*1 by vacating refusing “(4) Orders made court chambers, appeal to set made at an aside orders where might been have taken case the order so made had made court first in- chambers stance. either been purpose appealing For from order party may require to be entered order clerk of record.” (3) (4) inapplicable (2), here, Subsections none of the orders from which the defendant has at- tempted appeal pre- to cross determines action judgment appeal may vents a from which an be taken. Therefore, they appealable are not orders and the cross appeal must be dismissed.
By affirmed; appeal the Court. —Order cross dismissed. Wisconsin, Plaintiff-Respondent,
State Defendant-Appellant. Sharon Albright, Supreme Court Argued September 12, 1979. May 6, 1980. No. 77-014-CR. Decided (Also reported 487.) in 291 N.W.2d *2 appellant argued by For the the cause was Garrett N. public defender, Kavanagh, assistant state with whom on Eisenberg, public the brief was Hotvard B. state de- *3 fender. respondent argued by
For the the cause was David J. attorney Becker, general, assistant with whom on the general. Follette, attorney Bronson brief was C. La DAY, appeal summarily J. This is an from an order dismissing Albright’s (hereinafter Sharon defend- ant) motion, brought pursuant 974.06, Stats., to sec. re- questing custody a new trial or release from and dis- charge. had She been convicted of count con- one tributing delinquency of a child1 and one count of conspiracy burglary.2 alleged to commit mo- She her tion that she was denied her her own guaranteed by behalf, as the Constitution the United dismissing and the State of In States Wisconsin. the mo- tion, opinion it was the trial court of the that “[t]he conclusively action files records of this show that the defendant is entitled no relief for the reason that 947.15(1) (a), Sec. Stats. 1975. 943.10(1) (a), 939.31 Secs. 1975. Stats. in this motion all the matters raised the defendant post in a were raised ... conviction motion heard June, 24th of were decided this Court on the nothing against but a . . This motion is defendant. adjudicated repetition previously matters pursuant 974.06 to sec. motion dismissed date.” The (3), Stats.3 by appointed trial, represented
At the defendant was for a new post counsel moved counsel. Her conviction grounds: a lack of on two trial. The motion was based the ineffective support the conviction and evidence to of counsel. assistance hearing trial, testified a new
At the allowed to have been that she should that she felt attorney asked her said that she on her own behalf. She regarding but that he told matter four times testify and thought was too unstable that he she bad.” her “look prosecution would make 1975, provides: 974.06(3) Sec. Stats. procedure. (3) the motion Unless ... Post-conviction “974.06. conclusively show the action records of and the files and prisoner relief, shall: to no the court is entitled upon copy the district “(a) to be served of the notice Cause pre- response time attorney within the a written who file shall by the court. scribed if, 971.06(6) [970.02(6)] pursuant “(b) Appoint s. response dis- of the files, upon the action and records of necessary. attorney appears that counsel trict prompt hearing-. “(c) Grant a *4 findings of fact and con- “(d) the issues and make Determine judgment was rendered finds that of law. If court clusions imposed was not au- jurisdiction, that the sentence or without attack, open or that collateral or is otherwise thorized law infringement or been such denial there has judgment vulnerable prisoner as render of the judgment aside vacate and attack, shall set the court collateral grant a new or discharge prisoner him or resentence shall appropriate. may appear .” the sentence trial or correct attorney his trial that he discussed with
Her testified put prior trial. stand to the client whether to her on the good . . to her didn’t feel was He “indicated [that he] strategy further take stand.” He stated for her to day or before called him two postponed could because trial ask whether the trial through “get it.” He told not did think she could she postponed that the trial could not be her then testify. asked wanted her to She he did not think he her again he told could at the trial if she wise to do so because think that it was that he did not might thought prior which he had a conviction she attorney district felt that the admissible and because he poorly.” could “make her look jury, trial, day prior to of the selection of the On in chambers judge a conference held the trial both and the defendant. presence sides of counsel going attorney if the defendant asked The district determining whether purpose to take the stand for prior of her admission to allow the make motion did not ex- that he trial counsel stated Her conviction. say not did The defendant pect take the stand. her to post time, at anything did state her but she at they got court hearing back into the that when conviction attorney again if could asked her she room she judge say anything did said she She attorney’s know understand did not she because “reasoning.” A HAVE DEFENDANT A CRIMINAL
I. DOES IN RIGHT TO TESTIFY CONSTITUTIONAL BEHALF? HIS OWN law criminal begin by noting that at common We competent under oath were defendants govern- By the federal trial. behalf own their
127
every
except Georgia,
qualified
ment and
had
state,
give
they
if
sworn evidence
criminal defendants
577,
570,
Ferguson Georgia,
596-598
v.
