¶4. We hold that in accordance with the standard articulated in Britt, if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant. Therefore, we conclude that the circuit court in this case erroneously exercised its discretion in withholding the jurors' names from the record because it failed to make an individualized determination that the jury needed protection and failed to take reasonable precautions to minimize any prejudicial effect to Tucker. Nevertheless, we further conclude that the error was harmless based on the overwhelming evidence of Tucker's guilt....

¶27. Based on all the above, we hold that when a circuit court restricts any juror information, the court must: (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant's guilt or character. The circuit court in this case failed to satisfy this two-prong test; however, the error was harmless in light of the overwhelming evidence of Tucker's guilt.

¶23 … The circuit court did instruct the jury on Tucker's presumption of innocence and on the State's burden of proving guilt beyond a reasonable doubt. However, we conclude that this instruction, by itself, was insufficient. When jurors' names are withheld, as in this case, the circuit court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence. We recognize that in Britt, the circuit court apparently did not give a precautionary instruction to the jury; however, due to the potential for prejudice to the defendant, we conclude that such an instruction is necessary.

¶18. Accordingly, we must now turn to the Batson challenge itself. Our supreme court has adopted the Batson principles and analysis. State v. Lamon, 2003 WI 78, ¶22, 262 Wis. 2d 747, 664 N.W.2d 607 (citing State v. Davidson, 166 Wis. 2d 35, 39-40, 479 N.W.2d 181 (Ct. App. 1991)). Lamon reiterates the three-part, burden shifting analysis set forth in Batson for the evaluation of such a challenge:

[I]n order to establish a prima facie case of discriminatory intent, a defendant must show that: (1) he or she is a member of a cognizable group and that the prosecutor has exercised peremptory strikes to remove members of the defendant's race from the venire, and (2) the facts and relevant circumstances raise an inference that the prosecutor used peremptory strikes to exclude venirepersons on account of their race.

Lamon, 262 Wis. 2d 747, ¶28 (footnote omitted). Then, if the trial court finds that the defendant has indeed established a prima facie case, "the burden shifts to the State to come forward with a neutral explanation for challenging [the dismissed venireperson]" and "[t]he prosecutor's explanation must be clear, reasonably specific, and related to the case at hand." Id., ¶29 (citation omitted). This step concerns the facial validity of the prosecutor's explanation. That is, unless the prosecutor intended to cause a disparate impact with his or her peremptory strike, the impact itself does not compromise the neutrality of the strike. Id., ¶30. Finally, after the prosecutor offers a neutral explanation for the strike, the trial court "has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established." Id., ¶32. The defendant has the "ultimate burden" of persuading the trial court that there was purposeful discrimination. Id. Thus, a showing of disparate impact is not enough-proof of discriminatory intent or purpose is essential for a successful Batson challenge.

¶15. In a challenge to a Batson ruling, we review the trial court's determination as to whether the State had a discriminatory intent as a finding of historical fact, which we shall not disturb unless clearly erroneous. State v. Gregory, 2001 WI App 107, 5, 244 Wis. 2d 65, 630 N.W.2d 711. The methodology we employ is a three-step process that may involve shifting burdens, depending upon the evidence presented. In the first step, the accused must make a prima facie showing that the State acted with discriminatory intent by establishing that it exercised peremptory strikes on the basis of race, gender, or any other prohibited category. State v. Jagodinsky, 209 Wis. 2d 577, 580, 563 N.W.2d 188 (Ct. App. 1997). The trial court may consider all relevant factors in determining whether the accused made a prima facie case. State v. Walker, 154 Wis. 2d 158, 173-74, 453 N.W.2d 127 (1990).

For another summary of the 3-step process under Batson, see Akeem Aki-Khuam v. Davis, 7th Cir. No. 02-1945, 5/8/03. UPDATE: U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05, taking into account Johnson v. California, 125 S. Ct. 2410 (2005).

¶14. Furthermore, we also conclude that a postconviction evidentiary hearing was properly denied because a circuit court's decision on a Batson challenge must be made before the jury is sworn. Furthermore, none of the proffers provided proof that was relevant to the prosecutor's intent when he struck Bell. For example, none of the documents showed the prosecutor had not been told what he represented to the court in the Batson hearing or that he knew any of the information he said he relied on was inaccurate. Instead, most of the materials focused on whether the information he was given was accurate. However, when attempting to prove the reasons given by the prosecutor were pretextual, the focus must be on what the prosecutor knew about the potential juror when he made the strike. Williams v. Chrans, 957 F.2d 487, 491 (7th Cir. 1992). Therefore, if a defendant is attempting to prove the prosecutor's reasons for the strike were pretextual, a defendant must show either that the prosecutor intentionally misrepresented the facts he said he relied on or that he had been told those facts but he knew they were erroneous. Stated another way, even if we were to assume, arguendo, that the prosecutor relied on inaccurate information, it does not necessarily follow that the prosecutor had the intent necessary to sustain a finding of purposeful discrimination. Here, what Gregory sought to prove by his proffers at the postconviction hearing was not relevant to the prosecutor's intent when he struck Bell. See State v. Toliver, 187 Wis. 2d 346, 358, 523 N.W.2d 113, 117 (Ct. App. 1994). Additionally, if counsel for the defense required additional information in order to challenge the prosecutor's statements in the Batson hearing, he should have requested a brief adjournment at that time, fully explaining what he needed and why he needed it in order to complete the Batson hearing. No adjournment was requested here. Therefore, for all the reasons set forth above, we affirm the judgment of the circuit court.

The State argues that Jones's Batson objection, made after the jury was sworn, came too late. Jones responds that his objection was timely. We conclude that the defendant must make a Batson objection prior to the time the jury is sworn. If the objection is not made until after that time, the issue is waived.

¶32      … The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror's presence may create bias or an appearance of bias. ^[15] The reason for this principle of law is that a circuit court's striking a prospective juror who raises issues of bias saves judicial time and resources in the long run. ^[16]

¶33      This court has acknowledged that cases concerning juror bias present difficult legal questions for this court and the court of appeals.^[17] The circuit court's best course of action is to obviate the need for appellate review of these questions by erring on the side of caution in the first instance by striking the juror.

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 ^[16]  Lindell, 245 Wis. 2d 689, ¶49 (stating that by "err[ing] on the side of striking prospective jurors who appear to be biased," the circuit courts may "avoid the appearance of bias, and may save judicial time and resources in the long run" (quoting State v. Ferron, 219 Wis. 2d 481, 503, 579 N.W.2d 654 (1998) (internal quotation marks omitted))).

 ^[17]  Lindell, 245 Wis.  2d 689, ¶31.

¶16      The sole question we must address on appeal is whether Smith was denied the right to an impartial jury by the circuit court's refusal to strikeCharlotte for cause. Smith argues that Charlotte should have been disqualified as objectively biased because she was employed by the prosecuting attorney. Essentially, Smith seeks a per se rule in Wisconsin that employees of the Milwaukee County District Attorney's Office cannot serve on juries in criminal cases prosecuted by their employer. Alternatively, the State argues that Charlotte did not demonstrate objective bias, and this court should not create a per se disqualification for such employees.

¶17      We believe in this case, the circuit court reasonably concluded thatCharlotte was not objectively biased under the totality of the circumstances. We further refuse to create a per se exclusion of potential jurors that are employed by the Milwaukee County District Attorney. In our view, the exclusion of jurors on the basis of objective bias is best left to the case-by-case discretion of the circuit court.

¶24      In this case, the State of Wisconsin was represented by the Milwaukee County District Attorney's Office, located in the Courthouse Complex in downtownMilwaukee. Charlotte serves as an administrative assistant for the District Attorney's Office located in the Children's Court Center in Wauwatosa. She does not work on investigations. Furthermore, the record does not show any indication that Charlotte recognized Harris or vice versa. There is also no evidence that Charlotte had any contact with Harris, any prior familiarity with the case, or any work connected to the office in Milwaukee. 

¶25      Additionally, both attorneys pressed Charlotte to consider whether her position as an administrative assistant for the District Attorney would influence her decision, and each time she responded unequivocally that she could be fair and impartial. …

¶28      We fully recognize there may be situations where an employee of the Milwaukee County District Attorney will be objectively biased.  Indeed, "'we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts "reasonably suspect" that juror bias exists.'" Lindell, 245 Wis. 2d 689, ¶49 (quoting Ferron, 219 Wis. 2d at 495-96). However, permitting an administrative assistant to serve on a jury who works at a different office in a different city than the prosecuting office and who otherwise knows nothing about the case, the defendant, and does not even recognize the prosecutor is not such an "extreme situation" that we must conclude the circuit court erred in refusing to strike Charlotte for cause.

¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus, as in Cullen, the jury could have been exposed to Wolfgram's potential influence for only a very limited period of time.

¶58 Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when it is a juror who knows the complaining witness, as was the case in King.

¶59 Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to discuss the case with witnesses.

¶60 More important, the circuit court inquired as to whether the jurors could decide the case fairly and impartially. …

¶21 ... We must reverse the decision of the circuit court because we determine as a matter of law the court could conclude only that the veteran jurors were objectively biased.⁷

¶22 The overwhelming majority of jurisdictions, both state and federal, have concluded that jurors who serve on another jury involving similar facts and issues need not categorically be removed for cause solely on that basis. ...

¶23 Moreover, we have been quite hesitant to create classes of persons that are per se excluded from jury service. ...

¶24 Rather, a party seeking to have that veteran juror removed for cause will need to make an individualized showing that the particular juror is objectively biased ....

¶25 We arrive at this conclusion based on the veteran juror’s statement at voir dire, ... that the juror believed that the Intoxilyzer 5000’s readings would be correct unless it could be shown either that the machine was operated by an unqualified person or that the machine failed its self diagnostic check. Three other veteran jurors concurred in this judgment. ...

¶28 The crux of Kiernan’s defense was that the breathalyzer rendered an inaccurate reading for reasons other than operator error or machine malfunction. By their own statements at voir dire, the veteran jurors had reached a conclusion on that very issue before they heard one sentence of testimony. ...

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⁷ The State contends that the lack of a voir dire transcript means that we must assume that the veteran jurors maintained that they could be impartial and the circuit court believed them. We agree and have done so. However, the State seems to imply that this ends the inquiry.

The State fails to appreciate, however, that our objective analysis presupposes that such assurances are present. The purpose of the objective analysis is to probe beyond what a juror asserts in order to examine whether reasonable jurors could actually act in the manner the jurors stated they would act.

¶14 The proper time to determine whether a juror is impartial is on voir dire examination. Messelt, 185 Wis. 2d at 267. The voir dire, with its peremptory strikes and strikes for cause, is the prime instrument of the common law designed to assure an impartial jury and a fair trial. State v. Shillcutt, 119 Wis. 2d 788, 812, 350 N.W.2d 686 (1984) (Heffernan, C.J., concurring). The effectiveness of voir dire, however, is dependent upon the responses provided by prospective jurors and there are no guarantees that a juror will respond honestly, accurately or completely. Messelt, 185 Wis. 2d at 268.

¶15 In State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985), this court set forth a two-step test to follow when bias is alleged to have resulted from a juror’s failure to reveal information on voir dire. In Wyss, we held that in order to be awarded a new trial in such instances, a litigant must demonstrate:

(1) that the juror incorrectly or incompletely responded to a material question on voir dire; and if so, (2) that it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party.

