State v. Spencer

403 Wis.2d 86

976 N.W.2d 383

2022 WI 56

STATE of Wisconsin, Plaintiff-Respondent-Cross Petitioner,

v.Robert Daris SPENCER, Defendant-Appellant-Petitioner.

No. 2018AP942-CR

Supreme Court of Wisconsin.

Oral Argument: March 2, 2022

Opinion Filed: July 6, 2022

For the defendant-appellant-petitioner, there were briefs filed by John J. Grau and Grau Law Office, Waukesha. There was an oral argument by John J. Grau.

For the plaintiff-respondent-cross petitioner, there were briefs filed by Kara L. Janson, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Kara L. Janson.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion, in which KAROFSKY, J., joined.

REBECCA GRASSL BRADLEY, J.

¶1 This is a review of an unpublished decision of the court of appeals¹ affirming in part and reversing in part the circuit court's² denial of a postconviction motion. Following a jury trial, Robert Daris Spencer was convicted of one count of felony murder and one count of felon in possession of a firearm. After the close of evidence—but before deliberations—the circuit court met in chambers with a juror who had become ill, without counsel present. Upon determining the juror would not be able to continue serving, the judge dismissed the juror for cause.

¶2 Spencer filed a postconviction motion asserting the judge's ex parte contact with the juror violated his Sixth Amendment right to counsel and claiming his counsel was ineffective for failing to object to hearsay testimony. The circuit court denied the motion without an evidentiary hearing. Spencer appealed, raising due process and equal protection challenges to the juror's dismissal in addition to the Sixth Amendment and ineffective assistance claims. The court of appeals affirmed the denial of his motion, concluding Spencer forfeited his due process and equal protection claims and any error implicating the Sixth Amendment was harmless, but reversed and remanded on the ground that Spencer was entitled to an evidentiary hearing on the ineffective assistance claim.

¶3 Before this court, Spencer argues the judge's ex parte meeting with the juror violated his Sixth Amendment right to counsel, the judge's dismissal of the juror violated his equal protection and due process rights and constituted an erroneous exercise of discretion, and he was entitled to an evidentiary hearing on his claim that counsel's failure to object to hearsay testimony constituted ineffective assistance of counsel. The State cross-petitioned on the evidentiary hearing decision, arguing Sholar ³ does not mandate a hearing if the record conclusively shows the defendant is not entitled to relief.

¶4 We hold the judge's meeting with the ill juror was not a critical stage of the proceedings at which the right to counsel attached, and even if there were an error, it was harmless. Accordingly, we affirm the court of appeals on this issue.⁴ We reverse the court of appeals’ decision to reverse the circuit court's denial of an evidentiary hearing. If the record as a whole conclusively demonstrates the defendant is not entitled to relief, an evidentiary hearing is not mandatory. See State v. Ruffin, 2022 WI 34, ¶3, 401 Wis.2d 619, 974 N.W.2d 432. The circuit court properly exercised its discretion in denying an evidentiary hearing under this standard and the court of appeals erred in reversing that decision.

I. BACKGROUND

A. The Incident and the Trial

¶5 The State charged Spencer with one count of felony murder and one count of possession of a firearm by a felon for his involvement in an armed robbery resulting in the death of his accomplice, T.M. On the night of the crime, police officers responded to reports of a shooting in Milwaukee, where they found the victim lying face down and observed a number of bullet holes and shell casings, later determined to be from two different guns. The exchange of gunfire on the night of the incident was confirmed by neighbors, ShotSpotter, and officers at the scene, and forensic evidence indicated there were two shooters.

¶6 At trial, the State's theory was that Spencer had a debt to settle with R.S., a friend of Spencer and T.M. The State contended that Spencer and T.M. approached R.S. as he stood outside a residence, and Spencer, armed with a firearm, robbed R.S. by grabbing him and "go[ing] through his pockets, tak[ing] money, tak[ing] his cell phone." As R.S. broke away and began running, the State asserted Spencer shot at R.S. as "a second person with a firearm" located "right in front of the residence or out, or inside the residence shooting from a window" began to return fire "to protect [R.S.]." As a result of this exchange of gunfire, T.M. was shot and killed.

