State v. Johnson

Citation133 Wis.2d 207,395 N.W.2d 176
Decision Date29 October 1986
Docket NumberNo. 84-2143-CR,84-2143-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Oliver Ross JOHNSON, Defendant-Respondent.
CourtUnited States State Supreme Court of Wisconsin

Barry M. Levenson, Asst. Atty. Gen. (argued), for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Gary M. Luck (argued), Milwaukee, for defendant-respondent; Joel H. Rosenthal and Luck & Rosenthal, S.C., Milwaukee, on brief.

CALLOW, Justice.

The state seeks review of a published decision of the court of appeals, State v. Johnson, 126 Wis.2d 8, 374 N.W.2d 637 (Ct.App.1985), affirming an order of the circuit court for Milwaukee county, Judge Robert W. Landry, which set aside a judgment of conviction for first-degree murder, vacated the defendant's sentence of life imprisonment, and ordered a new trial.

This appeal presents two issues. First, was the defendant denied his right to effective assistance of counsel under the United States and Wisconsin Constitutions by the failure of his attorney to inform the court that he had received letters from defense experts which raised a reason to doubt the defendant's competence to stand trial? Second, if Johnson was denied effective assistance of counsel, is he entitled to a new trial on the merits, or must the trial court first determine his competency nunc pro tunc, if such a determination can be meaningfully made? We agree with the court of appeals and the circuit court that the defendant was denied his federal constitutional right to the effective assistance of counsel. However, because we conclude that a new trial is necessary only if a meaningful retrospective (nunc pro tunc) hearing is impossible, we remand the cause to determine if such a hearing is possible. Should a retrospective hearing be impossible, the defendant is entitled to a new trial.

The facts underlying Johnson's claim of ineffective counsel are not at issue. On July 21, 1983, the defendant, Oliver Ross Johnson, was convicted of first-degree murder for the stabbing death of Debra White. On April 24, 1984, Johnson brought a post-conviction motion claiming ineffective assistance of counsel.

Attorney David Kagan-Kans was appointed trial counsel for Johnson. To assist in the preparation of his client's defense, Kagan-Kans retained two experts to examine Johnson, Dr. William J. Crowley, a psychiatrist, and Kenneth H. Smail, Ph.D., a clinical psychologist. Dr. Crowley conducted psychiatric interviews with Johnson on April 20, 1983, June 19, 1983, and July 5, 1983. Dr. Smail met with Johnson to evaluate Johnson's psychological functioning on November 26 and 27, 1982, March 7, June 16, July 6, and July 9, 1983. Dr. Smail also reviewed his notes from interviews with Johnson on November 23 and 24, 1982, which were held to assess Johnson's potential for suicide.

Drs. Crowley and Smail were initially retained to evaluate Johnson for a post-traumatic stress disorder defense. After the examinations and consultations with Drs. Crowley and Smail, Kagan-Kans decided not to pursue this defense. Instead, he decided to focus on the intent element of the crime and to argue that Johnson was suffering from a dissociative reaction and that he had acted in the heat of passion.

After a pretrial disagreement with Johnson concerning whether to request a lesser included offense jury instruction, Kagan-Kans requested that Drs. Crowley and Smail evaluate Johnson regarding his competency to stand trial. Shortly thereafter, on July 7, 1983, Dr. Smail wrote to Kagan-Kans and informed him that, "I have serious concerns regarding his [Johnson's] competency to stand trial, although I am unable to offer you a conclusion vis-a-vis s. 971.14(2) because my status as a defense appointed psychologist would be in conflict with my employment at the Forensic Unit." In conclusion, Dr. Smail wrote, "[i]t is my belief that Mr. Johnson's thinking impinges on his ability to rationally aid in the preparation of his defense in an adversarial setting."

On July 11, 1983, Dr. Crowley wrote to Kagan-Kans, advising him that he had "serious doubts about his [Johnson's] competency to stand trial." However, Dr. Crowley, who was also employed by the Milwaukee County Forensic Unit, did not offer a definitive opinion regarding Johnson's competency because of Dr. Crowley's belief that to do so would be a conflict of interest. Dr. Crowley specifically recommended that Kagan-Kans raise the issue of competency with the court. We find nothing in the letters from Drs. Crowley and Smail to indicate that the scope of the evaluation of the mental competency of Johnson was limited in any way.