Wyss, 124 Wis. 2d at 726.

...

¶17 The record reveals that neither the circuit judge nor the attorneys asked the jury panel if they knew the defendant or if they knew anything, other than what was explained during voir dire, about the defendant. Because juror McCann was never specifically asked, his responses could not have been incorrect or incomplete. We find that the defendant has failed to satisfy the first prong of the test in Wyss; accordingly, we will not address the second prong.

¶2. We hold that an ability to understand the English language is necessary in order to satisfy the requirements Wis. Stat. § 756.02 and § 756.04 (1999-2000). If a potential juror indicates on the juror questionnaire that he or she is unable to understand English, his or her name shall be struck from the juror pool. If a juror who does not meet the statutory requirements of Wis. Stat. § 756.02 is impaneled, then the entire trial process may be nothing more than an "exercise in futility." State v. Coble, 100 Wis. 2d 179, 216, 301 N.W.2d 221 (1981) (Coffey, J., concurring).

¶48. It is not always enough that a prospective juror assures counsel or the court that he or she will be impartial. Circuit courts are often in a better position to judge whether a prospective juror is biased, or potentially biased, than is the prospective juror. For example, the circuit court will almost always have a better appreciation for the evidence that is going to be presented in the trial than the prospective juror. As the defendant points out, the relationship of D.F. to the victim--as opposed to a witness--meant that D.F. would confront a great deal of evidence concerning Harmacek's death. This evidence was likely to include testimony from a forensic expert, photos of the crime scene, and autopsy photos of the victim. The circuit court was in a better position than D.F. to judge the likely effect of this evidence on her because of her relationship to the victim.

¶49. We take this opportunity to restate that ‘we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts “reasonably suspect” that juror bias exists.’ Ferron, 219 Wis. 2d at 495-96. This is a decades-old standard, Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956), that encourages circuit courts 'to err on the side of striking prospective jurors who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run.' Ferron, 219 Wis. 2d at 503 (emphasis added). As Justice William A. Bablitch said in dissent in State v. Louis, 156 Wis. 2d at 486: ‘It is the appearance of partiality that gives great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality.’

¶50. Prospective juror D.F. was objectively biased and should have been struck for cause. The facts show that a reasonable person in D.F.'s position could not have remained fair and impartial.

¶21      …. A defendant's failure to exercise a peremptory challenge does not result in a waiver of the defendant's right to raise on appeal the issue whether the juror's inclusion violated the defendant's constitutional right to be tried by an impartial jury. ^[8]

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 ^[8]  State v. Lindell, 2001 WI 108, ¶117, 245 Wis.  2d 689, 629 N.W.2d 223 (citing State v. Gesch, 167 Wis.  2d 660, 671, 482 N.W.2d 99 (1992)).

We conclude, following Olexa, that a defendant waives an objection to a juror's bias if no motion is made to the trial court to remove the juror for cause. However, Olexa does not address Brunette's argument concerning the requirements for a valid waiver: he contends that it must be made personally by the defendant on the record. ...

We conclude that the decision whether to move to strike a potential juror for cause should not be added to those few, fundamental decisions that are reserved personally for the defendant and must be waived personally by the defendant. ...

Trial counsel's failure to move to strike Herrin for cause therefore waives Brunette's right to object to her presence on the jury. However, Brunette may assert a claim of ineffective assistance of counsel based on defense counsel's failure to object to her presence. ...

¶44      When concluding in our previous cases that a juror was biased and was erroneously impaneled, the court has reversed the defendant's conviction and ordered a new trial without inquiry into harmless error. ^[29] These cases reflect the rule that juror bias taints the entire proceeding and requires automatic reversal. Juror bias is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Juror bias seriously affects the fairness, integrity, or public reputation of judicial proceedings and is per se prejudicial.

¶45      Although there is a dearth of authority regarding the question whether a member of the presiding judge's immediate family may serve as a juror, our decision in the present case is consistent with and is supported by two cases from other jurisdictions: Elmore v. State, 144 S.W.3d 278 (Ark. 2004); and People v. Hartson, 553 N.Y.S.2d 537 (N.Y. App. 1990). …

¶47      As we do here, the Elmore and Hartson courts both ordered new trials without inquiring into questions of prejudice or harmless error. …

But even if Oswald is certain to be convicted if he is retried, this cannot justify our reversing the grant of his petition for habeas corpus. Even a clearly guilty criminal is entitled to be tried before an impartial tribunal, something the jurors in this case may well have failed to understand. ... It is one of the handful of rights of a criminal defendant that is not subject to the doctrine of harmless error....

¶3        Applying the Village Food test, we determine that the claims asserted in the State's complaint do not give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at common law at the time the state's constitution was adopted. Id., ¶16.

¶4        Our determination, however, does not preclude the constitutional right to a jury trial in all environmental regulatory cases. Such a right exists if the asserted claim has an essential counterpart that existed at common law in 1848 and was recognized as an action at law in 1848. Id.

…

¶17      While Article I, Section 5 provides that the right "shall remain inviolate," it does not apply to all matters. Historically, it has been interpreted to apply only to civil cases. Dane County v. McGrew, 2005 WI 130, ¶13, 285 Wis. 2d 519, 699 N.W.2d 890; Bennett v. State, 57 Wis. 69, 74, 14 N.W. 912 (1883). Jury trial in criminal cases falls under the purview of Article I, Section 7.

¶18      Moreover, Section 5 has been interpreted to mean that the right is preserved to the extent that it existed at the time of the adoption of the state constitution in 1848. See McGrew, 285 Wis. 2d 519, ¶15; Town of Burke v. City of Madison, 17 Wis. 2d 623, 635, 117 N.W.2d 580 (1962). Three cases comprise this state's recent jurisprudence on the question of when the right to a jury trial as it existed in 1848 creates a constitutional right to a jury trial in a contemporary cause of action, State v. Ameritech Corp., 185 Wis. 2d 686, 517 N.W.2d 705 (Ct. App. 1994), Village Food, and McGrew.

…

¶34      This court has demonstrated its wariness of basing a constitutional right to a jury trial on such a broad analogy. See McGrew, 285 Wis. 2d 519, ¶¶25, 28; Vill. Food, 254 Wis. 2d 478, ¶¶23-25. We are therefore cautious here as well. Having "doctrinal roots" in nuisance is not alone sufficient for a modern cause of action to be "essentially a counterpart" to nuisance actions. We note that a modern statutory claim may codify a common law nuisance action that existed, was known, or recognized in 1848 and thereby meet the first prong of the Village Food test. However, the modern cause of action requires more than a passing resemblance to the action. As we put it in Village Food, it must be "essentially [a] counterpart." Id., ¶28.

¶35      Here, the causes of action are not essentially counterparts to the public nuisance actions that existed at common law. A cause of action for public nuisance requires a showing of substantial and unreasonable harm to interests in the use and enjoyment of land. See Keeton, supra, at 580. Under historic common law nuisance, a party should not seek recovery "until an actual nuisance has been committed, or at all events until it is quite clear that the [conduct] will inevitably result in a nuisance." George V. Yool, An Essay on Waste, Nuisance, and Trespass, 95 (1863). Modern environmental regulatory laws, however, "regulate more subtle and attenuated harms than the common law of nuisance does; a land use that creates a common law nuisance is thus likely to be an a fortiori violation of statutory environmental law." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 101 F.3d 503, 505 (7th Cir. 1996).

And just what might be the relevance of Art. I § 5 to SPD practice? Hard to say, except that you never know. Does, for example, the broad way we define causation for restitution purposes, coupled with ultimate reduction to civil judgment, impinge on the right to civil jury trial determination of damages?

Applying the Village Food test, there are four justices of the court that conclude that McGrew has a constitutional right to a jury. However, there is a split as to whether the right is to a six- or 12-person jury. Nevertheless, this opinion, together with the dissent, form a majority on the constitutional issue that such a right exists and, at a minimum, it is to a six-person jury.

This decision is not to be read, however, that there is a constitutional right to a six-person jury trial in municipal court. Rather, the right is exercised when upon appeal there is a jury trial in circuit court. See Ogden v. City of Madison, 111 Wis. 413, 87 N.W. 568 (1901) (the constitutional right to trial by jury does not extend to a prosecution for a violation of a city ordinance in municipal court).

¶51. Now that we have determined that D.F. should have been struck for cause, we consider the proper remedy for this error. This court's decision in State v. Ramos[, 211 Wis. 2d 12, 24, 546 N.W.2d 328 (1997)] would require that we reverse Lindell's conviction and remand his case for a new trial. Yet, there is no serious argument that the defendant did not commit the offenses of which he was convicted, or that he did not receive a fair trial by an impartial jury. Hence, reversal of Lindell's conviction is counterintuitive and would certainly lead to a costly and time-consuming new trial.

¶52. The harsh reality of this option forces us to reexamine whether the result dictated by the Ramos decision makes sense for our system of justice on an ongoing basis. We conclude that it does not. Consequently, the Ramos decision is overruled.

¶53. We base our decision to overrule Ramos on several factors. First, the Ramos decision neglected to fully describe and analyze long-standing Wisconsin law on peremptory challenges and harmless error. Second, the court read too much into the Supreme Court's decision in Ross v. Oklahoma, 487 U.S. 81 (1988), and did not anticipate the decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000). Third, the court has recognized some disturbing systemic problems that came out of the Ramos decision. Finally, the court has taken significant steps to address the issue of juror bias.…

¶118. Nothing in this opinion changes the fundamental law that an accused is entitled to be tried by an impartial jury. Our decision requires a defendant to make a conscious choice between exercising a peremptory challenge or waiting for a Sixth Amendment challenge after conviction. However, the State must now be more alert and sensitive to a defendant's challenge for cause. Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury. We think the defendant's right to peremptory challenges will be effectively vindicated when prosecutors have an interest in seeing that jurors biased against the defendant never sit.

¶119. When the Ramos case was argued, the State conceded that situations might arise in which a defendant receives a fair and impartial jury but reversal is nevertheless appropriate. For example, reversal might be appropriate when a circuit court judge repeatedly and deliberately misapplies the law to force a defendant to use peremptory challenges or when the court makes errors that force a defendant to use most or all of his or her peremptory strikes. The State made the same concession in oral argument in this case.

¶120. We conclude that the Ramos case should be overruled because our good intentions did not produce good results. The time has come to acknowledge error and move forward.

¶18 … The legislature could not have intended to require the defendant's presence when the judge or clerk is acting in an administrative capacity under § 756.03. In contrast, the procedure by which a court questions jurors to determine bias under Wis. Stat. § 805.08(1) takes place after the jurors are sworn in, with the jurors and parties present, and involves the judge ruling on objections-that is, functioning in a judicial capacity rather than in an administrative capacity. We conclude that the procedure described in § 805.08(1) is the ‘voir dire of the trial jury’ referred to in § 971.04(c).

This case is substantially different from those applying the “harmless error” rule for two major reasons. First, a defendant has an absolute right “to receive a fair trial by a panel of impartial jurors.” ... A potential juror’s subjective bias is generally ascertained by that person’s “responses and demeanor at voir dire.” ... Unless a defendant and his or her lawyer are present when potential jurors are questioned, the subtleties of responses are lost—even if a transcript is made available to the defendant and defense counsel (this was not done here). ...

