2011 WI APP 124

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION
Case No.:

2010AP411-CR
Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.

STEVEN A. AVERY,
DEFENDANT-APPELLANT.

Opinion Filed:
Submitted on Briefs:

August 24, 2011

April 26, 2011

JUDGES:
Concurred:
Dissented:

Brown, C.J., Neubauer, P.J., and Reilly, J.

Appellant
ATTORNEYS:

Respondent
ATTORNEYS:

On behalf of the defendant-appellant, the cause was submitted on the

briefs of Suzanne L. Hagopian and Martha K. Askins, assistant state
public defenders of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the

brief of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen,
attorney general.

2011 WI App 124

COURT OF APPEALS
DECISION
DATED AND FILED
August 24, 2011
A. John Voelker
Acting Clerk of Court of Appeals

Appeal No.

NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. 808.10
and RULE 809.62.

Cir. Ct. No. 2005CF381

2010AP411-CR

STATE OF WISCONSIN

IN COURT OF APPEALS

STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.

STEVEN A. AVERY,
DEFENDANT-APPELLANT.

APPEAL from judgments and an order of the circuit court for

Manitowoc County: PATRICK L. WILLIS, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
1

NEUBAUER, P.J.

Steven Avery was convicted as a party to the

crime of the first-degree intentional homicide of Teresa Halbach. He was also

convicted of being a felon in possession of a firearm. Avery challenges his
convictions on three grounds. Avery first argues that the trial court erred in

No. 2010AP411-CR

denying his motion to suppress evidence resulting from the sixth search of his
trailer home. We conclude that this search, conducted three days after the search
warrant was issued, constituted a reasonable continuation of the original search
and that the evidence was otherwise admissible under the inevitable discovery
doctrine.
2

Next, Avery argues that the trial court erred in barring his

presentation of third-party liability evidence. We uphold the trial courts ruling.

The third-party liability evidence proffered by Avery identified a large group of
individuals who he claimed were near the Avery property on the date of Halbachs
murder but who he acknowledged had no motive to harm her. This evidence
failed to satisfy the legitimate tendency test under State v. Denny, 120 Wis. 2d
614, 357 N.W.2d 12 (Ct. App. 1984), and was properly deemed inadmissible.
3

Finally, Avery contends that the trial courts excusal of a

deliberating juror violated his fundamental rights and that the trial court erred in
denying his postconviction motion for a new trial on this ground.

Avery

additionally contends that if he is deemed to have consented to the excusal of the

juror, he is entitled to relief due to ineffective assistance of counsel or in the
interest of justice. We reject Averys challenges. We affirm the judgments of
conviction and postconviction order.
BACKGROUND
4

Avery was charged on November 15, 2005, with first-degree

intentional homicide and mutilation of a corpse. The complaint was later amended
to include possession of a firearm by a felon.

The charges related to the

October 31, 2005 death of Halbach, a twenty-five-year-old photographer.

Halbachs clients included Auto Trader magazine. In the morning of October 31,
2

No. 2010AP411-CR

2005, Steven Avery called Auto Trader magazine to arrange for Halbach to
photograph a vehicle at the salvage yard. Halbach had taken photos of vehicles at
the Avery salvage yard on five prior occasions. At the time of her disappearance,
it was believed that Halbach was last seen taking photos at Averys Auto Salvage.
5

In October 2005, Averys Auto Salvage was located on a forty-acre

piece of property owned by Allan and Delores Avery. Two of their sons, Charles
and Steven, lived on the property and worked at the salvage yard business.
Another son, Earl, worked at the salvage yard but did not live on the property.
Their daughter, Barb Janda, lived in a trailer on the property with three of her
sons, Bobby, Blaine and Brendan Dassey. Janda was dating Scott Tadych at the
time. In addition to the various Avery residences, there were other buildings on
the salvage yard property, including a business office and garages. One garage
was located between the homes of Barb Janda and Steven Avery. The majority of
the property consisted of a pit containing cars and other salvage items, including
a car crusher and a smelter.
6

Halbachs mother reported her missing on November 3, 2005, and a

group of volunteers began searching for her.

Volunteer searchers who had

obtained permission from Earl Avery to search the Avery salvage yard located
Halbachs vehicle, a Toyota RAV4, on the Avery property on November 5. The
vehicle was covered with branches, plywood and the hood of another vehicle. The
Avery Auto Salvage property was then secured by law enforcement and a search
warrant was obtained. The property became the subject of a search conducted
from November 5 through 12.
7

During the course of the search, the police found, among other

things, burned bone fragments, including skull fragments, in and around a burn pit

No. 2010AP411-CR

behind Averys garage with DNA consistent with that of Halbach; blood in the
front area of Halbachs vehicle that was later determined to have come from
Avery; blood in the cargo area of the vehicle that was later determined to have
come from Halbach; and remnants of a cell phone, Palm Pilot and camera in a
burn barrel in Averys yard of the same models owned by Halbach.

While

conducting a sixth search of Averys trailer on November 8, officers discovered

the key to Halbachs vehicle in Averys bedroom. The key was later determined
to have Averys DNA on it. In a search conducted in March 2006, after Avery had
been charged, police recovered a nearly intact bullet and bullet fragments from
Averys garage that came from a rifle found in Averys trailer and contained DNA
belonging to Halbach.
8

Averys case proceeded to trial in February 2007. Prior to trial,

Avery unsuccessfully moved to suppress the evidence of the November 8 search

of his trailer and also to admit evidence intended to demonstrate that any of his
extended family members or customers of the salvage yard could have committed
Halbachs murder. At the close of the nearly five-week trial, a jury convicted
Avery of being a party to the crime of first-degree intentional homicide and
possession of a firearm by a felon.
9

Avery filed a postconviction motion on June 29, 2009, requesting a

new trial on the grounds that the court improperly excluded third-party liability
evidence and improperly excused a deliberating juror. The court denied Averys
motion in a thorough and well-reasoned written decision. Avery appeals that
ruling and raises an additional challenge to the trial courts prior denial of his
motion to suppress evidence uncovered during the November 8 search of his
trailer.

No. 2010AP411-CR

10

Additional facts will be recited as they pertain to the issues on

appeal.
DISCUSSION
I.

The Trial Court Properly Admitted Evidence Recovered During the

November 8 Search of Averys Trailer.
A.

Background

11

The facts surrounding the search of the Avery salvage yard and

Averys residence as found by the trial court were set forth in its written decision
denying Averys motion to suppress. Between Saturday, November 5, when the
original search warrant was issued, and Wednesday, November 9, when the police
obtained a new warrant,1 law enforcement and crime lab personnel entered
Averys trailer on seven occasions. The original warrant authorized a search of
Averys trailer and detached garage, a neighboring trailer and garage, and the
forty-acre salvage yard, including outbuildings and vehicles. After the warrant
was issued on November 5 at 3:30 p.m., law enforcement conducted a ten-minute
sweep search of Averys trailer and an eight-minute search of his garage, looking
for any obvious evidence relating to Halbachs whereabouts. Then, at 7:30 p.m.
that same day, law enforcement entered Averys trailer for a second time. This
time the officers stayed just over two and one-half hours and seized approximately

Pursuant to WIS. STAT. 968.15(1) (2009-10), a search warrant must be executed and
returned not more than five days after the date of issuance. All references to the Wisconsin
Statutes are to the 2009-10 version unless otherwise noted.

No. 2010AP411-CR

fifty pieces of evidence, including some trace evidence.2 The third and fourth
entries occurred on Sunday, November 6, for the purpose of collecting weapons, a
vacuum cleaner, and bedding from the spare bedroom and for an initial search by
the state crime lab for trace evidence of blood.

A fifth entry occurred on

November 7, 2005, for the limited purpose of retrieving the serial number of
Averys computer.
12

It

is

the

sixth

entry

into

Averys

trailer

on

Tuesday,

November 8, 2005, and the discovery of the Toyota RAV4 key during that search
that provides the basis for Averys challenge. The November 8 search of Averys
bedroom lasted approximately one hour. During the search, one of the officers
tipped and twisted a bookcase, pulling it away from the wall. Another officer then
noticed the Toyota RAV4 key on the floor of the bedroom.
13

Avery contends that the trial court erred in admitting the Toyota

RAV4 key found in his bedroom during the November 8 search of his trailer.
Avery does not dispute that probable cause existed for the warrant. Instead, Avery
argues the reentry on November 8 violated his constitutional guarantee against
unreasonable searches and seizures. We disagree.
14

The Fourth Amendment of the United States Constitution

guarantees that persons shall be secure from unreasonable searches and seizures

Avery argued before the trial court that this second search constituted a completed
execution of the search warrant with respect to his residence. On appeal, he concedes that the
three entries following the full-blown Saturday evening search could be considered a
reasonable continuation of the earlier search.