365 U.S.
wished.4
Comment,
(1961).
also,
Due
See
Process
Defense
Right
Counsel’s
Waiver
Unilateral
Defendant’s
Of
L.Q.
Hastings
517,
(1976).
Testify,
To
518-521
Const.
deemed
In
criminal defendant has been
Wisconsin,
competent
1869.5
as a witness since
England
century,
In
in
the sixteenth
criminal defendant
required
allowed
was
conduct
own
He was
defense.
took
call
of counsel. The trial
witnesses or to have the assistance
argument
and the
the form of an extended
between the
they questioned
and
other
counsel for the
in
each
Crown
century
presented
By
respective arguments.
the seventeenth
their
behalf,
in their
criminal defendants were
to call witnesses
allowed
incompe
however,
and was
the accused was an interested witness
testify. Disqualification
over
tent to
interest
carried
for
was
country by
founding
nine
until the
It was not
this
our
fathers.
century
disqualification
came
for interest
teenth
the rule of
gradually
The rules
under
eroded
statute.
attack
disqualification
the last
were
of criminal defendants
interest
;
(1961) R.
Ferguson
Georgia,
573-577
to fall.
Popper, History
365 U.S.
Right
Development
To
The Accused’s
Of
App.
454;
McKenzie,
Testify,
L.Q.
17 Md.
State
1962 Wash. U.
576-577,
tion of there is constitutional to provides I, The Constitution of in Wisconsin Art. sec. 7: prosecutions enjoy “In all criminal the accused shall right by .” the to be heard himself and . . counsel. construing section, In this court this has stated that “assuming” the defendant criminal has right testify, right testify truthfully “to that is Burke, own behalf.” State ex Simos v. 41 Wis.2d rel. 129, 137, (1968). 163 not N.W.2d 177 need decide We grants the a constitu Wisconsin Constitution right tional because we conclude that the guarantees right. States Constitution United Supreme explicitly Court has never The United States criminal has a con- determined whether stitutionally protected right testify in his own behalf. body Although expressly within the not stated part right Constitution, is a States United by protected process the due “Every criminal defendant Amendment.6 Fourteenth defense, to refuse to in his own privileged (1971). York, 222, 401 225 Harris v. New U.S. do so.” 886.13, Stats., repealed part this relevant See. Stats, January 1, 906.01, (effective replaced with case was sec. provides: Supreme Order, 157), 59 Wis.2d R. Court 1974 compe- competency. Every person is General rule of “906.01. except provided and 885.17 or ss. 885.16 tent to be witness provided in rules.” as otherwise these 6 clearly articulated courts have Federal and state Wright Estelle, testify. See, F.2d 572 source (5th Cir., 1978) (Godbold, dissenting) for an extensive 1071 J. also, ex rel. Wilcox United States of this issue. See discussion 1977) ; Johnson, (3d Cook, 489 Winters v. F.2d 555 F.2d Cir. 115 Bentvena, (2d 1974); Cir. (5th F.2d 916 319 Cir. U. S. 174 S., 1963); nom., 940 375 U.S. cert. denied sub Ormento v. U. (D. States, Supp. Compare, 173 (1963) ; 233 F. Poe v. United aff’d, (D.C. 1965). 1964) 352 Cir. 639 D.C. F.2d Further, Supreme . . has Court has stated recognized rights that, often the constitutional stature of though literally document, expressed es adversary process process. sential to due in a fair of law example, accepted, It is now that an has a accused . testify to . . . Faretta v. on his own behalf .” (fn. 15). California, (1975) In an 422 U.S. context, Supreme other Court has stated important decision both “an tactical right.” Brooks v. as well as a matter of constitutional ; Tennessee, (1972) see, Ferguson v.
Georgia,
have also
states
U.S. 570
Several
testify is a federal constitutional
held that
*7
;
right.
(Minn. 1979)
Rosillo,
v.
