State v. Champlain

• Decision Date: 05 December 2007
• Docket Number: No. 2006AP2435-CR.,2006AP2435-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent v. Kevin M. CHAMPLAIN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

744 N.W.2d 889

2008 WI App 5

STATE of Wisconsin, Plaintiff-Respondent^† v. Kevin M. CHAMPLAIN, Defendant-Appellant.

No. 2006AP2435-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs October 29, 2007.

Opinion Filed December 5, 2007.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Marguerite M. Moeller, assistant attorney general.

Before BROWN, C.J., ANDERSON, P.J., and NETTESHEIM, J.

¶ 1 NETTESHEIM, J

A jury found Kevin M. Champlain guilty of burglary and obstructing an officer. Champlain appeals from the ensuing judgment of conviction and from an order denying his motion for postconviction relief. The lead issue stems from the jail administrator's requirement that Champlain wear an armband taser device at the jury trial. Champlain challenges the propriety of its use and, separately, alleges that his trial counsel was ineffective for failing to object to his wearing the device in the presence of the jury,

¶ 2 We agree with Champlain that his trial counsel was ineffective for failing to raise a challenge to the armband taser device. And because we cannot say with confident certainty that the visible device did not unfairly prejudice Champlain, we hold that the prejudice prong of Strickland¹ is also satisfied. We also hold that, despite counsel's failure to raise the issue, the trial court had an independent duty to explore the necessity of the device once the court became aware of it.

¶ 3 We do not reach Champlain's other appellate issues, save one. We hold that the evidence circumstantially established the element of nonconsent on the burglary charge. We reverse and remand for a new trial.

BACKGROUND

¶ 4 The State's evidence is summarized in the criminal complaint. At about 12:30 a.m. on March 24, 2004, City of Fond du Lac police-officers responded to the activation of a Varda alarm² inside Service Motors,³ a car dealership. When they arrived, Officer Dennis Sabel observed Champlain appear to be closing a service doer of the business. Champlain took off running when he saw the officers. Sabel gave chase on foot and eventually apprehended him. Champlain denied he had been inside the building, maintaining he simply was looking at vehicles on the lot while waiting to meet a friend and fled because he was scared.

¶ 5 Attorney Arik Guenther was appointed to represent Champlain. Right before trial, jail administrator Captain Mark Strand informed Champlain he was to wear a Band-It electronic armband in the courtroom. The Band-It, a polypropylene sleeve that fits from just above the wrist, to over the elbow, employs an electrical discharge similar in principle to a stun belt. The electronic box inside the sleeve measures about three inches by six or seven inches, and is an inch or inch-and-a-half thick. A uniformed court officer wearing an activator sat directly behind Champlain at the jury trial in case the unit had to be activated.

¶ 6 Champlain wore his own clothing at the jury trial, declining Strand's offer of a long-sleeved shirt from the jail's property storage. As a result, the short sleeves of Champlain's polo shirt did not conceal the Band-It on his right forearm. When Guenther noticed the armband and asked what it was, `Champlain told him it was "some kind of security thing." Guenther did not object to Champlain having to wear the device or otherwise ask the trial court to inquire whether the device was necessary.

¶ 7 Champlain elected to testify in his own defense. Of its own accord, the trial court told the parties it would have Champlain come to the witness stand outside the jury's presence so "that part of his arm is out of the view of the jury." The court then asked whether either attorney had "anything else that you want to address." Guenther asked only whether the court would "have the jury taken out before he gets off the stand, also, for the same reason." The jury ultimately convicted Champlain on both counts.

¶ 8 Newly appointed counsel moved for postconviction relief, The motion alleged ineffective assistance of trial counsel based on Guenther's failure to object to Champlain having to wear the armband taser restraint in view of the jury.⁴

¶ 9 Guenther testified at the Machner⁵ hearing that he did not notice, the Band-It right away because Champlain wore a sweater that obscured it. He acknowledged that when Champlain told him it was a security device, he did not object or discuss the issue with the trial court because he did not think "it was that big of an issue." Guenther thought the judge said "something like" Champlain should "be seated before the jury came in and to put his arm down below the table so it couldn't be seen."⁶ The defense table had no skirting or bunting to shield the view beneath the table, and Guenther did not ask for any other special precautions. Guenther was not aware of any discussions about the need for Champlain to wear the device. Nor did he ask why Champlain wore the armband; instead, he "just assumed . . . that they, the jail, thought that there was a possibility that [Champlain] would act up."