No. 2010AP411-CR

and sets forth the manner in which warrants shall issue. State v. Sveum, 2010
WI 92, 18, 328 Wis. 2d 369, 787 N.W.2d 317 (citation omitted). It provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

Id. (citing U.S. CONST. amend. IV). The constitutional validity of a search and
seizure conducted pursuant to a warrant is subject to a two-part inquiry: (1) the
Warrant Clause requires that all warrants be validly issued and (2) the
Reasonableness Clause requires that warrants be reasonably executed. Sveum,
328 Wis. 2d 369, 19. As noted, Avery does not challenge the validity of the
warrant.

We therefore limit our analysis to the second inquirythe

reasonableness of the officers conduct of the search.

15

The Reasonableness Clause of the Fourth Amendment is a statement

of broad protection against unreasonable searches and seizures.

State v.

Henderson, 2001 WI 97, 18, 245 Wis. 2d 345, 629 N.W.2d 613.

The

determination of reasonableness is made by reference to the particular

circumstances of each individual case and balances the nature and quality of the
intrusion on the individuals Fourth Amendment interests against the importance
of the governmental interests alleged to justify the intrusion.

Id. (citations

omitted). Constitutional reasonableness relates not only to the grounds for a

search or seizure but to the circumstances surrounding the search or seizures
execution. Id.
16

The determination as to whether the November 8 search of Averys

trailer was unreasonable involves a question of constitutional fact that we review

No. 2010AP411-CR

under a two-part standard. See State v. Hughes, 2000 WI 24, 15, 233 Wis. 2d
280, 607 N.W.2d 621.

We uphold the trial courts findings of historical or

evidentiary fact unless clearly erroneous. Id. We independently review the trial
courts application of constitutional principles to those evidentiary facts. Id.
17

The State defends the November 8 search of Averys trailer on two

grounds. As to reasonableness, the State contends the search was a reasonable

continuation of the original search commenced under the November 5 search
warrant. Avery agrees that the reasonable continuation rule is the appropriate
vehicle for analyzing the multiple entries into his trailer. However, he contends
that the search of his bedroom on November 8 for the purpose of seizing items
cannot be deemed a reasonable continuation of a prior search. In the alternative,
the State contends that the key was admissible under the inevitable discovery rule.
B.

Reasonable Continuation

18

Generally, searches are subject to the one warrant, one search rule.

See 2 Wayne R. LaFave, Search and Seizure, 4.10(d) at 767 (2004). That said, a
search conducted pursuant to a lawful warrant may last as long, and be as
thorough, as reasonably necessary to fully execute the warrant. See United States
v. Keszthelyi, 308 F.3d 557, 571 (6th Cir. 2002). Thus, courts have recognized an
exception to the one warrant, one search rule where a subsequent entry and
search are a reasonable continuation of the earlier one. See id. at 568. The
reasonable continuation rule has two requirements: (1) the subsequent entry must
be a continuation of the earlier search and (2) the decision to conduct a second
entry to continue the search must be reasonable under the circumstances. LaFave,
4.10(d) at 768 (citing Keszthelyi, 308 F.3d at 569).

No. 2010AP411-CR

19

The notion of a single search spanning several days was recently

addressed in Sveum, 328 Wis. 2d 369, 64-72.

There, the supreme court

considered the reasonableness of a single search warrant authorizing thirty-five

days of GPS surveillance on the vehicle of a stalking suspect. Id., 59. In
addressing the defendants contention that each day of monitoring constituted a
separate intrusion requiring a new search warrant, the Sveum court cited with
approval United States v. Squillacote, 221 F.3d 542, 557 (4th Cir. 2000). Sveum,
328 Wis. 2d 369, 65-67. In Squillacote, the Fourth Circuit rejected the idea that
a new warrant must be obtained for each successive day of searching. Sveum, 328
Wis. 2d 369, 65-66. The search warrant in Squillacote was issued pursuant to
an investigation of suspected espionage-related activities and authorized a ten-day
search period. Squillacote, 221 F.3d at 554, 557. The court found that, given the
number and type of items that can be evidence of espionage-related activities, the
search was necessarily extensive and exhaustive and could not have been
completed in a single day. Id. at 557. Thus, [u]nder the[] circumstances, the
subsequent entries were not separate searches requiring separate warrants, but
instead were simply reasonable continuations of the original search. Id.
20

Applying the reasoning in Squillacote, the Sveum court concluded

that the complex, ongoing nature of stalking justified the 35 days of GPS
surveillance on a single search warrant. Sveum, 328 Wis. 2d 369, 67. In doing
so, it noted that the stalking statute required the proof of a course of conduct,
and that [a] search obtaining this type of evidence could not have been completed
in a single day. Id.

No. 2010AP411-CR

21

Here, the original search warrant, issued on Saturday, November 5,

authorized a search of Averys trailer and detached garage, a neighboring trailer

and garage, and the forty-acre salvage yard, including outbuildings and vehicles.3
Law enforcement remained on the scene from the time the warrant was issued
until the search was completed on November 12. The two individuals in charge of
the search, Division of Criminal Investigation Special Agent Thomas Fassbender
and Inspector Mark Weigert testified at the suppression hearing.

Fassbender

testified that the initial brief search efforts in the afternoon of November 5 were
focused on locating Halbach.

Officers again entered Averys trailer at

approximately 7:30 p.m. However, because of the lateness in the day and the
weather, the search ended at 10:30 p.m.
22

Fassbender testified that most of the investigators in the trailer had

already been working for twelve hours or more and exhaustion and safety issues
were becoming factors that could affect the searchers ability to locate and collect
evidence. In addition, there was a horrendous rain storm going on that created a
risk of evidence being destroyed or lost as officers went in and out of the trailer to
get equipment.

Thus, the officers were focused on looking for the type of

evidence that would be most at risk of being destroyed under those conditions.
Fassbender testified that in debriefing the officers that night, he was telling people:
[W]e are not done in that house. Fassbender testified, as of Saturday night, the

The warrant authorized the search for the Toyota RAV4; womens clothing; property
belonging to Halbach including, but not limited to, cameras, film and photography equipment,
and electronic devices; forensic evidence including, but not limited to, fiber evidence, blood, hair,
saliva, semen, and fingerprints; instrumentalities capable of taking human life including, but not
limited to, weapons, firearms, ammunition, knives, cutting instruments, ropes, and ligatures; and,
finally, Halbach herself.

10

No. 2010AP411-CR

trailer was still part of my scene. This is an ongoing search. In ruling on the
motion to suppress, the trial court found that there was no evidence in the record to
suggest that Fassbender or Weigert viewed the search of the trailer to have been
fully executed following the November 5 entries.4 See WIS. STAT. 805.17(2)
(we will not overturn the trial courts findings of fact unless clearly erroneous).
23

In addition to Averys trailer, investigators were dealing with the

search of the salvage yard and the approximately 3600 to 3800 junked cars and
numerous buildings on the property. On Sunday, November 6, search teams
were accounting for the vehicles, the trunks of vehicles, underneath the vehicles,
and the insides of the vehicles; the car crusher, the crushed vehicles the
buildings and even maybe starting some of the surrounding areas.

That

surrounding area consisted of six- to eight-hundred acres of property to be

searched, including ponds and lakes. The investigators were also conducting offsite interviews and following up on various leads both on and off the Avery
property.
24

Fassbender testified that because of these other investigative

activities, a team was not sent back to Averys trailer until Tuesday, November 8,

In its written order denying Averys motion to suppress evidence, the trial court relied
on the testimony of Fassbender and his co-leader, Weigert. The court determined that Fassbender
was the commanding officer who evaluated the officers reports and determined future search
activities. Thus, the court discounted the testimony of one officer who believed that they had
seized everything of evidentiary value as that of a mere foot soldier. Avery also points to
certain arguably ambiguous testimony regarding the completion of the search that night, but
Fassbender clarified that it was completed for that night only.

11

No. 2010AP411-CR

to hopefully do a final, thorough search of that trailer.5

At that time, the

property was still under the control of law enforcement and the case was still
developing.6

Fassbender confirmed that the evidentiary significance of items

observed in the buildings changed during the course of the week.

Searches

leading up to the November 8 search had uncovered .22 caliber shell casings in
Averys garage and the presence of blood or potential presence of blood in
Averys trailer. In addition, information gathered during interviews indicated that
Averys initial story was inconsistent with later stories and other individuals were
contradicting his statements.
25

Based on our review of the circumstances existing at the time of the

November 8 search, we are satisfied that it was a continuation of the ongoing

search which commenced on Saturday, November 5.

