That a father and son had the same first and last names, and the same middle initial, phone number, and address, the jury summons did not include any specific identifying information, and the son appeared and served on the jury when the summons was intended for the father, did not make the son an improper juror. State v. Turner, 2013 WI App 23, 346 Wis. 2d 229, 827 N.W.2d 654, 12-0297. A jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law. Harmless error analysis is appropriate when jury instructions include a requirement in addition to that set forth in a statute. The jury instructions cannot provide the proper standard for analysis. A challenge must be reviewed in the context of the statutory requirements. State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003. The circuit court’s decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not deprive the defendant of a fair and just hearing. The factors a trial court should consider in determining whether a defendant’s presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether the defendant would gain anything by attending, and whether the presence of the defendant would be counterproductive. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394. Absent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time it is made. Walworth County Department of Health & Human Services v. Roberta J.W., 2013 WI App 102, 349 Wis. 2d 691, 836 N.W.2d 860, 12-2387. Unanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged; it is not required with respect to the alternative means or ways in which the crime can be committed. It is ultimately the elements of the crime charged that must be accepted by a unanimous jury and not the peripheral details. State v. Badzinski, 2014 WI 6, 352 Wis. 2d 329, 843 N.W.2d 29, 11-2905. The 6th amendment right to a public trial extends to voir dire. A judge’s decision to close or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207, 11-2424. The right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the U.S. Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish the defendant’s right to a public trial in order to lose it. Defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207, 11-2424. A jury has no right to exercise its nullification power, and no party has a right to have a jury decide a case contrary to law or fact, much less a right to an instruction telling jurors they may do so or to an argument urging them to nullify applicable laws. Voir dire questions that assume proof of, or demand consideration of, only what the law requires are proper because they ask that the jurors do no more than promise to fulfill their duty to follow the law, and do not limit the jurors’ consideration of any pertinent factors or invite them to prejudge any particular fact. State v. Zdzieblowski, 2014 WI App 130, 359 Wis. 2d 102, 857 N.W.2d 622, 14-0619. Errant jury instructions are subject to harmless error analysis. This includes errors that omit an element, as well as errors that create requirements beyond the statute. Jury instructions can be considered erroneous if they instruct the jury on a theory of the crime that was not presented to the jury or if they fail to instruct the jury on the theory of the crime that was presented to the jury during trial. To affirm a conviction based on an erroneous instruction, a court must be convinced beyond a reasonable doubt that the jury still would have convicted the defendant of the charge had the correct jury instruction been provided. State v. Williams, 2015 WI 75, 364 Wis. 2d 126, 867 N.W.2d 736, 14-1099. Jurors are not required to unanimously agree as to which act or acts the defendant committed in order to find the defendant guilty when the prosecutor has issued only one charge but introduced evidence of multiple acts that separately constitute the criminal offense charged. If there is only one crime, jury unanimity on the particular alternative means of committing the crime is required only if the acts are conceptually distinct. Unanimity is not required if the acts are conceptually similar. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354. An appellate court should not give deference to a postconviction court’s finding of subjective bias because the postconviction court did not preside over the trial and thus could not have observed the demeanor and disposition of a juror as the trial court did. Findings of fact regarding a trial, made at a hearing by a postconviction court that did not preside over trial, are reviewed de novo. State v. Tobatto, 2016 WI App 28, 368 Wis. 2d 300, 878 N.W.2d 701, 15-0254. Jury instructions must fully and fairly inform the jury of the legal rules applicable to the case. A jury instruction that was modified based upon a statute that went into effect after the defendant committed key acts underlying the offense failed to fully and fairly inform the jury of the law applicable to the defendant’s alleged criminal acts. State v. Bryzek, 2016 WI App 48, 370 Wis. 2d 237, 882 N.W.2d 483, 15-1501. A defendant may intentionally and voluntarily relinquish the defendant’s statutory and constitutional rights to be present at trial. The defendant in this case did not dispute that he waived his constitutional right to be present at trial, but argued that he could not waive his statutory right. The defendant made an express, affirmative, intentional