Absent a clear waiver of counsel and a clear demonstration of a defendant's ability to proceed pro se, courts are advised to mandate full representation by counsel. State v. Haste, 175 W (2d) 1, NW (2d) (Ct. App. 1993).
The proper test of attorney performance is reasonableness under prevailing professional norms; counsel is not required to have a total and complete knowledge of all criminal law no matter how obscure. State v. Hubert, 181 W (2d) 333, 510 NW (2d) 799 (Ct. App. 1993).
Appellate counsel's closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report under s. 809.32 is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 W (2d) 587, 516 NW (2d) 362 (1994).
An appellate defendant represented by counsel has no right to have a pro se brief considered by the court where counsel has submitted a brief. State v. Debra A. E. 188 W (2d) 111, 523 NW (2d) 727 (Ct. App. 1994).
Decision of whether to poll jury may be delegated to counsel; waiver by counsel without showing that waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson, 188 W (2d) 537, 525 NW (2d) 165 (Ct. App. 1994).
Where the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waived the right to separate counsel. Where an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas, 190 W (2d) 339, 526 NW (2d) 818 (Ct. App. 1994).
The prejudice prong of the test for ineffective counsel was met where counsel failed to insure that a defense witness would appear without shackles. State v. Tatum, 191 W (2d) 548, 530 NW (2d) 407 (Ct. App. 1995).
A suspect's reference to an attorney who had previously or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 W (2d) 78, 532 NW (2d) 79 (1995).
The right to counsel and right to remain silent are the defendant's. An attorney not requested by the defendant could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones, 192 W (2d) 78, 532 NW (2d) 79 (1995).
A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone, 195 W (2d) 476, 536 NW (2d) 172 (Ct. App. 1995).
Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley, 195 W (2d) 580, 536 NW (2d) 202 (Ct. App. 1995).
A trial court's failure to conduct a hearing to determine if a defendant's waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Kessig, 199 W (2d) 397, 544 NW (2d) 605 (Ct. App. 1995).
In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found where the defendant constantly refused to cooperate with counsel while refusing to waive the right and where the court found the defendant's intent was to "delay, obfuscate and compound the process of justice". State v. Cummings, 199 W (2d) 722, 516 NW (2d) 406 (1996).
The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez, 201 W (2d) 219, 548 NW (2d) 69 (1996).
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 W (2d) 246, 548 NW (2d) 45 (1996).
Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang, 201 W (2d) 721, 549 NW (2d) 769 (Ct. App. 1996).
To establish ineffective assistance of counsel based on a conflict of interest there must be an actual conflict that adversely affected the attorney's performance. Simultaneous representation of a criminal defendant and a witness in that case in an unrelated civil case resulted in an actual conflict. State v. Street, 202 W (2d) 534, 551 NW (2d) 830 (Ct. App. 1996)
Counsel is not ineffective where the general theory of the defense is discussed with the defendant, and when based on that theory, counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with or harmful to the theory of defense. State v. Eckert, 203 W (2d) 497, 553 NW (2d) 539 (Ct. App. 1996).
When a prosecutor elicits testimony that can only be contradicted by defense counsel or the defendant, if defense counsel could not reasonably foresee the dilemma and the defendant has decided not to testify, defense counsel must be permitted to testify. State v. Foy, 206 W (2d) 628, 557 NW (2d) 494 (Ct. App. 1996).
Counsel was deficient when it failed to object at sentencing to a prosecutor's sentence recommendation after agreeing in a plea bargain to make no recommendation. The defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. State v. Smith, 207 W (2d) 259, 558 NW (2d) 379 (1997).
In every case where a defendant seeks to proceed pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. Where there is no colloquy, and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig, 211 W (2d) 194, 564 NW (2d) 716 (1997).
There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant's education, literacy, fluency in English and any disability which may affect the ability to communicate a defense. When there is no pre-trial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 W (2d) 194, 564 NW (2d) 716 (1997).
It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant's participation in fraud on the court, the defendant was entitled to vacation of his sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz, 212 W (2d) 284, 569 NW (2d) 48 (Ct. App. 1997).
Where a defendant proves ineffective assistance of counsel at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski, 212 W (2d ) 849, 569 NW (2d) 758 (Ct. App.1997).
An in-court identification subsequent to a lineup in violation of an accused's right to counsel is admissible only if the state carries the burden of showing that the in-court identification was based on observations of the suspect other than the lineup. State v. McMorris, 213 W (2d) 156, 570 NW (2d) 384 (1997).
Preliminary hearing to determine probable cause for detention pending further proceedings is not "critical stage" in prosecution requiring appointed counsel. Gerstein v. Pugh, 420 US 103.
State may not force lawyer upon defendant who intelligently insists upon conducting own defense. Faretta v. California, 422 US 806.
Right to counsel includes right to make closing summary of evidence to trier of fact. Herring v. New York, 422 US 853.
Right to counsel includes right to consult with attorney during trial recess. Geders v. United States, 425 US 80.
Prisoners facing disciplinary charges which also constitute crimes have no right to counsel. Baxter v. Palmigiano, 425 US 308.
