State v. Darby

• Decision Date: 19 March 2009
• Docket Number: No. 2008AP935-CR.,2008AP935-CR.
• Citation: 766 N.W.2d 770,2009 WI App 50
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James W. DARBY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

766 N.W.2d 770

2009 WI App 50

STATE of Wisconsin, Plaintiff-Respondent, v. James W. DARBY, Defendant-Appellant.^†

No. 2008AP935-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs January 21, 2009.

Opinion Filed March 19, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert M. Goode of Goode Law Office, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, asst. attorney general, and J.B. Van Hollen, attorney general.

Before VERGERONT, LUNDSTEN and BRIDGE, JJ.

¶ 1 VERGERONT, J

James Darby appeals the judgment of conviction for aggravated battery and the order denying postconviction relief, presenting two issues for our review. The first issue is whether Darby was denied his constitutional right to represent himself at trial, which requires us to decide as a threshold matter whether Darby is correct that the circuit court had an obligation to advise him of his right to self-representation. This is a question of first impression in Wisconsin. Consistent with case law from other jurisdictions, we conclude that a defendant must clearly and unequivocally declare a desire to represent himself or herself in order to invoke that right and the circuit court has no obligation to advise a defendant of that right prior to a clear and unequivocal declaration. Because Darby did not make a clear and unequivocal declaration, he was not denied the right to self-representation.

¶ 2 The second issue is whether the circuit court erroneously exercised its discretion in denying Darby's request for a different appointed attorney. We conclude the court did not erroneously exercise its discretion.

¶ 3 Accordingly, we affirm the judgment of conviction and the order denying postconviction relief.

BACKGROUND

¶ 4 Darby was charged with one count of aggravated battery while using a dangerous weapon, as a repeater, in violation of WIS. STAT. §§ 940.19(5), 939.63(1)(b) and 939.62(1)(c) (2007-08).¹ The complaint alleged that Darby beat his wife with a pipe, causing lacerations to both legs, injury to her right hand, fractures in her left ankle, and injury to her left hand that required seven stitches.

¶ 5 The court appointed an attorney to represent Darby in April 2006, shortly after Darby's first appointed counsel withdrew because of a conflict. A jury trial was scheduled to begin on September 11, 2006. On September 6, 2006, the circuit court received a letter from Darby, dated September 5, which stated in relevant part:

I would like to bring to your attention on 4-23-06 [my attorney] was appointed to properly represent me in my pending case.... I would like to point out that I have only had three or four jail visit[s] with [my attorney]. I have not ever had the opportunity to talk with [my attorney] over the phone.... I also made a request for certain legal documents. I have not received my discovery information material at this time. I would very much appreciate if I could please have an atty. for legal assistance and the opportunity to prepar[e] my case ... properly in my [behalf] for the court in this matter....

(Capitalization removed.)

¶ 6 On the morning of jury selection, Darby reiterated his concerns about lack of contact with his attorney, telling the court he wanted to dismiss his attorney because he had generally "shown very little interest in my case." Darby also renewed his complaint that he had not received documents which he wanted "so I can prepare myself for my jury trial." In addition, Darby stated:

I asked [my attorney], I wanted to know my legal — what legal defenses he was using, you know, as far as my case, you know, as far as representing me, you know, in my legal rights, and he said he can't tell me, you know, his legal defense in regards to representing me. So I said, well, I feel very uncomfortable with him because he have [sic] shown very little interest in my case.

¶ 7 When the court asked him what he thought his legal defense was, Darby replied that there were "case issues" that he wanted his attorney to help him prepare and his attorney had not done so. However, Darby was unable to tell the court what the cases said that he thought helped him. During this exchange, Darby's attorney explained that Darby wanted to pursue a theory of self-defense that he, the attorney, did not think was viable. Darby's attorney assured the court that he was prepared to go to trial. The court stated that it would give a self-defense instruction if the evidence presented supported one, but, the court concluded, there was no reason to dismiss the attorney at such a late date.

¶ 8 The trial proceeded with Darby's current attorney representing him. The jury found Darby guilty of aggravated battery while using a dangerous weapon.