281
877
State
N.W.2d
(basis
Ingle
104,
(1976)
State,
v.
92
We right to part criminal defendant on the of the own behalf. THE DEFENDANT UNCONSTITUTION- II. WAS TESTIFY? DENIED HER RIGHT TO ALLY key presented is the defendant can issue whether recog- to We deemed to have waived be rights de- of a criminal that constitutional nize certain they deemed that are so fundamental fendant by rights personally must be waived personal 130 category rights
the
personal
defendant.
In this
plead guilty, Boykin
found the
v.
decision
whether
Alabama,
(1969) ;
We convinced that category rights, which can within this of “fundamental” only open de- be waived in court on record important sure, fendant. To be right. However, we believe distinguished from those considered defendant, personal to be as to so fundamental go very adjudicatory process. does not heart Thus, Boykin Alabama, 395 example, judge to plain for the trial it was held to be error showing accept guilty plea without an affirmative intelligent voluntary. Supreme it Court guilty “. more than plea . . is reasoned nothing ; conviction; re- . . is itself confession. give punishment.” judgment mains but to and determine *8 operates accepted, plea guilty, Id. at 242. The of when by fundamental of numerous waiver including privilege fair that ensure a trial right by jury; against self-incrimination; trial Alabama, Boykin right one’s to confront accusers. at 243. 395 U.S. right
Similarly, to waive the decisions by counsel, to be tried appeal, the or an assistance concept im- jury, of fair and so fundamental relinquishment making, must partial their decision Zerbst, meet the standard set forth in Johnson v. U.S. 458 That must in- is, the waiver be “an relinquishment tentional or abandonment of a known right privilege.” Zerbst, Johnson v. at 464. U.S. duty knowing is on the trial court to ascertain re- linquishment. repre- “The constitutional of an accused to be by invokes, itself, protection sented trial at poses of a court, liberty in which the accused —whose life or duty protecting stake —is without im- counsel. This weighty responsibility upon the serious and judge intelligent determining
trial whether there is an competent by and may waiver an accused waiver the accused. While counsel, proper waive the whether there is court, clearly by should be determined fitting appropriate and it would for that deter- appear upon Zerbst, mination to the record.” Johnson v. at 465. Supreme trial court to Court said failure of jurisdiction make this determination results in loss of proceed. in the case court to The trial court required that she bar was not to advise inquiry would had a initiate this To deci- of whether the necessitate a further determination and that the decision sion was the defendant’s own part misapprehension on her not made under some way. consequences either case, by criminal in a The defendant’s long solely a tactical deci contrast, was considered to exclusively of defense to the determination to be left sion recently, rule that it was the established counsel. Until testify keep from . free to defendants “counsel. . [is] suggestion Any the con ing fit. whenever counsel see Poe, trary 352 F.2d States is chimerical.” United (7th 1965) ; Lane, 411 F.2d 641, (D.C. Sims Cir. post con for courts 1969). perceive no need We Cir. hearings processes delve into the viction *9 132
attorney and
whether the defendant
his client determine
testify.7
waive his
should
reject
accept
free
or
counsel to
The defendant
is
California, supra.
Faretta v.
When
aid in his defense.
defense,
accepts
counsel to conduct the
certain constitutional
decision whether to assert or waive
attorney.
delegated to the
of the defendant
is
(1965).
Henry Mississippi,
This
451
379 U.S.
rejected
defendant has
the contention
Court has
7
“just” change.
interesting
perceptions
what
is
It
of
how
Today
argue
testify
is a “funda
that a defendant’s
some
right”
It
not
to a fair trial for a defendant.
was
mental
essential
always
century when the
so. In the latter half of the last
several
legislation
(with
Georgia)
passing
exception
were
states
testify (followed
England
making
competent
defendants
argu
1898)
change
many
opposed
their
based
those
they
of the defendant.
ments on what
felt
in the best interest
making
competent
arguments against
One of the
defendants
testify
jurors
if
could
was that
knew the defendant
defendant,
not,
jury
against
he’s
“if
did
such
would hold
why
get
say
juries
so.”
innocent
doesn’t he
on the stand and
When
negative
permitted
that a
not
know
argument
arise,
old
ran.
inference from silence does not
so
only empirical
to lend
The
found seems
evidence this writer has
credence to the old fears.
