State v. Halfrod, 00-0722

• Decision Date: 14 November 2000
• Docket Number: 00-0722
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. SeeWis. Stat. §808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Ernest E. Halford, a/k/a Edward E. Rollins, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III
• Court: Court of Appeals of Wisconsin

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. SeeWis. Stat. §808.10 and Rule 809.62

State of Wisconsin, Plaintiff-Respondent v Ernest E. Halford, a/k/a Edward E. Rollins, Defendant-Appellant

No. 00-0722-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

November 14, 2000

APPEAL from a judgment of the circuit court for Washburn County: THOMAS J. GALLAGHER, Judge. Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1. PETERSON, J.

Ernest Halford appeals a judgment of conviction for one count of first-degree intentional homicide contrary to Wis. Stat. §940.01(1), two counts of burglary contrary to Wis. Stat. §§943.10(1)(a) and 943.10(2)(b), and two counts of theft contrary to Wis. Stat. §§943.20(1)(a).¹ Halford contends that he is entitled to a new trial because (1) he was deprived of his right to a fair trial by being permitted to represent himself, and (2) the trial court committed prejudicial error by not suppressing his two oral statements made after he invoked his Miranda² rights. We reject Halford's arguments and affirm.

BACKGROUND

¶2. Halford and three companions burglarized a residence in Springbrook on May 23, 1998. During the burglary, Paul Barton, a neighbor, drove up to the house. The intruders confronted Barton. Halford and a companion then tied Barton to a tree and shot him twice in the head. Halford was arrested three days later in St. Paul, Minnesota.

¶3. The next day-May 27-while in custody in St. Paul, Halford was questioned by the St. Paul police. He invoked his Miranda rights and the questioning stopped. Later that day, the police asked Halford if he was willing to talk. He said he was and met with Wisconsin investigators. He was re-advised of his Miranda rights, waived those rights and made detailed statements about the events surrounding Barton's murder. A criminal compliant was filed against Halford the following day in Washburn County.

¶4. On June 9, 1998, Halford asked to talk with the Wisconsin investigators again. He was again given Miranda warnings. Halford stated he understood those rights and wished to waive them. He again gave detailed statements about Barton's murder.

¶5. Halford moved to suppress both the May 27 and June 9 statements. The trial court denied the motion, and the statements were admitted into evidence at trial.

¶6. Before his jury trial, Halford dismissed several attorneys. Ultimately, he requested to represent himself. The trial court engaged in an extensive colloquy with Halford and found that he knowingly and voluntarily waived his right to be represented by counsel and that he was competent to represent himself. However, the trial court appointed standby counsel.

¶7. During trial, the court became concerned whether Halford was competent to represent himself. After a meeting in chambers with standby counsel, the trial court allowed Halford to continue as his own counsel. Halford was subsequently convicted on all counts. This appeal followed.

DISCUSSION

I. Self-Representation

¶8. Halford argues that: (1) he was not aware of the difficulties and disadvantages of self-representation; (2) prior to trial, he was not competent to represent himself; and (3) during the trial when the court questioned Halford's competency, the court erred by not conducting another colloquy. We disagree.

A. Standard of Review

¶9. Criminal defendants are guaranteed the fundamental right to assistance of counsel under art. I, § 7, of the Wisconsin Constitution and the Sixth Amendment to the United States Constitution as made applicable to the states through the Fourteenth Amendment. See State v. Klessig, 211 Wis. 2d 194, 201-02, 564 N.W.2d 716 (1997). The scope and interpretation of the right to assistance of counsel under the Wisconsin Constitution and the United States Constitution are identical. Seeid. at 202-03. Additionally, the Sixth Amendment and art. I, §7, grant defendants the right to conduct their own defense. Seeid. at 203.

¶10. When a defendant seeks to proceed pro se, the trial court must engage in a colloquy with the defendant to ensure that the defendant (1) has knowingly, intelligently, and voluntarily waived the right to counsel (waiver); and (2) is competent to proceed pro se (competency). See id. If both parts of the two-part inquiry are not satisfied, the trial court "must prevent the defendant from representing himself or deprive him of his constitutional right to the assistance of counsel."Id. at 203-04. On the other hand, if the defendant knowingly, intelligently and voluntarily waives the right to assistance of counsel and is competent to proceed pro se, the trial court must allow the defendant to do so.See id.