choice not to be present, waiving, rather than forfeiting, his constitutional and statutory rights. The defendant knew of his rights and waived them on multiple occasions throughout the course of the trial. The trial court properly handled the defendant’s waiver of his right to be present by allowing the defendant’s counsel to communicate with him and repeatedly inquiring whether the defendant would like to be present. State v. Washington, 2017 WI App 6, 373 Wis. 2d 214, 890 N.W.2d 592, 16-0238. A prospective juror must be able to set aside any opinion the juror might hold and decide the case on the evidence, but, as a general matter, a circuit court need not use or obtain any magic words in determining whether this requirement has been met. State v. Lepsch, 2017 WI 27, 374 Wis. 2d 98, 892 N.W.2d 682, 14-2813. The defendant’s right to be present at a critical stage of the proceedings, right to a public trial, and right to a jury properly sworn to be impartial were not violated because the clerk of circuit courts administered the oath to the prospective jurors outside of the defendant’s presence. State v. Lepsch, 2017 WI 27, 374 Wis. 2d 98, 892 N.W.2d 682, 14-2813. It was not improper to strike the only two African-American members of the jury panel because the prosecutor had a legitimate, race-neutral reason for striking the potential jurors and did not act with discriminatory intent. That the two jurors alleged that their prior experiences with law enforcement may have involved discriminatory intent did not detract from the prosecutor’s legitimate, nondiscriminatory concern about potential bias against the state’s case in a wholly unrelated proceeding. State v. Sanders, 2019 WI App 52, 388 Wis. 2d 502, 933 N.W.2d 670, 18-1310. The U.S. Supreme Court in Griffin, 502 U.S. 46 (1991), drew a distinction between jury instructions that instruct a jury on a legally, as opposed to a factually, inadequate theory. The Griffin court held that, while a jury instruction is erroneous if it includes methods of proof that are not supported by sufficient evidence, such an error does not violate due process when the jury is also instructed on a theory that is supported by sufficient evidence. In this case, although the circuit court erroneously instructed the jury on two methods of proof that were not supported by sufficient evidence, that error did not violate the defendant’s right to due process because the jury was also instructed on a method of proof that was supported by sufficient evidence. State v. Harvey, 2022 WI App 60, 405 Wis. 2d 332, 983 N.W.2d 700, 21-1689. In nonsummary criminal contempt proceedings, the alleged contemnor has a right to a jury trial if the sentences imposed aggregate more than six months. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974). The court erred by communicating with the jury and agreeing to accept a guilty verdict “with extreme mercy” without notifying defense counsel. Rogers v. United States, 422 U.S. 35, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975). The 6th amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community. A law exempting women from jury duty on request, resulting in their low representation on panels, violated the requirement. To establish a prima facie violation a defendant must show: 1) the group alleged to be excluded is a “distinctive” group in the community; 2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). See also Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010). When community sentiment against the accused had softened by the time of trial four years after a heinous crime, the trial court did not commit “manifest error” in finding the jury as a whole was impartial. Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). The “fair cross section” element to the right to trial by jury does not provide a constitutional basis for a challenge to the prosecution’s peremptory striking of jurors on the basis of race. Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990). Equal protection precludes a prosecutor’s use of peremptory challenges to exclude potential jurors solely by reason of race. A criminal defendant may raise the equal protection claim that jurors are excluded because of their race whether or not there is racial identity between the defendant and the excluded jurors. Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). When potential jurors had seen news reports about the defendant’s alleged crime, the judge’s refusal to question those prospective jurors about the specific content of those reports did not violate the right to an impartial jury. Mu’Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991). A criminal defendant is prohibited from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges of potential jurors. Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). The 5th and 14th amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005). See also Wilber v. Hepp, 16 F.4th 1232 (2021). Batson, 476 U.S. 79 (1986), established a three-step process for the constitutional review of allegedly race-based peremptory strikes: 1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; 2) once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes; and 3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). See also Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005). It was not intended that the first Batson, 476 U.S. 79 (1986), step be so onerous that a defendant would have to persuade the judge on the basis of all the facts, some of which are impossible for the defendant to know with certainty, that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). The right to exercise peremptory challenges in state court is determined by state law. The U.S. Supreme Court has long recognized that peremptory challenges are not of federal constitutional dimension. States may withhold peremptory challenges altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009). When a juror makes a clear statement that indicates the juror relied on racial stereotypes or animus to convict a criminal defendant, the 6th amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Pena-Rodriguez v. Colorado, 580 U.S. 206, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017). The constitution forbids striking even a single prospective juror for a discriminatory purpose. When all of the relevant facts and circumstances taken together establish that a peremptory strike of a prospective juror was motivated in substantial part by discriminatory intent, a Batson, 476 U.S. 79 (1986), violation has occurred. Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019). If the issue of jury bias surfaces during or before trial, it is the trial judge’s responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. The question is whether, given the indications of jury bias, the judge’s inquiry was adequate. Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. Oswald v. Bertrand, 374 F.3d 475 (2004). The 6th amendment to the U.S. Constitution doesn’t apply to fact finding that doesn’t increase a prisoner’s original sentence. A denial of parole doesn’t increase a sentence; it’s a decision not to shorten the portion of the sentence that is served in prison. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022). Criminal Law—Jury—Unanimous Jury Verdict Is Not Constitutionally Required in State Criminal Cases. Johnson. 1973 WLR 926.
State v. Louis: A Missed Opportunity to Clarify when Law Enforcement Officials May Serve as Petit Jurors in Criminal Trials. Anderson. 1992 WLR 751.
I,7speedy and public trial A defendant must demand a trial before requesting dismissal for lack of a speedy trial. When delay is caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 Wis. 2d 563, 193 N.W.2d 682 (1972). A delay of five weeks because witnesses were hospitalized, when the defendant was out on bail, did not amount to a failure to receive a speedy trial. Taylor v. State, 55 Wis. 2d 168, 197 N.W.2d 805 (1972). Failure to demand a speedy trial weighs less heavily against a defendant unrepresented by counsel. Because the defendant believed the charge had been dropped, it could not be said that a speedier trial would have prevented anxiety and concern about the pending charges. Hipp v. State, 75 Wis. 2d 621, 250 N.W.2d 299 (1977). The speedy trial provisions of the constitution are designed to prevent oppressive pretrial incarceration, anxiety and concern by the accused, impairment of defenses, and the elimination of the possibility that concurrent sentences will be imposed. Green v. State, 75 Wis. 2d 631, 250 N.W.2d 305 (1977). The controlling case concerning the right to a speedy trial is Barker, 407 U.S. 514 (1972). A 15 month delay was not prejudicial under the facts of the case. Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354 (1977). A delay of 84 days between the defendant’s first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696 (1978). Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. State ex rel. Stevens v. Circuit Court, 141 Wis. 2d 239, 414 N.W.2d 832 (1987). The speedy trial right attaches when the complaint and warrant are issued. A pretrial determination that the right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 Wis. 2d 202, 455 N.W.2d 233 (1990). The right to a speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 Wis. 2d 67, 505 N.W.2d 801 (Ct. App. 1993). Whether there has been a violation of the right to a speedy trial depends on a balancing test considering: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. State v. Borhegyi, 222 Wis. 2d 506, 588 N.W.2d 89 (Ct. App. 1998), 98-0567. The speedy trial clause does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. The statute of limitations is the primary protection against stale charges. A delay between the commission of a crime and the subsequent arrest of a defendant may violate due process if actual prejudice has been suffered as a result of the delay and the government caused the delay for an improper purpose. State v. Blanck, 2001 WI App 288, 249 Wis. 2d 364, 638 N.W.2d 910, 01-0282. The length of delay is to some extent a triggering mechanism to a speedy trial determination. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry. In determining the reasons for a delay, the initial inquiry is who caused the delay. Delay reasonably attributed to the ordinary demands of the judicial system is neither chargeable to the state or defendant. A missing witness presents a valid reason for delay. The state is charged with institutional delay such as when the trial court took responsibility for a delay because it had taken a motion for access to the records off its calendar. