Wisconsin Constitution

Forfeiture of the right to counsel cannot occur simply because the effect of the defendant's conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect. Forfeiture, by action or conduct, is subject to the same rules as when a defendant informs the court that he or she wishes to proceed without counsel, and the court must determine whether the defendant is competent to proceed without an attorney. State v. Coleman, 2002 WI App 100, 253 Wis. 2d 693, 644 N.W.2d 283, 01-2201.

For a knowing and voluntary waiver of counsel on direct appeal, the defendant must be aware of: 1) the rights to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report; 2) the dangers and disadvantages of proceeding pro se; and 3) the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed. The necessary colloquy may be accomplished by written communications with the defendant, initiated either by the court or by counsel seeking to withdraw. State v. Thornton, 2002 WI App 294, 259 Wis. 2d 157, 656 N.W.2d 45, 01-0726.

Opening a letter marked "Legal Papers" outside of an inmate's presence may have violated an administrative rule, but it was not a violation of the 6th amendment right to counsel. For the right to counsel to have an arguable application, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with an attorney. State v. Steffes, 2003 WI App 55, 260 Wis. 2d 841, 659 N.W.2d 445, 02-1300.

When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679.

When a court finds numerous deficiencies in a counsel's performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice. Whether the aggregated errors by counsel will be enough to meet the Strickland prejudice requirement depends upon the totality of the circumstances at trial, not the totality of the representation provided to the defendant. State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305, 01-1589.

Under Dean a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02-1313.

No law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates his or her postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. Ford v. Holm, 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500, 02-1828.

An attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. While the defendant's admission need not be phrased in magic words, it must be unambiguous and directly made to the attorney. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203.

When a defendant informs counsel of the intention to testify falsely, the attorney's first duty shall be to attempt to dissuade the client from the unlawful course of conduct. The attorney should then consider moving to withdraw from the case. If the motion to withdraw is denied and the defendant insists on committing perjury, counsel should proceed with the narrative form of questioning, advising the defendant beforehand of what that entails and informing opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203.

An alleged violation of the requirements of Klessig, 211 Wis. 2d 194, can form the basis of a collateral attack as long as the defendant makes a prima facie showing that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel, which shifts the burden to prove that the defendant validly waived his or her right to counsel to the state. The state may elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise the 5th amendment privilege against testifying. State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, 03-1728.

When a defendant seeks to proceed pro se, the circuit court undertakes a 2-part inquiry, ensuring that the defendant: 1) has knowingly, intelligently, and voluntarily waived the right to counsel; and 2) is competent to proceed pro se. The record must demonstrate an identifiable problem or disability that may prevent a defendant from making a meaningful defense. The circuit court need not always make an express finding as to which specific problem or disability prevented a defendant from being able to meaningfully represent himself or herself. State v. Marquardt, 2005 WI 157, 286 Wis. 2d 204, 705 N.W.2d 878, 04-1609.

A deaf defendant who was shackled during trial and sentencing had the burden to show that he in fact was unable to communicate, not that he theoretically might have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d 483, 04-2869.

A defendant's constitutional right to effective representation for the purpose of exercising the right to directly appeal a conviction did not require postconviction counsel to offer the defendant the option of a "partial no-merit" report on any potential issues remaining after the defendant declined for strategic reasons to pursue an issue having arguable merit. The U.S. Constitution requires only that "an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Ford v. Holm, 2006 WI App 176, 296 Wis. 2d 119, 722 N.W. 2d 609, 02-1828.

While courts sometimes can override a defendant's choice of counsel when deemed necessary, nothing requires them to do so. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant's right to retain counsel of his choice and could leave the accused with the impression that the legal system had conspired against him or her. State v. Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W. 2d 585, 05-0181.

Generally, a defendant who validly waives the right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict, although there may be instances in which counsel's performance is deficient and unreasonably so even in light of the waived conflict of interest. State v. Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W. 2d 585, 05-0181.

It is recommended, if not required, that circuit courts take certain steps to determine whether a defendant has forfeited the right to counsel: 1) provide explicit warnings that, if the defendant persists in specific conduct, the court will find that the right to counsel has been forfeited; 2) engage in a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; 3) make a clear ruling when the court deems the right to counsel to have been forfeited; and 4) make factual findings to support the court's ruling. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06-0772.

It would be unreasonable to require a circuit court to engage in a colloquy to ensure that the defendant deliberately relinquished the right to counsel in circumstances where the defendant will verbally insist he or she did not. In cases in which the defendant's words are inconsistent with the defendant's conduct, such a colloquy would be farcical. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06-0772.

Although an indigent defendant does not have the right to pick his or her trial lawyer, the indigent defendant is entitled to a lawyer with whom he or she can communicate. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. The court must make sufficient inquiry to ensure that a defendant is not cemented to a lawyer with whom full and fair communication is impossible; mere conclusions, unless adequately explained, will not fly. State v. Jones, 2007 WI App 248, 306 Wis. 2d 340, 742 N.W.2d 341, 07-0226.

