State v. Denson

• Decision Date: 13 July 2011
• Docket Number: No. 2009AP694–CR.,2009AP694–CR.
• Citation: 2011 WI 70,799 N.W.2d 831
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Rickey R. DENSON, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

799 N.W.2d 831

2011 WI 70

STATE of Wisconsin, Plaintiff–Respondent,

v.Rickey R. DENSON, Defendant–Appellant–Petitioner.

No. 2009AP694–CR.

Supreme Court of Wisconsin.

Argued April 14, 2011.Decided July 13, 2011.

For the appellant-petitioner there were briefs by Donna Odrzywolski, Wauwatosa, and oral argument by Donna Odrzywolski.

For the plaintiff-respondent there was a brief by Maura F.J. Whelen, assistant attorney general with whom on the brief was J.B. Van Hollen, attorney general, and oral argument by Maura F.J. Whelen.ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished order of the court of appeals, State v. Denson, No. 2009AP694–CR, unpublished order (Wis.Ct.App. Oct. 5, 2010), that summarily affirmed an order by the Rock County Circuit Court ¹ denying the defendant's postconviction motion for acquittal or, alternatively, a new trial.

¶ 2 After a trial in which the defendant, Rickey R. Denson (Denson), testified in his own defense, a jury found Denson guilty of first-degree recklessly endangering safety in violation of Wis. Stat. § 941.30(1) (2001–02), ² as a lesser included offense of attempted first-degree intentional homicide; and false imprisonment in violation of Wis. Stat. § 940.30. ³ The jury acquitted Denson of the remaining two charges of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) ⁴ and negligent handling of a dangerous weapon contrary to Wis. Stat. § 941.20(1)(a).⁵ The circuit court entered judgment on the jury verdict.⁶

¶ 3 Denson moved the circuit court for a judgment acquitting him of the first two charges or, alternatively, an order granting him a new trial on the grounds that the circuit court failed to engage him in an on-the-record colloquy regarding his right not to testify. Relying on this court's decision in State v. Weed, 2003 WI 85, 263 Wis.2d 434, 666 N.W.2d 485, Denson argued that a criminal defendant's constitutional right not to testify is a fundamental right that can be waived only by the defendant personally with an on-the-record colloquy.

¶ 4 The circuit court held an evidentiary hearing at which both Denson and his trial counsel testified. The circuit court then denied Denson's postconviction motion, concluding that Denson knowingly, voluntarily, and intelligently waived his right not to testify.

¶ 5 Denson appealed, and the court of appeals summarily affirmed.

¶ 6 We granted Denson's petition for review and now affirm.

¶ 7 This case presents the following issues for our review:

(1) Is a criminal defendant's constitutional right not to testify a fundamental right that can be waived only by the defendant personally with an on-the-record colloquy?

(2) Once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, what is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify?

(3) Did Denson knowingly, voluntarily, and intelligently waive his right not to testify?

¶ 8 A criminal defendant's constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and intelligently. However, we conclude that circuit courts are not required to conduct an on-the-record colloquy to determine whether a defendant is knowingly, voluntarily, and intelligently waiving his or her right not to testify. While we recommend such a colloquy as the better practice, we decline to extend the mandate pronounced in Weed. In any case, once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, an evidentiary hearing is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify.

¶ 9 In this case, the circuit court conducted an evidentiary hearing and properly concluded that Denson knowingly, voluntarily, and intelligently waived his right not to testify.

I. FACTUAL BACKGROUND

¶ 10 We derive these facts from the testimony presented at trial. To the extent that the facts are disputed, we so indicate.

¶ 11 Up until August 2002, Denson had a six-year on again, off again romantic relationship with Talisa Tichenor (Tichenor). For the last year of their relationship, the couple resided together in a house in Beloit, Wisconsin.

¶ 12 On August 6, 2002, at around 6:00 p.m., Tichenor returned home from work. As the store manager of Arby's restaurant in Janesville, it was Tichenor's responsibility to bring the restaurant's daily deposit to the bank. That evening, Tichenor did not bring the deposit to the bank and instead drove directly home to bring dinner to her 11–year–old daughter, A.K.T. A.K.T. and Tichenor's son then spent the night at their respective friends' houses.

¶ 13 After dinner, Denson and Tichenor started arguing over the couple's finances. According to Denson, the argument began because he was angry at Tichenor for paying for dinner with money out of the Arby's deposit. Tichenor, on the other hand, testified that Denson was angry because Tichenor refused to look for her car title. They continued to argue until they eventually fell asleep on the futon in the living room.