¶7 The State relied on witness testimony from Lerone Towns, a tow truck driver who testified he received a call for a tow that night from a Mr. Green. He testified that when he reached the vehicle pickup location, he encountered an individual, later identified as R.S., waiting in a vehicle behind the one to be towed. R.S. arranged for the vehicle to be towed to a house on the corner of 23rd and Townsend. Upon arriving at the drop-off location, Towns testified he spoke with R.S. about writing his receipt and entering his information into the company system. According to Towns, R.S. said he had to get the money for the payment, and "went straight to the back door," where he stood "for some amount of time." While Towns was taking down information about the vehicle, he said he "turned around, heard somewhat of a commotion at the back door," and saw "two gentlemen standing in front of [R.S.]" with their backs turned toward Towns. He did not see their faces, but stated "one of the individuals was lighter skinned than the other one" and they both appeared to be males. He testified that "the lighter complected gentleman" pulled out a handgun and proceeded to "reach into [R.S.’s] pockets," and "proceeded to grab [R.S.] by the back of his shirt and drug him across the street, across Townsend in front of the residence on 23rd Street." After "between 20 seconds to a full minute," Towns testified "there was nothing but gunfire after that" but he "did not see anyone shooting." He saw R.S. run past him, and testified the gunfire stopped "once [R.S.] got pretty much to the alley." Towns said he then left—with the vehicle still attached to his truck—and received a call en route from R.S. to drop the vehicle off at a different location, where R.S. arrived with the individual identified as Mr. Green to pick it up.

¶8 In addition to Towns’ testimony, the jury heard from R.S., who said he knew T.M. and Spencer—identified as "D or D-Dog." R.S. testified he and Spencer "were involved in business together," and he owed Spencer $5,000. R.S. testified that he heard Spencer was looking for him because he had not paid this debt.⁵ R.S. also identified Mr. Green as his friend, Errion Green-Brown. R.S. said he lived at the residence where the incident occurred, along with Green-Brown and another individual he identified as Danny McKinney. R.S. testified that McKinney was present "in the upper unit of the residence" at the time the tow truck arrived.

¶9 R.S. confirmed he was robbed by two individuals, T.M. and a "lighter complected" individual whom he "couldn't recognize." R.S. noted the second individual had a firearm and asked R.S., "Where is the money at?" R.S. testified the individuals then "[w]ent in [his] pockets," took a cell phone and a "couple dollars," "snatched [him] up" by his shirt, and dragged him across the street toward a gold mini-van. The investigation revealed Spencer's fingerprints on the van, and a traffic citation and receipt in Spencer's name were found inside the van. Forensic evidence demonstrated one of the shooters shot from the residence and the other shooter was near the gold mini-van, in the area where T.M.’s body had been found.

¶10 During his testimony, R.S. acknowledged he had identified Spencer as the second individual to the detectives during three separate interviews. Additionally, R.S. identified Spencer as the second individual to others—even before he told the detectives. He told "one of [his] girlfriends it was a person by the name of Spencer, who may be involved but not actually with a gun." Two of T.M.’s sisters also testified regarding the incident. One sister, K.G., testified she had dinner with both T.M. and Spencer on the night of the robbery. She said they left together hours before the shooting, in the same van later found at the scene of the crime. Another sister, Q.G., testified that R.S., prior to his interview with the detectives, told her Spencer was involved in the robbery. She said she called R.S. shortly after T.M. died, and when R.S. returned her call, he told her "D'Dog" was responsible. Q.G. denied that she knew who D'Dog was. She testified R.S. told her T.M. and D'Dog "pulled up in a van and D'Dog and [T.M.] got out [of] the van. [T.M.] stood a little further off away from them with his hands behind the back and his head down and said D'Dog walked up to him and grabbed him by his shirt with a gun and told him ... you're going to die today and tried to drag him down the street." Q.G. recounted that she "asked [R.S.] would he tell that same story to detectives and he said yes," and that she called the detectives immediately after her phone call with R.S. and told them what he had said. During his testimony, R.S. denied that he told Q.G. that D'Dog was involved; instead, he said she told him "it was D-dog." The prosecutor summed up:

Q: So, just so I'm clear, you told detectives that it was D-Dog because you felt threatened. Correct?

A: Yes.

Q: You told one of your girlfriends it was a person by the name of Spencer, who may be involved

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