As in Squillacote, the

number and type of items identified in the search warrant necessitated an extensive
and exhaustive search. See Squillacote, 221 F.3d at 557. The lateness of the hour,
the weather conditions, and the extensive and intensive nature of the search make
it apparent that the search of Averys trailer could not have been completed on
November 5. See id. Further, the continuous presence of law enforcement at the
Avery salvage yard and their continuous control over Averys trailer from the time
5

The defendant points to the trial courts reference to testimony that the three officers
entered Averys trailer on November 8 for the purposes of seizing Averys computer pursuant to
a separate search warrant that had been obtained, to take swabs of previously identified blood
spots in the bathroom, and to pick up pornographic materials from the bookcase in the bedroom.
This ignores the trial courts further acknowledgement that, according to Fassbender, the officers
were also there to conduct a final, thorough search of the trailer.
6

When asked why he did not obtain a second warrant for the search of Averys trailer on
November 8, Fassbender responded, We were still holding that scene. In our estimation, this
was ongoing. The November 9 warrant was obtained because of concerns that the November 5
warrant would expire under the five-day statutory limit. See WIS. STAT. 968.15(1).

12

No. 2010AP411-CR

of the first search to the time of the sixth search belies any argument that the
search of Averys trailer was fully executed at an earlier time.
26

We therefore turn to the second inquirywhether the decision to

conduct another entry into Averys trailer to continue the search was reasonable
under the circumstances. See Keszthelyi, 308 F.3d at 569. For the same reasons
cited above, we are satisfied that the decision was not only reasonable but
necessary, particularly given the evolving information and the accumulation of
evidence during the ongoing search. Probable cause had not dissipated during the
course of the earlier searches, but rather continued to mount as additional evidence
was identified. See id. at 572 (continued probable cause is critical to establishing
the reasonableness of the second search).
27

We uphold the trial courts ruling that the multiple entries were part

of a proper single execution of the November 5, 2005 warrant.7 To require the

government to obtain a new search warrant for the continued search under the
circumstances of this case would be an unjustified burden. See Squillacote, 221
F.3d at 558. We turn next to the trial courts alternative basis for denying Averys
motion to suppress, namely that the evidence would have been inevitably
discovered.
7

The trial court additionally found that the reasonable continuation analysis permitted
the court to consider the site as a whole, given that the warrant authorized the search of the entire
salvage yard including the trailer. Because the reasonableness of a multi-day search of the entire
site was conceded, the multiple entries into the trailer were deemed a reasonable continuation of
the site-wide search. However, we need not reach this issue because we affirm the trial courts
determination that reentry of the trailer was a reasonable continuation of the November 5 entry.
See Walgreen Co. v. City of Madison, 2008 WI 80, 2, 311 Wis. 2d 158, 752 N.W.2d 687 (noting
that when resolution of one issue is dispositive, we need not reach other issues raised by the
parties). For the same reason, we need not address the States harmless error argument.

13

No. 2010AP411-CR

C.

Inevitable Discovery

28

The State contends that even if this court were to find that the

November 8 entry into Averys trailer was unreasonable and constituted a separate
search requiring a separate warrant, the evidence resulting from that search,
namely the Toyota RAV4 key and resulting DNA evidence, was admissible
because it would have been discovered in searches conducted pursuant to the
November 9 warrant. In so arguing, the State relies on the inevitable discovery
doctrine which provides that the the fruits of an illegal search nonetheless may be
admitted if the tainted fruits inevitably would have been discovered by lawful
means. State v. Schwegler, 170 Wis. 2d 487, 499, 490 N.W.2d 292 (Ct. App.
1992). The trial court agreed with the State that the inevitable discovery doctrine
provided an alternative ground for the admission of evidence discovered during
the November 8 search. We likewise conclude that the evidence was admissible
under the doctrine of inevitable discovery.
29

In order for the inevitable discovery doctrine to apply, the State must

demonstrate by the preponderance of the evidence that the tainted fruits inevitably
would have been discovered; in doing so, it must prove:
(1) a reasonable probability that the evidence in question
would have been discovered by lawful means but for the
police misconduct; (2) that the leads making the discovery
inevitable were possessed by the government at the time of
the misconduct; and (3) that prior to the unlawful search the
government also was actively pursuing some alternate line
of investigation.

Id. at 500 (citing United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985)).
The trial court found that the State had met the requirements.

Because the

inevitable discovery doctrine is an exception to the exclusionary rule protecting

Fourth Amendment interests, see Nix v. Williams, 467 U.S. 431, 440 (1984), its

14

No. 2010AP411-CR

application presents a constitutional question which we review de novo, see State

v. Thorstad, 2000 WI App 199, 4, 238 Wis. 2d 666, 618 N.W.2d 240.
1.

30

Reasonable Probability Existed that Evidence Would Have

been Discovered by Lawful Means.

As to the first requirement, the State applied for and received a

second warrant on November 9 to inspect Averys trailer and garage. This pursuit
of a second warrant demonstrates that law enforcement would have continued its
search of Averys trailer on November 9 if it had not done so on November 8. By
November 8, Halbachs Toyota had been located on the premises, investigators
had located shell casings in Averys garage and possible human blood in Averys
trailer. Then, on Tuesday, November 8, investigators learned that Averys DNA
had been found in Halbachs vehicle and that bone fragments had been discovered
in a burn pit behind Averys garage. Fassbender testified that it had become
apparent that Avery was a prime suspect in Halbachs disappearance. These
developments, discovered independently of the trailer search on November 8,
convince us that law enforcement would have left nothing unturned in Averys
trailer and, thus, their discovery of the key to Halbachs vehicle was reasonably
probable.
2.

31

Leads Making Discovery Inevitable Were Possessed by the

Government.

As to the second requirement, Avery concedes that the

independently developed leads focused the police on Avery, and may have led
them to seek the second warrant on November 9. However, Avery contends that
the inevitability argued by the [S]tate is not the inevitability of discovery, but
rather the inevitability that it would focus on Steven Avery as its chief suspect.
We disagree. Armed with evidence pointing to Averys involvement, we are

15

No. 2010AP411-CR

satisfied that the police would have continued the search of Averys trailer until all
areas had been inspectedincluding that area in between Averys bed and
bookshelf where the key to Halbachs vehicle was discovered.

The second

requirement is met.
3.

32

The Government was Actively Pursuing an Alternate Line of

Investigation.

The third requirement requires the State to demonstrate that prior to

the November 8 search, it was actively pursuing an alternate line of investigation.

Schwegler, 170 Wis. 2d at 500. At the pretrial motion hearing, the State argued
that it was pursuing alternate lines of investigation at the time of the November 8
searchit was actively searching the forty-acre salvage yard, it was investigating
the contents of the burn barrel in the vicinity of Averys trailer, including the Palm
Pilot, camera and cell phone, as well as investigating the discovery of human
remains and interviewing various individuals. Avery does not dispute the trial
courts finding that the search of the salvage yard [] yielded the independent
leads pointing to the defendant [that] would constitute an alternative line of
investigation.

Instead, Avery argues that the third requirement is not met

because the State was not pursuing a second search warrant at the time the vehicle
key was discovered. Neither the facts nor the law supports Averys contention.
33

Avery relies on this courts holding in State v. Pickens, 2010 WI

App 5, 323 Wis. 2d 226, 779 N.W.2d 1, that the inevitable discovery rule requires
that the police be actively pursuing the legal alternativehere, a warrantprior
to the unlawful search. Id., 47-49. At issue in Pickens was whether evidence
discovered during an illegal search of a hotel safe was admissible under the
inevitable discovery doctrine. Id., 48-49. The State in Pickens argued that by
the time police illegally searched the safe, they had enough information to obtain a

16

No. 2010AP411-CR

search warrant for the safe, therefore it follows that the police would have
inevitably acquired a warrant and legally obtained the contents of the safe. Id.,
49. The Pickens court concluded that because there was nothing in the record to
support the view that the police were actively pursuing an alternative legal
means, the States inevitable discovery argument failed. Id., 50. However, the
facts presented in Pickens are readily distinguished from those in this case. The
police in Pickens were not operating under an existing warrant, nor had they
obtained any warrant at all pertaining to the defendant or the premises searched.
Id., 4-7.
34

Here, on November 8, the search was believed to be ongoing under a

valid search warrant issued on November 5. During the course of that search, the
evidence against Avery was mounting and all leads were pointing toward his
involvement. This accumulating evidence had been documented over the course
of the search, had been used in obtaining other warrants, and was then used in the
supporting affidavit for the November 9 warrant application. The State concedes
that the record is unclear as to whether the State was preparing the supporting
affidavit at the time of the November 8 search. However, Fassbender confirmed
that during the course of executing the initial November 5 warrant, he became
cognizant that the search was extending over several days and, in recognition of
that, the police obtained another search warrant for the whole scene.
35

We are satisfied under the circumstances that the evidence in the

record is sufficient to demonstrate that the police were actively pursuing a warrant
for the continued search of Averys trailer at the time of the November 8 search.
See id., 49-50. They anticipated the need for a warrant extension, accumulated
evidence in support of that application, documented the factual basis and, one day
after the November 8 search at issue, submitted the documented evidence in a
17

No. 2010AP411-CR

supporting affidavit. Thus, even applying the courts reasoning in Pickens, the
third requirement is met.
36

We conclude that the trial court did not err in admitting evidence

resulting from the November 8 search of Averys trailer, nor did it err in denying
his postconviction motion challenging that decision. The record reflects that at the
time of the November 8 search, sufficient leads existed to support extensive
searches of Averys trailer and that, even absent the fruit of the November 8
search, the November 9 warrant certainly would have been issued based on the
other evidence accumulated by the time of the warrant application. See State v.
Weber, 163 Wis. 2d 116, 140-42, 471 N.W.2d 187 (1991). We therefore turn to
whether the trial court erred in excluding evidence of third-party liability.
II.

