State Of Wis. v. Imani, 2008AP1521-CR.

• Decision Date: 07 July 2010
• Docket Number: No. 2008AP1521-CR.,2008AP1521-CR.
• Citation: 786 N.W.2d 40,326 Wis.2d 179,2010 WI 66
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner,v.Rashaad A. IMANI, Defendant-Appellant.
• Court: Wisconsin Supreme Court

326 Wis.2d 179

786 N.W.2d 40

2010 WI 66

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,v.Rashaad A. IMANI, Defendant-Appellant.

No. 2008AP1521-CR.

Supreme Court of Wisconsin.

Argued Feb. 9, 2010.

Decided July 7, 2010.

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For the plaintiff-respondent-petitioner the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief filed by Basil M. Loeb and Schmidlkofer, Toth & Loeb, LLC, Wauwatosa, and oral argument by Basil M. Loeb.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of a published court of appeals decision ¹ that reversed a judgment entered on a jury verdict by the Waukesha County Circuit Court, J. Mac Davis, Judge. Rashaad A. Imani (Imani) was convicted of one count each of armed robbery, as party to a crime, in violation of Wis. Stat. § 943.32(2) (2007-08) ² and possession of a firearm by a felon in violation of Wis. Stat. § 941.29(2),³ both as a repeater pursuant to Wis. Stat. § 939.62(1)(c).⁴ The court of appeals concluded that the evidence was more than sufficient for the jury to convict Imani; nevertheless, the court remanded for a new trial on the grounds that the circuit court denied Imani's pretrial motion to represent himself without engaging him in the colloquy required by State v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997). The State petitioned this court for review, and we accepted. We now reverse the decision of the court of appeals and uphold Imani's conviction.

¶ 2 The issue in this case is whether the circuit court committed reversible error by denying Imani's motion to represent himself after finding that Imani did not validly waive his right to counsel under two of the four lines of inquiry prescribed in Klessig and was not competent to proceed pro se.

¶ 3 We conclude that the circuit court properly denied Imani's motion to represent himself. First, we determine that Imani did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel, and (2) was unaware of the difficulties and disadvantages of self-representation. If any one of the four conditions prescribed in Klessig is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel. Second, we conclude that the circuit court's determination that Imani was not competent to proceed pro se is supported by the facts in the record. Because Imani did not validly waive his right to counsel and was not competent to proceed pro se, the circuit court was required to prevent him from representing himself.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4 The facts giving rise to Imani's conviction are convoluted and largely irrelevant to this appeal. For our purposes, the evidence at trial demonstrated that on March 1, 2006, Imani and his cousin, Raziga Imani, masked and carrying firearms, entered the Guaranty Bank inside the Pick 'n Save grocery store on Appleton Avenue in Menomonee Falls. The Imanis demanded money from the bank employees and left with a metal bank box containing in excess of $100,000. With Imani driving, they fled from the scene in a stolen vehicle and were subject to a high-speed pursuit by a Menomonee Falls police officer. Imani eventually lost control of the vehicle and crashed on Hampton Avenue. The Imanis escaped from the vehicle on foot and separated.⁵

¶ 5 Still carrying his firearm, Imani entered the Milwaukee Washing Machine, Inc. store on Appleton Avenue and demanded a ride from the driver of the Buick Riviera parked outside. He told the driver, James Dukes (Dukes), that he had just robbed a bank in Menomonee Falls. Dukes drove Imani to a location about four or five minutes away. A fingerprint lifted from the Buick's passenger's side door handle was later identified as Imani's, and when presented by the police with a range of photographs, Dukes selected Imani as the individual who carjacked him.

¶ 6 On June 20, 2006, Imani was charged with one count of armed robbery, as party to a crime, and one count of possession of a firearm by a felon, both as a repeater. At the preliminary hearing, Dukes again identified Imani as the individual who carjacked him. On July 27, 2007, Imani moved to suppress Dukes' in-court identification of him on the grounds that media coverage of the robbery may have tainted the identification. The circuit court denied Imani's motion at a pretrial hearing on July 31, 2007.

