        violated        the

defendant's due process right to be present by considering the
effect of that conference on the defendant's opportunity for a

fair trial); United States v. Santiago, 977 F.2d 517, 522 (10th

Cir. 1992) (discussing the circumstances surrounding the trial

judge's ex parte questioning of a juror and the effect that

questioning          would       have     on    the      defendant's            constitutional

rights);        United States v. Caldwell, 776 F.2d 989, 997 (11th

Cir. 1985) (considering the brevity of communications between a

juror and circuit judge, as well as other case-specific facts,

to   determine         if    the     defendant's       constitutional             due       process

                                                15
                                                                      No.   2011AP394-CR.npc


rights had been violated);              Nevels v. Parratt, 596 F.2d 344, 346

(8th Cir. 1979) (holding that defendant's absence from a hearing

with    a    juror     about      possible     juror     misconduct          violated     the

defendant's constitutional right to be present at all stages of

his trial).          This more nuanced approach allows for a due process

analysis based on the individualized circumstances of each case

and better conforms with our statement "that conferences of the

court and attorneys outside the presence of the accused should

be rarely held during the trial," Ramer, 40 Wis. 2d at 85, than

does the majority's categorical approach.

       ¶71    Applying this approach, I would hold that due process

gave   Alexander        the    right    to    be    present      at     the    in-chambers

conferences dealing with whether the jurors should continue to

serve on the jury.                Alexander's presence at these conferences

was critical to the fairness of the proceedings.                            The importance

of a defendant's presence at proceedings involving the selection

of jurors and the continued service of jurors, which ultimately

may affect the composition of the jury cannot be overstated.
See Boone v. United States, 483 A.2d 1135, 1137-38 (D.C. 1984)

(discussing the importance of the defendant's presence at voir

dire); Welch v. Holman, 246 F. Supp. 971, 973-74 (M.D. Ala.

1965),       aff'd     363    F.2d     36    (5th    Cir.       1966)       (discussing     a

defendant's right to be present during proceedings that involve

juror qualifications).

       ¶72    Although        I      would    hold       that     Alexander         had     a

constitutional         due    process       right   to    be    present       at   the    in-

chambers conferences at issue, I have noted previously in this

                                             16
                                                                    No.   2011AP394-CR.npc


opinion that a defendant may waive that right.                       State v. Biller,

262 Wis. 472, 479, 55 N.W.2d 414 (1952).                      I am satisfied on this

record that Alexander did in fact waive his due process right,

along with his statutory right to be present during the in-

chambers conferences as evidenced by the record in this case.

                                      III. CONCLUSION

        ¶73       Alexander had both a statutory and a constitutional

right to be present at each of the in-chambers conferences that

occurred with sitting jurors during his trial for the purpose of

determining the composition of the jury.                      His rights were waived

for him by his counsel and by his own actions in voluntarily

absenting         himself.       The     Wisconsin      legislature       gave    him   the

statutory right to be present "at trial," and the in-chambers

conferences           in      question        clearly     occurred         "at     trial."

Additionally,             Alexander     had    a    constitutional        right   of    due

process to be present at the in-chambers conferences because the

circumstances of this case put it into the category of cases

where        "a    fair    and   just    hearing      would    be   thwarted       by   his

absence."10

     ¶74          For the reasons stated, I respectfully concur.

     ¶75          I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON         and     Justice    ANN     WALSH   BRADLEY join        this    opinion.




        10
             Snyder v. Massachusetts, 291 U.S. at 108.

                                               17
                                                                       No.    2011AP394-CR.akz



        ¶76        ANNETTE KINGSLAND ZIEGLER, J.                 (concurring).            I join

the majority             opinion   because,     under     the    facts       of    this case,

neither Alexander's constitutional right to due process nor his

statutory right to be present                      at   voir dire       under      Wis. Stat.

§ 971.04(1)(c) were violated.1                  I write separately to point out

that        even    if    we   were   to    conclude      that    a    constitutional           or

statutory          protection      was     violated,     the     error       in    not    having

Alexander present, under these facts, is harmless.2                               Alexander is

entitled to a fair trial and impartial jury, which he received.

       ¶77         "Judges face tough calls in the courtroom each day.

Judges        are     charged      with    administering         justice          and    have   a

concurrent           goal      of avoiding     unnecessary            appellate         issues."

State v. Tody, 2009 WI 31, ¶60, 316 Wis. 2d 689, 764 N.W.2d 737

(Ziegler, J., concurring).                  Here, to the extent that any issue

arose as to the two jurors who were dismissed as alternates, the

judge       was     properly     attempting     to      avoid    unnecessary            appellate

issues.

       ¶78         Alexander was involved in the selection of 14 jurors.

He knew that any 12 of those 14 jurors would ultimately sit as
the final jury in this case.                  Alexander had no particular right

to have these two jurors remain on his jury.                                      If anything,


        1
       Alexander did not argue that his right to be present at
trial under Wis. Stat. § 971.04 was violated.
        2
       I believe that judges around this state strive to include,
not exclude, defendants and counsel when issues arise during the
course of trial.      This case illustrates why it is a good
practice to include defendants and counsel, if possible, when
matters arise during trial.

                                               1
                                                             No.   2011AP394-CR.akz


leaving these two alternates on the jury and dispensing with two

other    jurors   would    likely     have   created   more    issues    than   it

resolved.      Twelve jurors, not fourteen, reach a verdict based

upon    the   evidence    and   the   law.     The   trial    court    judge    was

correct to select these two jurors as the alternates.                   Alexander

received the fair and impartial jury to which he was entitled.

       ¶79    For the foregoing reasons, I respectfully concur.




                                        2
    No.   2011AP394-CR.akz




1
