State v. Irving
| Decision Date | 08 August 2012 |
| Docket Number | No. 2011AP1908–CR.,2011AP1908–CR. |
| Citation | 821 N.W.2d 412,2012 WI App 106,344 Wis.2d 297 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Anthony S. IRVING, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Sheboygan County: Terence T. Bourke, Judge. Affirmed.
Before NEUBAUER, P.J., REILLY and GUNDRUM, JJ.¶ 1GUNDRUM, J.
Anthony S. Irving appeals from his jury convictions on six counts of armed robbery with threat of force and the order denying his motion for postconviction relief. Irving contends he was deprived of his right to self-representation and that his trial counsel was ineffective by failing to conduct certain cross-examination during trial. We disagree and affirm.
¶ 2 In the months leading up to his trial, Irving complained to the court about his representation and gave some indication of a willingness to represent himself, but repeatedly expressed his desire for legal representation. At one point, Irving filed a complaint against his counsel with the Office of Lawyer Regulation (OLR). During a hearing where the matter was addressed, Irving requested that new counsel be appointed. The court approved of the appointment of new counsel, but told Irving that if he sought to remove his next counsel from the case, assuming there were proper grounds, it would grant the request but “you're on your own at that point.” Irving responded, “Okay.”
¶ 3 At a hearing four days before trial, Irving complained about his new counsel and told the court he was planning to file a complaint against him with the OLR. The court informed Irving it was prepared to make him represent himself. In response, Irving stated, “I ain't going to do it.”
¶ 4 The morning of the first day of trial, Irving told the court he wanted to fire his counsel. The court asked Irving, “And is it your intent to represent yourself?” Irving said, Irving told the court that “if” counsel did not sign a list of issues Irving wanted brought up at trial, The court again asked Irving if it was his intent to represent himself. Irving responded by asking his counsel, “How come you won't sign the paper?” The court asked Irving if representing himself was his “final decision” and Irving said, “Yes, it is.”
¶ 5 As the proceedings continued, the court and Irving discussed Irving's understanding of the rules of evidence. The court informed Irving he could still change his mind and proceed with his attorney. In response, Irving asked the court, “If I allow him to represent me and I feel like he's not doing what I want him to do, I can still fire him in the process of the trial, and it's not against my constitutional right that I can still represent myself; is that correct?” The court informed Irving it was up to the court whether Irving would be allowed to discharge his attorney.
¶ 6 The court explained standards Irving would have to follow at trial if he proceeded pro se. While discussing possible video evidence that might be used at trial, Irving stated, (Emphasis added.)
¶ 7 The court ruled that Irving's counsel would continue representing Irving, noting, among other considerations, that Irving had indicated his desire to be represented by counsel throughout the pendency of the case.
¶ 8 Shortly before the jury was brought into court, Irving voiced concerns regarding a piece of evidence. When the court asked Irving if he understood he was still being represented by counsel, Irving responded,
¶ 9 Irving contends the trial court denied him his state and federal constitutional right to represent himself at trial. Whether the right to self-representation has been violated presents a question of constitutional fact we review independently as a question of law. State v. Klessig, 211 Wis.2d 194, 204, 564 N.W.2d 716 (1997).
¶ 10 The Wisconsin and United States Constitutions provide a right to counsel and a right to self-representation in criminal proceedings.1State v. Imani, 2010 WI 66, ¶ 20, 326 Wis.2d 179, 786 N.W.2d 40. Exercising the right to proceed pro se represents a 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. The right to counsel is highly regarded and nonwaiver of the right is presumed. Id. A defendant choosing to forgo the right to counsel and invoke the right to self-representation must do so with a clear and unequivocal declaration. State v. Darby, 2009 WI App 50, ¶ 24, 317 Wis.2d 478, 766 N.W.2d 770.
¶ 11 Irving contends he made a “clear and unequivocal” request to represent himself. We disagree. Throughout the proceedings, Irving repeatedly gave the trial court mixed signals.