“
eighty-
percent
‘In
in the
99
... of all the criminal cases tried
judicial
defendants who
six
of the federal level
1956]
districts
[in
by juries.
fact
did not take the
were convicted
. . The
stand
does
the matter is that
not take the stand
a defendant who does
reality enjoy any longer
presumption
innocence.’”
not in
Williams,
Case,
A
29 N.Y.
Trial
Criminal
St. B.J.
Of
(1957) quoted Comment,
Due Process
Uni-
Counsel’s
Defense
Hastings
Right
Testify,
lateral
To
Waiver Of
Defendant’s
L.Q. 517,
Const.
have commented
Several writers
(Ibid.,
testifying.
detrimental effect to the defendant
p. 533).
interesting
fight
It
is also
to note that two of the leaders in
competent
to make
the Fifth
defendants
did
favor
Georgia,
Ferguson
right against
Amendment
self incrimination.
579.
*10
right
actively represented
to be
in the
by
by
courtroom
counsel and
himself. Moore
State,
(1978).
83 Wis.2d
because his
refused to
People Brown,
21, 24,
54 Ill.2d
There is trial, acquiesce in refused to time of the put not to her on the stand. her trial counsel’s decision *11 trial and on the silent, record the is the record at although merely post she motion shows that conviction disagreed attorney’s decision, reluctantly she with her adequate opportunity accepted had his advice. She also objection. The defendant her before the trial to raise judge and the trial with counsel was in the chambers testify would arose. question whether she as to when the attorney trial speak told not to when her chose She expect the stand. She judge not her to take that he did speak did not she because that she did said later reasoning. attorney’s apparent It is her understand relying upon date, her attor- at that late she even accepted ney’s that advice. advice courts, court, trial this that either believe do not We criminal de- position in to determine are advice, deprived of the accepted or was counsel’s fendant on the silent testify trial record is right when the to question. sponte judge, sua a trial recommend decline to
We testify. admoni- Such advise, of the a defendant may pro- interpretation and subject in abuse tion is frus- that could judicial participation substantial voke defendant thoughtfully decision considered trate strategy. designing trial who are counsel purpose requiring in fundamental that the accused every stage lawyer prose- be afforded critical cution is to ensure that the defendant’s constitutional jealously guarded. way in mean to no We testify. If de- hinder the defendant’s it is not for the defendant termines that advisable decision, testify acquiesces in that and the defendant right will waived. If on the other then the be deemed hand defendant at time raises court, objection in before the trial he must the record given option when will determine We permit stops a defendant refusal “advice” proceedings testify begins post based on a conviction silent record.
By the affirmed. Court. —Order I (dissenting). As ABRAHAMSON, J. SHIRLEY S. ority maj opinion, criminal defend- it holds: The read the process due ant has a federal constitutional whether to behalf. The decision own personally after con- made should be Although with sultation counsel. it “can
“important,” not so “fundamental” *12 by the de- open the record only in court on waived to call defendant failure to counsel’s Defense fendant.” right to testify the defendant’s a waiver of constitutes the trial expressly advises testify unless the during the pretrial proceedings on the record court defendant’s If counsel waives to of her wish trial asserts she after and defendant to to waiver, is recourse defendant’s to not consent did ground in- of on the conviction set aside move to preju- counsel, if the waiver of assistance effective the defendant. dicial to majority category has effect created a third of rights, namely, “important constitutional constitution- right”
al which lies somewhere between a “fundamental” right, only may personally waive, which and a less fundamental constitutional labeled a exclusively decision”, “trial or tactical is left which any the determination of defense counsel without neces- sity by for consultation with or concurrence the defend- majority “right testify” puts ant. The this into category. new third majority’s category I think the creation of a third of rights” “important “constitutional labeled rights” just present adds to the confusion caused categories rights: of existence two fundamental and wisely points tactical. As the out, state’s brief courts determining particular have right difficult time whether appears is fundamental or tactical because there be no authoritative standard which to into determine category particular right placed. which á is Now majority category rights the establishing adds a without third “rights” any guidelines to determine category without, fit into this as I shall discuss rights making category significant- further, in this third category. ly different from those the tactical why majority I can understand reluctant to relegate category of a tactical completely trial decision within control. “The counsel’s higher quality decision is matter dignity happenings than trial such whether object Wright Estelle, to evidence.” 572 F.2d (5th 1978) (Godbold, dissenting). A funda- J. Cir. requisite process opportunity due to be mental heard. Wisconsin v.
