Krueger v. State

• Decision Date: 30 June 1978
• Docket Number: No. 76-119-CR,76-119-CR
• Citation: 267 N.W.2d 602,84 Wis.2d 272
• Parties: Gregory KRUEGER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 602

267 N.W.2d 602

84 Wis.2d 272

Gregory KRUEGER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-119-CR.

Supreme Court of Wisconsin.

June 30, 1978.

The plaintiff in error, Gregory Krueger (hereinafter defendant), was convicted of two counts of burglary in violation of sec. 943.10(1)(a), Stats., after a trial to the court. In its bench decision, the trial court concluded that the evidence adduced during trial demonstrated that the defendant "was a party to the crimes charged in the information; specifically, that he was a person concerned in the commission of these crimes, in that he was a party to a conspiracy with another to commit these crimes, under section 939.05(2)(c) of the Wisconsin Statutes." The court later relied on the theory of liability contained in sec. 939.05(2)(b), Stats., aiding and abetting, to sustain the conviction.

Howard B. Eisenberg, State Public Defender, and Mark Lukoff, Asst. State Public Defender, submitted brief for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., submitted brief for defendant in error.

HANLEY, Justice.

On appeal, the defendant raises two questions: (1) Did the trial court err in holding that the defendant's right to a jury trial was waived when, in the defendant's presence, the defense counsel entered an oral waiver without objection from the defendant, and (2) Is the evidence sufficient to sustain the defendant's conviction?

Jury Trial Waiver

Defendant contends that he did not waive, under the circumstances of this case, his right to a trial by jury. The facts and circumstances surrounding this issue, as reflected by the initial record on appeal, was limited to the following colloquy which occurred in the defendant's presence:

"The Court: Is there a waiver or request for jury trial?

"Mr. McMahon (defense counsel): Judge, there is a waiver of the jury trial.

"The Court: All right, we'll schedule this matter for trial on February 27, 1976, at 9:00 a. m."

This record showed that during this exchange the defendant remained mute and that the trial court did not question the defendant about his education, knowledge of the function of a jury, or what a waiver of this right entailed.

On March 7, 1978, this court entered a Per Curiam decision which addressed only the jury trial waiver issue. Krueger v. State, 82 Wis.2d 810, 263 N.W.2d 225 (1978). After briefly setting forth the facts surrounding the waiver, this court stated:

"The trial court had the right to presume that defense counsel had fulfilled his duty of proper representation by fully explaining to the accused the function of a jury and what a waiver of this right entailed.

"However, we think justice will be better served by retaining jurisdiction in this court, and remanding the case to the trial court to ascertain whether the jury waiver was entered or ratified by the defendant or by counsel authorized to so act in his behalf."

The trial court was instructed to conduct an evidentiary hearing in the manner described in State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 264-65, 133 N.W.2d 753 (1965) so as to elicit testimony relative to the question of whether defense counsel waived the jury trial without the knowledge or consent of the accused. This opinion did not, of course, address the sufficiency of evidence rule.

On March 30, 1978, a hearing was held in the county court for Columbia County, the Hon. Lewis W. Charles presiding. At the outset, the trial court concluded that because this court retained jurisdiction, the trial court would not make a determination as to whether there was a valid jury waiver but would only preside at the taking of testimony.

The transcript of this hearing is brief and can be divided into three parts. In the first part, the defendant testified only so far as to waive the attorney-client privilege concerning his discussions with his trial counsel. In the third part, the defendant was examined only with relation to the defendant's decision not to testify at the hearing. The remainder of the transcript is devoted to the testimony given by Earl McMahon, the defendant's counsel at the time of the alleged jury trial waiver.

Mr. McMahon testified on direct examination that he had been in the practice of law for over 30 years and that he was privately retained by the defendant in July, 1975 to defend him on the burglary charges involved in this case.

Mr. McMahon stated that he conferred with the defendant respecting the burglary charges and several unrelated traffic charges on December 22, 1975, January 8, January 9 and January 23, 1976. On January 9, Mr. McMahon represented the defendant in a trial to the court on the traffic charges. During this trial and these conferences, Mr. McMahon stated that he noticed that the defendant had a very serious speech defect which was aggravated when he was under pressure. Mr. McMahon stated:

"(T)his was brought to my attention very pointedly on the 9th day of January, 1976, when he testified in his own behalf at a traffic trial, and I felt that he did have a serious problem with a speech defect; serious stammer which prevented him from communicating clearly when he was under pressure.

