State v. Ruszkiewicz
| Decision Date | 17 May 2000 |
| Docket Number | No. 99-1198-CR.,99-1198-CR. |
| Citation | 2000 WI App 125,237 Wis.2d 441,613 N.W.2d 893 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Frank M. RUSZKIEWICZ, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark S. Rosen of Rosen and Holzman of Waukesha.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
Before Brown, P.J., Nettesheim and Snyder, JJ.
¶ 1.
Frank M. Ruszkiewicz appeals from two judgments of conviction for second-degree sexual assault pursuant to WIS. STAT. § 940.225(2)(a) (1997-98)2 and from an order denying postconviction relief. Ruszkiewicz was convicted after a jury returned guilty verdicts on both counts. Except for the postconviction proceeding, Ruszkiewicz represented himself at all proceedings in the trial court. Postconviction counsel also represents Ruszkiewicz on this appeal.
¶ 2. Ruszkiewicz raises two issues on appeal. First, he argues that the trial court failed to make an adequate record of his waiver of counsel and his competency to represent himself. Second, he argues that the trial court erred by refusing to order the production of certain police and medical records concerning the victim.
¶ 3. Although the trial court did not conduct a formal "waiver/competency" hearing pursuant to case law and as recommended by WIS JI — CRIMINAL SM-30, we nonetheless hold in light of the entire record that Ruszkiewicz knowingly and voluntarily waived his right to counsel and that he was competent to represent himself. We also hold in light of Ruszkiewicz's theory of defense that the information he sought in the victim's medical and police records was irrelevant. We affirm the judgments of conviction and the postconviction order.
¶ 4. Because our resolution of the appellate issues is based on the totality of the record, we recite the history of this case in some detail.
¶ 5. On April 12, 1996, C.W., the female victim, advised a friend that Ruszkiewicz had sexually assaulted her at his residence. The friend, in turn, reported the matter to the City of New Berlin Police Department. When the police arrived at the residence, they encountered a neighbor who reported that C.W. had told her that she had been sexually assaulted by Ruszkiewicz the previous Tuesday, April 9. C.W. also told the neighbor that Ruszkiewicz had used castor oil during the assault. C.W. further stated that she kept meat cleavers next to her bed because she was afraid of Ruszkiewicz. The neighbor also reported seeing bruises on C.W.
¶ 6. At this time, Ruszkiewicz arrived at the residence. He told the police that he and C.W. "had had an argument but that it was no big deal." Ruszkiewicz allowed the police to enter the residence and he showed them C.W.'s bedroom. There the police observed the meat cleavers. The police searched the residence looking for C.W. but she was not present. Later, the police learned her whereabouts and she was interviewed the next day at the police department.
¶ 7. During her interview at the police department, C.W. displayed bruises on her face and other areas of her body. C.W. then provided a statement. She explained that she had moved into Ruszkiewicz's residence in October 1995. She was to cook, clean and answer Ruszkiewicz's telephone in exchange for room and board. She stated that Ruszkiewicz had sexually assaulted her on Friday, April 12, and the previous Tuesday, April 9. During both assaults, Ruszkiewicz had used castor oil by either attempting to get C.W. to drink the oil or by rubbing the oil on her face and body. During the Tuesday assault, Ruszkiewicz inserted his finger into C.W.'s vagina and rectum. During the Friday assault, Ruszkiewicz inserted his finger into C.W.'s vagina and told her this was part of a "nurturing process, that it was going to happen for two minutes the first time and then it would increase to four minutes, then it would increase to six and then eventually until she wanted it all the time."
¶ 8. Based on this information, Ruszkiewicz was arrested. In a statement to the police, he admitted that he had inserted his finger into C.W.'s rectum and vagina and that he had used physical force during each episode. He also admitted that he did not have C.W.'s consent to perform these acts. He stated that during the Tuesday episode, he told C.W. that he was "trying to teach [her] that she could have sex without being beaten up first like her boyfriend had." He said that the "nurturing process was a religious-type belief and that it was personal."