Constantineau, oppor- primary A element of the defendant’s testimony, tunity in- be heard is the offer story. cluding own Oliver, In re the defendant’s *13 ; (1948) 257, Mississippi, Chambers 410 U.S. 284, ; (1973) Dawson, Due Process v. Coun Defense sel’s Right Testify, Unilateral Waiver of Defendant’s L.Q. Hastings 517, Const. 525-529 In at least respect majority correctly one “important the treats the right” right— like a fundamental the decision whether to exercise or waive the defendant, be made not counsel. Burger, concurring Wainwright
Mr. Chief Justice Sykes, (1977), distinguished n. 1 433 U.S. those decisions rest with defense and which those “[o]nly with rest the defendant. such He commented plead guilty, jury basic whether to waive decisions ultimately or in one’s own behalf for the are accused to make.” For this statement the Chief Justice Project on Standards cited the American Bar Association Justice, Relating Prosecu for Standards Criminal tion Function and the Function. Sec. 5.2 Defense Relating Function, pp. Defense 237-238 Standards (App. 1971), provides as Draft follows: “5.2 Control direction of case. “(a) relating the conduct of decisions Certain ultimately ulti- are for and others are case the accused mately be sel are: jury trial; The decisions which defense counsel. with coun- full consultation made the accused after (ii) plea to waive (i) whether what to enterj (iii) in his own behalf. whether call, “(b) what witnesses on The decisions cross-examination, jurors to what how to conduct and accept all other made, and strike, trial motions should what are the exclusive strategic and tactical decisions client. lawyer with his consultation after province significant tac- matters of disagreement “(c) If a client, lawyer and his strategy arises between tics or circumstances, lawyer a record make should reached. reasons, conclusion advice record confidentiality protects the manner which made in should lawyer-client relation.”
138 commentary to sec. 5.2 makes clear the intent of
the draftsmen can be waived only by personally: the defendant
“a.
decision-making power
Allocation of
history
“The
process
system
of the criminal
in our
and the
vested in an accused under the Constitu-
tion mark out certain
belonging
basic decisions as
to the
of the
client; other
province
decisions fall within the
lawyer.
making
“. . . In
each of these decisions—whether
plead guilty,
trial,
jury
whether to waive
and whether
accused should have the full and careful
—the
Although
lawyer.
advice of his
should
de-
mand that his own view of the desirable course
fol-
lowed,
engage
persuasion
urge
he is free to
in fair
and to
professional opinion
his considered
on his client. Ulti-
mately, however, because of the fundamental
nature
gov-
decisions,
these three
erning
crucial in such basic matters
fate,
his own
the decisions on these matters be-
long to the accused.” Id. at 238-239.
I read this
Harper,
court’s decision
State v.
57
543, 557,
8,
(1973),
adopting
Wis.2d
n.
N.W.2d
as
5.2
Project
standard
of the American Bar Association
Justice,
Standards for
Relating
Criminal
Standards
(Approved
1971).
Function
Draft
This
Defense
away
court
should
now move
from Standard 5.2.1
Hughes
State,
(Alaska
People
1973);
See
But out does offer the defendant a saying: trap,” of the “waiver “If counsel waives right preju- that defendant’s decision objection dicial to the of the defendant defendant3 to obtain the effective assistance should be on failure language leaves unclear whether counsel.” This general relating majority merely applying rule con- tactical trial decisions are ineffective counsel where majority saying counsel’s cerned or whether the that that had constitu- failure to advise the defendant she right personally or not to tional decide this advice that not abide counsel’s she need repre- decision, itself, constitutes ineffective and of right sentation, of her unless the defendant knew testify against under the circum- advice or counsel’s testify. known her stances should have newly bar, retained verdict, after the In the case at ground of trial on the moved for a new defense counsel specifying did counsel, that trial counsel ineffective testify. for a this motion In allow the applies apparently to situations rule Thus the error harmless improperly prevents from a defendant in which defense counsel exercising of this case indicate The facts very important testimony been would have the defendant’s guilt. case jury’s instant it is clear Thus determination testifying preventing error. would not harmless from testify is Supreme that “the held Minnesota Court personal its infraction should such a basic Rosillo, N.W.2d State error.” treated harmless *17 Estelle, Wright 1979). F.2d (Minn. also See J., dissenting). (5th (Godbold, 1978) Cir.