The Trial Court Properly Excluded Evidence of Third-Party Liability.

A.

Background

37

Prior to trial, the State moved to prohibit Avery from presenting

evidence of third-party liability. The court issued an order on July 10, 2006, that if
Avery intended to suggest that a third party, other than Brendan Dassey,8 was
responsible for the crimes charged, the defense would need to notify the court at
least thirty days prior to trial. The defense did so on January 10, 2007. Avery
stated: Several members of Averys extended family as well as customers were
on the Avery Salvage Yard property during the approximate time that Teresa
Halbach likely was there.

In that general sense, Avery can establish their

While the court permitted Avery to offer evidence that Brendan Dassey was
responsible for the charged crimes, Avery did not offer any such evidence.

18

No. 2010AP411-CR

opportunityto about the same extent that the [S]tate can establish Steven
Averys opportunity.

The State opposed his request, arguing that the

introduction of any third-party liability evidence regarding the possibility or

probability that any of the individuals mentioned in their filing committed the
crimes charged is precluded by State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12
(Ct. App. 1984).
38

In Denny, this court adopted the legitimate tendency test for third-

party liability evidence. Id. at 623 (citing Alexander v. United States, 138 U.S.
353 (1891)). Thus a defendant is required to demonstrate a legitimate tendency
test that a third person could have committed the crime.

The Denny court

explained:
[T]o show legitimate tendency, a defendant should not be
required to establish the guilt of third persons with that
degree of certainty requisite to sustain a conviction in order
for this type of evidence to be admitted. On the other hand,
evidence that simply affords a possible ground of suspicion
against another person should not be admissible.
Otherwise, a defendant could conceivably produce
evidence tending to show that hundreds of other persons
had some motive or animus against the deceased
degenerating the proceedings into a trial of collateral
issues. The legitimate tendency test asks whether the
proffered evidence is so remote in time, place or
circumstance that a direct connection cannot be made
between the third person and the crime.
Thus, as long as motive and opportunity have been
shown and as long as there is also some evidence to
directly connect a third person to the crime charged which
is not remote in time, place or circumstances, the evidence
should be admissible.

Denny, 120 Wis. 2d at 623-24 (citation omitted). The legitimate tendency test,
characterized as a bright line standard, was summarized by the supreme court as
follows:

19

No. 2010AP411-CR

Third-party defense evidence may be admissible under the

legitimate tendency test if the defendant can show that the
third party had (1) the motive and (2) the opportunity to
commit the charged crime, and (3) can provide some
evidence to directly connect the third person to the crime
charged which is not remote in time, place or circumstance.

State v. Scheidell, 227 Wis. 2d 285, 296, 595 N.W.2d 661 (1999) (citing Denny,
120 Wis. 2d at 623-24).
39

Following a hearing on January 19, 2007, the trial court issued a

written decision and order in which it applied the legitimate tendency test set forth
in Denny. The court determined that none of the third-party liability evidence
offered by Avery was admissible because the defendant does not contend any of
the other persons present at the Avery property on October 31, 2005, had a motive
to murder Teresa Halbach or commit the other crimes alleged to have been
committed against her.

The trial court noted that Averys Denny proffer,

identifying each customer or family friend and each member of his extended
family present on the Avery salvage yard property, appeared to be an example of
the dangers warned of by the court in Denny.9 There, the court observed that a
defendant could conceivably produce evidence tending to show that hundreds of
other persons had some motive or animus against the deceaseddegenerating the
proceedings into a trial of collateral issues. Denny, 120 Wis. 2d at 623-24.
9

The trial courts decision addresses Averys proposed evidence as to each named third
party, which included: Scott Tadych (Barb Jandas boyfriend), Andres Martinez (a salvage yard
customer who denied being present on October 31, 2005), Charles Avery (Stevens brother), Earl
Avery (Stevens brother), Robert Fabian (a friend of Earls), and Blaine, Bobby and Bryan
Dassey (Stevens nephews, Brendan Dasseys siblings).
While Averys trial counsel testified at the postconviction hearing that the defense
would have settled on one or more people as to whom we thought we had the best case, that they
had committed the crime, the trial court was assessing the offer of proof before it.

20

No. 2010AP411-CR

B.

The Trial Court Properly Applied Denny.

40

Avery argues on appeal that the trial court erred when it applied

Denny to the proffered third-party liability evidence. Avery contends that (1) his
constitutional right to present a defense trumps the evidentiary rule articulated in
Denny and (2) Denny applies only when the defendant seeks to introduce
evidence of other possible perpetrators motives to commit the crime, where the
defendant has no such motive.10 Avery further contends that if Denny does apply
to the evidence proffered, then the trial court erred in its determination that the
evidence failed to meet the requirements of Denny.11
41

Generally, the admissibility of evidence is determined by the trial

judge subject to the limits of relevancy and adequacy of proof, and we afford the
trial court broad discretion as long as the evidence tends to prove a material fact.
Michael R.B. v. State, 175 Wis. 2d 713, 723-24, 499 N.W.2d 641 (1993) (citing

10

Avery additionally argues that the State opened the door to the introduction of thirdparty liability evidence by introducing forensic evidence that other persons had been excluded as
perpetrators. Averys argument is premised on the States introduction of evidence that the DNA
profiles of Barb Janda, Bobby, Brendan and Bobby Dassey, and Earl, Charles, Delores and Allen
Avery did not match the DNA on the key to Halbachs vehicle or the blood in Halbachs car, but
did match Steven Avery. Avery complains that he was precluded from soliciting testimony as to
whether a fingerprint that did not match Avery was compared to that of Scott Tadych. However,
Avery fails to cite to any authority in support of his argument and fails to adequately develop it.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (We need not
consider arguments which are undeveloped or unsupported by references to relevant legal
authority.).
11

Avery additionally challenges the validity of the courts decision in State v. Denny,
120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). Avery contends that Denny was wrongly
decided; however, he acknowledges that, pursuant to Cook v. Cook, 208 Wis. 2d 166, 189-90,
560 N.W.2d 246 (1997), we lack the authority to overrule it. He raises the issue to preserve it
for review by the supreme court. Denny remains good law and we are not persuaded by Averys
contention that the Denny court erred in its adoption of the legitimate tendency test.

21

No. 2010AP411-CR

WIS. STAT. 901.04, 904.01, 904.02; Denny, 120 Wis. 2d at 623) (additional
citations omitted). However, when the focus of a circuit courts ruling is on a
defendants asserted due process right to introduce evidence, the issue is more
properly characterized as one of constitutional fact, and is, therefore, subject to de
novo review.12 State v. Knapp, 2003 WI 121, 173, 265 Wis. 2d 278, 666
N.W.2d 881, vacated and remanded, 542 U.S. 952 (2004), reinstated in material
part, 2005 WI 127, 2 n.3, 285 Wis. 2d 86, 700 N.W.2d 899.
42

For purposes of our review, we bear in mind that [m]aterial facts

are those that are of consequence to the merits of the litigation. Relevancy, in
turn, is a function of whether the evidence tends to make the existence of [a
material fact] more probable or less probable than it would be without the
evidence. Michael R.B., 175 Wis. 2d at 724 (quoting Denny, 120 Wis. 2d at
623). The proffered evidence need not prove a fact in a substantial way, but it
must do more than simply afford[ ] a possible ground of suspicion against another
person. Id. (citing Denny, 120 Wis. 2d at 623).
43

First, as to Averys contention that his constitutional right to present

a defense trumps the evidentiary rule articulated in Denny, the Denny court held
that even though the right to present witnesses is a fundamental constitutional
right, that evidence must be relevant to the issues being tried. Denny, 120
Wis. 2d at 622. Second, like the trial court, we reject Averys contention that
Denny does not apply to third-party liability evidence when motive is not an issue.

12

Here, the trial courts ruling was not focused on Averys right to present evidence, but
Avery premises his appellate argument on this constitutional right and the State acknowledges
this standard of review.

