State v. Meeks

• Decision Date: 11 July 2003
• Docket Number: No. 01-0263-CR.,01-0263-CR.
• Citation: 666 N.W.2d 859,263 Wis.2d 794,2003 WI 104
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jerry J. MEEKS, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

263 Wis.2d 794

2003 WI 104

666 N.W.2d 859

STATE of Wisconsin, Plaintiff-Respondent, v. Jerry J. MEEKS, Defendant-Appellant-Petitioner.

No. 01-0263-CR.

Supreme Court of Wisconsin.

Oral argument March 5, 2003.

Decided July 11, 2003.

For the defendant-appellant-petitioner there was a brief by Christopher T. Van Wagner and Van Wagner & Woods, S.C., Madison, and oral argument by Christopher T. Van Wagner.

For the plaintiff-respondent the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. N. PATRICK CROOKS, J

Jerry J. Meeks (Meeks), seeks review of a court of appeals' decision affirming a circuit court judgment convicting him of felony murder—armed robbery as a habitual criminal. At issue is whether an attorney's opinions, perceptions, and impressions relating to a former client's mental competency are confidential communications within the meaning of the attorney-client privilege, Wis. Stat. § 905.03(2) (1997-98),¹ and SCR 20:1.6, and therefore cannot be revealed without the consent of the client.

¶ 2. We reverse the decision of the court of appeals and hold that an attorney's opinions, perceptions, and impressions relating to a former client's mental competency fall within the definition of a confidential communication pursuant to Wis. Stat. § 905.03(2) and SCR 20:1.6. As a result, such communications may not be revealed without the consent of the client. We therefore remand this matter to the circuit court for a nunc pro tunc competency hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 3. The facts are undisputed. On December 6, 1998, Meeks was involved in a robbery and murder in Milwaukee. The police arrested Meeks on December 12, 1998, and a criminal complaint was filed that same day charging Meeks with felony murder as a habitual criminal. Meeks later pled guilty.

¶ 4. Meeks' counsel first raised the issue of Meeks' competency ten days after his initial appearance. The circuit court ordered a competency examination pursuant to Wis. Stat. § 971.14(2). On February 10, 1999, the court determined Meeks was not competent and committed him to the Department of Health and Family Services for treatment. At a subsequent competency hearing after Meeks had received treatment, based upon testimony from physicians, a parole agent who had previously supervised Meeks, and a public defender who had previously represented Meeks, the circuit court determined Meeks was then competent to proceed.

¶ 5. The focus of this case involves the circuit court decision that Meeks was competent to proceed. After defense counsel raised the question of Meeks' competency to proceed, an initial competency evaluation was ordered which was performed by a psychiatrist, Dr. Gary J. Maier, who concluded that Meeks was not competent.

¶ 6. After Meeks was committed for treatment, the circuit court again received information in the form of reports and testimony from psychiatrists and psychologists who had examined Meeks in order to determine his mental competency. The circuit court also heard lay testimony from Meeks' former probation and parole agents and Meeks' former attorney from the state public defender's office.

¶ 7. At issue is the testimony of Mary Scholle (Scholle), Meeks' former attorney, offered by the State at an October 26, 1999, competency hearing. Scholle had previously represented Meeks in 1994 and in 1996-1997, but was not Meeks' attorney in this case. The State subpoenaed Scholle and her attorney asked for a hearing on the subpoena, claiming that there was an "arguable" attorney-client privilege attached to her testimony (R. 20); (R. 70:73). Meeks' attorney objected to Scholle's testimony on "relevance grounds." (R. 71:4). He also asked that the court "take judicial notice that every lawyer is supposed to raise competence when it becomes apparent." Id. The circuit court noted the relevancy objection for the record, but allowed the State to call Scholle to testify. Meeks' attorney also objected, on the basis of the attorney-client privilege, to a question asked of Scholle, but the objection was overruled.

