On Point blog, page 1 of 2
COA: Circuit court properly held trial despite concerns about defendant’s competence
State v. Lance L. Black, 2019AP592, 3/3/20, District 1 (not recommended for publication); case activity (including briefs)
Black’s first trial ended in a hung jury. When the state said it would try him again, he made a fuss–swearing and pounding on a table. At his second trial, Black again erupted (twice), was removed from the courtroom, and refused to return. His counsel requested a competency evaluation, which the court permitted, though with apparent reluctance. After the examiner found Black incompetent, the court disagreed with her, finding him competent and continuing the trial to (guilty) verdicts.
Court of appeals holds defendant can be forced to choose: wear a stun belt or don’t attend your trial
State v. Danny L. Benford, 2017AP2520-CR, 3/26/19, District 3 (not recommended for publication); case activity (including briefs)
The Eau Claire County Sheriff Department’s policy is to require all defendants appearing for trial to wear a stun belt under their clothing. Benford did not want to wear one because he didn’t trust the sheriff’s not to zap him for no good reason. The trial court conducted an inquiry into the need for the stun belt, concluded it was necessary, and found no other suitable alternative to it.
Judge’s answer to jury question in absence of defendant and counsel was harmless error
State v. Deshawn Harold Jewell, 2017AP2503-CR, 10/30/18. District 1 (not recommended for publication); case activity (including briefs)
Jewell claims that he is innocent of armed robbery, so his identity was an issue at trial. During deliberations, the jury asked the trial court for the “six pack” of pictures of people who appeared in the police photo array that the victim used to identify him. They also asked a question about how the photos were numbered. Jewell and his lawyer were not present and had no input into the answer.
SCOW: Defendant waived, rather than forfeited, right to be present for trial
State v. Michael L. Washington, 2018 WI 3, 1/9/18, affirming a published court of appeals decision; case activity (including briefs)
The supreme court determines that, despite the absence of any colloquy, a defendant who was not present for his trial waived his statutory right to be there.
Defense win: colloquy inadequate to waive right to physical presence
State v. Ricky C. Anderson, 2017 WI App 17; case activity (including briefs)
Ricky Anderson pled to a sexual assault by telephone from prison, with his attorney, the prosecutor and the judge all in the courtroom. The court of appeals concludes the court did not do enough to establish either that Anderson knowingly waived his statutory right to be physically present or that the telephone connection was adequate to allow his meaningful participation in the hearing.
Right to be present at trial waived
State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)
Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.
SCOW holds defendant may forfeit constitutional right to testify at trial
State v. Eddie Lee Anthony, 2015 WI 20, affirming unpublished COA decision; click here for docket and briefs
Resolving an issue of first impression, SCOW has decided that a defendant may forfeit his constitutional right to testify by stating an intent to bring up irrelevant matters or by engaging in conduct incompatible with the assertion of that right. Also, the erroneous denial of the right to testify is subject to a harmless error analysis–even where the record shows the defendant would testify to both relevant and irrelevant matters.
Defendant’s Presence — Jury Selection
State v. Garren G. Gribble, 2001 WI App 227
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the trial court erred in questioning prospective jurors outside the presence of defendant and counsel, on “hardship and infirmity requests” not to serve.
Holding: Questioning jurors about undue hardships “does not implicate the purposes of voir dire that are the premise for a defendant’s constitutional entitlement to be present with counsel” (namely,
Defendant’s Presence — “Remote” Appearance by Video, at Plea and Sentencing
State v. Lawrence P. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, petition for rev. gr., 11/15/00, reversed on other grounds, 2001 WI 74
For Peters: Jane K. Smith
Issue: Whether a prior offense may be used to enhance a current one, where the plea and sentencing on the prior offense were accomplished by closed-circuit television.
Holding: Although the procedure used in the prior offense violated the § 971.04(1) statutory mandate of actual physical presence,
Defendant’s Presence — jury selection.
State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999).
For Harris: William S. Coleman, SPD, Milwaukee Appellate.
Issue: Whether defendant’s rights to presence and counsel were violated by their absence from at least part of voir dire.
Holding: Defendant has both a nonwaivable statutory right to presence, and also a constitutional right to assistance of counsel, at jury selection.
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