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603. When filed charges are dismissed without prejudice and a second complaint subsequently filed, the time period between the dismissal and the filing of the second complaint is not included in determining whether the constitutional right to a speedy trial is violated. The right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by passage of time. That interest is protected primarily by the due process clause and by statutes of limitation. The right is to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. Once charges are dismissed, the speedy trial guarantee is no longer applicable. State v. Urdahl, 2005 WI App 191, 286 Wis. 2d 476, 704 N.W.2d 324, 04-3014. The defendant’s right to a public trial was violated when the courthouse doors were locked at 4:30 P.M., pursuant to county policy, and the public was denied access to the courtroom while the defendant presented the defendant’s case and the state presented its rebuttal. State v. Vanness, 2007 WI App 195, 304 Wis. 2d 692, 738 N.W.2d 154, 06-2535. Although a presumption of openness exists, the right to a public trial is not absolute. The closure of a trial is trivial and does not implicate the 6th amendment if the closure does not implicate the values served by the 6th amendment: 1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury. A circuit court’s exclusion of every family member except the defendant’s mother, who did not understand English, plainly implicated the values served by the right to a public trial. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005. Closure of a criminal trial is justified when four conditions are met: 1) the party who wishes to close the proceedings must show an overriding interest that is likely to be prejudiced by a public trial; 2) the closure must be narrowly tailored to protect that interest; 3) alternatives to closure must be considered by the trial court; and 4) the court must make findings sufficient to support the closure. Generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure, but it was not necessary under the facts of this case. State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, 07-0005. Although a 14-month delay was presumptively prejudicial, that did not end the court’s analysis. The defendant in this case was not actually prejudiced by the delay because the defendant was already serving more than two life sentences for a conviction in a homicide case. The delay did not cause the defendant’s pretrial incarceration; the defendant’s homicide sentence would have kept the defendant in prison anyway. State v. Lock, 2013 WI App 80, 348 Wis. 2d 334, 833 N.W.2d 189, 12-1514. There was no violation of the right to a speedy trial when the entirety of the delay in bringing the defendant to trial occurred to accommodate the defendant and the defense. State v. Provost, 2020 WI App 21, 392 Wis. 2d 262, 944 N.W.2d 23, 18-1268. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. In determining whether a particular defendant has been deprived of the defendant’s right, courts should consider four factors: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Any closure of a suppression hearing must advance an overriding interest likely to be prejudiced. Closure must be no broader than necessary to protect that interest. The court must consider alternatives and make a finding adequate to support closure. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). The time during which defendants are neither under indictment nor subjected to any official restraint does not weigh toward the defendants’ speedy trial claims. United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). The speedy-trial right is amorphous, slippery, and necessarily relative. There is a balancing test in which the conduct of both the prosecution and the defendant are weighed. Some of the factors that courts should weigh include length of delay, the reason for the delay, the defendant’s assertion of the right, and prejudice to the defendant. The attorney is the defendant’s agent when acting, or failing to act, in furtherance of the litigation, and delay caused by the defendant’s counsel is charged against the defendant. The same principle applies whether counsel is privately retained or publicly assigned. Assigned counsel’s failure to move the case forward does not warrant attribution of delay to the state. However, delay resulting from a systemic breakdown in the public defender system could be charged to the state. Vermont v. Brillon, 556 U.S. 81, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009). The speedy trial guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the speedy trial clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the due process clauses of the 5th and 14th amendments. Betterman v. Montana, 578 U.S. 437, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (2016). A violation of the right to a public trial is a structural error. In the case of a structural error when there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error’s actual effect on the outcome. When a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland, 466 U.S. 668 (1984), prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in the defendant’s case or to show that the particular public-trial violation was so serious as to render the trial fundamentally unfair. Weaver v. Massachusetts, 582 U.S. 286, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017). Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308 (1978). Constitutional Law—Closure of Trials—The Press and the Public Have a First Amendment Right of Access to Attend Criminal Trials, Which Cannot Be Closed Absent an Overriding Interest. Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980). Morris. 64 MLR 717 (1981). A defendant may waive the right to be present at a proceeding when the court orders the defendant’s case consolidated with another. It is not error at the start of a trial to revoke bail and remand the defendant to the custody of the sheriff. Beverly v. State, 47 Wis. 2d 725, 177 N.W.2d 870 (1970). A prisoner held in Dodge County, who escaped from a hospital in another county while being treated there, could be tried for the escape in Dodge County. Dolan v. State, 48 Wis. 2d 696, 180 N.W.2d 623 (1970). A defendant is not prejudiced when the court amends the charge against the defendant to charge a lesser included offense without informing the defendant of the nature of the amended charge or allowing the defendant to plead to it. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972). It is not a violation of a defendant’s rights if the defendant is prosecuted by information and not by grand jury indictment. State v. Lehtola, 55 Wis. 2d 494, 198 N.W.2d 354 (1972). A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State, 58 Wis. 2d 671, 207 N.W.2d 589 (1973). Participation of the state in promulgating adverse publicity is relevant in determining whether the trial court abused its discretion in not granting a venue change. Briggs v. State, 76 Wis. 2d 313, 251 N.W.2d 12 (1977). If a defendant acquiesces in counsel’s decision that the defendant not testify, the defendant’s right to testify is waived. State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980). When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984). Constitutional error is harmless if the court can declare its belief that it is harmless beyond a reasonable doubt because there is no reasonable possibility the error contributed to the conviction. State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (1988). Two factors determine the sufficiency of a criminal charge: 1) whether it states an offense to which the defendant can plead; and 2) whether disposition will bar future prosecution for the same offense. Discussing additional factors. State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988). A judge’s bias against counsel must be severe to translate into unconstitutional partiality against a litigant. State v. Hollingsworth, 160 Wis. 2d 883, 467 N.W.2d 555 (Ct. App. 1991). Rules for pleadings in criminal obscenity cases are the same as for all other criminal cases. If a pleading fails to set forth all elements of a crime but includes correct citations, all elements are sufficiently alleged. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial prejudices a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992). A criminal defendant’s right to testify is fundamental. In order to determine whether a criminal defendant is waiving the right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury consisting of a basic inquiry to ensure that the defendant is aware of the defendant’s right to testify, and the defendant has discussed this right with counsel. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1476. Following an unchallenged colloquy wherein the defendant knowingly, voluntarily, and intelligently waived the defendant’s right to testify, the defendant’s failure to seek an offer of proof at the time of trial or in the postconviction motion operated as a waiver of the right to have decided the issue of whether the waiver to testify could be withdrawn. State v. Winters, 2009 WI App 48, 317 Wis. 2d 401, 766 N.W.2d 754, 08-0910. When a trial court fails to satisfy the Weed, 2003 WI 85, mandate to conduct an on-the-record colloquy to determine if the defendant knowingly waived the right to testify, an evidentiary hearing to determine whether the waiver was knowingly, voluntarily, and intelligently made is the proper procedural response. The state carries the burden to show that the defendant’s waiver was knowing and voluntary and must do so by clear and convincing evidence. State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779 N.W.2d 718, 09-0516. Weed, 2003 WI 85, does not address the situation here, in which a defendant prevented the trial court from conducting the on-the-record colloquy it required. By refusing to come to court so the trial court could personally explain what Weed requires must be explained, the defendant made it, as a practical matter consistent with safety, impossible for the trial court to explain the defendant’s right to testify and determine whether the decision to not testify was knowing, intelligent, and voluntary. State v. Vaughn, 2012 WI App 129, 344 Wis. 2d 764, 823 N.W.2d 543, 12-0094. Harmless error review applies to the circuit court’s alleged denial of a defendant’s right to testify because its effect on the outcome of the trial is capable of assessment. State v. Nelson, 2014 WI 70, 355 Wis. 2d 722, 849 N.W.2d 317, 12-2140.
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wisconsinconstitution
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