Second, “the interplay between potential jurors and a defendant, while often subtle, is both immediate and continuous.” State v. Garcia-Contreras, 953 P.2d 536, 541 (Ariz. 1998). Here, as in Garcia-Contreras, “[n]o one can tell what the prospective jurors might have thought when all of the key players were introduced save the defendant, whose whereabouts were left mysteriously unexplained” and the “[d]efendant’s absence may have damaged him in the eyes of the jury—some may have thought he had irresponsibly failed to show up for the first day of his trial.” Ibid.

¶14      In sum, we conclude that the term “plaintiff” in Wis. Stat. § 814.51 is an express reference to the State for purposes of the Martineau rule here. Accordingly, we reject the State’s argument that the circuit court lacked authority to impose jury fees against the State.

¶15   Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did. At the time the trial court announced its intention to provide the challenged answer to the jury’s question, Becker’s trial counsel did not object to it. Indeed, he appears to have expressly “okayed” it …

…

¶17   Here, the answer the trial court gave to the jury’s question regarding its instruction became part of its instruction to the jury. Thus, as in Marcum, this appeal rests on claimed errors in the jury instructions. See Marcum, 166 Wis. 2d at 915. And, like Marcum, Becker has a timing issue with his objection. Because Becker’s objection came too late; we will not review the instruction to the jury “in the context of whether the trial court erred.” See id. at 916.

¶20      Even if we were to agree with Cox that he had a right to argue for the reopening of the evidence, and if we further assumed that he could have convinced the court to submit the picture to the jury, we would still need to find some likelihood that the verdict would have been different. Cox asserts that there is a “strong possibility” of a different result, but does not tell us why. He states that the jury may have been considering his self-defense theory, wanting to know “how hard the victim rammed his car into [the girlfriend’s] car to determine how much force was reasonably necessary for Cox … to stop a second such action.” This is a non sequitur. Cox’s self-defense theory was that he fired at the victim’s car because he believed the victim intended to run him over. Cox provides us with no explanation of how the extent of damage to the girlfriend’s unoccupied car bears on the reasonableness of Cox’s belief that the victim would try to hit him next. We therefore agree with the State that any error by the trial court was harmless beyond a reasonable doubt.

¶40      While the general rule in Wisconsin is to read a statement to a deliberating jury rather than to physically submit it, that rule is not absolute. See State v. Mayer, 220 Wis. 2d 419, 425, 583 N.W.2d 430 (Ct. App. 1998). Here, Cooks does not claim that the statements contained improper hearsay and giving the jury the written statements would not have unfairly emphasized the State’s case. The core issue in this case was identification. Various witnesses had gone to the police and sworn out statements implicating Cooks and then went back to the police and recanted those statements and then “unrecanted” at trial. Barth argued to the jury that the witness statements contained in the police reports might have been the product of improper police bias or error and urged the jury to closely evaluate the accuracy of the reports. With the written statements before them, the jury would have been able to do just that.

¶31      By playing the recording in open court during jury deliberations, the circuit court can guarantee that the jury does not play the recording multiple times and may instruct the jury as necessary to minimize the risk of overemphasis. For example, the circuit court might remind the jury, in open court, that it should not unduly emphasize the recording over in-court testimony of witnesses or over other evidence.

¶32      In Franklin v. State, 74 Wis.  2d 717, 724-25, 247 N.W.2d 721 (1976), the court explained the reasons for playing an audiotape for the jury in the courtroom during its deliberations …

¶33      Although the Franklin case involved an audiotaped interview with the accused, the procedure set forth in that case applies just as forcefully to a victim's videotaped interview. The same considerations are present in both instances. …

¶34      We conclude that the circuit court failed to adhere to the procedure set forth in the Franklin decision and therefore erred in allowing the jury to see and hear the videotape in the jury room during deliberations rather than in open court on the record.

¶36      The parties agree with the court of appeals that the circuit court's communications with the jury outside the presence of the defendant is error, violating the defendant's constitutional and statutory right to be present.  We agree with the parties.

…

¶63      (W)hatever the requirement for an accused's waiver of the right to be present when a circuit court communicates with the jury, something more than the failure to object is needed to convert the challenge from a direct challenge to the alleged error to a claim of ineffective assistance of counsel.  

¶64      We conclude that although neither the defendant nor defense counsel objected to the circuit court's communicating with the jury in the defendant's absence, the alleged error is treated as a direct challenge in the appellate court, not as a claim of ineffective assistance of counsel.

¶77      We now consider whether the circuit court committed error by failing to make a record of or preserve a record of its statements or comments to the jury relating to the case.

¶78      Wisconsin Stat. § 805.13(1) requires that all statements or comments by the circuit court judge to the jury relating to the case shall be on the record:

Statements by judge. After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record. ^[52]

¶79      The circuit court's statements or comments to the jury in the instant case were not on the record. Thus, the circuit court erred by failing to comply with Wis. Stat. § 805.13(1).

¶91      When the circuit court in the present case failed to follow up on the jury's request for further information, we conclude that it in effect denied the jury's request to have the testimony read back.

¶92      Having established that the circuit court's actions constitute a refusal of the jury's request to have the testimony read back, we now proceed to determine whether that refusal was an erroneous exercise of the circuit court's discretion.

…

¶101    The circuit court used a different standard in determining whether to send the victim's videotaped interview into the jury room and whether to read the in-court testimony to the jury. …

¶102    The circuit court viewed the reading of testimony as cumbersome and perhaps unnecessary. It did not apply that test to the videotape. 

¶103    In sending the videotape into the jury room, the circuit court erroneously stated that the videotape was not a direct examination of the victim but was offered to corroborate her testimony. But it had the effect of a direct examination. The victim's in-court testimony was essentially the same as the videotape. …

…

¶107    The result of the circuit court's decision in the present case is obvious: The direct testimony of the State's most significant witness could be replayed in its entirety while the jury was not permitted to hear again the in-court testimony and cross-examination of the victim or the defendant, even though the jury believed it needed the in-court testimony to decide the case.

¶33      If, as here, the defendant meets the threshold burden of showing juror competency to testify under Wis. Stat. § 906.06(2), the trial court must conduct two additional analyses to decide if a new trial is warranted. See State v. Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999). First, the trial court must make the “factual determination whether ‘one or more jurors made or heard the statements [in question] or engaged in the conduct alleged.’” State v. Wulff, 200 Wis. 2d 318, 328, 546 N.W.2d 522 (Ct. App. 1996) (citation omitted), rev’d on other grounds, 207 Wis. 2d 143, 557 N.W.2d 813 (1997). The defendant must prove the facts by clear, satisfactory and convincing evidence. Id.; Castaneda v. Pederson, 185 Wis. 2d 199, 211-12, 518 N.W.2d 246 (1994). A trial court’s factual determinations on this first inquiry will not be overturned unless clearly erroneous. See Broomfield, 223 Wis. 2d at 479-80 (citing Wis. Stat. § 805.17(2)). If the defendant shows that the alleged statements were made or the alleged conduct occurred, the trial court must determine whether the extraneous information produced prejudice requiring reversal of the verdict. Broomfield, 223 Wis. 2d at 479.

¶34      Here, the trial court determined that Searcy failed to establish by clear and convincing evidence that jurors were exposed to prejudicial information concerning Searcy’s prior burglary convictions through a juror’s research on CCAP. …

…

¶39      In light of the ambiguous, indefinite and equivocal nature of Szabo’s testimony, the trial court was well within its rights to reject her testimony as incredible and conclude that Searcy failed to prove by clear, satisfactory and convincing evidence that the jury had been exposed to extraneous prejudicial information concerning Searcy’s prior convictions. ^[7] Because we uphold the trial court’s determination on this point, we need not address the question of whether the jury’s exposure to extraneous information constitutes prejudicial error requiring reversal of the verdict. ^[8]

¶12      Specific proof of bias is not required for a judge to dismiss a juror during a trial, as it would be to overturn an adverse verdict. State v. Williams, 220 Wis. 2d 458, 466, 583 N.W.2d 845 (Ct. App. 1998). Instead, upon determining that dismissal of a juror may be required, the trial court should proceed as follows:

[I]t is the [trial] court’s 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 counsel’s arguments on the discharge. The [trial] court’s 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.

Lehman, 108 Wis. 2d at 300 (footnote omitted).

¶18      The trial court in this case did precisely what the court in Meehan stated is proper. Juror Molenda was questioned by the trial court and was asked about any connection she might have to Gonzalez and LaGosh. Juror Molenda stated that she went to the schools that LaGosh said she did, specifically the middle school that Gonzalez and LaGosh attended. The record reflects that the trial court did not dismiss Juror Molenda based on nonverbal expressions; rather, it was the risk Juror Molenda’s memory would be jogged at some point in the deliberations that drove the trial court’s decision.

¶19      Gonzalez claims that his right to a particular jury was infringed on by the trial court’s removal of Juror Molenda. Gonzalez relies on People v. Whyte, 725 N.Y.S.2d 347, 348 (N.Y. App. Div. 2001), a case where a new trial was granted for the defendant on the grounds that the defendant’s right to a trial by a jury that he selected was impinged when the lower court judge removed a juror who knew one of the state’s witnesses. The facts of Whyte are distinguishable from Gonzalez’s case in that, here, the trial court dismissed Juror Molenda for her potential knowledge of the defendant and a witness, not just a witness, as in Whyte.

What happened in this case disturbs this court. Without any voir dire, the trial court struck a juror based on nonverbal reaction during a witness's testimony. The dismissal was based on observations of the juror's demeanor during the trial by a police detective, the prosecutor, and the trial court. We strongly discourage trial courts from striking jurors for cause based on nonverbal expressions made throughout the course of the trial without conducting a proper voir dire to determine if the juror is unable to be impartial. We need not directly decide this issue, however, because our decision on the other issues disposes of this appeal. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (we decide cases on the narrowest possible grounds).

Although a trial court in Wisconsin may not substitute an alternate for a deliberating juror, State v. Lehman, 108 Wis.2d 291, 292, 321 N.W.2d 212, 213 (1982), it "has discretion to discharge a regular juror during trial for cause," id., 108 Wis.2d at 299, 321 N.W.2d at 216. Failure to respond truthfully to voir dire questions is sufficient cause to discharge a juror during the trial. United States v. Zambito, 315 F.2d 266, 269 (4th Cir. 1963), cert. denied, 373 U.S. 924. Contrary to Williams's contention, specific proof of bias is not required, as it is when a party seeks to overturn an adverse verdict, see State v. Wyss, 124 Wis.2d 681, 726, 370 N.W.2d 745, 766 (1985), overruled on other grounds, State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990). See Zambito, 315 F.2d at 269. Moreover, a party has no right to insist on the retention of a juror merely because that juror might be biased in the party's favor. Ibid.

The exercise of discretion, of course, "contemplates a process of reasoning" based on the facts of record. Lehman, 108 Wis.2d at 300, 321 N.W.2d at 217. In this case, the trial court weighed the appropriate considerations and determined that the integrity of the trial and of the jury deliberation would be advanced if the case was given to the twelve remaining jurors; it was a reasonable decision under the circumstances. The trial court did not erroneously exercise its discretion.