new trial the defendant claimed that had counsel made a strategic having testify. error in not her did not Counsel unknowingly raise the issue of defendants’ and uninten- tionally waiving testify. her constitutional hearing trial issue, court held a on the and the defendant and trial hearing. counsel testified at this The trial court attorney’s concluded that decision not to have strategy sound trial and that charge proved. ineffective counsel was not trial court said: .“. . The chief thrust of defendant’s motion [for incompetence new is to trial] of counsel because the client apparent did not It is to the Court that the client recently had adultery been convicted of the in crime of county. another Court in this could have This conviction presented been jury testimony impeach had weigh she this fact. testimony necessary testified. It was trial for counsel to fact, testimony In shows he this. The did young persons further shows that these were hanging ber place other, around her for reason one num- them, get adultery jury, and to this before any trial counsel have would shiver in his boots to brought jury young testifying. before the with men these Supreme As the Wis.2d fessional undertaken Court said in the case Simmons [57 285], believe, however, pro- we that an attack on competence attorney of another should [not] lightly, upon predicated should
post-conviction. might preference he Counsel’s what situation; again page have done the same 299. There has been failure to the trial conduct show incompetence was the result of and not sound strategy. Certainly, any any I don’t believe competence placed would have this woman whatsoever on the under case view stand the circumstances this testimony very of the which he well was to be knew case, brought out on . . . this the trial. Counsel tried very case, with the Court familiar believes presented properly faced with case was when he was . he had. . facts [R. 128-124].” *18 resolving In trial the motion for a new the trial court was strategy properly question concerned with trial raised; had which been the trial court was not concerned testify, with the an issue constitutional ap- rules had not been raised. Under the established ground plicable challenging of inef- convictions on the counsel tactical trial decisions con- fective where are. challenge ground cerned, that is decided on the particular failed advise the client of a con- ground on that counsel did not stitutional or decisions, trial heed the wishes on such tactical client’s ground the circum- rather on the that under all but representation stances, “equal was not to that which ordinarily in crim- prudent lawyer, versed skilled and law, give privately retained inal would to clients who had Harper, 557, 205 State v. 57 Wis.2d services.” N.W.2d under sec. post-conviction motion
The defendant’s previous in her that not raised were 974.06 raises issues assistance trial on ineffective for a new based motion motion in her 974.06 asserts defendant counsel. attorney wanted trial that she papers that told her she testify, attorney that she testify, not to her told her a constitutional was not informed that she had testify was the final decision if she had known hers; have testified and that she would de- motion the right. In her 974.06 that she had that voluntarily and contending did that she fendant coun- trial and that knowingly advice to counsel’s accede testifying. her from prevented in fact sel mistakenly that “the files concluded court conclu- 974.06 motion] action of this [the and records for to no relief entitled sively that the defendant show raised all the matters the reason prior [by motion . . . raised were this motion against decided and were a new trial] By affirming summarily the trial court’s order . . dismissing the 974.06 motion based a majority applying inis effect applicable challenging same rules convictions on the grounds of ineffective counsel where tactical trial deci- *19 sions are concerned waiver defendant’s of the majority treating Thus “important which it characterizes as an constitutional right,” way in the same as it treat a would tactical trial decision. suggested previously might
I majority opinion that the interpreted saying preventing that counsel’s exercising “important defendant from her right” is conduct in and of itself con- stitutes ineffective I assistance of counsel. conclude that apparently majority interpreta- did not intend this tion, majority because the the trial affirms court’s sum- mary dismissal of defendant’s 974.06 motion instead of granting request defendant’s this court remand testimony cause the trial court to take on the factual issue raised. alleges which,
I believe defendant’s motion if facts true, would entitle her relief and that therefore the hearing. evidentiary trial court should hold an majority opinion, giving op- without an portunity issue, be heard that “al- concludes disagreed though attorney’s decision, with she she reluctantly accepted his advice.” I would remand evidentiary hearing to determine right. intentionally relinquished or abandoned a known I therefore dissent.