¶ 7 That hearing is at the center of this appeal. After the circuit court denied Imani's motion, Imani informed the court that he would like to represent himself at trial. At that time, he was represented by Attorney Joseph Schubert, who by then was the third state public defender appointed to Imani. ⁶

¶ 8 Imani reasoned that he did not feel as though his counsel “spoke up enough for [him]” during the motion hearing and that he was “very dissatisfied.” In particular, he was upset that his counsel did not play a news broadcast at the hearing in an attempt to jog Dukes' memory, and he argued that his counsel had not yet fully investigated the circumstances surrounding the fingerprint analysis. “[H]aving been through this with about three lawyers,” Imani felt as though he could best represent himself at trial:

So, when it comes to trial I know, like I said before, ain't nobody going to represent myself better than me. I've been dealing with this case for over a year now and I'm pretty sure that I got a fuller defense prepared that I've been preparing myself, you know, with the help of my lawyers, you know....

¶ 9 The circuit court asked Imani how he is going to convince the court that he is competent to represent himself. Imani responded that he had been “working on” his case for 13 months, had completed the tenth grade, could read and write English, and reads at a college level. Imani also stated that he had appeared in court at least five times before in other cases, though admittedly always with counsel:

The Court: And what experience do you have with the legal system? Have you ever appeared in court besides this case?

Imani: Of course.

The Court: For what kind of matters, criminal matters, or?

Imani: Criminal matters.

The Court: How many times do you think?

Imani: At least maybe, five.

The Court: Have you ever represented yourself in court before?

Imani: No.

The Court: You have always had a lawyer?

Imani: Yes.

¶ 10 Despite those representations, the circuit court denied Imani's motion to represent himself and offered the following explanation:

While it is not the last minute on the clock we're getting close to a jury trial that requires substantial and extensive preparation. And I'm-because it is a two defendant trial it makes it particularly difficult to get that preparation on track. We not only have to have the State and Defendant, we have two defendants.

And everybody has to be prepared and ready to start the same day at the same time, and keep the case organized together. That means that any potential threat to keeping the schedule is an even bigger issue than it otherwise would be.

....

I also have in mind that Mr. Rashaad Imani has had several lawyers. And while he certainly is entitled to some degree to have the lawyer of his choice and to switch lawyers, that is not an unlimited right. It has to be balanced against proper preparation and conducting of a trial.

The reasons he gives they seem to be episodic

driven, he comes to court today on a motion, he doesn't win the motion and now he is disgruntled. That's in and of itself not a sufficiently rational basis to justify such a decision.

....

I don't know that much about his capability, but he has only got a 10th grade education, he said he reads at a college level, that's the only information I have on the subject of his education and background.

He says he has been to court, but apparently those didn't involve trials, and he didn't represent himself. So while he has some observational experience with the criminal court system, it hasn't been presented to me that he has any experience actually conducting proceedings like a criminal court trial.

So in order to preserve the trial date, maintain the opportunity to be prepared and go forward, and to not make a flippant short term or immature decision go into effect, I'm going to deny it at this point.

¶ 11 The circuit court indicated that it would be willing to hear Imani's motion again. Moreover, with advance notice, the court would consider the possibility of Imani participating in the opening statement, closing argument, and questioning of the witnesses, with Attorney Schubert acting as standby counsel.

¶ 12 Imani never again moved for self-representation, and he proceeded to trial with Attorney Schubert as his counsel. The jury returned guilty verdicts on both counts, and the circuit court entered the judgment of conviction on October 29, 2007.

¶ 13 Imani appealed his conviction on two grounds: the evidence was insufficient to support the jury's guilty verdicts, and the circuit court wrongfully deprived him of his constitutional right to self-representation because he established a valid waiver of counsel and was competent to represent himself.

¶ 14 On June 3, 2009, the court of appeals reversed the circuit court's judgment of conviction and remanded for a new trial. State v. Imani, 2009 WI App 98, ¶ 1, 320 Wis.2d 505, 771 N.W.2d 379. Despite concluding that the evidence “amply supports the verdicts,” id., ¶ 21, the court determined that Imani was entitled to a new trial because the circuit court failed to conduct the waiver-of-counsel colloquy required by Klessig id., ¶ 13. The court disagreed with Imani's assertion that he established a valid waiver of counsel, concluding instead that Imani ...