Where defendant's right to counsel was violated by corporeal identification conducted in court without counsel, prosecution could not introduce identification evidence even though identification had independent source. Moore v. Illinois, 434 US 220 (1977).
Right to counsel was not violated where permissible jury instruction, intended for defendant's benefit, was given over defense counsel's objections. Lakeside v. Oregon, 435 US 333 (1978).
Whenever trial court improperly requires joint representation over timely objection, reversal is automatic. Holloway v. Arkansas, 435 US 475 (1978).
Indigent is not entitled to appointed counsel when charged with offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 US 367 (1979).
In order to demonstrate violation of right to counsel, defendant must establish that an actual conflict of interest adversely affected counsel's performance. Cuyler v. Sullivan, 446 US 335 (1980).
Government violated defendant's right to counsel by placing paid informant in same cell who deliberately elicited incriminating statements. United States v. Henry, 447 US 264 (1980).
Where right to counsel was infringed but no prejudice to defendant was shown, court erred in dismissing indictment. United States v. Morrison, 449 US 361 (1981).
Since criminal defendant has no constitutional right to counsel to pursue discretionary state appeal, defendant could not be deprived of effective counsel by lawyer's failure to file timely application for certiorari. Wainwright v. Torna, 455 US 586 (1982).
Right to counsel does not guarantee "meaningful attorney-client relationship". Morris v. Slappy, 461 US 1 (1983).
Counsel appealing conviction need not present every nonfrivolous issue requested by defendant. Jones v. Barnes, 463 US 745 (1983).
Without surrounding circumstances making it unlikely defendant received effective assistance of counsel, claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic, 466 US 648 (1984).
To support claim of ineffective assistance of counsel, defendant must show probability, sufficient to undermine confidence in outcome, that but for counsel's unprofessional errors result of proceeding would have been different. Strickland v. Washington, 466 US 668 (1984).
Indigent inmates held in administrative segregation during investigation of prison murder were not entitled to counsel prior to initiation of adversary judicial proceedings against them. U.S. v. Gouveia, 467 US 180 (1984).
Accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on clarity of initial request for counsel. Smith v. Illinois, 469 US 91 (1984).
Due process guarantees criminal defendant the effective assistance of counsel on first appeal as of right. Evitts v. Lucey, 469 US 387 (1985).
Right to assistance of counsel wasn't violated when attorney refused to cooperate with defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 US 157 (1986).
If police initiate interrogation after defendant's assertion, at arraignment or similar proceeding, of right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 US 625 (1986).
Because individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, individual may not insist upon implementation of Anders v. California, 386 US 738 (1967) procedures. Pennsylvania v. Finley, 481 US 551 (1987).
Though trial court must recognize presumption that defendant is entitled to counsel of choice, presumption is overcome by actual conflict and serious potential for actual conflict. Wheat v. United States, 486 US 153 (1988).
Right to counsel is not violated by court's instruction to defendant that he not confer with his attorney during fifteen-minute recess between defendant's direct and cross examination. Perry v. Leeke, 488 US 272, 102 LEd 2d 624 (1989).
Sixth amendment right to counsel is offense specific; an accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda arising from the 5th amendment guarantees against self incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 US 171, 115 LEd 2d 158 (1991).
An uncounseled misdemeanor conviction, valid because no prison term was imposed, is also valid when used to enhance punishment upon a subsequent conviction. Nichols v. US, 511 US 738, 128 L Ed 2d 745 (1994).
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.
How do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant's Right to Counsel under Miranda v. Arizona? 79 MLR 1041 (1997).
JURY TRIAL AND JUROR QUALIFICATIONS
NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.
A resident of Menominee county may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, sec. 23, is not violated by using district-based jury lists. Pamanet v. State, 49 W (2d) 501, 182 NW (2d) 459.
Where 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed from the court prior to the time the case was submitted to the jury, there must be a showing of probable prejudice before a mistrial is ordered. Shelton v. State, 50 W (2d) 43, 183 NW (2d) 87.
Exclusion of young persons, students and teachers from a jury list discussed. If a challenge establishes discrimination, the jury list is invalid and defendant need not show prejudice. Brown v. State, 58 W (2d) 158, 205 NW (2d) 566.
Rules as to proving discrimination in compiling jury list and burden of proof discussed. Wilson v. State, 59 W (2d) 269, 208 NW (2d) 134.
Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases where the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch, 60 W (2d) 397, 210 NW (2d) 751.
The absence of persons of defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 W (2d) 105, 223 NW (2d) 889.
Defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive right to jury trial. Norwood v. State, 74 W (2d) 343, 246 NW (2d) 801.
A jury must unanimously find participation in a crime; the jury need not unanimously agree whether defendant (1) directly committed crime, (2) aided and abetted its commission, or (3) conspired with another to commit it. Holland v. State, 91 W (2d) 134, 280 NW (2d) 288 (1979).
Unanimity of criminal verdict discussed. Jackson v. State, 92 W (2d) 1, 284 NW (2d) 685 (Ct. App. 1979).