¶ 8. At the hearing Scholle testified regarding her standard practice in representing clients. She testified that she had extensive background in representing criminal defendants and that she had represented approximately 3,000 defendants. She testified that she represented a variety of individuals, including individuals with mental health issues. Moreover, Scholle testified that she had been educated about competency issues, and about what to look for to recognize incompetency in her clients, and that she understood the special concerns in determining competency in such situations. Scholle testified that: "[I]n general, if I have any question as to a person's competency, their ability to understand, to make decisions, to know the various roles of the players in court, I would bring that to the attention of the court." (R. 71:12). In addition, Scholle testified that she had represented Meeks "on two separate occasions" involving three cases, between 1994 and 1997. State v. Meeks, 2002 WI App. 65, ¶ 29, 251 Wis. 2d 361, 643 N.W.2d 526. (R. 71:12). According to the records in regard to those cases, Meeks pled guilty in the 1994 case and entered an Alford² plea in another case.³ Scholle testified that the concept of an Alford plea is a "sophisticated legal concept[s]. . . ." (R. 71:19). The court asked Scholle to describe her practice in going over the guilty plea questionnaire with her clients and how she determined whether the client understood the plea. Scholle responded that she would ask her clients if they understood and if they had any questions. The record was clear that during Scholle's previous representation of Meeks, she had not raised the issue of Meeks' competency in any of those proceedings.⁴

¶ 9. Meeks concedes that: "Ms. Scholle did not relate in her testimony any specific words said to her by Mr. Meeks." (Pet'r Br. at 9). However, he claims that clearly implicit in her testimony was her belief that Meeks was not incompetent when she represented him.

A. Circuit Court Decision

¶ 10. On January 4, 2000, upon reviewing the evidence,⁵ the Honorable Elsa C. Lamelas determined that Meeks was competent to proceed. In reaching that decision, Judge Lamelas relied upon Meeks' competency in past legal proceedings, the testimony of parole agents who supervised Meeks, the testimony of Meeks' attorney in the previous prosecutions, Meeks' rudimentary understanding of the legal system, Meeks' demeanor, and the court's observations of Meeks. In regard to the testimony of Attorney Scholle, the court said:

[S]he testified that if there was any scintilla of doubt in her mind about a person's competency she would have brought that to my attention [in the prior cases]. . . . I have really no doubt in my mind that if the defendant's cognitive limitations were such . . . [given her] experience and commitment, that if it had come to her notice, it would have been brought to my attention; and she did not.⁶

(Def. Br. App., p. 6-7). The court then concluded that Meeks was competent to proceed.

¶ 11. The Honorable Daniel L. Konkol was assigned the case after the preliminary hearing, and he denied subsequent requests for another competency exam. Meeks entered pleas of not guilty and not guilty by reason of mental disease or defect. On April 6, 2000, at a scheduled plea hearing, defense counsel stated his belief that Meeks could not make a knowingly, voluntary, and intelligent plea. On July 6, 2000, Meeks entered a guilty plea. Meeks was subsequently sentenced to 40 years in prison.

B. Court of Appeals' Decision

¶ 12. Meeks appealed raising several issues, the main issue being whether Scholle's testimony regarding Meeks' competency was a confidential communication which was obtained during the course of representation, and was therefore inadmissible under Wis. Stat. § 905.03.

¶ 13. The court of appeals upheld Meeks' conviction, concluding that Meeks was competent to proceed. The court of appeals also held that the testimony of Scholle, who had represented Meeks in a prior criminal case, was admissible and relevant at the competency hearing, and that the testimony did not violate the attorney-client privilege. The court of appeals held that, because Scholle did not divulge the contents of any specific conversations with Meeks, she did not disclose any confidential communications under Wis. Stat. § 905.03(1)(d), and hence, did not violate the attorney-client privilege. As a result, the court of appeals found that Scholle's testimony was properly admitted.

¶ 14. In support of its decision, the majority relied on "substantial case law" distinguishing impermissible testimony relating to a client's statements from permissible testimony providing an opinion about the client's competency.⁷Meeks, 251 Wis. 2d 361, ¶¶ 35-42. In reaching its decision, the majority stated:

[Attorneys] remain officers of the court, obligated to assist the judicial effort to determine whether a defendant is competent to proceed. . . . Therefore, in a very important sense, counsel cooperate in a court's effort to make one of the justice system's most fundamental findings—whether a defendant understands the proceedings and can assist in the defense. And in a closely related way, counsel cooperate in the court's continuing effort to determine whether a defendant needs mental health assistance, and possibly medication, in order to function in a legal setting.

Thus, despite the intensity and competing interests of the adversarial setting, counsel must set aside strategic considerations and candidly assist the court's effort to determine whether a defendant is competent to proceed.

. . . .

And just as defense counsel must be candid in expressing an opinion about a client's competency, courts, in turn, should understand that counsel's opinion derives, in substantial

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