Pickens v. State

• Decision Date: 03 June 1980
• Docket Number: No. 77-437-CR,77-437-CR
• Citation: 292 N.W.2d 601,96 Wis. 2d 549
• Parties: Jack L. PICKENS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 601

292 N.W.2d 601

96 Wis.2d 549

Jack L. PICKENS, Plaintiff in Error, v.STATE of Wisconsin, Defendant in Error.

No. 77-437-CR.

Supreme Court of Wisconsin.

Argued May 7, 1980.

Decided June 3, 1980.

Frederic E. Hatch, Monona, for plaintiff in error; Howard B. Eisenberg, State Public Defender, on brief.

Marguerite M. Moeller, Asst. Atty. Gen., argued, for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

BEILFUSS, Chief Justice.

The plaintiff in error, Jack L. Pickens, hereinafter defendant, was convicted, after a jury trial, of rape contrary to sec. 944.01,Stats.1973, and sentenced to an indeterminate term of not more than ten years in the Wisconsin State Prison.His conviction followed an unsuccessful attempt to conduct his own defense without the aid of an attorney.

Writs of error were thereafter obtained from this court to review the judgment of conviction and the order denying defendant's postconviction motions.

The statepublic defender was originally appointed to represent the defendant on appeal.Briefs were filed on the defendant's behalf raising two issues:

1.Did the defendant effectively waive his right to counsel?

2.Did the trial court err in refusing to honor the defendant's withdrawal of his waiver of counsel on the second day of trial?

Subsequent to the filing of these briefs, the defendant sought to discharge the statepublic defender.This court granted the public defender's request to be excused from further representation of the defendant and allowed the defendant to retain private appellate counsel at his own expense.A further request by the public defender that he be allowed to withdraw his briefs submitted on behalf of the defendant was denied.

Defendant's new appellate counsel was granted leave to file a supplemental brief.Therein he raises eight additional issues:

1.Was the question of venue properly determined at trial?

2.Did the trial court conduct an adequate inquiry to determine whether the defendant was competent to defend himself?

3.Did the trial court fail to adequately inquire into the circumstances surrounding the defendant's in-custody statement to the police?

4.Did the trial court admit polygraph evidence without a proper stipulation?

5.Did the trial court err in preventing the defendant from presenting his own polygraph evidence?

6.Was the defendant denied due process as a result of the "circus" atmosphere surrounding the conduct of his trial?

7.Was the defendant prevented from presenting his defense, and therefore denied due process, by the trial court's mechanical application of the rules of evidence?

8.Was a fraud perpetrated upon the trial court by a principal state witness?

We hold against the defendant on all ten issues raised and affirm the conviction.

Defendant's conviction rested primarily upon the testimony of Cynthia Galley, the victim of the offense.She testified that she was introduced to the defendant on the evening of July 2, 1974, by a man with whom she had worked at a local cocktail bar and restaurant.The defendant took her to his farm in the country where they had several drinks together.However, when the defendant began making sexual advances toward her, she asked to be taken home.Then, according to her testimony, as the defendant was driving her home in his pickup truck in the early morning hours of July 3, 1974, he began slapping and yelling at her.He stopped his truck along a rural road, and forced her to have sexual intercourse with him, telling her he would bash her face in with a bottle if she refused.After he had completed the act, the defendant drove her home and left.Ms. Galley testified that she immediately called her estranged husband and asked him to call the police.

A physician from Lake Geneva who examined Ms. Galley later that day testified that, when he saw her, she was emotionally upset and had been crying.She complained of soreness in the vaginal area and a pelvic examination revealed mild and minimal contusions around the vagina and vulva.No spermatozoa were found in the vagina, but the physician testified that this was consistent with Ms. Galley's testimony that the defendant had withdrawn prior to climax and ejaculated on her leg.

A psychiatrist from Central State Hospital who had examined the defendant to determine his competency to stand trial testified that the defendant told him his only physical contact with Ms. Galley on the day in question was that he kissed her good-bye.

The tape and written transcript of another statement made by the defendant to a Walworth county deputy sheriff was also admitted.Although neither the tape nor transcript of this statement appear in the record on appeal, the defendant states in his brief that it contains his denial that he had sexual intercourse with Ms. Galley, but an admission to "mutual sexual contact short of intercourse."

Lastly, the state called two polygraphers from the state crime laboratory who had administered polygraph examinations to the defendant and Ms. Galley.The polygrapher who examined Ms. Galley testified that in his opinion she was truthful in her statement that the defendant had forced her to have sexual intercourse with him by threatening her with a bottle.The other expert testified that the test administered to the defendant resulted in inconclusive findings.

The defendant cross-examined the state's witnesses in great detail, often going over the same area repeatedly.He also called eleven witnesses on his own behalf, although he elicited little relevant testimony from them.Several testified that the bottle with which Ms. Galley testified she had been threatened was on the kitchen table the next morning in the defendant's farmhouse, and one defense witness claimed he had heard Ms. Galley state subsequent to the alleged incident that she had not been raped by the defendant.

Much of the testimony the defendant sought to elicit was from people who lived or had lived with him on his farm.It appears that these people regarded the defendant as a kind of guru or instructor.They had little, if any, knowledge of the actual events in question and on a number of occasions their testimony was substantially curtailed by the trial court.

The trial lasted a total of five days.The jury returned a verdict of guilty and the trial court entered judgment on the verdict.

The most significant issues raised by the defendant on this appeal involve the constitutional right to counsel in criminal cases.Although he elected at trial to conduct his own defense, defendant now claims that his conviction must be overturned because the trial court failed to conduct an adequate inquiry to determine whether his waiver of counsel was knowing and voluntary and whether he was competent to conduct his own defense.For this reason, defendant contends, no effective waiver of his right to counsel could have occurred.He also argues that, even if his waiver was effective, the trial court erred in failing to honor his withdrawal of that waiver on the second day of trial.

The right to counsel has been recognized as one of the most important elements of constitutional due process.In Powell v Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158(1932), the United States Supreme Court described the fundamental character of this right as follows:

". . . The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.Even the intelligent and educated layman has small and sometimes no skill in the science of law.If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad.He is unfamiliar with the rules of evidence.Left without the aid of counselhe may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one.He requires the guiding hand of counsel at every step in the proceedings against him.Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. . . ."

Because of this fundamental character, it has long been held that a knowing and intelligent waiver of the right to counsel is an essential prerequisite to a defendant's proceeding alone once that right has attached.Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461(1938).So important is the right to attorney representation in a criminal proceeding that nonwaiver is presumed and waiver must be affirmatively shown to be knowing and voluntary in order for it to be valid.Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed.2d 309(1948);Keller v. State, 75 Wis.2d 502, 508-509, 249 N.W.2d 773(1977).

At the same time, however, as this court held in Dietz v. State, 149 Wis. 462, 479, 136 N.W. 166(1912), and as the United States Supreme Court has more recently made clear in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975), the trial court must also be cognizant and respectful of the defendant's right to conduct his own defense without the benefit of an attorney.In Farettathe court recognized the right to self-representation as having constitutional dimensions, just as the right to representation by counsel.Accordingly, it reversed the conviction of a defendant whose request to proceed pro se was improperly denied by the trial court.See also, Browne v. State, 24 Wis.2d 491, 509-511b, 129 N.W.2d 175, 131 N.W.2d 169(1964).

The effect of this court's holding in Dietz and the United States Supreme Court's holding in Faretta v. California, supra, when considered in conjunction with the right to counselcases, is to create somewhat of a dilemma for the trial judge who is confronted with the unusual defendant who desires to conduct his...