". . .ati

"If enough time elapsed, he could get his conversations to me, but he was a very angry young man at that time, and he had difficulty settling down so that he could talk, not necessarily intelligently, but commonly enough so that it was easy to understand him; but I'm sure that on all occasions, I got the message that he was giving me."

Because of this speech defect, Mr. McMahon stated that he decided to advise the defendant to waive a jury trial on the burglary charges as a matter of "trial tactics." "I suggested that he waive the jury trial, because I felt that he would be under pressure and would be able to better communicate his ideas to the court."

Mr. McMahon so advised the defendant on January 23. During a conference with the defendant before arraignment on the burglary charges, Mr. McMahon testified he discussed the right to a jury trial, and the nature and function of the jury, with the defendant.

"Q. Now, based upon your recollections of these discussions, and the refreshing of your recollections after having referred to your file, were there specific discussions in regard to a jury trial?

"A. Yes.

"Q. Now, in these discussions, state whether or not you advised the defendant, Mr. Krueger, of the nature and function of a jury trial?

"A. I did.

"Q. To the best of your recollection, please tell the Court what you said to him concerning the nature and function of a jury trial?

"A. To the best of my knowledge, I told him the same thing that I've told other defendants; namely, that he did have a right to a jury trial in Columbia County by 12 persons from Columbia County; that the jury, before they could find him guilty, would have to vote unanimously that he was guilty, and that the failure of any one of the jurors to so vote would have prevented them from finding him guilty of the charges.

"Q. All right. So, it's your testimony therefore, Mr. McMahon, that you not only advised Mr. Krueger of the nature and function of a jury trial, but you also advised him that he had a right to a jury trial, is that correct?

"A. That is correct.

"Q. Now, state whether or not he appeared to understand the nature and function of a jury trial?

"A. It appeared to me that he understood; yes.

"Q. Now, state whether or not you told the defendant that he alone had to make the final decision as to whether or not he should waive a jury trial?

"A. The only thing that I can answer to that question is that through my practice that has been part of my statement to defendants, and I can only say that I gave him that advice, although I can't remember the specific words at the time that I talked to Mr. Krueger. But, I have done this over the years, and that would be my advice to him.

"Q. Could you paraphrase for the Court today what words you used as a matter of standard practice in advising your clients to waive a that they have the final decision as to the waiver of a jury trial?

"A. Well, I guess the answer I say is that or the statement that I make is that the decision as to whether or not they have a trial, or the entry of a plea, or whatever they're going to do is strictly up to them. I can advise them, but I certainly cannot make up their minds for them. That has to be their decision.

"Q. All right. Now, it's your testimony that you did advise Mr. Krueger that he alone had the decision to make?

"A. Well, I'm not sure that I used those words. I think I probably told him that the decision had to be his.

"Q. Now, did he make a decision on whether or not to waive a jury trial ?

"A. My answer to that of course, this is the crux of this whole problem is yes, he did make such a decision, and he elected to waive a jury trial.

"Q. Now, how did he affirmatively indicate to you that he wished to waive a jury trial, if you can recall ?

"A. I cannot recall. The only thing that I can state for the Court is that he obviously gave me an affirmative answer to my question to him whether or not he wanted to waive a jury trial, or I would not have been in this Court within the next 10 minutes or half hour waiving a jury trial, with him along side of me not saying anything. I guess I can't remember any specific response on his part, although he does have trouble with his speech. He gave me an affirmative response of some sort, or I wouldn't have been in here waiving the jury trial." (Emphasis supplied).

On cross-examination by the public defender, Mr. McMahon stated that the defendant did not expressly say that he wanted to waive the jury trial, or that he did not want to waive the jury trial. Although he believed that the defendant gave some affirmative indication that he wanted to waive the jury, Mr. McMahon could not recall "what affirmative action he used to tell me (McMahon) that he was waiving...