State v. Arredondo

• Decision Date: 23 December 2003
• Docket Number: No. 02-2361-CR.,02-2361-CR.
• Citation: 674 N.W.2d 647,2004 WI App 7,269 Wis.2d 369
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David ARREDONDO, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

269 Wis.2d 369

2004 WI App 7

674 N.W.2d 647

STATE of Wisconsin, Plaintiff-Respondent, v. David ARREDONDO, Defendant-Appellant.¹

No. 02-2361-CR.

Court of Appeals of Wisconsin.

Submitted on briefs November 4, 2003.

Decided December 23, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of James Rebholz of Rebholz, Auberry & Malone, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. FINE, J.

David Arredondo appeals from a judgment entered on jury verdicts convicting him of first-degree intentional homicide and second-degree sexual assault, and from an order denying his postconviction motion for a new trial.²See WIS. STAT. §§ 940.01(1), 940.225(2)(a). Arredondo claims that: (1) his constitutional right to testify was violated; (2) his trial counsel was ineffective; (3) the trial court erred when it denied his postconviction motion; (4) the sentencing court relied on an improper factor; and (5) his judgment should be vacated in the interest of justice. We affirm.

I.

¶ 2. David Arredondo was charged with sexually assaulting and killing Desiree Klamann. According to witnesses, Klamann was last seen alive with Arredondo at the Cinco de Mayo festival on May 4, 1997. Her naked and beaten body was found wrapped in a comforter in a garbage dumpster on May 8, 1997. The police discovered Arredondo's semen on the comforter and found Klamann's blood on the molding of Arredondo's bedroom. The police also saw that someone had recently painted half-way up the walls of Arredondo's bedroom. They sprayed luminol, a chemical designed to detect blood that is not otherwise visible to the unaided eye, on the walls and discovered blood underneath the paint.

¶ 3. Arredondo pled not guilty and went to trial. The State called several witnesses, including Arredondo's former roommate, Thomas Garza. Garza testified that, on May 4, 1997, he got back to the apartment he shared with Arredondo around 9:30 or 9:45 p.m. While Garza was in the kitchen getting a drink, he saw Arredondo run naked from his bedroom to the bathroom. According to Garza, he laughed and asked Arredondo what was going on. Arredondo told Garza that he had to "take a leak" and could not wait. After Arredondo returned to his bedroom, Garza went to his own bedroom, watched television in bed, and fell asleep. Garza testified that he heard a woman's voice while he was sleeping, but was not sure where the voice came from because his television was still on.

¶ 4. The State also called as a witness Arredondo's former cellmate, Kurt Moederndorfer. Moederndorfer testified that, while he shared a cell with Arredondo at the Milwaukee County Jail, Arredondo told him about the crime. According to Moederndorfer, Arredondo met a woman at the Cinco de Mayo festival. Arredondo and the woman spent the day together drinking and having a "good time." Moederndorfer testified that Arredondo convinced the woman to go home with him, took her into his bedroom, and "tried to make his moves on her." Arredondo told Moederndorfer that, when the woman resisted, he grabbed her by the throat, choked her, and forced her to have sexual intercourse with him. When Moederndorfer asked Arredondo if the police had any evidence, Arredondo replied: "`I took care of that . . . . I painted the walls in the bedroom and got rid of a mattress and some kind of old rug . . . in a dumpster.'"

¶ 5. The State rested and the trial court had an on-the-record colloquy with Arredondo to determine if Arredondo wanted to testify. Arredondo's attorney told the trial court that Arredondo did not want to testify and that Arredondo's decision was "99 percent definite" pending the testimony of two defense witnesses. Arredondo then assured the trial court that he understood, and waived his right to testify. ¶ 6. After Arredondo's waiver of his right to testify, the defense called two men who lived in the apartment above Arredondo to testify about the night Klamann was killed. The defense rested and the trial court informed the jury that the evidentiary phase of the trial was complete, and dismissed it for lunch. After the lunch break, Arredondo told the court that he wanted to rescind his decision not to testify because he did not understand what rights he was giving up.

