State v. McDowell, 02-1203-CR.
| Decision Date | 11 June 2004 |
| Docket Number | No. 02-1203-CR.,02-1203-CR. |
| Citation | 272 Wis.2d 488,2004 WI 70,681 N.W.2d 500 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Derryle S. McDowell, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Christopher J. Cherella and the Law Offices of Christopher J. Cherella, Milwaukee, and oral argument by Christopher J. Cherella.
For the plaintiff-respondent the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was Peggy A. Lautenshlager, attorney general.
An amicus curiae brief was filed by John A. Pray, Keith A. Findley, Madison, on behalf of the Wisconsin Association of Criminal Defense Lawyers and Frank J. Remington Center, Univ. of Wisconsin Law School, and oral argument by Keith A. Findley.
¶ 1.
The petitioner, Derryle S. McDowell, seeks review of a published decision of the court of appeals affirming a judgment of conviction and order denying postconviction relief.1 McDowell was convicted of robbery, kidnapping, and five counts of sexual assault while using a dangerous weapon, all as party to a crime. He contends that he was afforded ineffective assistance of trial counsel that was both deficient and prejudicial. Additionally, McDowell asserts that the circuit court erred in failing to permit him new counsel.
¶ 2. This case discusses the important issue of how criminal defense attorneys should deal with the prospect of client perjury. Specifically, it addresses under what circumstances counsel has knowledge of the perjury sufficient to trigger a requirement that a client testify in the unaided narrative rather than the usual question and answer format.2 Prior to the decision of the court of appeals in this case, no Wisconsin case had defined what standard should be employed to determine when attorneys "know" their clients will lie.
¶ 3. We agree with the court of appeals that defense counsel may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. We further determine that attorneys must advise the client, opposing counsel, and the circuit court of the change of questioning style prior to use of the narrative.
¶ 4. In the case before us, we conclude that defense counsel's performance was deficient in two respects: (1) he shifted to narrative questioning without advising his client beforehand; and (2) he used narrative questioning despite believing that his client intended to testify truthfully. We also conclude, however, that McDowell suffered no prejudice under the facts of this case. Finally, we reject McDowell's claim that the circuit court erred in failing to permit him new counsel. Accordingly, we affirm the court of appeals.
¶ 5. On April 21, 1997, an 18-year-old woman was sexually assaulted near a building at 4720 West Burleigh Street, Milwaukee. She had exited a bus and was followed by two men with guns. The men rushed her and forced her off the street. With guns to her head, they robbed her, fondled her, and repeatedly assaulted her sexually, penetrating her orally and vaginally by both penis and gun barrel. After the assaults, the victim spat ejaculate.
¶ 6. Although the victim could not identify her attackers, the State built its case based on evidence collected from her body, her clothing, and the scene. Police recovered a sample of the victim's saliva mixed with semen containing McDowell's DNA. They also recovered evidence containing the DNA of the second man, who eventually pled guilty.
¶ 7. McDowell was appointed counsel from the State Public Defender's Office. On the first day of trial, counsel informed the court that McDowell had fired him over the weekend. The exchange between the two was as follows:
¶ 8. Later that day while discussing pre-trial motions, defense counsel informed the court that he did not know what the theory of defense would be because McDowell had become unassistive. Wary of another delay, the court indicated an intent to move forward with the case.3 It stated:
Well he must be unassistive long before this past weekend, so let's not get into that. That is hogwash. Let's go. The issue is long before this weekend with the amount of appearances we have had in this court on this case. If we don't have a theory of defense formulated and then whatever little iron[-]outs you have to do, that is different. That is an ongoing process anyway all during trial.
¶ 9. The court then told McDowell that he could decide whether to cooperate with counsel. It explained, McDowell replied "Yes." Defense counsel later informed the court that he would reserve his opening statement until the close of the State's case.
¶ 10. On the third day of trial, after the State had rested, defense counsel expressed reservations to the court about his ability to effectively proceed as counsel. Although not specific, he implied that his concerns related to the possibility that McDowell would testify untruthfully. The court advised counsel that he had two options: (1) he could recommend to McDowell that he not testify if his intended account was untrue or so outrageous that a trier of fact would hold it against him; or (2) take the "middle ground" by calling McDowell to testify in narrative form.
¶ 11. While the court acknowledged a third option in counsel's motion to withdraw, it rejected that request because the resulting mistrial would affect "not only the rights of [McDowell] but the rights of all the other people" involved in the nearly completed jury trial. The court further reasoned that allowing counsel to withdraw would not necessarily accomplish anything since McDowell's next attorney would likely face the same ethical dilemma.
¶ 12. After a short break in which defense counsel conferred with McDowell, he informed the court that his client would be testifying truthfully. He declared:
¶ 13. The court accepted counsel's decision. However, it warned him that "should something change," he should immediately advise the court and then proceed in the narrative form of questioning.
¶ 14. Defense counsel subsequently gave his opening statement. He told the jury that McDowell would testify that he never assaulted the victim and that the area where the crime took place was behind the building where his father lived. Counsel further explained that McDowell had been in the area the night before the assault, had oral sex with his girlfriend, Sunshine, and had ejaculated, which would account for the semen being found at the scene.
¶ 15. After completing his opening statement, defense counsel called McDowell to the witness stand. Shortly after McDowell took the stand, counsel received a note from the public defender's office. Defense counsel began his examination in the conventional question and answer format and asked three questions about McDowell's age and residence. He then stated, As McDowell began his answer, defense counsel interrupted and asked the court if it wanted a sidebar conference, and the court responded, "I certainly do."
¶ 16. Following an off-the-record discussion, the court instructed the jury that it was not to consider the opening statements or closing arguments of counsel as evidence. It then directed defense counsel to restate the question. He said, The defendant responded with the following narrative answer:
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