On July 12, 1983, Johnson moved the court for substitution of counsel because of differences he had with Kagan-Kans on the choice of a proper defense. This motion was denied. The prosecution then raised the question of Johnson's competency to stand trial. Kagan-Kans responded that neither he nor Johnson were raising the competency issue. Attorney Kagan-Kans, with knowledge of the letters written by Drs. Crowley and Smail, added: "I will, of course, if any competency issue arises, bring it to the Court's attention I think when it arises and certainly not--I would be remiss in my responsibilities to do otherwise." Johnson then affirmed to the court their decision not to raise the competency issue. Kagan-Kans did not disclose to the court the existence of the letters at the time he was questioned concerning a potential competency issue.

On July 13, 1983, the day after the hearing on substitution of counsel, Dr. Crowley sent Kagan-Kans a second letter, this time describing his psychiatric evaluation of the defendant. The letter was based upon three interviews with the defendant, including one on July 5, 1983. Dr. Crowley described Oliver Ross Johnson as "a 35 year- old, slim, soft-spoken, Black male who was alert, oriented, and who cooperated with all interviews to the best of his ability." The July 13 letter made no reference to Dr. Crowley's earlier concerns about Johnson's competency to stand trial.

On July 14, 1983, two days after the hearing, Dr. Smail sent a second letter to Kagan-Kans reporting the results of his psychiatric examination of the defendant, made for the purpose of evaluating a possible defense of lack of mental responsibility or capacity to form intent. Dr. Smail related that Johnson was a "primary source of relevant information." The July 14 letter made no reference to Dr. Smail's previously stated concerns about Johnson's competency to stand trial.

At the August 15, 1984, postconviction hearing on the defendant's sixth amendment claim, Kagan-Kans explained to the court that he had been concerned about his client's mental condition and asked Drs. Crowley and Smail to look at the competency issue. He explained to the court that he felt it was his strategic decision not to raise the competency issue and articulated two bases for the decision.

First, because he planned to introduce psychiatric evidence in support of a dissociative reaction/heat of passion defense, Kagan-Kans did "not want to provide the state the opportunity for the state to have Oliver [Johnson] examined by their forensic experts," thereby risking rebuttal of the defense experts' testimony. The defense experts' testimony concerning the dissociative reaction/heat of passion defense was subsequently held inadmissible by the trial court, consistent with Wisconsin case law. See Steele v. State, 97 Wis.2d 72, 97-98, 294 N.W.2d 2 (1980).

The second basis for Kagan-Kans' decision not to raise the competency issue was his own assessment based on sec. 971.13, Stats., that Johnson was competent, at least with respect to those areas which Kagan-Kans thought Johnson needed to be competent. Kagan-Kans testified at the postconviction hearing that he had analyzed the competency issue in terms of what, if any, decisions the defendant's mental impairment would affect. Kagan-Kans reasoned that, if the mental impairment only affected those decisions which ultimately resided with counsel, the degree of impairment would have to be significantly greater for the defendant to be found incompetent as compared to situations where the impairment involved decisions which the client controls. Since the court had ruled that the decision to request a lesser included offense instruction was for the attorney, Kagan-Kans decided he need not raise the competency issue. He indicated that, if Johnson had chosen not to testify in his own defense, a decision which rests solely with the defendant, he would have sought a competency determination. However, because Johnson did agree to testify, it was unnecessary to do so.

Although Drs. Crowley and Smail were present at the post-conviction hearing, neither testified concerning their evaluation of Johnson's competency to stand trial because Johnson refused to waive his physician-patient privilege.

The circuit court determined that Johnson had been denied effective assistance of counsel, set aside his conviction, vacated his sentence, and ordered a new trial. The court held that, under sec. 971.14, Stats., the determination of competency rested with the court exclusively, not with the attorney. According to the court, notwithstanding Kagan-Kans' rationale for not raising the competency issue, it was a breach of the duty of the defendant's attorney to fail to inform the court about the letters questioning the defendant's competency to proceed.

The court of appeals, in applying the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), affirmed the trial court's decision. State v. Johnson, 126 Wis.2d 8, 374 N.W.2d 637 (Ct.App.1985).

Johnson, in claiming ineffective assistance of counsel, makes reference to the sixth and fourteenth amendments of the United States Constitution and art. I, sec. 7 of the Wisconsin...

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