Excusing Native Americans from jury without individual examination denied defendant Native American a trial by impartial jury. State v. Chosa, 108 W (2d) 392, 321 NW (2d) 280 (1982).
Verdict was unanimous in battery case even though jury was not required to specify whether battery occurred when defendant threw object at victim or during ensuing fistfight. State v. Giwosky, 109 W (2d) 446, 326 NW (2d) 232 (1982).
Verdict was unanimous in rape case even though jury was not required to specify whether sexual assault was vaginal or oral. State v. Lomagro, 113 W (2d) 582, 335 NW (2d) 583 (1983).
Where accused refused to participate in trial, court erred by failing to inform accused of right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 W (2d) 21, 345 NW (2d) 892 (Ct. App. 1984).
Mandatory closure of hearing solely at request of complaining witness over objection of defendant violates right to public trial. Stevens v. Manitowoc Cir. Ct. 141 W (2d) 239, 414 NW (2d) 832 (1987).
Waiver of right to jury trial is effective if defendant understands basic purpose and function of jury trial; trial courts are prospectively ordered to advise defendants of unanimity requirement before accepting waiver. State v. Resio, 148 W (2d) 687, 436 NW (2d) 603 (1989).
Once defendant makes prima facie showing that prosecutor used peremptory challenges in purposefully discriminatory manner, burden shifts to prosecution to provide neutral explanation for challenging jurors. Discussion of Ba tson v. Kentucky, 476 US 79 (1986) provided. State v. Walker, 154 W (2d) 158, 453 NW (2d) 127 (1990).
Law enforcement officers should not be automatically excused for cause from venire on grounds of implied bias. State v. Louis, 156 W (2d) 470, 457 NW (2d) 484 (1990).
Waiver of jury trial must be made by affirmative action of defendant; neither counsel nor court may waive it on defendant's behalf. If defendant has not personally waived right, proper remedy is new trial rather than postconviction hearing. State v. Livingston, 159 W (2d) 561, 464 NW (2d) 839 (1991).
Juveniles's right to jury trial is purely statutory. In Interest of R.H.L. 159 W (2d) 653, 464 NW (2d) 848 (Ct. App. 1990).
Under rare circumstances, jury instruction creating conclusive presumption regarding element of crime may be harmless error; discussion of circumstances. State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
Kinship to a person who has been criminally charged or convicted may constitute a legitimate racially-neutral reason for striking venireperson. State v. Davidson, 166 W (2d) 35, 479 NW (2d) 181 (Ct. App. 1991).
Discussion of unanimity requirements where multiple occurrences of multiple acts are charged. State v. Marcum, 166 W (2d) 908, 480 NW (2d) 545 (Ct. App. 1992).
Prospective jurors related to a state witness by blood or marriage to the third degree must be struck from the jury panel. State v. Gesch, 167 W (2d) 660, 482 NW (2d) 99 (1992).
A defendant cannot show jury prejudice unless the exhaustion of peremptory challenges left a jury that included an objectionable or incompetent member. State v. Traylor, 170 W (2d) 393, 489 NW (2d) 626 (Ct. App. 1992).
Where the jury is sworn during the trial but prior to deliberations, a mistrial is not warranted in the absence of prejudice. State v. Block, 170 W (2d) 676, 489 NW (2d) 715 (Ct. App. 1992).
A defendant has the right to have jurors individually polled on their verdict; reassembling and polling the jury 51 days after the verdict was rendered was harmless error. State v. Coulthard, 171 W (2d) 573, 492 NW (2d) 329 (Ct. App. 1992).
Where the jury is presented with evidence of more than one crime, the verdict must be unanimous as to each crime. To sustain a conviction when alternative methods of proof resting upon different evidentiary facts are presented to the jury the evidence must be sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof. State v. Chambers, 173 W (2d) 237, 496 NW (2d) 191 (Ct. App. 1992).
"Clearly erroneous" standard applies to all steps under Batson (476 US 79) analysis made by trial court in determining whether a peremptory challenge was discriminatory. State v. Lopez, 173 W (2d) 724, 496 NW (2d) 617 (Ct. App. 1992).
Verdict of thirteen member jury panel agreed to by defense and prosecution was not invalid. State v. Ledger, 175 W (2d) 116, 499 NW (2d) 199 (Ct. App. 1993).
A trial court's comments to a deliberating jury without the defendant and his or her counsel violates the constitutional right to be present at trial. The trial court should not inquire of a deliberating jury the numerical division of the jury. State v. McMahon, 186 W (2d) 68, 519 NW (2d) 621 (Ct. App. 1994).
A criminal defendant may not be tried by a juror who cannot comprehend testimony. Once it is determined that a juror has missed testimony which bears on guilt or innocence prejudice must be assumed. State v. Turner, 186 W (2d) 277, 521 NW (2d) 148 (Ct. App. 1994).
Where polling the jury showed a unanimous verdict, no constitutional error occurred due to a failure to instruct the jury that a unanimous verdict was required. State v. Kircherz, 189 W (2d) 392, 525 NW (2d) 788 (Ct. App. 1994).