22

No. 2010AP411-CR

The trial court explicitly rejected Averys assertion that Halbachs murder was a
motiveless crime. Further, Avery does not provide any authority for his assertion
that a defendant who demonstrates opportunity and direct connection is excused
from demonstrating motive.
44

The defendant in Denny was convicted of first-degree murder. Id. at

617. At trial, the defendant claimed that he did not have a motive to murder the
victim, but that any one of a number of third parties did have motive and
opportunity. Id. The trial court barred the admission of the evidence, ruling it
irrelevant. Id. at 621. Adopting and applying the legitimate tendency test on
appeal, the Denny court concluded that the defendants offer of proof was
deficient. Id. at 625. While the defendant identified three possible third parties
and two witnesses who could testify as to these parties involvement with the
victim, he was not able to satisfy all three requirementsmotive, opportunity and
direct connectionas to any one of them. Id.
45

Here, Avery identified each customer or family friend and each

member of his extended family present on the Avery salvage yard during the
hours in question as possible third-party perpetrators of one or more of the
charged crimes. Avery acknowledges on appeal that he did not seek to prove that
any of the possible alternative perpetrators had an identifiable motive to kill
Teresa Halbach. However, without evidence of motive, Averys proffered thirdparty liability evidence fails the legitimate tendency test in Denny. The parties
identified by Avery may have had the opportunity to commit the crime; however,
Avery was unable to demonstrate that any of the named individuals had a motive
to commit the alleged offenses against Halbach.

23

No. 2010AP411-CR

46

In upholding the trial courts application of Denny, we reject

Averys reliance on State v. Richardson, 210 Wis. 2d 694, 563 N.W.2d 899
(1997), and Scheidell, 227 Wis. 2d 285. In Richardson, the court refused to adopt
the legitimate tendency test for determining the admissibility of frame-up defense
evidence. Richardson, 210 Wis. 2d at 697-99. The court acknowledged the
legitimate tendency test for determining the introduction of third-party evidence,
but saw no reason to adopt it where the defense alleges that the victim was lying
in an effort to frame him, not that someone else had committed the crime.13 Id. at
704-05. Avery argues that, like the defendant in Richardson, he was seeking to
make a frame-up defensethe frame-up motive was police animosity towards
the defendant. The introduction of third-party liability evidence and frame-up
evidence are two separate issues, and Avery was permitted to introduce evidence
that he had been framed by the police. Avery fails to provide any facts, much less
make any argument, linking his proffered third-party liability evidence to the
alleged frame-up. Further, his argument fails to remedy the absence of a motive to
harm Halbach on the part of the named third parties.
47

Scheidell is likewise inapposite.

There, the court held that the

legitimate tendency test is not applicable to the introduction of allegedly similar

13

Avery contends that Richardson is instructive in that the supreme court notes, We do
not consider whether the legitimate tendency test is an appropriate standard for the introduction
of third-party defense evidence. State v. Richardson, 210 Wis. 2d 694, 705 n.6, 563 N.W.2d
899 (1997). However, as the State points out, the supreme court later applied the legitimate
tendency test to third-party defense evidence in State v. Knapp, 2003 WI 121, 173, 265 Wis. 2d
278, 666 N.W.2d 881, vacated and remanded, 542 U.S. 952 (2004), reinstated in material part,
2005 WI 127, 2 n.3, 285 Wis. 2d 86, 700 N.W.2d 899. Denny was also recognized by the
United States Supreme Court in Holmes v. South Carolina, 547 U.S. 319, 327 (2006), as an
example of the widely accepted state rules regulating the admission of third-party liability
evidence.

24

No. 2010AP411-CR

crime evidence that is committed by an unknown third party. Denny simply does
not apply to this type of other acts evidence. Scheidell, 227 Wis. 2d at 297. The
court noted that [i]n a situation where the perpetrator of the allegedly similar
crime is unknown, it would be virtually impossible for the defendant to satisfy the
motive or the opportunity prongs of the legitimate tendency test of Denny.
Scheidell, 227 Wis. 2d at 296. Here, Averys proffered defense evidence did not
involve unknown parties committing allegedly similar crimes. Rather, it involved
the introduction of known third-party liability evidence of the precise type
contemplated by Denny. We conclude that the trial court properly applied the
legitimate tendency test under Denny. We further conclude that Averys proffered
evidence failed to satisfy the first prong of the test.
48

We note that in its decision on the postconviction motion, the trial

court addressed Averys proffered evidence assuming that Denny does not apply.
In conducting its alternative analysis, the trial court examined whether Averys
proffered third-party liability evidence satisfied the relevancy or probative value
requirements of WIS. STAT. 904.02 and 904.03. As the trial court observed in
its written decision, the proffered evidence consisted largely of evidence relating
to the activities of the alleged third-party perpetrators on the day of the crime. The
court noted:
Avery offered no physical or other evidence connecting any
of the individuals to the crime, other than their presence in
the general vicinity. One can only imagine how much
longer this six-week trial would have lasted had the court
granted [Averys] request to introduce third-party liability
evidence implicating the ten individuals named in
[Averys] Statement on Third-Party Responsibility.

25

No. 2010AP411-CR

49

Even considering the more focused and more detailed evidence

presented in Averys postconviction motion, the trial court still found it lacking.14
For example, Avery represents in his postconviction motion that he would have
introduced evidence regarding Scott Tadychs reaction to the news of Averys
arrest and Tadychs attempt to sell a .22 caliber rifle belonging to one of the
Dassey boys; Earl Averys purported presence at the salvage yard after 3:30 or
4:30 p.m. on October 31, and his reaction to being interviewed by the sheriffs
department; Charles Averys jealousy of Steven Avery over money, Stevens
potential share of the family business and Stevens girlfriend; and Bobby Dasseys
statement that he had seen Halbach on the property before leaving to go hunting
and his allegedly conflicting statements as to when he showered on October 31.
50

In reviewing Averys postconviction motion, the trial court noted

that the proffered evidence might have been relevant as to opportunity, or more
specifically proximity, but not probative given the lack of any direct or indirect
motive to harm Halbach to support it. We agree. While Avery can point to
various alleged facts regarding the proposed third-party perpetrators, none of the
evidence is remarkable absent any meaningful evidence of a motive or a physical
connection to the crime. The trial courts relevancy analysis underscores the
appropriateness of Dennys legitimate tendency test as a mechanism of balancing
the accuseds right to present a defense against the States interest in excluding
14

We note that Averys postconviction motion narrowed the proposed third-party

perpetrators to four and then provided a more detailed statement of the proposed evidence as to
each. While the court considered the additional evidence, its decision was clear that the
additional arguments and offers of proof Avery raises in his postconviction motion were
waived by not being presented to the court in a timely manner. We agree. See State v.
Bustamante, 201 Wis. 2d 562, 573, 549 N.W.2d 746 (Ct. App. 1996) (a review of the trial courts
discretionary decision is based on the evidence available at the motion in limine).

26

No. 2010AP411-CR

evidence that, in the words of the trial court, is no more than marginally relevant,
of extremely limited probative value, and likely to confuse the jury and waste the
jurys time.15
III.

Avery Consented to the Substitution of a Deliberating Juror.

A.

Background

51

Avery contends that his fundamental constitutional rights were

violated when the court removed a deliberating juror without cause and substituted
an alternate juror.

The trial courts findings of fact pertaining to Averys

challenge were set forth in its decision and order on Averys postconviction
motions.

Averys trial lasted nearly five weeks; it commenced on

February 12, 2007, and was submitted to the jury on March 15, 2007, at 12:54
p.m. The jury was ordered to be sequestered in Chilton during deliberations and a
thirteenth alternate juror was also sequestered without objection from the parties.
Juror M. was one of the twelve jurors who initially began deliberating the case.
However, in the evening after the first day of jury deliberations lasting
approximately four hours, Juror M. made a request to a sheriffs deputy that he be
excused from deliberations. The deputy relayed the request to Calumet County
Sheriff Gerald Pagel, who telephoned the judge at his home in Manitowoc to
inform him of the request. The trial court prepared a sealed memorandum on

15

The State argues that regardless of whether Denny applies, Avery failed to
demonstrate that he was prejudiced by the courts ruling on the third-party liability evidence. In
light of our conclusion on this issue, we need not address the States argument. See Walgreen
Co., 311 Wis. 2d 158, 2 (noting that when resolution of one issue is dispositive, we need not
reach other issues raised by the parties).

27

No. 2010AP411-CR

March 16, 2007, memorializing its conversation with Pagel. The summary of the
conversation is as follows:
On Thursday, March 15, 2007 sometime around 9:00 p.m.
the court received a telephone call from Sheriff Pagel
indicating one of the jurors had presented a request to a
deputy that he be excused from further jury service because
of an unforeseen family emergency. Specifically, [Juror
M.] was distraught and felt he could no longer serve as a
juror. He reported his stepdaughter was involved in a
traffic accident earlier in the evening which resulted in the
totaling of her vehicle. I received no information about any
injuries. His wife was very upset about the accident and of
the amount of time [Juror M.] had been away from the
family because of the trial. He reiterated that his family
and especially his wife were very embarrassed by news
reports at the time of original voir dire that he was living
off the proceeds of her trust fund. There was also a
suggestion that the juror and his wife had been having some
form of marital difficulties before the trial and the juror felt
it was vital for his marriage that he be excused.