¶ 9. The State charged Ruszkiewicz with two counts of second-degree sexual assault. At his initial appearance, Court Commissioner Martin Binn advised Ruszkiewicz of his right to be represented by counsel and that counsel would be appointed for him if he qualified financially. Ruszkiewicz replied that he had already declined to meet with the State Public Defender. A public defender who was present at the arraignment confirmed that this was so. Commissioner Binn then offered to make an appointment for Ruszkiewicz to meet with a public defender the next day. Ruszkiewicz again declined, saying that he wanted to defend himself. Nonetheless, Commissioner Binn directed the jail to allow Ruszkiewicz to telephone a lawyer if he wished to do so.
¶ 10. During this initial appearance, Ruszkiewicz repeatedly attempted to speak to the merits of the charges and about his relationship with C.W. Commissioner Binn repeatedly warned Ruszkiewicz that he should not make any potentially incriminating statements since he was not represented by a lawyer. At the conclusion of the hearing, Ruszkiewicz requested a preliminary hearing.
¶ 11. At the opening of the preliminary hearing, Court Commissioner David Pike confirmed that Ruszkiewicz wished to represent himself. During his cross-examination of the investigating officer, Ruszkiewicz's "questions" were actually narratives about various events, including his relationship with C.W. At one point during his cross-examination of the investigating officer, Ruszkiewicz asked for permission to "fill in the details." In a lengthy and thorough statement, Commissioner Pike explained to Ruszkiewicz the limited scope and purpose of a preliminary hearing. Commissioner Pike also advised Ruszkiewicz that he was not obligated to give any evidence and that anything Ruszkiewicz said could be used against him at the time of trial. Commissioner Pike also expressed concern about the narrative information which Ruszkiewicz was providing via his questions to the investigating officer.
¶ 12. Later, when Ruszkiewicz persisted in asking narrative questions, Commissioner Pike asked Ruszkiewicz why he did not want a lawyer. Ruszkiewicz responded, "I feel that if a jury would hear me talk rather than a lawyer talk for me and would see my actions in a court of law, they would know that I am not that kind of a person that would go and abuse this young lady, whom I respected and felt very deeply for." Commissioner Pike then asked, "You understand that a lawyer might assist you to discover legal defenses to this lawsuit that you're not aware of?" Ruszkiewicz replied, "I understand that." Ruszkiewicz then stated that he was having trouble getting certain records regarding the victim. Commissioner Pike told Ruszkiewicz that a lawyer could also help him with that matter. Ruszkiewicz again responded that he understood.
¶ 13. After the State rested at the preliminary hearing, Commissioner Pike again advised Ruszkiewicz that he was under no obligation to offer any evidence or testimony and that any damaging evidence he presented could be used against him at the time of trial. The assistant district attorney also warned Ruszkiewicz that if he testified, he would be facing "pointed, direct, specific cross-examination regarding specific allegations contained in the Complaint." Commissioner Pike again urged Ruszkiewicz to consult a lawyer, stating:
I urge you again to get a lawyer to assist you in this matter. This is a very serious matter. As I stated earlier, you could potentially go to prison for up to 20 years as a result of this incident.3 And I certainly don't think you should be making any legal missteps if you can avoid them. And I think the lawyer may assist you. You're not required to keep that lawyer throughout the entire trial, or at any point in the proceedings you can always again go back and try the case on your own. But I would urge you most seriously to consider having a lawyer to assist you with regard to your proceeding. But that decision is yours.
Ruszkiewicz replied, "I have already made that decision." With that, Ruszkiewicz testified.
¶ 14. Although his testimony initially strayed into irrelevant matters for purposes of a preliminary hearing, Commissioner Pike eventually steered Ruszkiewicz to the events related to the counts charged in the complaint. He testified that the events charged in the complaint were
¶ 15. Commissioner Pike then asked Ruszkiewicz whether he was contending that C.W. had consented to his conduct. Ruszkiewicz responded: Later, when asked about force or threat of force, Ruszkiewicz testified that he used "[f]orce in the sense of restraint."
¶ 16. At the conclusion of the preliminary hearing, Commissioner Pike found...
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