There is no 6th amendment effective assistance of counsel right to subpoena police reports and other non-privileged materials prior to a preliminary examination. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

A lawyer's failure to investigate is not deficient performance if he or she reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. When there is reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. State v. Walker, 2007 WI App 142, 302 Wis. 2d 735, 735 N.W.2d 582, 06-0562. Reversed on other grounds, State v. Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, 06-0562.

Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

A defendant does not have the right to be represented by: 1) an attorney he or she cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

The circuit court's decision to remove counsel of choice is discretionary. The court does not have unfettered freedom to deprive a defendant of retained counsel. Whether removal for conflict was proper rests on whether the court balanced the defendant's right to be represented by retained counsel against the court's interest in the appearance of fairness and diffusing what it characterized as a potential conflict. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

When making a determination whether to allow the defendant's counsel of choice to participate, the circuit court must balance the defendant's right to select counsel against the public's interest in the prompt and efficient administration of justice. Several factors assist the court in balancing the relevant interests, for example: the length of delay requested; whether competent counsel is presently available and prepared to try the case; whether prior continuances have been requested and received by the defendant; the inconvenience to the parties, witnesses and the court; and whether the delay seems to be for legitimate reasons or whether its purpose is dilatory. State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 N.W.2d 206, 07-1982.

A defendant must clearly and unequivocally make a declaration in order to invoke the right to self-representation. A trial court has no duty to advise a defendant of the right to self-representation prior to an invocation. State v. Darby, 2009 WI App 50, 317 Wis. 2d 478, 766 N.W.2d 770, 08-0935.

The fact that the government might know an informant hopes to receive a benefit as a result of providing information does not translate into an implicit agreement between the government and the informant if the informant is thereafter placed into an environment where incriminating information can be obtained. If there is hope, and nothing else, then the informant cannot be construed to be a government agent eliciting a statement in violation of the 6th amendment right to counsel. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09-0429.

The police do not have a duty to bar charged defendants' visits with potential informants; indeed such a requirement would be unfair to prisoners. Also, when a person offers to assist the police, the police need not try to stop the person from providing assistance. As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the 5th or 6th amendments. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09-0429.

Klessig is the controlling authority for determining whether a defendant validly waived the right to counsel. However, when the circuit court failed to engage a defendant in the 4 lines of inquiry as prescribed in Klessig but determined that two of the four lines of inquiry were not satisfied, the circuit court did not commit automatic error requiring a new trial because the defendant could not have validly waived his right to counsel. State v. Imani, 2010 WI 66, 326 Wis. 2d 179; 786 N.W.2d 40, 08-1521.

Nothing bars a defendant from requesting substitution of counsel, nothing bars the public defender from choosing to make substitute counsel available, and nothing bars a court from granting such a request, but a court is not required by the 6th amendment to the U.S. Constitution or by Article I, Section 7 of the Wisconsin Constitution to do so solely because a defendant requests it. State v. Jones, 2010 WI 72, 326 Wis. 2d 380, 797 N.W.2d 378, 08-2342.

A defendant's request to withdraw from self-representation and proceed with the assistance of counsel rests in the trial court's discretion. A request to reinstate the right to counsel is akin to a request for substitution of counsel. A trial court may err by denying a request to revoke pro se status when the denial is merely to punish the defendant or is based on a rigid insistence on expedition in the face of a justifiable request for delay. A trial court does not erroneously exercise its discretion by preventing a defendant from reasserting the right to counsel merely to hinder the progress of the case against him. State v. Rhodes, 2011 WI App 145, 337 Wis. 2d 594, 807 N.W.2d 1, 10-0435.

The right to select counsel of one's choice has been regarded as the root meaning of the constitutional guarantee. Deprivation of the right is complete when the defendant is erroneously prevented from being represented by the lawyer he or she wants, regardless of the quality of the representation received. To disqualify an attorney as a witness in a case, the state must show that the attorney is a necessary witness. It was an error to disqualify an attorney based solely on the fact that the attorney acted as a translator for his client. State v. Gonzalez-Villarreal, 2012 WI App 110, 344 Wis. 2d 472, 824 N.W.2d 161, 11-1259.

In order to establish a 6th amendment violation on the basis of a conflict of interest, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel had an actual conflict of interest based on the facts of the case. An actual conflict of interest exists when the defendant's attorney was actively representing a conflicting interest so that the attorney's performance was adversely affected. Counsel is considered per se ineffective once an actual conflict of interest adversely affecting counsel's performance has been shown. A defendant need not prove that some kind of specific adverse effect or harm resulted from the conflict. State v. Villarreal, 2013 WI App 33, 346 Wis. 2d 690, 828 N.W.2d 866, 11-0998.