Section 971.04, Stats., requires the defendant to be present during several enumerated proceedings. Peterson alleges that the court erred by failing to obtain either his presence or waiver before addressing the jury questions. We will assume without deciding that these proceedings do fall under § 971.04.⁵ Nevertheless, we conclude that the error arising from the violation of Peterson's statutory right was harmless.

¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson's home. Therefore, although one may argue that the jury instruction was incomplete because it did not instruct on exigent circumstances, it did instruct relative to the actions of the police in arresting Ferguson once they were outside of her home where she continued her resistive course of conduct.

¶44      It is true that a jury instruction that is incomplete, but is in all other respects a correct statement of the law, may be erroneous. See State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626 N.W.2d 762 (concluding that the jury instruction was erroneous because it failed to adequately define the element of "threat" for the offense of intentional threat to a judge); see also Rose v. Clark, 478 U.S. 570, 579-80 (1986) (explaining that a jury instruction was erroneous because, while it did instruct the jury on the "malice" element of the charged offense, it erroneously shifted the burden of proof). However, here any incompleteness in the instruction did not fail to define lawful authority.

¶45      Based on the test set forth in Harvey, we conclude that if the failure to instruct the jury on exigent circumstances was error, it was harmless. Under Harris, the police were acting with lawful authority in continuing their arrest of Ferguson as they escorted her down the apartment building stairway and placed her in the squad car. Ferguson did not discontinue her resistive conduct when police removed her from her home. As a result, we can conclude that if the jury had been instructed on exigent circumstances as well as the instruction given, it is clear beyond a reasonable doubt that the jury would have convicted Ferguson of obstruction. Harvey, 254 Wis.  2d 442, ¶48.

¶63      I conclude, however, that even if the entry and arrest for disorderly conduct were unlawful, the obstructing was sufficiently separate in time and location from any potentially unlawful conduct by the police. See State v. Annina, 2006 WI App 202, ¶11, 296 Wis. 2d 599, 723 N.W.2d 708 (citing with approval United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)) ("[T]he police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.").

¶18   … This is appropriate when we conclude that the real controversy has not been fully tried or that it is probable that justice has miscarried. Id. When we invoke our discretionary reversal power on grounds that the real controversy has not been tried, we need not determine whether the outcome of the trial would have been different on retrial. See Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990).

¶19   Discretionary reversal may be exercised where an erroneous or deficient jury instruction results in a controversy not being fully tried. See, e.g., id. at 19; Air Wisconsin, Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 318, 296 N.W.2d 749 (1980); State v. Perkins, 2001 WI 46, ¶49, 243 Wis. 2d 141, 626 N.W.2d 762. Jury instructions must have two key characteristics in order to protect the integrity of our jury system: (1) legal accuracy, and (2) comprehensibility. When juror comprehension is compromised, factors that are irrelevant or inappropriate to the controversy at hand may infect the deliberations. … Unclear instructions “lead to uncertainty about how to apply the law to the facts, which may invite the jury to decide the case without regard to the facts or the law.” Id. Therein lies our concern about this case. Although the standard instructions given here were arguably legally sufficient, the jury admitted that it did not fully comprehend the term “materially impaired.” The circuit court had the opportunity to address the jury’s confusion, but chose not to offer the jury the case law definition of the troublesome term. We are convinced that the real controversy here has not been fully tried because the jury did not understand a key legal concept of the charge before it. Accordingly, a new trial in the interest of justice is warranted.

¶48. The elemental fact on which the jury was improperly instructed is undisputed and indisputable: Penn Park is a city park, and no one says otherwise. Accordingly, it is clear beyond a reasonable doubt that a properly instructed, rational jury would have found the defendant guilty of the enhanced offense. Under these circumstances, the error cannot have contributed to the verdict.
¶49. Therefore, while we conclude that the judicial notice jury instruction, as applied to the "city park" element of the enhanced drug offense in this case, operated as a mandatory conclusive presumption in violation of Harvey's Fifth and Sixth Amendment rights, we nevertheless affirm his conviction. A constitutional or other error is harmless if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder, 527 U.S. at 18. By this standard, this error was harmless beyond a reasonable doubt.

¶8        Though our courts have never addressed the issue in a double jeopardy context, it is settled law that first-degree reckless endangerment under Wis. Stat. § 941.30(1) is a lesser included offense of attempted first-degree intentional homicide under Wis. Stat. § 940.01(1). State v. Weeks, 165 Wis. 2d 200, 205-06, 477 N.W.2d 642 (Ct. App. 1991); see also Hawthorne v. State, 99 Wis. 2d 673, 682, 299 N.W.2d 866 (1981) (holding the former analogous crime of endangering safety by conduct regardless of life a lesser included offense of the former analogous crime of attempted first-degree murder). That is, first-degree reckless endangerment does not require proof of any fact in addition to those required for attempted first-degree intentional homicide, see Wis. Stat. § 939.66(1), and a defendant cannot be punished under both statutes for the same act. Sec. 939.66; Hawthorne, 99 Wis. 2d at 680-82. ^[3] We thus agree with Cox and the circuit court that it was error to convict and sentence Cox under both statutes.

---

 ^[3] The State argues that reckless endangerment is not a lesser included offense of attempted homicide because reckless endangerment contains an element that attempted homicide does not: danger to another. Whatever the merits of this argument, we are bound by Hawthorne: “‘endangering safety’ [is] included in the element of attempted first-degree murder of ‘an unequivocal act which, except for the intervention of some extraneous force would have resulted in death of another.’” Hawthorne v. State, 99 Wis. 2d 673, 682, 299 N.W.2d 866 (1981) (footnotes omitted). The State also argues that, because Hawthorne and related cases were wrongly decided, it was not ineffective for Cox’s counsel to believe that reckless endangerment was not a lesser included offense of attempted homicide. Since we are directly addressing the underlying double jeopardy violation, we need not address the State’s argument.

¶14. We find little guidance in Wisconsin law on the question raised on this appeal, i.e., can a judge instruct on lesser-included offenses after the jury has been deliberating? Several other jurisdictions have, however, addressed the issue. While it appears that some courts have adopted a per se rule establishing that giving a belated lesser-included instruction is prejudicial error, "[t]he weight of state authority holds that it would not be appropriate to adopt a per se rule which would declare the belated giving of any [lesser included offense] instruction to be prejudicial error."⁶ See United States v. Welbeck, 145 F.3d 493, 496 (2d Cir. 1998) (citation omitted). All courts have expressed some concern with this procedure. In examining the issue, we first adopt the view stated in State v. LaPierre, 2000 ME 119, ¶21, 754 A.2d 978, that "[a] reinstruction presenting for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances."

...

¶17. Summarizing, then, courts have reversed cases when post-summation lesser-included offense instructions were given: when it appeared likely that the jury saw the belated instructions as a court recommendation to convict; when the timing of the instructions makes the new instruction appear overly significant, upsetting the orderly process of the trial and upsetting the defendant's right to a fair trial; when the defendant's presentation of his case is harmed; and when circumstances suggest the verdict was driven by a stalled jury's desire to disband rather than complete a fair assessment of the evidence. With that backdrop in mind, we conclude that giving the lesser-included offense instructions was unfairly prejudicial here.

¶18. … Here, the trial court decided to give the new jury instructions after the jury had been deliberating for over fourteen hours and had expressed an inability to reach a verdict.

¶20. Additionally, the jury's relatively speedy return of its verdict suggests that not much time was spent examining the evidence in light of the new instructions. …

¶21. Other facts add to our concerns. The jury's communication that it felt deadlocked and "needed a new way to deliberate" points to the conclusion that the jury used the new offenses as a way of ending their deadlock rather than reaching a unanimous decision.

---

⁶   At oral argument, Thurmond contended that this court should adopt a per se rule that giving a belated lesser-included offense instruction is prejudicial error. We decline to do so.

¶23. Admittedly, it is an open question whether Wisconsin law would even permit the introduction of a lesser-included offense after the jury has commenced its deliberations. But having persuaded the trial court to adopt such a procedure, the State should have perceived the necessity for such additional instructions and verdicts. This was especially so in this case where the parties had stipulated that Henning's fate on the bail jumping charges rested squarely on the jury's verdicts on the possession with intent to deliver charges. If the verdicts on those greater charges were to be supplanted by the lesser charges, the jury should have been provided verdicts as to those lesser charges. Because such verdicts were not provided, we have no documentation of the jury's supposed determination that Henning possessed controlled substances.

¶24. The prejudice to Henning is compounded by the fact that Henning's counsel correctly reminded the jury in his final argument (as did the State in its opening statement) that Henning was not charged with simple possession. Relying on the parties' stipulation, counsel therefore properly cautioned the jury that it could not premise any guilty verdict upon a finding of simple possession. However, when the trial court later authorized the jury to find Henning guilty of bail jumping based on simple possession, Henning's final argument on this point was thoroughly discredited and he was made to look the fool.

¶22. But even this does not get Barreau very far. Although a reasonable view of the evidence suggests that Barreau and Keeran believed Hansen was not yet dead when they fled the house, there is no evidence indicating that they believed Hansen would ultimately survive. Barreau seems to suggest that a defendant is entitled to a reckless homicide instruction any time he or she left the scene of the crime while the victim was still alive. Barreau points to no authority for such a proposition and we are unaware of any.
¶23. When someone beats another over the head at least ten times with a baseball bat and then stabs him in the neck with a knife, what could the expectation be, other than that the victim will die? If the assailant (either Barreau or Keeran or both) intended, as Barreau argues, to merely incapacitate Hansen without killing him, why strike him repeatedly on his skull? If only injury was intended, why stab the victim in the neck, even after he was clearly incapacitated? Barreau provides no explanation for these questions. Had Hansen been struck only once on his skull or repeatedly on a less vulnerable part of his body, we would agree that the assailant's conduct could be reasonably viewed as reckless. But this is not what happened.

¶14. The trial court did not recite the jury instruction on first-degree recklessly endangering safety. Rather, it simply responded to the jury's specific and logical inquiry by explaining that the crime of first-degree recklessly endangering safety involves an additional element - the defendant must act with utter disregard for human life. Additionally, the trial court made it abundantly clear that Gordon was not charged with first-degree recklessly endangering safety, that the jurors were not to speculate or deliberate regarding the crime in the first-degree, and that the jury's sole task was to focus on the two elements of the second-degree charge.

¶15. We presume that the jury followed the trial court's cautionary instruction, see State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992) .... Thus, the trial court did not erroneously exercise its discretion in answering the jury's second question.

¶22   It is no answer to say that the trial court told the jury that the lawyers’ arguments were “not evidence”— ...

¶23   We indulge the presumption that juries follow instructions because that advances the goals of finality. If we did not, we’d be trying the same case over and over again—the jurisprudential equivalent of a structure drawn by Maurits C. Escher. Yet, we must not let this general rule blind us to the rare situation when the trial court’s instructions do not cure the prejudice. As Learned Hand repeatedly warned, the efficacy of the instructions are more assumed than real. See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956) (“Possibly it would be extreme to say that nobody can ever so far control his reasoning that he will not in some measure base his conclusion upon a part of the relevant evidence before him, which he has been told to disregard; but at least it is true that relatively few persons have any such power, involving as it does a violence to all our habitual ways of thinking.”), aff’d, 352 U.S. 232; Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (Instruction to jury to ignore prejudicial evidence often requires them to perform “a mental gymnastic which is beyond, not only their powers, but anybody’s else.”), cert. denied, 285 U.S. 556. ...

¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.

¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton's 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander's holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations. 

…

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, ^[19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant's propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

¶9        In State v. Kuntz, 160 Wis.  2d 722, 736-37, 467 N.W.2d 531 (1991), the supreme court explained that:

A mandatory presumption instructs the jury that it must find the elemental fact if the state proves certain predicate facts.  A mandatory presumption that is irrebutable is conclusive.  Thus, a mandatory conclusive presumption relieves the state of its burden of persuasion by removing the presumed element from the case entirely if the state proves the predicate facts. 

(Citations omitted.)  Wisconsin Stat. § 903.03(2) limits the circumstances under which a judge may direct a jury to find a presumed fact against a defendant.  In the event that the judge gives such an instruction, § 903.03(3) requires that

the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so.  In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.

¶10       Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element); ^[3] and “[i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns….  Political activity includes any of the following:  Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment” (establishing that Schultz acted inconsistently with her duties). ^[4]  Thus, Schultz contends that the jury instruction directed the jury to presume the elemental facts that Schultz acted with intent to obtain a dishonest advantage for herself or another and inconsistently with the duties of her office upon the predicate fact that she used state resources for campaign purposes. 

¶11      … We … conclude that the jury instruction contained mandatory conclusive presumptions as to the elements of intent and acting inconsistently with official duties, and thus violated Wis. Stat. § 903.03(3) because it did not contain the limiting language set forth in sub. (3).

…

¶20      We also disagree with the State’s assertion that the jury instruction left the jury free to reach its own finding as to Schultz’s intent upon a finding that Schultz used state resources for campaign purposes.  The court’s jury instruction only required that the jury find that Schultz used state resources “to promote a candidate in a political campaign or to raise money for a candidate” for it to find that Schultz exercised her discretionary power with intent to obtain a dishonest advantage for herself or another.  Stated differently, this instruction directs the jury that it must find that Schultz exercised her discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Schultz used state resources for political campaign purposes (the predicate fact).  This instruction relieves the State of its burden of proving beyond a reasonable doubt that Schultz exercised her discretionary power with the intent of obtaining a dishonest advantage for herself or others, requiring only that the State prove the predicate fact of Schultz using state resources for campaign purposes.  Thus, the jury instruction contained a mandatory conclusive presumption on the element of intent.

¶17      Here, as in Dyess, the jury instruction precluded the jury from reaching its own decision on a finding essential to a conviction.  In Dyess, the instruction directed the jury to find negligence on a finding of speeding.  Here, the instruction directed the jury to find intent on a finding of use of state resources for campaign purposes.  We fail to see a distinction. 

¶18      The State, however, argues that only directed factual findings are impermissible, while directed legal findings are proper.  The Dyess court rejected this argument. …

¶23      Here, the trial court did not merely define Shultz’s duty and then submit to the jury the question of whether Schultz engaged in conduct contrary to that duty, as the State asserts.  See Schwarze, 120 Wis. 2d at 456 (stating that “an employee has a duty to disclose shortages of money to his or her supervisor” as a matter of law, and thus the jury instruction that such a duty existed was proper).  Instead, Schultz’s jury instruction stated that certain conduct was inconsistent with Schultz’s duties.  Even accepting the State’s proposition that the court’s role was to define Schultz’s duty for the jury,^[6] whether Schultz engaged in alleged conduct and whether that conduct was inconsistent with Schultz’s duties were questions for the jury.  Because the jury instruction required the jury to find that the element of performing acts inconsistent with the duties of one’s office was met upon a finding that Schultz engaged in campaign activity on state time, the instruction was a mandatory conclusive presumption.

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 [6]   … (O)ur conclusion that the jury instruction on Schultz’s duties did not merely state what Schultz’s duties were, but rather stated that certain actions were inconsistent with her duties, is dispositive.

¶13      Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments. State v. Harvey, 2002 WI 93, ¶23, 254 Wis. 2d 442, 647 N.W.2d 189. The Fifth Amendment’s due process guarantee protects “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., ¶19 (citations omitted). The Sixth Amendment right of trial by jury in criminal cases includes the right to have the jury, rather than the judge, reach the requisite finding of guilt or innocence. See State v. Peete, 185  Wis.  2d 4, 19, 517 N.W.2d 149 (1994) (“Where the finder of fact is a jury, proof of all essential elements must be tendered to the jury.”).

¶14      … Here, the instruction given never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether Draughon performed or purported to perform psychotherapy.  Because this finding was a required element of the charge, its omission is constitutional error. See Harvey, 254 Wis. 2d 442, ¶33.

¶33. Here, judicial notice--or, more particularly, the jury instruction directing the jury to accept the judicially-noticed fact as true--was applied to an element of the enhanced offense. This had the effect of not merely undermining but eliminating the jury's opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element, and was therefore constitutional error. The incontestability of Penn Park's status as a city park goes to whether the error was harmless, not whether there was constitutional instructional error in the first place.

¶57      The parties agree that the jury instruction on one element of stalking, under Wis. Stat. § 940.32(3)(b), was partially incorrect. As to the “course of conduct” element, the jury was instructed that the acts constituting a “course of conduct” are limited to:

1)         “maintaining visual or physical proximity to Jamie Johnson,” or

2)         “contacting Jamie Johnson by telephone or causing Jamie Johnson’s telephone or any other person’s telephone to ring repeatedly or continuously regardless of whether a conversation ensues,” or

3)         “causing any person to engage in either of the acts described [above].”

The causing-any-person part of this instruction was incorrect because of its reference to the two acts described in items 1) and 2). The “causing any person” alternative did not, at the relevant time, include causing these two acts. See § 940.32(1)(a) (2001-02). Thus, the jury was erroneously told that the “course of conduct” element could be met if Sveum caused his sister Renee to engage in either of these acts. ^[10]

¶58      Sveum correctly argues that this type of instructional error was cause for reversal in United States Supreme Court cases as recent as Boyde v. California, 494 U.S. 370 (1990). Since Boyde, however, the Court has concluded that harmless error analysis applies to such error. Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008). We agree with the State that the error here was harmless.

¶31      Because "lawful authority" is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of "lawful authority," given the facts presented to the jury, the circuit court erred. See Harvey, 254 Wis. 2d 442, ¶23 ("[J]ury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.").

¶57      The circuit court had discretion to determine the necessity for, extent of, and form of reinstruction of the jury when responding to its request for clarification. Hareng, 90 Wis. 2d at 166 (citations omitted). Judge Wolfgram could have exercised his discretion by instructing the jury to re-read the jury instructions in their possession in light of the jury's request for a definition of "materially" impaired. "[A] court is not obligated to provide a jury with information solely because the jury believes it is important to its decision." State v. Lombard, 2004 WI App 52, ¶20, 271 Wis.  2d 529, 678 N.W.2d 338. However, once Judge Wolfgram correctly determined that "materially impaired" was not defined by "the Waalen language," he did not erroneously exercise his discretion by responding that the jury should give undefined words in the jury instructions their ordinary meaning. "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Fischer, 168 Wis. 2d at 850 (citations omitted).

¶58      We hold that the court of appeals erred when it determined that this court's decision in Waalen gave the statutory term "materially impaired" a "peculiar meaning in the context of criminal charges," Hubbard, 306 Wis. 2d 356, ¶12, and that the jury should have been instructed accordingly. Id., ¶17. Thus, the circuit court did not erroneously exercise its discretion when it responded to the jury's request for clarification by indicating that the jury should "give all words not otherwise defined in the jury instructions their ordinary meaning." This succinct answer may not always suffice, but it was correct on the facts presented.

¶24   Wille claims the trial court erred in instructing jurors that, to find Wille guilty of the charged crime, Meshak’s consumption of alcohol provided by Wille was required to be “a” substantial factor in causing Meshak’s death, instead of “the” substantial factor, as Wille requested. Alternatively, he contends the court should have also instructed jurors that, to be “a substantial factor,” the death had to be “a natural and probable consequence” of Wille’s conduct. ^[6] We are not persuaded that the trial court erred in instructing jurors that Wille could be found guilty if Meshak’s consumption of alcohol provided by Wille was “a substantial factor” in causing Meshak’s death, or that it erroneously exercised its discretion by refusing to insert the additional language Wille requested.

¶26   … (T)he trial court correctly instructed jurors that Wis. Stat. § 125.075(1) requires a showing that Meshak’s consumption of the provided alcohol needed to be “a substantial factor in causing [Meshak’s] death.”

¶27   We further conclude that the court did not err in refusing to add to the instruction that Meshak’s death must be shown to have been “the natural and probable consequence of the accused’s conduct,” which is the language Wille requested the trial court to insert. As the supreme court explained in Serebin, the phrase “a substantial factor” is the equivalent of “the natural and probable consequence of the accused’s conduct.” Serebin, 119 Wis.  2d at 849. We agree with the State that it is not an erroneous exercise of discretion for a trial court to decline to provide jurors with alternative language that communicates the same concept as other language already included in the instruction.

¶5 … The coercion defense is limited to the "most severe form of inducement." State v. Amundson, 69 Wis. 2d 554, 568, 230 N.W.2d 775 (1975). It requires a finding "under the objective-reasonable man test, with regard to the reasonableness of the actor's beliefs that he is threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act." Id.

¶6. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support such an instruction. …

¶7. Keeran argues that he was entitled to a coercion defense instruction because a reasonable construction of the evidence supports a finding that threats made by Barreau reasonably caused Keeran to believe that participating in the crimes (including striking Robert Hansen with a bat as Hansen lay on the floor) was "the only means of preventing imminent death or great bodily harm" to Keeran. The trial court gave several reasons why Keeran was not entitled to a coercion defense instruction. We need not address all of these reasons because we agree with the trial court, and the State, that Keeran has failed to meet his initial burden of producing sufficient evidence to support a finding that he had no "means of preventing imminent death or great bodily harm" to himself, except by participating in the crimes. See Wis. Stat. § 939.46(1). In the words of the Amundson court, Keeran failed to present evidence showing that he reasonably believed there was "no possible escape other than the commission of a criminal act." Amundson, 69 Wis. 2d at 568.

¶15. Keeran testified that he was afraid of Barreau and, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that Barreau would attempt to harm Keeran if Keeran did not comply with Barreau's orders. But that only suggests that Keeran's safest course was to comply with Barreau's orders; it does not mean that Keeran's only course was to comply with Barreau's orders. The coercion defense is not a license to take the safest course. Further, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that if he successfully managed to separate himself from Barreau, Barreau would attempt to hunt Keeran down and harm him later. But such a finding would not support a coercion defense because the defense requires the prevention of "imminent" death or great bodily harm.

In the classic case of battery given as a lesser-included offense for intermediate aggravated battery, the question for the jury is whether the victim suffered great bodily harm or merely bodily harm. Here, however, the question of the degree of bodily harm is not at issue because it is undisputed that there was great bodily harm. Therefore, we hold that the trial court properly concluded that the lesser-included battery offense was not appropriate because the degree of harm does not support acquittal on the greater charge and conviction on the lesser charge. Wilson, 149 Wis. 2d at 898.

Glenn argues that while the resulting harm constituted great bodily harm, the jury could believe that his actions did not cause it. This argument ignores the fact that Glenn was charged as party to the crime of intermediate aggravated battery.

