Cases at Issue:
State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). The court mandated the use of a colloquy in every case where a defendant seeks to proceed pro se, to prove knowing, voluntary, and intelligent waiver of counsel.
Iowa v. Tovar, 541 U.S. 77 (2004). The constitutional requirements for valid waiver of counsel are satisfied when the trial court informs the accused of the nature of the charges, his right to counsel, and the range of allowable punishments.
(1) The requirements of Klessig survive Tovar.
(2) A violation of Klessig can form the basis of a collateral attack if the defendant makes a prima facie showing that he did not validly waive the right to counsel.
(3) When the defendant makes a prima facie showing, the burden to prove valid waiver shifts to the State.
(4) The State may call the defendant at an evidentiary hearing to meet its burden, and the defendant may not raise the privilege against testifying.
(5) If the defendant refuses to testify, a court may infer that the State has satisfied its burden.
Ernst was charged with fifth offense OWI and PAC. He moved to collaterally attack his fourth conviction, claiming that he had not validly waived his right to counsel because the colloquy did not satisfy Klessig. The circuit court concluded that Ernst had made a prima facie showing of invalid waiver of counsel. The State requested an evidentiary hearing in the matter, intending to call Ernst as a witness. Ernst asserted his fifth amendment privilege to not testify. The circuit court granted both the hearing and States request to compel Ernst to testify. Ernst asked for interlocutory review. The court of appeals certified the case to the supreme court.
The court determined that the requirements of Klessig survive Tovar because Tovar allowed states to adopt procedural rules for waiver of counsel, and the Klessig requirements are procedural rules, not constitutional ones. The court also concluded that a violation of the Klessig requirements can form the basis for a collateral attack, but a successful attack must point to facts that demonstrated the defendant did not have the information that should have been provided in the waiver proceeding. In Ernsts case, because the court concluded that a sufficient prima facie case was not established, it reversed the order of the circuit court. The court held, however, that if a defendant makes a prima facie showing, the burden shifts to the State to show that the plea was valid. The circuit court should hold an evidentiary hearing at which the state may examine the defendant. If the defendant refuses to testify, a court may infer that the State has met its burden, because a defendant cannot use the fifth amendment as a shield against having to testify about matters he put into dispute.
Date: June 15, 2005
Case No: 2003AP2097-CR
Issues: Jury Instructions, Change of
Venue, Constitutionality of 949.09 (Homicide by intoxicated use of
vehicle or firearm)
The court reversed the court of appeals decision to reverse Fontes conviction of homicide by intoxicated use of a motor vehicle under § 940.09 as a result of a boating accident. The supreme court held that (1) The jury instruction did not deny Fonte a fair trial, because it properly explained the law regarding chemical tests for intoxication under § 885.235. That statute provides that if the breath, blood, or urine sample was not taken within three hours of the event to be proved, the result may be given prima facie effect only if the effect is established by expert testimony. Here, the States expert testified to a reasonable degree of certainty what Fontes blood alcohol level was at the time of the accident. The jury instruction reflected this requirement and was therefore not erroneous. (2) There was sufficient evidence that Fonte was driving the boat at the time of the accident, if the evidence is reviewed in the light most favorable to the verdict. (3) Counsels decision not to object to the states reference to Fontes use of an alias or his attendance at numerous rock concerts did not constitute ineffective assistance of counsel. (4) Because the pre-trial publicity could not be characterized as rabble rousing, or an attempt to influence public opinion against Fonte, it was not unduly prejudicial. Further, because the circuit court conducted proper voir dire, there was no necessity for a change of venue. (5) Section 949.09 requires the prosecution to prove a causal connection between the defendants intoxicated use of a motor vehicle and the death, so it does not unconstitutionally relieve the state of its burden, although the state is not required to prove a causal connection between the intoxication (conceptualized as an isolated incident) and the death.
State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315
April 27, 2005
Case No: 2003AP1781-CR
Issue: Exculpatory Denial Exception to the Obstruction Statute
Holding: Wis. Stat. § 946.41, which makes it illegal to resist or obstruct an officer, contains no exculpatory denial exception. Accordingly, State v. Espinoza is overruled.
Reed was charged with obstruction in connection with an OWI charge, for falsely telling a police officer that someone else was driving the vehicle. Reed moved to dismiss the obstructing charge, and the circuit court denied the motion. The court of appeals granted his interlocutory appeal, but denied his claim as being outside the exculpatory denial exception it had previously adopted in Espinoza.
Reed appealed to the supreme court, asking it to uphold the exculpatory denial exception and to find that his conduct fell within it. Reed made three arguments in favor of upholding the exception: (1) The exception properly recognizes that false answers to police questions do not thwart the police function. (2) Without the exception, suspects would have only an illusory opportunity to avoid incriminating themselves. (3) Eliminating the exception would lead to absurd results because overzealous prosecutors could use the obstructing statute as a means of piling on offenses.
The court explained its disagreement with Reed, and its overruling of Espinoza as follows: (1) The obstructing statute does not require the knowingly made false statements to thwart the police function; it requires only that the defendant knowingly gave false statements with the intent that they mislead the police officer. (2) Fifth Amendment protection does not mean that a suspect may lie to police; to avoid incriminating themselves, suspects may simply remain silent. (3) If the obstruction statute were to create problems of prosecutorial abuse, it would be the legislatures function to correct it, not the courts.
Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296
March 18, 2005
Case No: 03-2527
Issue: Punitive Damages
Holding: A defendants conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages.
In October, 1998, the defendant caused a collision that injured the plaintiff. The defendants alcohol concentration was tested to be .269 percent; he was charged with OWI and convicted. The plaintiff sued for negligence, seeking compensatory and punitive damages. The defendant stipulated to liability, but disputed damages. The case came before the supreme court on certification from the court of appeals.
The statute at issue is Wis. Stat. section 895.85(3) (2001-2002): The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. Borrowing from the definition of intentional in products liability law, the court concluded that 895.85(3) requires that in order for punitive damages to be assessed, the defendant had to act with a purpose to disregard the plaintiffs rights or be aware that his or her conduct is substantially certain to result in the plaintiffs rights being disregarded. A reading of the statute in which a defendant had to intentionally disregarded the rights of a particular plaintiff in order for punitive damages to be assessed would bring about an absurd result in which a defendant who intentionally disregards the rights of a great many unspecified plaintiffs would be afforded greater protection than one who intentionally disregards the rights of one particular individual. The court explained that drunk driving is a terrible scourge, and intentionally driving while alcohol-impaired is the type of outrageous conduct that punitive damages should punish and can deter. By deliberately drinking a large amount of alcohol and then driving while intoxicated, the defendant intentionally disregarded the rights of all motorists on the road, implicating the plaintiffs rights.