A claim for ineffective assistance of postconviction counsel must be filed with the circuit court, either as a s. 974.06 motion or as a petition for a writ of habeas corpus. A defendant arguing ineffective assistance of appellate counsel, conversely, may not seek relief under s. 974.06 and must instead petition the court of appeals for a writ of habeas corpus. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425.

A defendant who argues that he or she received ineffective assistance of appellate counsel in a habeas petition because certain arguments were not raised must show why the claims he or she believes should have been raised on appeal were "clearly stronger" than the claims that were raised. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425.

Under Padilla, 559 U.S. 356, counsel's failure to advise a defendant concerning clear deportation consequences of a plea bargain is prejudicial if the defendant shows that "a decision to reject the plea bargain would have been rational under the circumstances." The defendant is not required to show that "there would be a different outcome" or that he or she had "real and viable challenges to the underlying veracity of the conviction." State v. Mendez, 2014 WI App 57, ___ Wis. 2d ___, ___ N.W.2d ___, 13-1862.

The court where an alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney's failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue post conviction relief, the proper forum lies in the court of appeals. Kyles v. Pollard, 2014 WI 38, ___ Wis. 2d ___, ___ N.W.2d ___, 12-0378.

Failure to call a potential witness may constitute deficient performance. A failure to call a key witness, however, does not always necessarily constitute deficient performance. The failure to call a witness may have been a reasonable trial strategy. State v. Jenkins, 2014 WI 59, ___ Wis. 2d ___, ___ N.W.2d ___, 12-0046.

A preliminary hearing to determine probable cause for detention pending further proceedings is not a "critical stage" in a prosecution requiring appointed counsel. Gerstein v. Pugh, 420 U.S. 103.

The state may not force a lawyer upon a defendant who intelligently insists upon conducting his or her own defense. Faretta v. California, 422 U.S. 806.

The right to counsel includes the right to make a closing summary of evidence to the trier of fact. Herring v. New York, 422 U.S. 853.

The right to counsel includes the right to consult with an attorney during a trial recess. Geders v. United States, 425 U.S. 80.

Prisoners facing disciplinary charges that also constitute crimes have no right to counsel at the disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308.

When the defendant's right to counsel was violated by a corporeal identification conducted in court without counsel, the prosecution could not introduce identification evidence even though the identification had an independent source. Moore v. Illinois, 434 U.S. 220 (1977).

The right to counsel was not violated when a permissible jury instruction, intended for the defendant's benefit, was given over defense counsel's objections. Lakeside v. Oregon, 435 U.S. 333 (1978).

Whenever the trial court improperly requires joint representation over a timely objection, reversal is automatic. Holloway v. Arkansas, 435 U.S. 475 (1978).

An indigent defendant is not entitled to appointed counsel when charged with an offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 U.S. 367 (1979).

In order to demonstrate a violation of the right to counsel, the defendant must establish that an actual conflict of interest adversely affected the counsel's performance. Cuyler v. Sullivan, 446 U.S. 335 (1980).

The government violated the defendant's right to counsel by placing a paid informant in the same cell who deliberately elicited incriminating statements. United States v. Henry, 447 U.S. 264 (1980).

When the right to counsel was infringed but no prejudice to the defendant was shown, the court erred in dismissing indictment. United States v. Morrison, 449 U.S. 361 (1981).

Since a criminal defendant has no constitutional right to counsel to pursue a discretionary state appeal, the defendant could not be deprived of effective counsel by counsel's failure to timely file an application for certiorari. Wainwright v. Torna, 455 U.S. 586 (1982).

The right to counsel does not guarantee a "meaningful attorney-client relationship." Morris v. Slappy, 461 U.S. 1 (1983).

Counsel appealing a conviction need not present every nonfrivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745 (1983).

Without surrounding circumstances making it unlikely that the defendant received effective assistance of counsel, a claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic, 466 U.S. 648 (1984).

To support a claim of ineffective assistance of counsel, the defendant must show a probability, sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984).

Indigent inmates held in administrative segregation during the investigation of a prison murder were not entitled to counsel prior to the initiation of adversary judicial proceedings against them. U.S. v. Gouveia, 467 U.S. 180 (1984).

An accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of an initial request for counsel. Smith v. Illinois, 469 U.S. 91 (1984).

Due process guarantees a criminal defendant the effective assistance of counsel on a first appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985).

The right to assistance of counsel wasn't violated when an attorney refused to cooperate with the defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 U.S. 157 (1986).

Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, the individual may not insist upon implementation of Anders v. California, 386 U.S. 738 (1967), procedures. Pennsylvania v. Finley, 481 U.S. 551 (1987).