...

... Here, the issue is whether liability under § 939.05 extends to an unintended crime that develops from an intended crime. We agree with Glenn that this case is most analogous to those cases where the defendant is alleged to be guilty as party to a crime on the theory that he or she intentionally aided and abetted in a crime or conspired in the commission of a crime, of which the charged crime is a natural and probable consequence. See State v. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984); State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977); State v. Cydzik, 60 Wis. 2d 683, 211 N.W.2d 421 (1973). In such cases this court has held that "one who intentionally aids and abets the commission of a crime is responsible not only for the intended crime, if it is in fact committed, but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts." Asfoor, 75 Wis. 2d at 430, citing Cydzik, 60 Wis. 2d at 696-98.

...

... Accordingly, we disagree with Glenn that the lesser-included battery offense constituted an appropriate substitute for the instruction suggested by this court in Ivy. Glenn was charged with party to the crime of intermediate aggravated battery. The choices for the jury were to acquit him of the charge if it found that the chase and jump into the lake was not a natural and probable consequence of the intended battery or to find him guilty as an aider and abettor or conspirator.

¶1   A trial court has broad discretion in deciding to give a particular jury instruction. State v. Hemphill, 2006 WI App 185, ¶8, 296 Wis. 2d 198, 722 N.W.2d 393. However, the instruction given must “fully and fairly inform the jury of the rules of law applicable to the case and … assist the jury in making a reasonable analysis of the evidence.” State v. Coleman, 206 Wis.  2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). Further,

a criminal defendant is entitled to a jury instruction on a theory of defense if: (1) the defense relates to a legal theory of defense, as opposed to an interpretation of evidence; (2) the request is timely made; (3) the defense is not adequately covered by other instructions; and (4) the defense is supported by sufficient evidence.

Id. (citations omitted).

¶21. ... In order to place perfect self-defense in issue a defendant need present only "some" evidence supporting the claim of self-defense measured against the objective reasonable threshold for perfect self-defense announced in Head. See id. at ¶125. Once the evidence places perfect self-defense in issue, the State bears the burden of disproving the defense beyond a reasonable doubt. See id. at ¶106.
...
¶24. ... (V)iewing the evidence in the light most favorable to Peters, a jury could conclude the State had not disproved the perfect self-defense theory beyond a reasonable doubt and that Peters reasonably believed she was preventing or terminating an unlawful interference with her person and reasonably believed the force she used was necessary to prevent imminent death or great bodily harm.

¶23. The question of whether or when a jury must be instructed on the State's burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin. See Wis JI-Criminal 268. We conclude that a jury instruction on territorial jurisdiction is required only when a genuine dispute exists regarding the facts necessary to establish Wisconsin's territorial jurisdiction over a charged crime. Because no such dispute existed in this case, the trial court did not err in failing to instruct the jury on the jurisdictional issue....

¶25. There is no dispute that the State is obligated in all prosecutions to establish its territorial jurisdiction over a defendant for charged crimes. See Hotzel v. Simmons, 258 Wis. 234, 240, 45 N.W. 2d 683 (1951) ("It is elementary that a court may act only upon crimes committed within the territorial jurisdiction of the sovereignty seeking to try the offense."). The question is whether the determination that territorial jurisdiction over a defendant for charged crimes exists in Wisconsin is to be made by the court or a jury. We are satisfied that the proper answer to this question is that it depends on the circumstances in a given case. In its "Law Note" on territorial jurisdiction, the Criminal Jury Instruction Committee states its conclusion that if the jurisdiction issue depends upon contested issues of fact, those issues are for the jury to determine, using the beyond a reasonable doubt standard. If the charging document does not properly allege that the crime was committed within the territorial jurisdiction of the state of Wisconsin, the trial court should grant a motion to dismiss. If there is a dispute about jurisdiction that presents a purely legal question, that is, whether the law confers jurisdiction over [a defendant for a given crime based on] an undisputed factual situation, that question should be decided by the court. But if the charging document sufficiently alleges facts in support of jurisdiction and there is a dispute about those facts, the issue will be for the jury to decide. Wis JI-Criminal 268. ...

¶30. We conclude that it is not necessary for us to decide in this case whether something less than a "full element" of a crime may be a "constituent element" of the crime for purposes of Wis. Stat. § 939.03(1)(b), or if the statute requires that a "full element" take place within Wisconsin's borders. Rather, we conclude that the State is on firmer ground in claiming that Wisconsin's territorial jurisdiction over Brown's crimes was beyond factual dispute because his out-of-state acts were done "with intent that [they] cause in this state a consequence set forth in a section defining a crime." Wis. Stat. 939.03(1)(c).

¶23. Granting the request of an accused for a specific instruction is required where there is any foundation in the evidence for the giving of such instruction, even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility. In determining whether the requested instruction is required, we must not weigh the evidence or look to the totality of the evidence; rather, we must view the evidence in the light most favorable to the accused. See State v. Giminskis, 2001 WI App 211, 8, 247 Wis. 2d 750, 634 N.W.2d 604. Whether the evidence, viewed in the light most favorable to Ross, supplies a sufficient basis to include the proposed instruction is a question of law, and will be reviewed independently. Id. at ¶11.

¶27 n. 4. The "some" evidence standard is a relatively low threshold, in part because of the distinct functions of judge and jury. Walter Dickey, David Schultz & James Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1347. First, evaluating the weight and credibility of evidence is traditionally within the province of the jury. Id. Second, perfect self-defense has a significant objective component requiring the evaluation of the reasonableness of the defendant's belief or actions. See id. Such evaluations require the application of a community standard that also traditionally has been entrusted to the jury. Id.

¶28. The question before us, as it was by law before the trial court, is not what the "totality of the evidence" reveals but rather, whether a reasonable construction of the evidence viewed in the light most favorable to the defendant will support the defendant's theory. See State v. Mendoza, 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977). If the question is answered affirmatively, then it is for the jury, not for the trial court or this court, to determine whether to believe the defendant's version of the events. Id. at 153. Peters has met her burden under the "some" evidence standard and it is for the jury to decide whether to believe her version of the events.

¶24. To warrant an advice-of-counsel theory of defense instruction, both parties agree that Ross was required to show that: (1) before taking action, (2) he in good faith sought the advice of an attorney whom he considered competent, (3) for the purpose of securing advice on the lawfulness of his possible future conduct, (4) and made a full and accurate report to his attorney of all material facts which the defendant knew, and (5) then acted strictly in accordance with the advice of his attorney who had been given a full report. United States v. Cheek, 3 F.3d 1057, 1061 (7th Cir. 1993) (citation omitted). For two reasons, we reject this claim of error....

¶27. Here, under neither the securities fraud statutes nor WOCCA is the State required to prove that the accused acted with intent to defraud or with knowledge that the law was violated. All that the State is required to prove is that the accused acted intentionally in the sense that he or she was aware of the act that he or she was performing. See generally State v. Mueller, 201 Wis. 2d 121, 549 N.W.2d 455 (Ct. App. 1996). Because Ross's specific state of mind was not relevant to any of the elements of the crimes with which he had been charged, the advice-of-counsel theory of defense instruction would not have been applicable.

¶28. Second, the trial court concluded that the evidence did not warrant the instruction. The Cheek five-part test is couched in conjunctive, not disjunctive, terms. Ross had to present evidence, which when viewed in a light most favorable to him, demonstrated that he fulfilled all five requirements of the test. He claims that "[t]he record is replete with testimony upon which a jury could have found, if properly instructed, that [he] relied on the advice of counsel and, hence, did not willfully violate the law." We are not convinced.

¶26. A specific instruction on venue needs to be given only when venue is contested. Wis JI-Criminal 267 n.1. Swinson did not request a specific instruction on venue; therefore, the trial court did not erroneously exercise its discretion in failing to give such an instruction. The real issue in controversy was fully tried; therefore, this case is not appropriate for discretionary reversal. See Wis. Stat. § 752.35. As already discussed, the State proved venue in Sheboygan county.

¶22   … As noted earlier, the Marcum jury returned a combination of verdicts, two acquittals and one guilty, making it impossible to know if all twelve jurors agreed that Marcum committed the same act in the count where there was a guilty verdict. See id. at 920. …

¶23   Unlike the defendant in Marcum, Becker was not prejudiced by his counsel’s failure to make a timely objection to the jury instructions, and thus does not prevail on this claim. See id. at 924. Unlike the Marcum jury, the jury here did not return a combination of acquittal and guilty verdicts; rather, it convicted Becker on both counts in question, returning two verdicts of guilty. See id. at 920. This eliminates the risk that the jury was not unanimous and, thus, does not give rise to prejudice by offending the unanimous jury requirement. The unanimity of the jury is accurate even if the jurors, as a result of the trial court’s answer to their question, did not all agree on which act should be assigned to which count.

¶24   Moreover, the jury was explicitly told that “[e]ach Count charges a separate crime and you must consider each one separately.” We agree with the State that no reasonable juror could hear that instruction and conclude that he or she could predicate both guilty verdicts on the same act. Thus, when all the jurors agreed that Becker was guilty of both counts, they unanimously agreed beyond a reasonable doubt that he had committed both of the acts of sexual assault charged: the act of touching the victim’s vaginal area and the act of allowing or causing the victim to touch his penis. How each individual juror assigned the two acts between the two counts made no difference; for however each juror assigned them, each juror could not find Becker guilty of both counts without concluding beyond a reasonable doubt that Becker engaged in both acts charged.

The court does, though, recognize the potential for mischief and serves up some stern advice; cold comfort for Becker no doubt, but worth the next litigant’s close attention:

¶10   Before we proceed to our analysis, we make the following edifying clarifications. This entire issue could have been avoided if the State had not put it in play with its sloppy draftsmanship. In the complaint and information, the district attorney did not tie the specific act of Becker touching the victim’s vaginal area to a specific count; nor did he tie the specific act of Becker allowing or causing the victim to touch his penis to a separate, specific count. Where a defendant, such as Becker, is charged with multiple acts violating a criminal statute, the district attorney should tie a specific act to each count in the case. The complaint and/or information should then specify in each count the specific act to which it applies. This should also be done if there are multiple acts occurring at different times or on different days. If the district attorney fails to charge with particularity, defense counsel should bring a motion to make the complaint and/or information more definite and certain. Finally, the trial court is not a lemming and should not overlook sloppy charging by the State. Rather, regardless of the State’s lack of care, the trial court should take great care to not give generic, nonspecific instructions or verdict forms to the jury. Having conveyed, with particularity, how to avoid this problem in the future, we continue with our analysis.

¶18      The threshold question in a unanimity challenge is therefore whether the statute creates multiple offenses or a single offense with multiple modes of commission. Id. This presents a question of statutory construction, which is a question of law, and our review is therefore de novo. State v. Derango, 229 Wis. 2d 1, 11, 599 N.W.2d 27 (Ct. App. 1999), aff’d, 236 Wis. 2d 721.

¶19      If we conclude the legislature intended multiple offenses, then the jury must be unanimous as to each crime. State v. Hammer, 216 Wis. 2d 214, 219, 576 N.W.2d 285 (Ct. App. 1997). On the other hand, if we conclude the legislature intended to create one crime with alternate modes of commission, we apply the due process fundamental fairness test utilized in Schad v. Arizona, 501 U.S. 624, 637-45 (1991). See Derango, 236 Wis. 2d 721, ¶¶23-25. ^[8] Whether the statute meets that constitutional standard presents a question of law, which we review de novo. See State v. Piddington, 2001 WI 24, ¶13, 241 Wis. 2d 754, 623 N.W.2d 528 (reconciling constitutional consideration of due process with statutory requirements presents question of law).