¶ 7. Arredondo's attorney told the court that, before he rested, he asked Arredondo if he wanted to testify and Arredondo confirmed that he did not. The trial court then asked the State about potential prejudice. The assistant district attorney told the court that its rebuttal witnesses had been released but that "they probably could . . . be relocated." The trial court concluded that Arredondo "was fully advised of his rights [and] made an informed, knowing and voluntary decision."

¶ 8. As noted, a jury found Arredondo guilty of first-degree intentional homicide and second-degree sexual assault. The trial court sentenced him to life in prison without parole on the homicide count and twenty years in prison on the sexual-assault count, consecutive to the homicide sentence.

¶ 9. Arredondo filed a postconviction motion for a new trial, alleging that his trial counsel was ineffective. The trial court held a hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). It limited the testimony at the Machner hearing to Arredondo, Arredondo's trial attorney, and the assistant district attorney who tried the case. The court did, however, accept and review all written submissions from the parties, including proffers of testimony and affidavits from the witnesses Arredondo wished to present. After considering all of the evidence, the trial court concluded that Arredondo's trial counsel was not ineffective.

II.

A. Right to Testify

[1]

¶ 10. Arredondo claims that his constitutional rights were violated when the trial court declined to reopen the evidence to allow him to testify. He attacks the validity of the trial court's decision on several grounds. First, he alleges that the "totality of the record" does not show that he knowingly and voluntarily waived his right to testify. We disagree.

[2, 3]

¶ 11. A defendant's right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660, 670-672, 508 N.W.2d 44, 48 (Ct. App. 1993), overruled on other grounds by State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485

. "The standard is whether the record demonstrates that the defendant knowingly and voluntarily waived the right." Simpson, 185 Wis. 2d at 778-779,

519 N.W.2d at 664.

[4-6]

¶ 12. A trial court's ruling on whether a waiver was knowing and voluntary presents mixed questions of fact and law. See Reckner v. Reckner, 105 Wis. 2d 425, 435, 314 N.W.2d 159, 164 (Ct. App. 1981)

. We will uphold the trial court's findings of fact unless they are clearly erroneous. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830, 833 (1990). The application of the facts to the constitutional principles is a question of law that we review de novo. Id.,

156 Wis. 2d at 137-138,

456 N.W.2d at 833.

[7]

¶ 13. We consider the totality of the record, including the record of the postconviction proceedings, in deciding whether Arredondo knowingly and voluntarily waived his right to testify. Simpson, 185 Wis. 2d at 779, 519 N.W.2d at 664. The trial court had the following colloquy with Arredondo and his attorney after the State rested:

THE COURT: It is my understanding the defendant has elected not to testify although [he] wants to reserve the right to change that after these two witnesses testify. Is that right?

[ARREDONDO'S ATTORNEY]: The defendant's elected not to testify, Your Honor.

THE COURT: And that's a definite decision?

[ARREDONDO'S ATTORNEY]: That's a definite decision. I would say 99 percent definite. I don't expect anything from these two witnesses that would change his mind, but you never know.

THE COURT: We can address it again after the witnesses testify, but let me just confirm with you, . . . that you have discussed the defendant's options with him in that regard.

[ARREDONDO'S ATTORNEY]: I have, Your Honor.

THE COURT: And Mr. Arredondo, I need to confirm with you that you have discussed your decision regarding testifying in this case with your counsel and the options that you have in that regard. You have done so?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You understand that you have an absolute constitutional right not to testify in this case, and if you decide, as evidently you have decided, not to testify in this case, the jury will be instructed that they cannot hold that against you. They cannot draw any conclusions from that. Do you understand?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you also understand, Mr. Arredondo, that you have a corresponding right to testify and take the witness stand in your own defense. If you do that, you would be subjecting yourself to cross-examination. Do you recognize that as well?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Knowing that you have these corresponding rights and how they apply here and in consultation with your counsel, you have made the decision not to testify in this case, correct?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And although that decision has been made in consultation with your counsel, it is, nonetheless, your own decision; is that correct?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. Let's proceed.

This exchange unequivocally demonstrates that Arredondo was aware of his right to testify, and discussed that right with his lawyer. See Weed, 2003 WI 85, ¶ 43, 263 Wis. 2d at 464,666 N.W.2d at 499 (colloquy should consist of inquiry to ensure that defendant was aware of his right to testify...