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.