¶20      Turning to the threshold question of the legislature’s intent, we consider: (1) the language of the statute; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct. Derango, 236 Wis. 2d 721, ¶15. ^[9]

¶59. The proper analysis for determining whether a defendant's right to a unanimous verdict has been violated by a jury instruction involves multiple steps. First, a court must look to the statute defining the crime and ask a threshold question: Does the statute create multiple offenses or a single offense with multiple modes of commission? To resolve this question, a court is to examine four different factors: the language of the statute, the legislative history and context of the statute, the nature of the proscribed conduct, and the appropriateness of multiple punishments for the conduct. The point is to determine the legislative intent in drafting the statute.

¶60. When a court determines that the legislature intended to enact a statute creating multiple offenses, it is clear that juror unanimity as to each offense is required to convict an accused of each offense. On the other hand, when a court determines that the legislature intended to enact a statute creating one crime with alternate modes of commission, the court must make a second inquiry to determine whether an instruction allowing a conviction based upon a finding as to either mode, in the alternative, violates an accused's constitutional right to unanimity.

¶22      We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel. The cases cited by Van Buren state that a criminal defendant is entitled to a jury trial, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), and jury unanimity, see State v. Koput, 134 Wis. 2d 195, 203-04, 396 N.W.2d 773 (Ct. App. 1986), rev’d on other grounds, 142 Wis. 2d 370, 418 N.W.2d 804 (1988). They do not relieve a defendant claiming ineffective assistance of the burden to show that, because of counsel’s unprofessional errors, the verdict is unreliable. In this case, Van Buren must show that there was a “reasonable probability” that the lack of a specific unanimity instruction resulted in a non-unanimous jury verdict. See Strickland, 466 U.S. at 694.

¶23      He has not so shown. The victim identified the two pictures nearly simultaneously, and both are undisputedly photos of “naked kids.” There is simply no basis in the record to suggest that the jury might have believed the victim with respect to one of the images and not the other, or found one of the images harmful and the other not. Our confidence in the verdict, and its unanimity, is not at all undermined. See id.

¶17. We conclude that, given the testimony at trial, Tulley has not met his burden of proving that trial counsel's not objecting to the jury instruction or verdict forms constituted deficient performance because the verdict forms and jury instruction correctly stated the applicable law. The jury was presented with evidence of multiple crimes in the form of A.K.'s testimony. The instruction that the court gave required the jury to unanimously agree on Tulley's guilt or innocence for each count. The verdict forms properly specified the location of each alleged assault and whether sexual contact or sexual intercourse was alleged to have occurred at each location. This is not a case in which a juror reasonably could have doubted whether a particular charged activity at any location occurred while also being convinced that other charged activity did occur at the same location. There was no basis for finding that some of the sexual assaults that A.K. described had occurred but others had not, because all of the assaults at all of the locations were described and supported by the same uncontradicted testimony. Therefore, we conclude that Tulley has not met his burden to show that trial counsel's performance in this area was deficient.

In addressing Hammer’s unanimity claim, we engage in a two-step process. We must first determine whether this statute creates only one offense with multiple modes of commission or, whether the statute creates multiple offenses defined by each distinct felony the defendant intended to commit. ...

The language of the statute indicates that the crime here is one single offense with multiple modes of commission. ...

We next address whether the modes of commission were conceptually similar or conceptually distinct. ...

With this guidance regarding a somewhat indeterminate concept, we conclude that the modes of commission here are not conceptually distinct. It is clear from the statute that the legislature focused on the intent to commit a felony, not any particular felony. Therefore, all the felonies are conceptually similar for the purposes of unanimity because each and every felony provides the predicate intent element. There is no difference in penalty irrespective of which underlying felony or combination of felonies was intended. Rather, it is Hammer’s single entry into the dwelling with the requisite intent that constitutes the crime.

Under these circumstances, Hammer was not entitled to a unanimity instruction regarding the felonies that formed the basis of his intent to enter the dwelling. The jury merely needed to conclude that Hammer unlawfully entered the dwelling with an intent to commit a felony. The trial court did not erroneously instruct the jury.

¶12      Hughes is thus obviously a close analogue for this case. Cox seeks to distinguish Hughes by claiming that in this case the two verdicts are inconsistent, requiring that he acted with two different states of mind. Attempted homicide requires intent to kill, see Wis JI—Criminal 1070, while reckless endangerment requires recklessness, see Wis JI—Criminal 1345. …

¶13      Cox’s logic is flawed. … To be aware that one’s actions create a “practical certainty” of killing someone else does not preclude also being aware that one’s actions pose an “unreasonable and substantial risk” to that person; it instead guarantees it.

¶14      And this logical conclusion is, of course, the reason that one crime is included in the other: Hawthorne and Weeks stand for the proposition that it is impossible to commit attempted homicide without also committing first-degree reckless endangerment. If the opposite were true—if Cox were correct and one could not commit attempted homicide while also committing reckless endangerment—then the latter could not be a lesser included offense of the former. The Hawthorne/Weeks holding that protects Cox from being convicted of both offenses also forecloses his claim that the guilty verdict on the lesser crime somehow calls into question the validity of the guilty verdict on the greater. No new trial is called for.

¶8. Whether Hughes is entitled to either a new trial or entry of a judgment on the verdict form finding him guilty of simple possession of cocaine presents an issue of first impression in Wisconsin. The issue has arisen in other jurisdictions, however, and no court has held that a trial court violates a defendant's rights by entering a judgment of conviction on a verdict finding the defendant guilty on the greater charge when the jury also finds the defendant guilty of the lesser-included offense.

¶9. We start with a common sense analysis of what the jury did. It is not possible for a person to possess cocaine with intent to deliver without also possessing that cocaine. … Thus, the jury's unanimous findings (confirmed when the trial court polled the jury) that Hughes possessed cocaine with the intent to deliver it, and that he also possessed that cocaine were not inconsistent…. Thus, the second ‘guilty’ verdict, which affirmed that Hughes possessed that cocaine, was mere surplusage and is precisely the type of harmless error that Wis. Stat. Rule 805.18(2) commands shall not be the basis for a reversal….”

¶62   Finally, we consider Miller’s argument that he is entitled to a new trial based on allegations contained in an affidavit in which Miller avers that the fishing-trip juror told an investigator hired by Miller that he changed his vote to “guilty” to end jury deliberations so that he could leave for his fishing trip. Wisconsin Stat. § 906.06(2) provides that a juror may not provide testimony in an inquiry into the validity of a verdict “except … on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” To be entitled to an evidentiary hearing inquiring into the validity of a verdict, the party seeking to set aside a verdict on grounds of extraneous prejudicial information or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶25, 289 Wis. 2d 750, 712 N.W.2d 40. The affidavit or nonjuror evidence must demonstrate that “the subject matter of the proposed hearing is within an exception to Wis. Stat. § 906.06(2) and must assert facts that, if true, would require a new trial.” Id. Whether the affidavit in this case meets this legal standard is a question of law, which we review de novo. Id. at ¶19.

¶63   We conclude Miller’s affidavit fails to allege facts that would entitle him to an evidentiary hearing inquiring into the validity of the verdict, let alone entitle him to a new trial. Miller claims that the fishing-trip juror’s “impending departure for his annual trip, and no doubt the chiding he could expect from his buddies,” was an outside influence improperly brought to bear upon the juror. We conclude that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an “outside influence” within the meaning of Wis. Stat. § 906.06(2).

¶26      Rice’s argument is contrary to United States v. Powell, 469 U.S. 57 (1984). …

¶27      The same rationale applies here. In order to convict on the bail jumping charge the jury had to find all the elements of the Kaye burglary and the additional elements of bail jumping. The jury convicted Rice of bail jumping, which is inconsistent with its verdict acquitting him of the Kaye burglary. However, under Powell, this is permissible, since we do not know whether the State or Rice received the benefit of the inconsistent verdict. See id. at 65. The only question is whether there was sufficient evidence on which a jury could find all the elements of the Kaye burglary. See id. at 67. Rice does not argue the evidence was lacking in this regard.

¶29      The court in Hansford, then, did not involve inconsistent verdicts by the same jury, as in Powell. Instead, it involved two sequential verdicts, where the first verdict itself, rather than independent evidence, supported the second conviction. In that situation, the court held that reversal of the first conviction required reversal of the second as well. Hansford therefore did not set out any exception to Powell, or even address the same question.

¶32 Under Wisconsin law, a circuit court has two options if a juror dissents during jury polling or indicates that the assent is merely an accommodation and against the juror's conscience. First, the court can send the jury back for continued deliberations. Wiese, 162 Wis. 2d at 518 n. 2 (citation omitted). Second, the court may determine that further deliberations would be fruitless and grant a mistrial. Id.

…

¶35 Wisconsin does recognize a third option, however, for situations where a juror gives an ambiguous or ambivalent assent: question the juror. In Cartagena, 140 Wis. 2d at 62, the court of appeals held that circuit courts should interrogate jurors who, during the poll, create some doubt as to their vote. Doubt may result from the juror's demeanor, tone of voice, or language used. Id. However, the circuit court should first make a determination that the answer was ambiguous or ambivalent before it questions the juror further. Id.

...

¶37 With Clark's unambiguous "No," the circuit court had two options from which to proceed: grant a mistrial or return the jury back for further deliberations. Ultimately, it chose neither. Instead, it continued polling the jury and interrogated Clark individually. Because these actions were not available options upon a juror's dissent, the circuit court's decision to pursue them constituted an erroneous exercise of discretion.

¶15 In this case we are asked to examine the actions of the circuit court in the context of jury polling. Jury polling is a common law procedure whereby "after verdict each juror is separately asked whether he or she concurs" in the verdict. …

…

¶18 The purpose of jury polling is to test the uncoerced unanimity of the verdict by requiring jurors to take individual responsibility and state publicly that they agree with the announced result. State v. Wiese, 162 Wis. 2d 507, 517, 469 N.W.2d 908 (Ct. App. 1991) (citing State v. Behnke, 155 Wis. 2d 796, 801, 456 N.W.2d 610 (1990)). An ancillary purpose is to allow jurors to dissent although previously agreeing to the verdict. Id. at 518.

¶19 Accordingly, it has been recognized that, "the verdict of a jury must be arrived at freely and fairly and that the validity of a unanimous verdict is not dependent on what the jurors agree to in the jury room, but rather upon what is unanimously reported in open court." Jones, 273 A.2d at 844 (citations omitted).

¶20 The right to poll the jury is an absolute right, if not waived, and its denial requires reversal. Wojtalewicz, 127 Wis. 2d at 346. Nevertheless, defendants may waive their right by failing to ask for it in the first instance, or by failing to ask for additional polling when given the opportunity to request it. State v. Cydzik, 60 Wis. 2d 683, 695-96, 211 N.W.2d 421 (1973).