Though the trial court must recognize the presumption that a defendant is entitled to his or her counsel of choice, the presumption is overcome by actual conflict and a serious potential for actual conflict. Wheat v. United States, 486 U.S. 153 (1988).

The right to counsel was not violated by the court's instruction to the defendant that he not confer with his attorney during a 15 minute recess between the defendant's direct and cross-examination. Perry v. Leeke, 488 U.S. 272, 102 L. Ed. 2d 624 (1989).

The 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 U.S. 171, 115 L. Ed. 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. U.S., 511 U.S. 738, 128 L. Ed. 2d 745 (1994).

To void a conviction due to a 6th amendment violation when a trial court has failed to inquire into a potential conflict of interest that the court knew or should have known of, the defendant must establish that the conflict adversely affected counsel's performance. Failure of the trial court to inquire into the conflict did not reduce the defendant's burden of proof. Mickens v. Taylor, 535 U.S. 162, 152 L. Ed. 2d 291 (2002).

The 6th amendment right to counsel of choice commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he or she believes to be best. When that right is violated because the deprivation of counsel is erroneous, no additional showing of prejudice is required to make the violation complete, and the violation is not subject to harmless-error analysis. United States v. Gonzalez-Lopez, 548 U.S. 140, 165 L. Ed. 2d 409, 126 S. Ct. 2557 (2006).

The Constitution does not forbid a state to insist that the defendant proceed to trial with counsel when the state court found the defendant mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. Indiana v. Edwards, 554 U.S. 164, 171 L. Ed. 2d 345, 128 S. Ct. 2379 (2008).

The right to counsel applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him or her and restrictions are imposed on his or her liberty. Attachment of the right does not require that a public prosecutor as distinct from a police officer be aware of that initial proceeding or involved in its conduct. Rothgery v. Gillespie County, 554 U.S. 191, 171 L. Ed. 2d 366, 128 S. Ct. 2578 (2008).

Michigan v. Jackson, 475 U.S. 625, which provided that if police initiate interrogation after the defendant's assertion of the right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid, is overruled. Courts are not required to presume that such a waiver is invalid under those circumstances. Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). See also State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741, 08-3007. See also State v. Delebreau, 2014 WI App 21, 352 Wis. 2d 647, 843 N.W.2d 441, 13-1108.

A defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of the 6th amendment right to counsel, was admissible at trial to impeach the defendant's conflicting statement. Kansas v. Ventris 556 U.S. 586, 129 S. Ct. 1841; 172 L. Ed. 2d 454 (2009).

Counsel has an obligation to advise a defendant that a guilty plea will result in the defendant's deportation from this country. Advice regarding deportation is not categorically removed from the ambit of the 6th amendment right to counsel. When the deportation consequence is truly clear, the duty to give correct advice is equally clear. Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473; 176 L. Ed. 2d 284 (2010).

As a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. When defense counsel allowed an offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the constitution requires. Missouri v. Frye, 565 U.S. ___, 182 L. Ed. 2d 379, 132 S. Ct. 1399 (2012).

When ineffective advice led to a plea offer's rejection and caused the defendant to stand trial, rather than to waive the right to trial, a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that were imposed. Lafler v. Cooper, 566 U.S. ___, 182 L. Ed. 2d 398,132 S. Ct. 1376 (2012).

When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank, 343 F.3d 901 (2003).

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.

Contradictory testimony of different state witnesses does not necessarily cancel the testimony and render it unfit as a basis for a conviction. The determination of credibility and the weight to be accorded the testimony is a jury function, and the jury may accept or reject the inconsistent testimony, even under the beyond a reasonable doubt burden of proof. Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521.

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 Wis. 2d 501, 182 N.W.2d 459.

When 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed prior to the time the case was submitted to the jury, a showing of probable prejudice was required for a mistrial to be ordered. Shelton v. State, 50 Wis. 2d 43, 183 N.W.2d 87.

Asking an improper question that is not answered is not grounds for reversal, especially when the trial court instructs the jury to disregard the question and to draw no inferences therefrom. The instruction is presumed to efface any possible prejudice resulting from asking the question. Taylor v. State, 52 Wis. 2d 453, 190 N.W.2d 208.

The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper because the prosecutor expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893.

When the prosecutor stated in opening remarks that the defendant refused to be fingerprinted but failed to introduce testimony to this effect, the error was cured by proper instructions. State v. Tew, 54 Wis. 2d 361, 195 N.W.2d 615.

The exclusion of young persons, students, and teachers from a jury list is discussed. If a challenge establishes discrimination, the jury list is invalid and the defendant need not show prejudice. Brown v. State, 58 Wis. 2d 158, 205 N.W.2d 566.

Rules for proving discrimination in compiling a jury list and the burden of proof are discussed. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134.

Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751.

The absence of persons of the defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889.

A defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive the right to a jury trial. Norwood v. State, 74 Wis. 2d 343, 246 N.W.2d 801.