Cases at Issue:
State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). The
court mandated the use of a colloquy in every case where a defendant
seeks to proceed pro se, to prove knowing, voluntary, and intelligent
waiver of counsel.
Iowa v. Tovar, 541 U.S. 77 (2004). The constitutional requirements for valid waiver of counsel are satisfied when the trial court informs the accused of the nature of the charges, his right to counsel, and the range of allowable punishments.
Holdings:
(1) The requirements of Klessig survive Tovar.
(2) A violation of Klessig can form the basis of a collateral attack if the defendant makes a prima facie showing that he did not validly waive the right to counsel.
(3) When the defendant makes a prima facie showing, the burden to prove valid waiver shifts to the State.
(4) The State may call the defendant at an evidentiary hearing to meet its burden, and the defendant may not raise the privilege against testifying.
(5) If the defendant refuses to testify, a court may infer that the State has satisfied its burden.
Summary:
Ernst was charged with fifth offense OWI and PAC. He moved to
collaterally attack his fourth conviction, claiming that he had not
validly waived his right to counsel because the colloquy did not
satisfy Klessig. The circuit court concluded that Ernst had made a prima facie
showing of invalid waiver of counsel. The State requested an
evidentiary hearing in the matter, intending to call Ernst as a
witness. Ernst asserted his fifth amendment privilege to not
testify. The circuit court granted both the hearing and State’s
request to compel Ernst to testify. Ernst asked for interlocutory
review. The court of appeals certified the case to the supreme
court.
Court’s response:
The court determined that the requirements of Klessig survive Tovar
because Tovar allowed states to adopt procedural rules for waiver of
counsel, and the Klessig requirements are procedural rules, not
constitutional ones. The court also concluded that a violation of
the Klessig requirements can form the basis for a collateral attack,
but a successful attack must point to facts that demonstrated the
defendant did not have the information that should have been provided
in the waiver proceeding. In Ernst’s case, because the court
concluded that a sufficient prima facie case was not established, it
reversed the order of the circuit court. The court held, however, that if a defendant makes a prima facie
showing, the burden shifts to the State to show that the plea was
valid. The circuit court should hold an evidentiary hearing at
which the state may examine the defendant. If the defendant
refuses to testify, a court may infer that the State has met its
burden, because a defendant cannot use the fifth amendment as a shield
against having to testify about matters he put into dispute.
Date: June 15, 2005
Case No: 2003AP2097-CR
Issues: Jury Instructions, Change of
Venue, Constitutionality of 949.09 (Homicide by intoxicated use of
vehicle or firearm)
Summary:
The
court reversed the court of appeals decision to reverse Fonte’s
conviction of homicide by intoxicated use of a motor vehicle under §
940.09 as a result of a boating accident. The supreme court held
that (1) The jury instruction did not deny Fonte a fair trial, because
it properly explained the law regarding chemical tests for intoxication
under § 885.235. That statute provides that if the breath, blood,
or urine sample was not taken within three hours of the event to be
proved, the result may be given prima facie effect only if the effect
is established by expert testimony. Here, the State’s expert
testified to a reasonable degree of certainty what Fonte’s blood
alcohol level was at the time of the accident. The jury
instruction reflected this requirement and was therefore not
erroneous. (2) There was sufficient evidence that Fonte was
driving the boat at the time of the accident, if the evidence is
reviewed in the light most favorable to the verdict. (3)
Counsel’s decision not to object to the state’s reference to Fonte’s
use of an alias or his attendance at numerous rock concerts did not
constitute ineffective assistance of counsel. (4) Because
the pre-trial publicity could not be characterized as “rabble rousing,”
or an attempt to influence public opinion against Fonte, it was not
unduly prejudicial. Further, because the circuit court conducted
proper voir dire, there was no necessity for a change of venue.
(5) Section 949.09 requires the prosecution to prove a causal
connection between the defendant’s intoxicated use of a motor vehicle
and the death, so it does not unconstitutionally relieve the state of
its burden, although the state is not required to prove a causal
connection between the intoxication (conceptualized as an isolated
incident) and the death.
State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315
Date:
April 27, 2005
Case No: 2003AP1781-CR
Issue: Exculpatory Denial Exception to the Obstruction Statute
Holding: Wis. Stat. § 946.41, which makes it illegal to resist or obstruct an officer, contains no “exculpatory denial” exception. Accordingly, State v. Espinoza is overruled.
Summary:
Reed was
charged with obstruction in connection with an OWI charge, for falsely
telling a police officer that someone else was driving the
vehicle. Reed moved to dismiss the obstructing charge, and the
circuit court denied the motion. The court of appeals granted his
interlocutory appeal, but denied his claim as being outside the
exculpatory denial exception it had previously adopted in Espinoza.
Reed appealed to the supreme court, asking it to uphold the exculpatory denial exception and to find that his conduct fell within it. Reed made three arguments in favor of upholding the exception: (1) The exception properly recognizes that false answers to police questions do not thwart the police function. (2) Without the exception, suspects would have only an illusory opportunity to avoid incriminating themselves. (3) Eliminating the exception would lead to absurd results because overzealous prosecutors could use the obstructing statute as a means of piling on offenses.
The court explained its disagreement with Reed, and its overruling of Espinoza as follows: (1) The obstructing statute does not require the knowingly made false statements to thwart the police function; it requires only that the defendant knowingly gave false statements with the intent that they mislead the police officer. (2) Fifth Amendment protection does not mean that a suspect may lie to police; to avoid incriminating themselves, suspects may simply remain silent. (3) If the obstruction statute were to create problems of prosecutorial abuse, it would be the legislature’s function to correct it, not the court’s.
Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296
Date:
March 18, 2005
Case No: 03-2527
Issue: Punitive Damages
Holding: A defendant’s conduct giving rise to
punitive damages need not be directed at the specific plaintiff seeking
punitive damages.
Facts:
In October, 1998, the defendant caused
a collision that injured the plaintiff. The defendant’s alcohol
concentration was tested to be .269 percent; he was charged with OWI
and convicted. The plaintiff sued for negligence, seeking
compensatory and punitive damages. The defendant stipulated to
liability, but disputed damages. The case came before the supreme
court on certification from the court of appeals.
Court’s Rationale:
The statute at issue is
Wis. Stat. section 895.85(3) (2001-2002): “The plaintiff may
receive punitive damages if evidence is submitted showing that the
defendant acted maliciously toward the plaintiff or in an intentional
disregard of the rights of the plaintiff.” Borrowing from the
definition of “intentional” in products liability law, the court
concluded that 895.85(3) requires that in order for punitive damages to
be assessed, the defendant had to act with a purpose to disregard the
plaintiff’s rights or be aware that his or her conduct is substantially
certain to result in the plaintiff’s rights being disregarded. A
reading of the statute in which a defendant had
to intentionally disregarded the rights of a particular plaintiff
in order for punitive damages to be assessed would bring about an
absurd result in which a defendant who intentionally disregards the
rights of a great many unspecified plaintiffs would be afforded greater
protection than one who intentionally disregards the rights of one
particular individual. The court explained that “drunk driving is
a terrible scourge,” and “intentionally driving while alcohol-impaired
is the type of outrageous conduct that punitive damages should punish
and can deter.” By deliberately drinking a large amount of
alcohol and then driving while intoxicated, the defendant
intentionally disregarded the rights of all motorists on the road, implicating the plaintiff’s rights.