¶ 12 As the trial court noted, throughout the pendency of his case, Irving indicated a desire to be represented by counsel. When the court warned Irving four days before trial that it might require Irving to represent himself, Irving responded, “I ain't going to do it.” On the day of trial, when Irving indicated he wanted to fire his counsel and the court asked Irving if he intended to represent himself, he responded that he would do so because he had “no choice.” When the court again asked Irving if he intended to represent himself, Irving asked his counsel why he would not sign the list of issues Irving wanted counsel to bring up at trial, indicating a continued desire to be represented by counsel. While Irving did at one point indicate that representing himself was his “final decision,” he subsequently asked the court about the possibility of his counsel continuing to represent him, but Irving retaining the right to discharge him during the trial if counsel was not doing what Irving wanted him to do. Then, while discussing certain evidence that might be used at trial, Irving indicated he could not defend against the evidence, “[e]ven if [he] want[ed] to represent [himself].”
¶ 13 Irving's conduct well illustrates one of the primary purposes of the clear and unequivocal standard, to require a defendant to make an explicit choice. The standard seeks to prevent a defendant, such as Irving, who “vacillates at trial” between the desire for counsel and self-representation from later claiming he was denied either the right to self-representation or the right to counsel, depending on how the court interprets conflicting comments. See Darby, 317 Wis.2d 478, ¶ 20, 766 N.W.2d 770 (quoting Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989)). Here, Irving never clearly and unequivocally invoked his right to self-representation.
¶ 14 After a four-day trial, a jury found Irving guilty of six counts of armed robbery with threat of force. Irving moved for postconviction relief and asked the court to reverse the convictions on the ground that Irving's counsel provided ineffective assistance. Irving argued that his counsel's assistance was ineffective because counsel failed to impeach the testimony of State witnesses Sean Lloyd, Ronda Butler, Rochelle Tarr, and Garrett Greene with available information that would have undermined their credibility. Irving also claimed his counsel failed to present additional available evidence to support his defense that he was not the person who committed the robberies.
¶ 15 Following a Machner2 hearing, the court denied Irving's motion. The court concluded that Irving's counsel erred in multiple respects, but that Irving was not prejudiced by the performance. The court reasoned that several other factors besides the testimony of the challenged witnesses pointed to Irving as the robber. First, evidence indicated that the same person committed all six robberies. Second, “[n]on-controversial witnesses” placed Irving near the scene of two of the robberies (with Lloyd placing him near a third). Third, Irving had access to physical evidence that connected him to each of the robberies. The court observed that the testimony provided by Lloyd, Butler, and Tarr was corroborated by other evidence. The court did not discuss Greene's testimony, concluding that it “was so vague that it was of little importance.”
¶ 16 On appeal, Irving renews his argument that his trial counsel provided ineffective assistance. A claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Thiel, 2003 WI 111, ¶ 21, 264 Wis.2d 571, 665 N.W.2d 305. The trial court's findings of fact are reviewed under a clearly erroneous standard. Id. Whether counsel's assistance was ineffective is reviewed de novo. State v. Williams, 2006 WI App 212, ¶ 11, 296 Wis.2d 834, 723 N.W.2d 719 (citing State v. Felton, 110 Wis.2d 485, 504–05, 329 N.W.2d 161 (1983)).
¶ 17 A defendant claiming ineffective assistance of counsel must prove both prongs of a two-part test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Allen, 2004 WI 106, ¶ 26, 274 Wis.2d 568, 682 N.W.2d 433. The defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. An ineffective assistance of counsel claim will fail if either prong is not satisfied. Id. at 697;Williams, 296 Wis.2d 834, ¶ 18, 723 N.W.2d 719. Because we conclude Irving was not prejudiced by his counsel's alleged errors, we do not reach the issue of whether counsel's performance was deficient.
¶ 18 To establish prejudice, the defendant must show that there is ...
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