¶ 14 Denson and Tichenor awoke around 4:00 a.m. and resumed their argument. At this point, their testimony significantly diverges. For purposes of describing the remaining facts, we first recount Tichenor's testimony, followed by Denson's.

¶ 15 According to Tichenor, the argument intensified when Denson threatened to break off the relationship but said that he could not leave because Tichenor “was going to call the police on him anyway.” Specifically, Denson expressed that he was afraid to leave Tichenor “because of what he's done to [Tichenor's] daughter,” A.K.T. Denson then informed Tichenor that he had pulled A.K.T.'s pants down, performed oral sex on her, and fondled her breasts. Denson's account evoked an earlier report given by A.K.T. to Tichenor. Tichenor then told Denson that “it didn't matter, whatever he did, he just needed to go, he needed to get out.”

¶ 16 At that point, Tichenor testified, Denson came towards her, and she felt a sharp pain on the left side of her neck. When she reached up to her neck, she “felt something liquidy” and realized she was bleeding. Denson proceeded to push Tichenor back onto the futon and smother her face with a pillow. Tichenor managed to turn herself around and bite down on Denson's left pinkie finger until he let her go.

¶ 17 Tichenor then recounted how she, feeling lightheaded, went to the kitchen sink to splash cold water on her face. While bent over the sink, she felt what she thought was a frying pan hit the back of her head. Eventually, Tichenor noticed a newly broken chair in the kitchen and figured that to be the object she was hit with.

¶ 18 Tichenor described how she thought she was going to die and had begged Denson to leave her alone. She told him that she would not call the police; she just needed help. Denson, however, instructed her to go down into the basement. When Tichenor refused, Denson picked her up and carried her over to the basement stairs, eventually shoving her down. Tichenor fell down the stairs and struck a brick wall at the bottom. When asked how hard she landed against the brick wall, she responded, “Hard enough that it split my nose open.”

¶ 19 Tichenor attempted to climb back up the stairs. When she neared the top, Denson told her “that [she] needed to get back down the steps or he was going to kill [her].” Tichenor obliged, and Denson left for a few minutes.

¶ 20 When Denson returned, he instructed Tichenor to stand up against a post that was supporting the stairs. Tichenor again obliged, and Denson began tying her to the post with phone wire, cords, and torn sheets. After stuffing her mouth with a towel, Denson kissed Tichenor on the cheek and told her he loved her.

¶ 21 Denson went back upstairs and eventually drove off in Tichenor's car.

¶ 22 Tichenor managed to untie herself and get back upstairs. While unclear on how long she had been tied up, Tichenor testified that by the time she made it upstairs, a clock indicated it was almost 10:00 a.m. Tichenor went outside and screamed for help. A neighbor called 911, and shortly thereafter, police officers arrived.

¶ 23 It is undisputed that Tichenor suffered from stab wounds on her neck and shoulder, a laceration on her nose, and multiple bruises across her body. It is further undisputed that Denson tied her up to the post in the basement. However, Denson disputes the events that led up to Tichenor being tied up.

¶ 24 According to Denson, his argument with Tichenor at 4:00 a.m. on August 7, 2002, centered on Denson informing Tichenor that he had fathered a child with another woman. When Denson told Tichenor that he planned to support the baby, Tichenor responded by threatening to have Denson put in jail for molesting A.K.T.

¶ 25 Denson testified that their argument turned physical. When he approached Tichenor, she “pulled her arm back ... and [Denson] seen [sic] something in there, but [ ] didn't know exactly what it was, and [he] grabbed it.” When he grabbed the object, he cut his pinkie finger. According to Denson, they wrestled with the object until Tichenor fell backwards onto the futon. Denson “felt something wet on [him]” and realized that Tichenor had been cut.

¶ 26 Denson indicated that Tichenor then went into the kitchen and on her way, fell over an already broken chair. She threatened Denson that “if you leave me, I'm going to say you did all this.” Denson told Tichenor she should go to the hospital, but Tichenor refused, stating, “[D]on't worry about it. It's only a scratch.”

¶ 27 Tichenor continued her threats to blame Denson. By his own admission, he then brought her down to the basement and tied her up. When asked on direct examination why he brought Tichenor down to the basement, he responded, “Because she had told me that...