In the Interest of Mack S., No. 2006AP2393 (Wis. App. 4/8/2008)
| Decision Date | 08 April 2008 |
| Docket Number | No. 2006AP2393.,2006AP2393. |
| Parties | In the Interest of Mack S., a Person under the age of 17: State of Wisconsin, Petitioner-Respondent, v. Mack S., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from orders of the circuit court for Milwaukee County: DAVID L. BOROWSKI and FRANCIS T. WASIELEWSKI, Judges. Affirmed.
Mack S., with the assistance of his father,2 appeals from dispositional orders after finding him delinquent based on misdemeanor battery in violation of WIS. STAT. § 940.19(1) (2001-02) and felony battery to an individual over the age of sixty-two, as a party to a crime, in violation of WIS. STAT. § 940.19(6)(a) and § 939.05 (2001-02), which incidents occurred when Mack S. was thirteen years old.3 Mack S. also appeals the denial of his post-disposition motion and pro se motion for reconsideration. On appeal, Mack S. presents the following issues. First, that WIS. STAT. § 938.23(1m)(a)'s requirement that no child under the age of fifteen, while held in a secure detention facility, can waive his or her right to counsel and "have the resulting self incriminating custodial statement used against him [or her] at trial," means that Mack S.'s statements should have been suppressed. Second, the trial court violated Mack S.'s Sixth and Fourteenth Amendment rights when it forced Mack S. to be represented by an attorney "he did not voluntarily accept" and who "frustrated a fair presentation of the case" to the extent that counsel's assistance was ineffective. Third, it was a breach of prosecutorial discretion to not refer the battery case to the city attorney's office for prosecution and that this decision was retaliation against Mack S. and his father for filing a federal lawsuit against the district attorney's office. Fourth, the WIS. STAT. § 940.19(6)(a) rebuttable presumption of conduct creating a substantial risk of great bodily harm for victims sixty-two years old or older is unconstitutional because it violates the Fifth and Fourth Amendments to the United States Constitution. Fifth, a pro se defendant has a Sixth and Fourteenth Amendment "right to all reasonable tools necessary to prepare and present his defense" and that WIS. STAT. § 757.30 "permits a pro bono paralegal to practice law."
¶ 2 We conclude that the trial court: (1) correctly determined that Wis. Stat. § 938.23(1m)(a) does not apply because Mack S. was not interrogated in a secure detention facility after a delinquency petition had been filed; (2) did not erroneously exercise its discretion in denying trial counsel's request to withdraw; (3) correctly determined that Mack S.'s counsel did not provide ineffective assistance; and (4) correctly determined that Mack S. had failed to rebut WIS. STAT. § 940.19(6)(a)'s rebuttable presumption that since his victim was over sixty-two years old, Mack S.'s battery had a substantial risk of great bodily harm. As to Mack S.'s claim that the prosecution abused its discretion in charging him with misdemeanor battery, this issue was not raised in the trial court, and the record does not establish abuse of prosecutorial discretion. Finally, WIS. STAT. § 757.30 does not allow a paralegal to practice law, regardless of whether the assistance is offered for free. We affirm on all issues.
¶ 3 This appeal arises out of two incidents which occurred when Mack S. was thirteen years old.4 In the first incident, Case No. 02JV001619A, (battery-on-a-bus) Mack S. was charged on August 27, 2002, with misdemeanor battery for punching a fellow bus patron in the mouth. The second incident, Case No. 02JV001619B (battery-of-the-elderly) arose out of a December 26, 2002 incident in which Mack S., along with his fifteen-year-old brother and another youth, battered Willie Poston, a seventy-four-year-old man, which resulted in Mack S. being charged with battery to the elderly, a felony offense.5
¶ 4 Mack S. confessed to the August 27, 2002 incident. Mack S. stated that he punched a bus patron, Everett Hackett, in the mouth after Hackett had complained to the bus driver that Mack S., his brother and two other youths were harassing him. On April 30, 2003, the day of the court trial, Mack S. through his counsel, Attorney Robert Brabham, waived his right to a Miranda-Goodchild6 hearing, stating that he had been read his Miranda rights prior to giving the confession and wanted to testify regarding the confession during the trial.