Upon receiving the phone call, the trial court contacted special prosecutor Kenneth
Kratz and defense counsel Dean Strang and Jerome Buting by conference call. As
these events transpired, the trial judge was at his home in Manitowoc, the
defendant was being held in the Calumet county jail in Chilton, Kratz was
presumed to be at his residence, and defense counsel were at a restaurant in
Appleton. Counsel agreed that the court should speak personally with Juror M.
and, if the information provided by Pagel was verified, the juror should be
excused.
52

The courts memo reflects its conversation with Juror M.:

Following the conference call, I called Sheriff Pagel back.
He was at the hotel, I believe originally in the parking lot. I
told him Id like to speak to [Juror M.] My recollection is
that the sheriff called me back shortly thereafter and
apparently handed the phone to [Juror M.] I could
immediately sense that [Juror M.] was distraught. He
sounded depressed. He spoke quietly and slowly. He

28

No. 2010AP411-CR

confirmed the information Id been told. He indicated he

and his wife had had some marital problems before the trial
and the trial was putting an extra strain on the relationship.
He again mentioned, as he had during individual voir dire
of the jurors on Monday, that his wife was upset about the
trust fund reports involving a musician juror on the news.
Things apparently boiled over when his stepdaughter was
involved in a vehicle accident this evening and he was not
there to provide support. My reading, without pressing him
with questions too specific, was that he felt the future of his
marriage was at stake if he was not excused. At that point I
told him Id heard all I needed to know. I thanked him for
his service. I indicated that I would not specify the nature
of his request to be excused on the record. He thanked me
for that. Sheriff Pagel indicated he would have [Juror M.]
transported to his vehicle at Reisterer and Schnell.

Before the jury began its second day of deliberations on March 16, 2007, the court
met with counsel in chambers to discuss how to proceed. Both defense counsel
and the trial court agreed that the procedure would be governed by State v.
Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982). Counsel for both parties
agreed that under Lehman, the discharge of a juror during deliberations left the
parties with three options: (1) stipulate to proceed with fewer than twelve jurors,
(2) stipulate to the substitution of an alternate juror, or (3) have the court declare a
mistrial. See id. at 313.
53

After the meeting, defense counsel met with Avery for

approximately twenty minutes and recommended that Avery elect to replace Juror
M. with the alternate juror. Both parties then agreed to this option,16 with Avery

16

Defense counsel proposed the following stipulation, to which the prosecution agreed:
(continued)

29

No. 2010AP411-CR

specifically agreeing to it in an on-the-record colloquy with the court.

The

alternate juror replaced Juror M. and the jury was instructed to begin its
deliberations anew.17

After three additional days of deliberations, the jury

returned its verdicts.

One, if the Court gives a proper instruction that jury
deliberations must begin entirely anew[,] [a]nd, two, if each of
the 11 presently deliberating jurors provides satisfactory
assurance that they can and will follow an instruction to begin
deliberations anew, then, three, the defense will agree that the
person who has been the alternate to date should join the ranks of
the 11, becoming the 12th regular juror and the deliberations may
begin anew with this newly composed group of 12.
17

The trial court instructed the jury as follows:

Members of the jury,
One of your members has been excused from jury
deliberations in this case because of an unforeseen family
emergency. Although excusing a juror during deliberations
rarely occurs, it is sometimes necessary.
The court has brought back the last alternate juror to
participate in the deliberations in this case. Before those
deliberations begin, I have an important further instruction for all
of you.
The law requires that during deliberations, 12 people must
have the opportunity to review the evidence in light of each
jurors perception, memory and reaction. It is important that the
jury reach its consensus through deliberations which are the
common experience of all 12 jurors. Each of the 12 must have
the opportunity to persuade the other members of the jury and to
be persuaded by them. If you have formed any views about the
evidence up until now, you must set those aside and start over.
To assure that these requirements are followed in this case,
you are instructed that you must commence your deliberations
anew. That means you should begin by electing a foreperson
and then proceed to evaluate all the evidence as though you are
just beginning to deliberate. This is necessary to assure the full
participation of all the jurors in the deliberation process.
(continued)

30

No. 2010AP411-CR

54

Avery challenged the substitution of the juror in his postconviction

motion. Juror M. testified at the postconviction hearing and, in the trial courts
estimation, presented a somewhat different version of the facts. Juror M. denied
both the existence of marital problems and that he had informed the deputy sheriff
that his stepdaughters car was totaled in an accident. However, the trial court
found Juror M.s testimony at the postconviction hearing, held two and one-half
years after the events transpired, not credible. The trial court rejected Averys
challenge to Juror M.s dismissal, determining that it was appropriate under the
circumstances for the court to conduct an off-the-record voir dire of Juror M.
without Avery or the attorneys present and that the record established cause for
Juror M.s dismissal.
B.

The Trial Courts Procedure Properly Adhered to Lehman.

55

Avery contends that the court failed to follow the procedures set

forth in Lehman when it excused Juror M. The Lehman court concluded that in
order to ensure a fair trial, the circuit court must have discretion to discharge a

Before I excuse you to begin deliberating, I must be assured

each of you will be able to deliberate on this basis. Therefore,
the court will individually ask one more question.
You must accept this juror as an equal member of this jury,
giving her the full respect and authority you would give to any
other juror.
Will you follow this instruction I have just given you and
begin your deliberations anew?
The trial court then addressed each juror individually and confirmed that he or she would adhere
to the instruction.

31

No. 2010AP411-CR

regular juror for cause during jury deliberations. Id. at 300. The Lehman court
provided the following guidance for circuit courts:
When a juror seeks to be excused, or a party seeks to
have a juror discharged, whether before or after jury
deliberations have begun, it is the circuit courts duty, prior
to the exercise of its discretion to excuse the juror, to make
careful inquiry into the substance of the request and to exert
reasonable efforts to avoid discharging the juror. Such
inquiry generally should be made out of the presence of the
jurors and in the presence of all counsel and the defendant.
The juror potentially subject to the discharge should not be
present during counsels arguments on the discharge. The
circuit courts efforts depend on the circumstances of the
case. The court must approach the issue with extreme
caution to avoid a mistrial by either needlessly discharging
the juror or by prejudicing in some manner the juror
potentially subject to discharge or the remaining jurors.

Id. (footnote omitted). Avery contends that the trial court failed to follow the
procedure set forth in Lehman by (1) engaging in ex parte communications with
the excused juror, (2) failing to question the excused juror on the record, and
(3) failing to make a sufficient inquiry to establish cause for discharging the juror.
Avery contends that these combined errors resulted in the trial courts discharge of
the deliberating juror without cause.
1.

56

The Trial Courts Ex Parte Communication with the Excused

Juror Was Harmless Error.

Avery first contends that he had an unwaivable right to be present

with counsel when the trial court communicated with the deliberating juror. The
State concedes that, as a general rule, a defendant has the right to be present
personally and by counsel during voir dire and that the defendant must personally
waive that right. See State v. Anderson, 2006 WI 77, 71, 291 Wis. 2d 673, 717
N.W.2d 74; State v. Tulley, 2001 WI App 236, 6, 248 Wis. 2d 505, 635 N.W.2d
807. While the trial court acknowledged the general rule, it noted that no reported

32

No. 2010AP411-CR

cases address the issue in the context of the facts presented here when a juror
reports an emergency during late evening hours while court is not in session and
the parties and counsel are not readily available. It observed that in United States
v. Gagnon, 470 U.S. 522, 526 (1985), the Supreme Court held that the defense
has no constitutional right to be present at every interaction between a judge and
a juror. However, the trial court went on to determine that even if its contact with
Juror M. violated Averys constitutional right to be present, the error was
harmless. We likewise assume error and agree with the trial courts assessment.
57

In Tulley, this court held that a violation of a defendants right to be

present is subject to a harmless error review. Tulley, 248 Wis. 2d 505, 7.

Generally an error is harmless if there is no reasonable possibility that it
contributed to the conviction. Id. A reasonable possibility is one sufficient to
undermine confidence in the outcome of the proceeding. Id. The burden of
proof is on the beneficiary of the error to establish that the error was not
prejudicial.

Id.

In satisfying its burden, the State cites to United States v.

Doherty, 867 F.2d 47, 72 (1st Cir. 1989), for the proposition that a courts ex parte
communication with an excused juror is harmless error because the ex parte
conversation cannot influence the dismissed jurors further deliberations where
there are none, nor can it influence the remaining eleven jurors when they have no
further contact.
58

We agree that the logic of Doherty applies here.