¶ 9 Darby filed a postconviction motion contending that the circuit court violated his Sixth Amendment rights by failing to advise him of his right to self-representation and, alternatively, by denying his requests for another attorney. The circuit court denied the motion on both grounds. The court determined that Darby's comments about his attorney were vague and general and provided no basis upon which to find either that Darby wanted to proceed pro se or that he was entitled to another attorney. The circuit court found that Darby's statements at most indicated a desire either to have his current attorney present the defense he wanted or to get a different attorney who would present such a defense.

DISCUSSION

¶ 10 On appeal, Darby renews his contention that the circuit court denied him his rights under the Sixth Amendment by failing to advise him of his right to self-representation and, alternatively, by denying his requests for new counsel.

I. Right to Self-Representation

¶ 11 The Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution guarantee a criminal defendant both the right to assistance of counsel at trial and the right to self-representation at trial. State v. Klessig, 211 Wis.2d 194, 201-02, 203, 564 N.W.2d 716 (1997).

¶ 12 Darby contends that, once he made the court aware of his "irreconcilable differences" with his attorney, this "perfected" his right to self-representation and, at that point, the circuit court had an affirmative duty to give him a choice between current counsel and self-representation. Because the court did not do so, Darby contends, his constitutional right to self-representation was violated. The State responds that, in order to invoke the right to self-representation, the defendant must clearly and unequivocally inform the court that he or she wants to proceed pro se, and the court has no duty to advise a defendant of that option prior to a defendant doing this.²

¶ 13 Whether Darby's constitutional right to self-representation was violated presents a question of law, which we review de novo. See id. at 204, 564 N.W.2d 716.

¶ 14 There appears to be no Wisconsin case that defines what a defendant must do to invoke the right to self-representation or that addresses whether the circuit court must advise a defendant of that right. In Laster v. State, 60 Wis.2d 525, 539, 211 N.W.2d 13 (1973), the court rejected the defendant's contention that his "outburst" in the circuit court claiming that his trial counsel was "railroad[ing]" him was a request to proceed pro se. The court stated: "If the defendant desires to proceed pro se he must so indicate it." Id. However, the court did not elaborate on what constitutes a sufficient indication, nor was the court presented with the argument Darby makes here — that the circuit court has a duty to advise a defendant of the right to proceed pro se once the defendant expresses differences with trial counsel that the defendant considers to be irreconcilable.

¶ 15 In order to resolve the issue we first examine the general framework within which the right to self-representation exists and then consider cases from other jurisdictions that have addressed the question of what the defendant must do to invoke the right to self-representation and whether the circuit court has a duty to advise a defendant of that right.

¶ 16 Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), established that, while the Sixth Amendment does not explicitly guarantee the right to self-representation, that right is "necessarily implied by the structure of the Amendment."³ The Court recognized that this right seemed to "cut against the grain of this Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel," and the basic principle in these decisions that the assistance of a lawyer is essential to assure a defendant a fair trial. Id. at 832-33, 95 S.Ct. 2525. However, the Court stated, respect for the individual supported honoring a defendant's choice to proceed without counsel, even if that choice is detrimental to the defendant. Id. at 834, 95 S.Ct. 2525. See also Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) ("[T]he Faretta majority found that the right to self-representation at trial was grounded in part in a respect for individual autonomy.").

¶ 17 Because self-representation involves forgoing the right to representation of counsel and because the right to counsel is considered so fundamental to a fair trial, a prerequisite to proceeding pro se is a knowing, intelligent, and voluntary waiver of the right to counsel. Pickens v. State, 96 Wis.2d 549, 555, 292 N.W.2d 601 (1980), overruled on other grounds by Klessig, 211 Wis.2d at 206, 564 N.W.2d 716. Indeed, the right to counsel at trial is of such fundamental importance that it attaches automatically at the commencement of adversary proceedings against a defendant, State v. Dagnall, 2000 WI 82, ¶ 30, 236 Wis.2d 339, 612 N.W.2d 680; non-waiver is presumed...