... Failure to bring the deficiency or incompleteness of an individual polling undertaken by the trial court to the attention of the trial court waives any claim of error based on that deficiency or incompleteness. Since the assertion or waiver of rights with respect to polling the jury are among those delegated to counsel and may be waived by counsel, Jackson, 188 Wis.2d at 543, 525 N.W.2d at 168, defense counsel's failure to bring the omission to the court's attention constitutes a waiver by Brunette.⁸

---

⁸We do not understand Brunette to argue that he is entitled to a new trial because the verdict was not unanimous. Although the purpose of an individual polling of the jury is to test the unanimity of the verdict, it is not the only method for assuring that the verdict is unanimous. State v. Yang, 201 Wis.2d 725, 745, 549 N.W.2d 769 (Ct. App. 1996). It follows that the lack of an individual polling, or the existence of an incomplete individual polling, does not, in itself, mean that the verdict was not unanimous. We agree with the trial court that there is no indication on this record that the verdict was not unanimous.

¶16. The form of a special verdict is within the sound discretion of the trial court. A.E. v. State, 163 Wis. 2d 270, 276, 471 N.W.2d 519 (Ct. App. 1991). We will not interfere with the form of a special verdict unless the question, taken with the applicable instruction, does not fairly present the material issues of fact to the jury for determination. Id. We look to see if, in combination with the jury instructions, the jury questions presented the material issues of ultimate fact to the jury for its determination. Furthermore, a jury verdict will be sustained if there is any credible evidence to support it. Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979). 

Issue/Holding¹:

¶33      “[T]he right to trial by jury guaranteed in the state constitution includes the right to a unanimous verdict in criminal trials.” State v. Cartagena, 140 Wis. 2d 59, 61, 409 N.W.2d 386 (Ct. App. 1987). “As a corollary to the unanimous verdict, a defendant has the right to have jurors polled individually.” Id. at 61-62. …

¶34      To test the verdict, the trial court should question a juror who, during the polling, creates some doubt as to his or her vote. …

…

¶38      We agree with Dukes that the jury verdict as to count one was not unanimous. Juror 17 clearly created doubt as to the unanimity of the verdict and the court properly questioned her separately. See Cartagena, 140 Wis. 2d at 62. When the court asked Juror 17 about her verdict on count one, the court, on several occasions, cut Juror 17 off, and in one instance reminded her that the verdict form represented that the jury had reached a unanimous verdict. …

…

¶42      We are satisfied that the judge’s unfortunate interruptions, and insistence that the form showed a unanimous verdict, strongly suggests that Juror 17 may have felt pressure and intimidation, and that she may have misunderstood the verdict reached in the jury room. See Raye, 281 Wis. 2d 339, ¶19. We are also satisfied that, even though the juror expressed agreement with the subsequent statements, because Juror 17 was cut off when attempting to answer whether she found Dukes guilty or not guilty on count one, and never actually gave an answer, Juror 17 cannot be said to have found Dukes guilty on count one. Consequently, the verdict on count one was not unanimous.

Issue/Holding²:

¶43      With respect to count three, we are satisfied that the verdict was unanimous. …

¶44      This shows that the court again cut Juror 17 off when she appears to have tried to explain her reasoning; however, immediately thereafter, Juror 17 stated twice that her verdict was guilty. The colloquy regarding count three is also significantly shorter and shows much less confusion than the one vis-à-vis count one, and the court did not make reference to the unanimous verdict the jury reached in the jury room the way the court did with respect to count one. We are thus satisfied that the guilty verdict on count three was unanimous.

Issue/Holding:

¶13   As a corollary to the unanimous verdict, a defendant has the right to have jurors individually polled. Cartagena, 140 Wis. 2d at 61. Each juror must take individual responsibility and state publicly that he or she agrees with the announced verdict. Kirchner, 189 Wis. 2d at 399-400. If there is a dissent, or if it is stated by the juror that the assent is merely an accommodation and against the juror’s conscience, it is the duty of the court, upon its own motion, to direct the jury to retire and reconsider its verdict. State v. Wiese, 162 Wis. 2d 507, 518, 469 N.W.2d 908 (Ct. App. 1991). However, once the court has accepted a unanimous verdict, it cannot order the jury to redeliberate. State v. Reid, 166 Wis. 2d 139, 144, 479 N.W.2d 572 (Ct. App. 1991). A jury’s verdict is accepted once it is received in open court, the results are announced, and the jury is polled, if requested. State v. Knight, 143 Wis. 2d 408, 416, 421 N.W.2d 847 (1988).

Issue/Holding:

¶14   Furthermore, Wisconsin courts have consistently applied the “very ancient, and often[-]reiterated” rule “that the statements of the jurors will not be received to ... impeach their verdict.” Olson v. Williams, 270 Wis. 57, 70, 70 N.W.2d 10 (1955) (quoting Butteris v. Mifflin & Linden Mining Co., 133 Wis. 343, 348, 113 N.W. 642 (1907)). An exception exists when the inquiry is “whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Wis. Stat. § 906.06(2) (2005-06). ^[3] This rule protects the defendant’s right to a fair trial while at the same time promoting verdict finality and the integrity of the jury as a decision-making body. See State v. Eison, 194 Wis. 2d 160, 173-74, 533 N.W.2d 738 (1995).

…

¶18   Furthermore, Wery fails to persuade us that the traditional rules barring impeachment of a jury verdict in instances of juror remorse do not apply in a bifurcated setting. The two phases are not, as Wery posits, simply divisions of a single criminal trial; they are detached in nature and purpose. See State v. Koput, 142 Wis. 2d 370, 390-392, 394, 418 N.W.2d 804 (1988).

¶19   The first phase settles the issue of criminal guilt. Id. at 388-89. The State must prove the defendant committed the acts constituting a criminal offense beyond a reasonable doubt and a unanimous verdict is required. Id. at 390. The court proceeds to the second phase of the trial only after accepting the unanimous guilty verdict. See id. at 394. The second phase, the responsibility phase, is dispositional rather than criminal in nature. Id. at 390; State v. Langenbach, 2001 WI App 222, ¶16, 247 Wis. 2d 933, 634 N.W.2d 916. A jury verdict in this phase is valid if agreed to by five-sixths of the jurors. The bifurcation of the two phases protects both the defendant and the state from having to confront evidence, which if introduced in the guilt phase could confuse the jury or appeal to its prejudice or sympathy. State v. Leach, 124 Wis. 2d 648, 662, 370 N.W.2d 240. This purpose would be completely undermined, and the finality of jury verdicts called into question, if the court could receive statements of juror remorse after the court has accepted a guilty verdict and proceeded through the evidentiary portion of the responsibility phase. …

 ^[4] Wery attempts to draw a favorable comparison to State v. Cartagena, 140 Wis. 2d 59, 409 N.W.2d 386 (Ct. App. 1987). In that case, the juror’s dissent from the verdict came to light before the court had formally accepted a sealed verdict. Id. at 63. Following the opening and reading of the sealed verdict and a poll of the jury, the court permitted voir dire and one juror changed his mind. Id. at 60. We held that because the court had not yet formally accepted the verdict, the juror could dissent and the court was bound by the juror’s statements. Id. at 62-63. In this case, however, the court did not permit voir dire and had accepted the jury’s verdict by the time the juror indicated a change of heart. Cartagena does not control.

¶23. … While Wis. Stat. § 972.02(1) establishes the procedure for waiving the right to a jury trial, the statutory requirements are not sufficient to determine whether a defendant's waiver is knowing, intelligent, and voluntary. Therefore, based on our recognition that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial.…

¶24. To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; (2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people that must agree on all elements of the crime charged; (3) was aware of the nature of a court trial, such that the judge will make a decision on whether or not he or she is guilty of the crime charged; and (4) had enough time to discuss this decision with his or her attorney. See Wisconsin Judicial Benchbook, vol. 1, CR 22-3 through 22-6 (2d ed. 2001). As with other constitutional rights, ‘If the circuit court fails to conduct a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver . . . .’ Klessig, 211 Wis. 2d at 206 (involving waiver of right to counsel).

¶25. We now turn to the facts before us, and what is the proper remedy when the circuit court fails to conduct an adequate colloquy. We hold that the circuit court must hold an evidentiary hearing on whether the waiver of the right to a jury trial was knowing, intelligent, and voluntary. The per se rule of requiring a new trial, based on Livingston, does not apply here because Anderson's written waiver was a personal affirmative step to waive his right to a jury trial.…

¶26. The evidentiary hearing procedure we adopt today stems from the procedure for resolving guilty plea waivers and has been extended to resolution of waivers of the right to counsel. Klessig, 211 Wis. 2d at 207. The same approach is appropriate here. ‘Nonwaiver is presumed unless waiver is affirmatively shown to be knowing, intelligent and voluntary.’ Id. at 204. The State has the burden of overcoming the presumption of nonwaiver, and is required to prove by clear and convincing evidence that Anderson's jury trial waiver was knowing, intelligent, and voluntary. See id. at 207. If the State is able to satisfy its burden, the conviction will stand. If the State is unable to establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his right to a jury trial, the defendant is entitled to a new trial.”

Because this case considers whether there was a valid jury waiver rather than an erroneous jury instruction, we do not engage in a harmless error analysis. Compare State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991) (reversing and ordering a new trial without performing a harmless error analysis after concluding that there was no jury waiver) and State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989) (same) with State v. Tomlinson, 2002 WI 91, ¶64 (concluding that harmless error analysis applies when the State is relieved of its burden to prove an element of the crime as the result of an erroneous jury instruction).

¶9. The scope of a trial court's authority to reject a request by a defendant in a criminal case to waive his or her right to a jury trial presents an issue of law that we decide de novo. State v. Cook, 141 Wis. 2d 42, 44, 413 N.W.2d 647, 649 (Ct. App. 1987). Although the right of a defendant in a criminal case to be tried by an impartial jury is well-entrenched in both the federal and state constitutions, a defendant does not have a reciprocal constitutional right to waive a jury and be tried by a judge. Singer v. United States, 380 U.S. 24, 26-34 (1965) (federal constitution; recounting common-law history); Cook, 141 Wis. 2d at 44, 413 N.W.2d at 648 (state constitution). Wisconsin Stat. § 972.02(1) was patterned after Rule 23(a) of the Federal Rules of Criminal Procedure: "Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." Cook, 141 Wis. 2d at 44-45 & 45 n.1, 413 N.W.2d at 649 & 649 n.1.⁵ Singer held that Rule 23(a) passed federal constitutional muster, 380 U.S. at 34-38; Cook held that § 972.02(1) was also valid, 141 Wis. 2d at 44-48, 413 N.W.2d at 649-650.

¶10. Both Singer and Cook concerned cases where the prosecution refused to give its consent to the defendant's jury-trial waiver, Singer, 380 U.S. at 25; Cook, 141 Wis. 2d at 43, 413 N.W.2d at 648; neither case involved a trial court's refusal to give its approval. Nevertheless, the rationale of both cases leads us to conclude that the trial court's "approval" of a defendant's jury-trial waiver under Wis. Stat. § 972.02(1) is not the quasi-ministerial rubber-stamping of the parties' request that the postconviction court assumed. Rather, as we explain below, like the prosecution's decision to withhold consent to a defendant's request to waive his or her right to a jury trial, the trial court also need not explain its decision to withhold its approval, and absent extraordinary circumstances not present here, its decision to withhold approval, like the prosecution's decision to withhold consent, is not reviewable.