The courts

discussion with Juror M. could not have influenced Juror M.s further
deliberations, nor could it have influenced the remaining eleven jurors because
Juror M. had no further contact with them. Moreover, Avery was present during
the voir dire of all of the jurors who convicted him, including the substitute juror.
He received a fair trial and was convicted by twelve jurors after they had been
33

No. 2010AP411-CR

instructed and agreed to begin new deliberations. See State v. Deer, 125 Wis. 2d
357, 364, 372 N.W.2d 176 (Ct. App. 1985) (we presume that juries follow the
instruction given). Moreover, the alternate juror had not yet been discharged and
therefore had no opportunity to be improperly influenced prior to entering
deliberations. As in Doherty, we conclude that the trial courts ex parte discussion
with the excused juror was harmless error.
2.

59

The Trial Court Properly Exercised its Discretion in

Discharging a Deliberating Juror for Cause.

Avery further challenges the trial courts discharge of the

deliberating juror as being without cause. He focuses his challenges on the trial
courts procedure under Lehman. The State argues waiver. While the challenges
are arguably waived because Avery and his counsel consented to the courts
procedure, we nevertheless address these challenges on the merits. See State v.
Leitner, 2001 WI App 172, 42, 247 Wis. 2d 195, 633 N.W.2d 207 (the waiver
rule is one of judicial administration, and appellate courts have the authority to
ignore a waiver when a case presents an important recurring issue).
a.

60

The trial courts memorialization of the conversation was

reasonable under the circumstances.

With respect to the failure to question the juror on the record, the

trial court noted Lehmans statement that [t]he circuit courts efforts depend on
the circumstances of the case. Lehman, 108 Wis. 2d at 300. Here, the trial court
received the jurors request to be excused at approximately 9:00 p.m. The request
was urgent and was premised on a motor vehicle accident involving the jurors
stepdaughter and also concerns regarding marital difficulties. The court alerted all
counsel to the situation before contacting the juror. It was agreed by all parties
that the trial court would contact the juror and, if the court verified the jurors

34

No. 2010AP411-CR

concerns, the trial court would excuse the juror. Because of the late hour, the
court did not have a contemporaneous record of its conversation with the juror;
however, the court memorialized its conversation in a memorandum.

We

conclude that, given the circumstances, the trial courts approach was reasonable.
b.

61

The trial courts inquiry into the substance of the request and
efforts to avoid discharging the juror were reasonable under
the circumstances.

Next, Avery argues that the trial court failed in its duty to make

careful inquiry into the substance of the request and to make reasonable efforts to
avoid discharging the juror. See id. Again, we are unpersuaded. The facts as
documented by the trial court speak for themselves.

The juror expressed an

imminent concern regarding a car accident, but also an ongoing concern regarding
marital issues. While the former concern necessitated that he be excused for the
evening or longer, the latter concern indicated that he would not be in a position to
return to deliberations.18 While Lehman requires the court to conduct a careful

18

Avery raises Juror M.s postconviction testimony in support of his argument. Juror M.
testified that he did not recall conveying that his stepdaughters accident was serious or that he
was having marital problems. However, the trial court found Juror M.s postconviction testimony
not credible on these issues. See Richards v. Mendivil, 200 Wis. 2d 665, 671, 548 N.W.2d 85
(Ct. App. 1996) (we will not second-guess credibility determinations on appeal). Further, Juror
M. also testified that he informed Pagel and the judge that there was a family emergency and
[he] had to go home and, more specifically, that his stepdaughter had been in an automobile
accident. Juror M. also acknowledged being upset and distraught during the conversations
with Pagel and the judge.
(continued)

35

No. 2010AP411-CR

inquiry, we do not read Lehman as requiring the trial court to delve into Juror
M.s marital issues once it was satisfied that his behavior suggested that he could
not continue to serve as a juror. As the trial court reasoned in its postconviction
decision:
The question is not so much fact-based as behavioralbased. That is, whatever the facts were behind [Juror M.s]
marital problems, his behavior suggested he was
preoccupied by those problems and could not continue to
serve as a juror. The court concluded that [Juror M.s]
concern over his marriage seriously jeopardized his ability
to devote himself to his duties as a juror. If his request was
denied, there was a very real danger that he would overtly
or subconsciously engage in a rush to judgment in order to
get home to save his marriage. Thats the conclusion that
was reached by both the court and Averys two able and
experienced trial attorneys.

Based on our review of the record, we are satisfied that the trial court conducted
the sort of careful inquiry and reasonable effort to avoid discharge contemplated

The trial courts exercise of discretion is based on the facts before it at the time of its
decision. While Avery contends that the trial court should have made further inquiries into the
nature of the accident, for example ascertaining whether his stepdaughter required hospitalization,
it is evident from the trial courts summarizing memorandum that the accident was represented as
being serious and, thus, there was no reason to inquire further. Juror M. testified at the
postconviction hearing that the impression he was trying to create during his phone call with the
judge was that he was upset; he wanted the judge to conclude that he should be let go and
allowed to return home. When asked whether his conversation with [the judge] was designed to
accomplish that objective, Juror M. responded, Under the circumstances, yes. Juror M.s
acknowledged objective supports the trial courts concern regarding his ability to continue as a
juror.

36

No. 2010AP411-CR

by Lehman. We conclude that the trial court properly exercised its discretion
when it excused Juror M.19
C.

WISCONSIN STAT. 972.10(7) Does Not Prohibit the Substitution of a

Juror with the Parties Consent.

62

Avery further contends that even when cause exists and all counsel

agree, a trial courts substitution of a deliberating juror violates WIS. STAT.

972.10(7). Again, the State argues waiver. We nevertheless choose to address
the issue on the merits. See Leitner, 247 Wis. 2d 195, 42.
63

WISCONSIN STAT. 972.10(7) provides: If additional jurors have

been selected under [WIS. STAT. ] 972.04(1) and the number remains more than
required at final submission of the cause, the court shall determine by lot which
jurors shall not participate in deliberations and discharge them. In addressing
Averys postconviction challenges, the trial court acknowledged that [t]he
unobjected to decision to sequester one additional juror in addition to the 12
jurors who were deliberating was error.

However, the court disagreed that

972.10(7) prohibits the parties from consenting to the substitution of one of the
additional jurors in the event that a regular juror is excused. We likewise conclude
that 972.10(7) does not address the dispositive issue in this case, whether a court

19

Avery contends that [t]he courts removal of Juror [M.] during deliberations without
a record establishing cause, which flowed from the absence of an on-the-record voir dire in the
presence of Avery and his attorneys, is structural error requiring reversal of Averys convictions.
Based on our determination that the record established cause for the trial courts excusal of Juror
M. and that, under the circumstances presented, the trial courts contemporaneous memorandum
of its discussion with Juror M. provided a sufficient record of its conversation, we reject this
argument.

37

No. 2010AP411-CR

may substitute an alternate juror for a deliberating juror with the consent of the
parties under the procedure set forth in Lehman. As the trial court noted, there is
a distinction between discharging a juror under 972.10(7) and calling a juror
back as a substitute at some point in the future with the parties consent.
64

In Lehman, a deliberating juror was discharged due to illness.

Lehman, 108 Wis. 2d at 295. The defense counsel and defendant objected to the
substitution of an alternate juror and would not stipulate to a jury of eleven
persons. Id. The alternate juror, who had been discharged prior to the submission
of the case to the jury, was substituted and joined the deliberating jurors without
first being questioned by the court or counsel and without an instruction being
given to the deliberating jurors. Id. at 294. The alternate juror in Lehman had
returned to his home after being discharged, but spoke to no one about the case
after he was released from jury duty and before he entered the jury room. Id.
65

In addressing the defendants challenges to the verdict, the court

addressed WIS. STAT. 972.05 (1979-80),20 the predecessor statute to WIS. STAT.
972.10(7). The Lehman court reasoned:
Whether or not [] 972.05 requires the circuit court to
discharge an alternate juror on final submission of the
cause, the alternate juror in the instant case was discharged
by the circuit judge. The ultimate question is not whether
the alternate juror is to be discharged upon final submission
but whether [ ] 972.05 allows a circuit court judge, during
jury deliberations, to order an alternate juror, whether or
not previously discharged, to take the place of a regular
juror who is discharged after jury deliberations have begun.
20

WISCONSIN STAT. 972.05 (1979-80) provided in relevant part, If before the final
submission of the cause a regular juror dies or is discharged, the court shall order an alternate
juror to take his place in the jury box.