¶ 10 Jail administrator Strand gave the following testimony at the Machner hearing. He is responsible for maintaining control and order in the jail which includes helping to decide whether electronic restraints are used on prisoners in the courtroom. Jail personnel have discussed courtroom security with the judges in judges' meetings. As a rule "[the judges] leave those decisions up to the jail because we know those particular situations or the volatility of things probably better," and the jail personnel do not include the judge in security decisions in individual cases. Strand decided that Champlain should wear the armband because he was "labor intensive" during his pretrial incarceration. Strand allowed that Champlain had not been the subject of any misconduct reports at that time, and had not threatened to harm himself or others, but he was angry and argumentative about being "unlawfully kept in jail" because he insisted he was innocent. Strand was aware that Champlain's polo shirt did not conceal the Band-It armband, so he offered Champlain a long-sleeved shirt from the jail's property area. Champlain declined, wishing to wear his own clothing. Champlain did not testify at the hearing.

¶ 11 At the close of the Machner hearing, the trial court stated it was not convinced that the jury could observe the armband or, if it did, that it would have recognized the device as a taser-type restraint so as to prejudice Champlain. The court denied the motion.

¶ 12 Champlain appealed and his counsel filed a no-merit report. We rejected the report, seeing potential merit in the taser armband issue. We then ordered the state public defender to appoint new appellate counsel, who moved to remand the case for new postconviction proceedings. We instead dismissed the appeal and reinstated Champlain's Wis. STAT. § 809.30 (2005-06)⁷ appeal rights.

¶ 13 Back in the trial court, Champlain moved again for postconviction relief under Machner. Champlain testified at this hearing, stating that he wore the Band-It on his right forearm and, being right-handed, took notes using his right hand and passed approximately ten notes to his attorney during the trial. Guenther again testified at this hearing, admitting that his earlier testimony at the first hearing that Champlain had worn a long-sleeved sweater was incorrect. After the evidence was closed, Champlain argued that the trial court had improperly ceded to the jail its responsibility to decide whether he should appear before the jury in restraints.

¶ 14 The trial court agreed with the prosecutor that a court must make findings regarding the need for restraints, but, as the prosecutor observed, the court first "has to know that there is a restraint in place," something "even [Champlain's] attorney did not know." Because it believed the Band-It would not elicit the same prejudice as would shackles, the court confirmed its earlier ruling. Champlain appeals. We will supply additional facts as we discuss the issues.

DISCUSSION

Waiver

¶ 15 The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand's offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

¶ 16 However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶ 41, 268 Wis.2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right. See State v. Baker, 169 Wis.2d 49, 76, 485 N.W.2d 237 (1992). In this case, at virtually the last minute before entering the courtroom, Strand informed Champlain he had to wear the Band-It. This event occurred outside the courtroom setting and thus was not captured or preserved on the record. Nor was it memorialized by any other method. Generally, waiver will not be presumed from a silent record. See id. We are not prepared to hold that by opting to wear his own clothing instead of something from jail storage, Champlain should be held to have appreciated and weighed the legal implications of declining Strand's offer. In short, the record does not show that Champlain intentionally relinquished a known right.⁸ See Matson, 268 Wis.2d 725, ¶ 41, 674 N.W.2d 51.

¶ 17 We do, however, employ waiver as to Champlain's additional arguments, separate and apart from his ineffective assistance of counsel claim, that his required wearing of the armband device violated his rights to counsel, to be present at trial and to participate in his defense. None of these claims were presented to the trial court. We generally do not review an issue raised for the first time on appeal. See State v....