State v. Buelow
| Decision Date | 26 December 1984 |
| Docket Number | 84-531-CR,Nos. 84-530-C,s. 84-530-C |
| Citation | 363 N.W.2d 255,122 Wis.2d 465 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Carol BUELOW, Defendant-Appellant. * STATE of Wisconsin, Plaintiff-Respondent, v. Ralph BUELOW, Defendant-Appellant.* |
| Court | Wisconsin Court of Appeals |
John Schiro, Turner & Pogodzinski, S.C., Milwaukee, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., for plaintiff-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
The defendants, Ralph and Carol Buelow, appeal their judgments of conviction of being parties to the crime of arson. The Buelows claim they were denied their right to counsel because of the trial court's finding that they were not indigent and could not have public defender representation. The Buelows assert that it is the public defender and/or the prosecution who carries the burden of establishing nonindigency and that the evidence introduced was insufficient to establish nonindigency. We disagree. The burden of proof to establish indigency is on the defendant who seeks appointed counsel. As the trial court's finding of nonindigency is not clearly erroneous, we affirm. Other issues raised will also be discussed.
The Buelows were charged with being parties to the crime of arson in violation of secs. 943.02(1), Stats., and 939.05(2)(b), Stats. These charges resulted from the destruction by fire of a Department of Natural Resources building in Fond du Lac county. The Buelows were represented by private counsel through the arraignment. On September 9, 1981, the privately retained attorneys requested permission to withdraw from the case due to the Buelows' inability to pay. The request was granted, and the matter was referred to the public defender's office.
Subsequently, an attorney from the public defender's office notified the court that the Buelows had been found to be not indigent. The public defender's office determined that a trust into which all of the Buelows' assets had been transferred was invalid. A hearing was held for judicial review of the indigency determination, and the court upheld the public defender's determination. The Buelows were not represented by counsel at trial.
We must initially determine what kind of proceeding an indigency hearing is. In other words, is it an independent proceeding where no burden of proof is assigned and the determination is discretionary with the trial court or is it something more structured? The only instruction from our state court comes from State ex rel. Barth v. Burke, 24 Wis.2d 82, 86, 128 N.W.2d 422, 424-25 (1964), where the supreme court held that:
The trial court's inquiry into his indigency was at best cursory, for upon eliciting the information that he had some undefined interest in property worth about $1,500, and subject to about $500 in encumbrances, the court found him to be not a pauper. Upon the record in the instant action the trial court's finding that Barth was not indigent was arbitrary and was made upon an inadequate determination of the facts.
Wisconsin joins almost every other state in decreeing that a trial court's decision regarding indigency must be supported by facts of record. As explained, however, by the New Mexico Supreme Court in State v. Anaya, 76 N.M. 572, 417 P.2d 58, 61 (1966), Anaya held that whether a defendant has the financial means to procure counsel is a question of fact. Id. at 60. We agree with that determination. 1
We also agree, as have a vast majority of courts across the country, that the burden of proceeding rests upon the defendant. 2 Our confirmation of this position comes not only from the persuasive authority of other jurisdictions but from our own independent analysis. In determining which party has the burden of proof, Wisconsin courts have used the five-factor analysis outlined in McCormick, Evidence § 337 at 788-89 (2d ed. 1972), and adopted in State v. McFarren, 62 Wis.2d 492, 499-503, 215 N.W.2d 459, 463-65 (1974). See also State v. Hanson, 98 Wis.2d 80, 85-90, 295 N.W.2d 209, 213-15 (Ct.App.1980), aff'd 100 Wis.2d 549, 302 N.W.2d 452 (1981). These five factors are: (1) the natural tendency to place the burdens on the party desiring change; (2) convenience; (3) fairness factors; (4) judicial estimate of probabilities, and (5) special policy considerations. Hanson, 98 Wis.2d at 85-90, 295 N.W.2d at 213-15.
All of the above factors point to placing the burden of proof on the party seeking appointed counsel. First, it is the defendant who is seeking the benefit of appointed counsel. As the party desiring these free services, it would seem appropriate that he or she carry both the burden of going forward and the burden of persuasion. See McFarren, 62 Wis.2d at 499-500, 215 N.W.2d at 463-64. Second, the defendant possesses all of the material proof regarding his or her wealth. Third, because the defendant is alleging a lack of funds, "the party asserting the negative has the burden to prove it unless the facts are peculiarly within the other party's knowledge or are much more difficult for the former to prove than the latter." Id. at 503, 215 N.W.2d at 465 (footnote omitted). Again, it is the defendant who possesses the facts necessary to explain why he or she is unable to retain private counsel. Fourth, generally it is the party who contends that the more unusual event has occurred who bears the burden of proof. Id. Here, the usual event is for a litigant to hire his or her own counsel; it is the exception, limited to criminal cases, for a litigant to request appointed counsel. Although a criminal defendant has a right to obtain appointed counsel, that right exists only if the defendant cannot afford one. Finally, public policy dictates that a litigant who wishes an attorney at public expense should prove that the expense is necessary. Therefore, we conclude that in order to sustain a claim of indigency, the defendant must prove by a preponderance of the evidence that he or she is financially unable to afford counsel. See United States v. Harris, 707 F.2d 653, 661 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983).