38

No. 2010AP411-CR

Lehman, 108 Wis. 2d at 305. The State in Lehman argued that the statute
governed only substitution before final submission and that by failing to address
the substitution of jurors during deliberations, the legislature intended to permit
the circuit court to exercise its discretion on that issue. Id. The supreme court
rejected the States argument, instead declining to infer from a silent statute that
the legislature approves substitution during jury deliberations. Id. at 305-06.
The Lehman court held:
[I]n the absence of express authorization by statute or rule
for substitution of an alternate juror for a regular juror after
jury deliberations have begun or in the absence of consent
by the defendant to such substitution, hereafter it is
reversible error for a circuit court to substitute an alternate
juror for a regular juror after jury deliberations have begun.

Id. at 313 (emphasis added; footnote omitted). Here, there is still no express
authorization by statute or rule for the substitution of an alternate juror for a
regular juror after jury deliberations have begun, and the State does not argue
otherwise. However, there is Averys consent to the substitution, and that consent
satisfies the procedural requirements of Lehman.
66

This conclusion is in keeping with that of the Seventh Circuit in

United States v. Josefik, 753 F.2d 585 (7th Cir. 1985), a case cited by the trial
court in its postconviction order. In Josefik, the court observed that the federal
rules did not provide for recalling an alternate juror after he or she is discharged
and that policy, as well as the language of the rule, forbids the practice. Id. at 587.
Nevertheless, the court held that the defendant waived any challenge based on a
violation of the rule by consenting to the alternates recall. Id. at 588. The court
reasoned that [i]f the defendant would prefer to take his [or her] chances with the
jury in its reconstituted form rather than undergo the expense and uncertainty of a
new trial, why should he [or she] not be allowed to? Id. While acknowledging

39

No. 2010AP411-CR

that there are limits to waiver, the Josefik court observed that there is nothing in
the procedure used in that case that shocked the conscience. Id. Nor is there
anything in this case that does so. Despite the substitution of an alternate juror
during deliberations, Avery was afforded a jury of twelve culled from a jury pool
narrowed by voir dire in which he participated. Due to error, the alternate juror
had not yet been discharged and therefore had no opportunity to be improperly
influenced prior to entering deliberations. The jury was instructed, and each juror
agreed, to commence deliberations anew. The newly empaneled jury deliberated
for three days before returning a verdict. And Avery consented to this process in
an on-the-record colloquy.
67

For the reasons stated above, having obtained Averys consent both

through his counsel and personally in an on-the-record colloquy, the trial court did
not err in permitting the substitution under Lehman.
D.

Avery Did Not Receive Ineffective Assistance of Counsel.

68

Finally, Avery argues that his defense counsel were ineffective for

(1) agreeing that, if the facts presented by Pagel were verified, the juror would be
excused and (2) entering into a stipulation allowing the court to substitute an
alternate juror after Juror M. was removed, a procedure not permitted by statute.21
Avery contends that each of these decisions was made without full knowledge of
the facts or without a correct understanding of the governing law. We have
reviewed the record; we reject Averys arguments.
21

Avery additionally argues that counsel were ineffective for permitting the trial court to
converse with Juror M. outside of their presence; however, we have addressed this issue and
deemed it harmless error.

40

No. 2010AP411-CR

69

To succeed on a claim of ineffective assistance of counsel, a

defendant must prove both deficient performance and prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also State v. Sanchez, 201 Wis. 2d
219, 236, 548 N.W.2d 69 (1996) (the Strickland analysis applies equally to
ineffectiveness claims under the state constitution).

To prove deficient

performance, a defendant must show specific acts or omissions of counsel, which

are outside the wide range of professionally competent assistance. Strickland,
466 U.S. at 690. To prove prejudice, a defendant must show that counsels errors
were so serious that the defendant was deprived of a fair trial and a reliable
outcome. See id. at 687. On appeal, the trial courts findings of fact will be
upheld unless they are clearly erroneous. See State v. Pitsch, 124 Wis. 2d 628,
634, 369 N.W.2d 711 (1985). However, proof of either the deficiency or the
prejudice prong is a question of law that this court reviews independently. See id.
70

Avery contends that counsels consent to the courts removal of a

deliberating juror was factually ill-informed. Avery argues that his counsel had
incomplete facts regarding the nature of the stepdaughters automobile accident,
and he speculates that further discussion would have resulted in his attorneys
discovering the truth about Juror M.s request.

We are unpersuaded.

As

discussed earlier, the actual basis of Juror M.s request to be excused is less
important than what was conveyed to the trial court at the time of his requesthe
was upset, distraught and communicating a need to address a family emergency at
home. That Juror M.s later testimony (which was deemed not credible by the trial
court) contradicted his representations on the night of his excusal does not reflect
on the performance of Averys defense counsel.

Rather, defense counsels

concerns regarding Juror M.s ability to focus on the case and fully participate in
deliberations were valid under the circumstances.

41

No. 2010AP411-CR

71

One of Averys defense counsel, Strang, testified at the

postconviction hearing:
I certainly did have a concern that if [Juror M.] was
distracted by a family tragedy, or something that was
weighing heavily on him, that he might be someone who
would be inclined not to deliberate fully or with an
exclusive focus on the case. But that wasnt a concern I
had before the phone call. I wasnt out to get rid of this
juror.

Indeed, Strang was aware of his and Averys right to be present during the courts
questioning of the juror, but because of the seemingly urgent circumstances did
not raise the request. For whatever reason, it was Juror M.s intention to create a
sense of urgency surrounding his request to be allowed to go home; that sense of
urgency was communicated to the judge and to counsel. We cannot now fault
counsel for believing what was being communicated at the time of Juror M.s
request, and we decline Averys invitation to speculate as to how Juror M.s
representation of his situation would have differed if he had been questioned in the
presence of Avery and his defense counsel.
72

Avery additionally contends that his counsels performance was

deficient in advising that he forego a mistrial because it was based on a mistaken

understanding of the lawthat substituting the alternate was legally permissible
and that he was prejudiced as a result. For the reasons set forth above, counsel
correctly understood the law under both WIS. STAT. 972.10(7) and Lehman.
Insofar as counsel advised Avery to forego a mistrial, this is the sort of strategic
advice one would expect a defendant to receive from counsel, and we will not
second guess such advice on appeal if it is rationally based on the facts and law.
See State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App. 1996).
Strang testified that Avery was informed of his options under Lehman, including

42

No. 2010AP411-CR

the right to have the court declare a mistrial. See Lehman, 108 Wis. 2d at 313.
Defense counsel advised that Avery not move for mistrial because the case would
go to trial again and, for financial reasons, neither defense counsel would be able
to represent him. Counsel testified that, all things considered, their case had gone
in as well as they could have hoped, and it was in Averys best interest for that
jury to continue to deliberate on the evidence presented. In light of the facts
surrounding Averys decision to forego a mistrial, there is no indication that he
was deprived of a fair trial or reliable outcome as a result. See Strickland, 466
U.S. at 687.
73

Finally, we reject Averys contention that this court should presume

prejudice because the removal of a deliberating juror without cause has

repercussions which are necessarily unquantifiable and indeterminate. In support,
Avery relies on United States v. Curbelo, 343 F.3d 273 (4th Cir. 2003), and
United States v. Essex, 734 F.2d 832 (D.C. Cir. 1984).

Averys reliance is

misplaced; both cases involved verdicts returned by eleven jurors without the
defendants consent. In Curbelo, the court held that depriving a defendant of the
verdict of twelve jurors, without his [or her] consent or any finding of good
cause, is structural error requiring reversal. Curbelo, 343 F.3d at 281. Essex
also involved a presumption of prejudice when the court permitted a jury of eleven
to continue deliberations and return a verdict without a finding of good cause as to
the twelfth jurors absence and without the stipulation of the defendant. Essex,
734 F.2d at 835, 839-40. Here, as discussed above, Avery received exactly what
he was entitled to and consented toa verdict returned by twelve jurors who were
instructed to commence deliberations together and who are presumed to have done
so.

43

No. 2010AP411-CR

74

For reasons discussed above, we also reject Averys contention that

defense counsels performance was deficient for believing that substituting an

alternate was legally permissible. Thus, we conclude that Avery has failed to
demonstrate either that his trial counsels performance was deficient or that he was
prejudiced as a result of any alleged deficiency.22
CONCLUSION
75

We conclude that the trial court did not err in its evidentiary rulings

denying Averys motion to suppress evidence recovered during the November 8

search of his trailer and precluding Averys introduction of third-party liability
evidence under Denny. We further conclude that the trial courts dismissal of a
deliberating juror for cause and with the consent of all parties does not constitute
reversible error. We affirm the judgments and the order denying Averys motion
for postconviction relief.
By the Court.Judgments and order affirmed.

22

We also need not address Averys contention that the trial courts dismissal of a
deliberating juror was plain error or that he is entitled to a new trial in the interest of justice. For
the reasons stated above, the courts dismissal of a deliberating juror for cause and with the
consent of all parties was not error, plain or otherwise, and thus does not entitle him to a new
trial.

44