¶ 5 Mack S. also confessed to participating in the December 26, 2002 incident after being arrested that same day. On January 24, 2003, a Miranda-Goodchild hearing was conducted. Both the detective who took the confession, Madrina DelaCruz, and Mack S. testified. After closing arguments, the trial court found that the version of events given by both witnesses were similar and credible, and that Mack S. had been informed of, and had knowingly and intelligently waived, his Miranda rights. The trial court noted that there is some indication that Mack S.'s parents were at the police station during the interrogation, and that "[t]here is nothing in the record to indicate that he had made a request for his parents to be present." After conducting a thorough review of what occurred at the time of the interrogation, which included discussion of the lack of intimidation (Mack S.'s much larger size to that of Detective DelaCruz), the short time of the interrogation (less than two hours), and Mack S.'s previous contact with police (at least three prior incidents in which Mack S. was arrested and transported to a police station), the trial court applied the proper balancing test and determined that none of the actions taken by the police constituted coercion, and that, therefore, Mack S.'s statement was voluntary.
¶ 6 Mack S. was initially represented by Attorney Mark Rosen who was permitted to withdraw on February 21, 2003, when his trial schedule repeatedly interfered with the scheduled hearings in Mack S.'s cases. Attorney Brabham was appointed by the Public Defender's Office as successor counsel. At the next scheduled hearing date following appointment, Attorney Brabham moved to withdraw as counsel. In response to the trial court's inquiry as to the reasons for the motion to withdraw, Attorney Brabham stated that the attorney-client relationship was irretrievably broken. In answering the trial court's further questioning, and asserting that he in no way wanted to violate attorney-client privilege, Attorney Brabham told the court that Mack S. Following this statement, the following exchange took place:
Mack S.: Judge, if I can address the Court. Mr. Brabham, he is not a good lawyer. He comes to visit and he tells me I ain't going to win my case because I don't have a defense. You will find me guilty. Then he call my father's phone and cussed him out telling my father that he doesn't give an "F" about his son.
Brabham: That is a lie.
¶ 7 The trial court, considering these statements, and additional comments made by Mack S.'s father, determined that if Mack S. "has this problem with [Mr. Brabham], Mack S[.] will have an identical problem with the next counsel here." Concluding that changing counsel would only be needlessly "prolong[ing] the situation [without] ever getting down to the conclusion of this case," which by statute has "tight statutory time deadlines," the trial court denied Attorney Braham's request to withdraw. In so doing, the trial court did leave open the possibility that it would allow Mack S. to change counsel, noting:
If Mack S[.] or if his father wants to retain counsel, private counsel, and they want to bring private counsel out here, I would entertain that request but I am not going to run through the roll of attorneys down here.... If [Mack S.] or his father were to interview other counsel, screen them, and found somebody they could work with and presented that attorney to the Court, I would look at it....
¶ 8 On March 20, 2003, a court trial on the felony battery-of-the-elderly was held. After the State rested, Attorney Brabham had Mack S. sworn in to testify. However, after he was on the stand, Mack S. told the trial court that he had changed his mind and that he was not going to testify. After conferring with Mack S., Attorney Brabham informed the court that Mack S. would not testify and that as he was the only witness, the defense rested. The State then gave its closing argument. When it was time for the defense's closing argument, Attorney Brabham informed the trial court that he now, for the first time, questioned Mack S.'s competency and requested that Mack S. be evaluated to determine whether he was competent to assist in his defense before concluding the trial. After a lengthy discussion between counsel and the court, the trial court suspended the trial and ordered Mack S. to undergo a competency evaluation.
¶ 9 On April 7, 2003, a competency hearing was conducted. The report of the evaluation found Mack S. was competent. The parties agreed to the results of the evaluation. The trial court found Mack S. competent to stand trial. The trial court then inquired whether Mack S. wanted to give a closing argument and Attorney Brabham informed the trial court that Mack S. waived his right to do so. The trial court then found Mack S. delinquent based on felony battery-of-the-elderly.
¶ 10 On April 30, 2003, a court trial7 was held on the August 27, 2002 battery complaint. After testimony by the victim (Hackett), the bus driver (George Lawson), the police detective (Stella Payne) and Mack S., and closing arguments by the parties, the trial court found Mack S. delinquent based on battery.
¶ 11 Mack S. was sentenced to one year of...
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