¶11. To ascertain whether a defendant has knowingly, intelligently and voluntarily waived the right to counsel, the trial court's colloquy must probe whether the defendant:(1) deliberately chose to proceed without counsel; (2) was aware of the difficulties and disadvantages of self-representation; (3) was aware of the seriousness of the charge or charges; and (4) was aware of the general range of penalties that a sentencing court could impose. See id. at 206; see also Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), overruled on other grounds by Klessig, 211 Wis. 2d at 206.

¶12. Then, to determine whether a defendant is competent to represent himself or herself, a trial court considers the defendant's(1) education; (2)literacy; (3) fluency in English; and (4) "any physical or psychological disability which may significantly affect his ability to communicate a possible defense to the jury." Klessig, 211 Wis. 2d at 212 (citing Pickens, 96 Wis. 2d at 569). In considering these factors, a trial court is guided by the principle that a competency determination should not prevent persons of average ability and intelligence from self-representation unless the court can identify a specific problem or disability that might prevent a meaningful defense from being offered, if one indeed exists.SeeKlessig, 211 Wis. 2d at 212. Technical legal knowledge is irrelevant to an assessment of a knowing exercise of the right to defend oneself. SeeFaretta v. California, 422 U.S. 806, 836 (1975)).A competency determination rests to a large extent on the trial court's judgment and experience. See Klessig, 211 Wis. 2d at 212.

¶13. Our standard of review for a waiver of counsel is mixed. We will independently determine whether the record establishes that the waiver was knowingly, intelligently and voluntarily made. See id. at 204. However, because the trial court is in the best position to observe the defendant, we will uphold its competency determination unless it is totally unsupported by the facts of record. Pickens, 96 Wis. 2d at 568-70.

B. Waiver

¶14. Halford first argues that his right to counsel was not properly waived, thus resulting in a manifest injustice requiring a new trial. He contends that the colloquy conducted by the trial court did not demonstrate that he was aware of the difficulties and disadvantages of self-representation. We disagree.

¶15. The trial court engaged in a lengthy discussion with Halford regarding his experience with the legal system. Halford informed the trial court that he had spent two and one-half years in college. He additionally informed the trial court that he had previously been involved in a jury trial concerning criminal proceedings, however, he was represented by counsel at that trial.

¶16. The trial court directly asked Halford what he knew about the law and whether he had any experience in questioning witnesses at a trial. The trial court posed a hypothetical question to Halford asking him what he would do if the trial court told him some of the questions he wished to ask were irrelevant. Halford replied, "Have no choice but to accept your ruling." Halford was even asked whether he had undertaken any legal training on his own by reading books, statutes and manuals. Halford replied that he had.

¶17. The trial court then specifically asked Halford whether he understood that "if you choose to represent yourself there are some difficulties, or disadvantages that may arise in that you're not a trained lawyer." Halford replied, "Of course."

¶18. During the hearing, the trial court again pointed out to Halford the difficulties and disadvantages of representing himself. For example, while discussing a motion for continuance, the trial court specifically asked Halford, "Are you beginning to understand some of the disadvantages of trying to represent yourself?" The trial court then told Halford, "I will let you change your mind." Halford was not persuaded to change his decision to represent himself. Not only did the trial court point out the difficulties of self-representation, it actually gave Halford the opportunity to observe the difficulties he was facing and gave him the opportunity to reconsider his decision.

¶19. A pro se defendant may not fully understand every issue in a complex legal defense. However, under Halford's reasoning, a trial court fails to adequately advise a defendant about the difficulties and advantages of self-representation unless the trial court essentially provides courses on evidence, procedures and substantive criminal law to the pro se defendant. The practical result would be a prohibition on self-representation for individuals with no legal training and would impose upon the court a burdensome requirement. This would violate the Sixth Amendment right to self-representation and art. I, §7, of the Wisconsin Constitution. See Klessig, 211 Wis. 2d at 212.

¶20. The record establishes that Halford was aware of the difficulties and disadvantages of self-representation. Through the trial court's discussions with Halford, the record reveals that Halford had...