The record supports the trial court's finding that the Buelows failed to show they were financially unable to retain counsel. The attorney from the public defender's office stated that records were examined in the Calumet County Register of Deeds office and the Treasurer's office. Also examined was the trust indenture creating the Buelow Farm Trust. The office determined that the trust could be invaded for the Buelows to receive trust assets. There was also testimony that the Buelows had "borrowed" money from the trust for a Florida vacation. The trial court, after hearing this report, set a hearing date for judicial review of the indigency determination and told the Buelows that they would be required to present specific trust documentation at that time.
On the date of the hearing, the Buelows informed the court that the trustees had voted not to reveal any trust tax returns. It was discovered that there are only two trustees--Carol Buelow and her daughter Bonnie Casper. After an extensive examination of Mrs. Buelow concerning the operation of the trust, the trial court held that the Buelows were the owners of sufficient assets to obtain private counsel and that, therefore, they did not qualify for public defender representation. 3 As the record shows that the Buelows had funds available to retain counsel, they were not denied their right to counsel. By proceeding pro se, they waived the right to be represented by counsel at trial.
The Buelows next raise a confrontation of witness argument. Ms. Honey Lou Suttner, the state's primary witness, had given testimony at the John Doe hearing implicating herself, the Buelows and Harlee Suttner in the arson fire of the Department of Natural Resources building in Fond du Lac county. She had also given a similar statement to a police officer. She explained at the John Doe hearing that they chose the DNR building because the Buelows and Harlee Suttner, as members of the Posse Comitatus, "don't like the DNR."
At the joint arson trial, the state called Honey Lou Suttner to the stand. Ms. Suttner refused to testify on fifth amendment grounds, after which the state granted her immunity from prosecution. The trial court then ordered her to testify, but Ms. Suttner persisted in her refusal. The trial court found Ms. Suttner in willful contempt of court. It then found the witness to be unavailable and admitted her John Doe testimony and police statement under sec. 908.045(4), Stats.--statements against interest. The Buelows claim the admission of this evidence was improper both on evidentiary and constitutional grounds. We disagree.
In order to address the Buelows' contentions, we must analyze the admissibility of the evidence under both the hearsay rules and the confrontation clause. "[C]ourts have repeatedly held that hearsay rules are not to be equated with confrontation and that admissibility under hearsay rules will not guarantee admissibility under the confrontation clause." State v. Marshall, 113 Wis.2d 643, 652, 335 N.W.2d 612, 616 (1983).
It is undisputed that Honey Lou Suttner refused to testify at the Buelows' trial. Section 908.045 of the Wisconsin Statutes allows the introduction of certain evidence if the declarant is unavailable as a witness. Section 908.04 defines unavailability to...
To continue reading
Request your trial
-
State v. Sorenson
...faith demonstration of L.S.'s unavailability when she refused to testify at the preliminary hearing. See State v. Buelow, 122 Wis.2d 465, 474-475, 363 N.W.2d 255, 261 (Ct.App.1984) (witness who refused to testify held unavailable under sec. 908.04(1)(b), Stats.); State v. Gollon, 115 Wis.2d......
-
Carney v. Carney
...of counsel at public expense bears the burden of proving indigency by a preponderance of the evidence); State v. Buelow, 122 Wis.2d 465, 363 N.W.2d 255 (Ct.App.Wisc.1984). In State v. Buelow, the Wisconsin court set forth a series of factors including foremost, “the natural tendency to plac......
-
State v. Piaskowski
...is unavailable and the statement is against the declarant's penal, societal, or pecuniary interest. State v. Buelow, 122 Wis.2d 465, 474-76, 363 N.W.2d 255, 260-62 (Ct.App.1984). The rationale for admission of statements against interest is that they possess circumstantial guarantees of tru......
-
Buelow v. Dickey
...in prison. D. Appeals The Wisconsin Court of Appeals affirmed the Buelows' convictions on December 26, 1984. State v. Buelow, 122 Wis.2d 465, 363 N.W.2d 255 (Wis.Ct.App.1984). It found that, since the Buelows did not prove indigency by a preponderance of the evidence, the trial court's dete......