State v. Flynn

Plaintiff-Respondent, Wisconsin, State Defendant-Appellant.† Robert Flynn, Appeals Court of 93-2532-CR, Nos. 94-0425-CR. Submitted on October briefs 5, 1994. 6, 1994. December Decided

(Also 343.) reported in 527 N.W.2d to review denied. †Petition

On behalf of the the cause defendant-appellant, was submitted on the briefs oí Robert L. se. Flynn, pro

On behalf of the the cause plaintiff-respondent, on the E. Doyle, attorney was submitted briefs James Burke, E. assistant general, Mary attorney general. Sullivan, Schudson,

Before Fine and JJ. pro se L. from a FINE, Flynn J. Robert appeals him of on a jury convicting entered verdict judgment see 943.32(l)(a), STATS., robbery, counts of armed two § his for court's orders motion denying and from trial We affirm. relief.1 post-conviction of the armed of two robbery convicted hours of February stations gas early morning His of trial-court error focus on allegations 1992. law- court's determination that he was arrested he during and on errors that contended occurred fully, num- They separately the trial. are asserted in eleven he has main We discuss the ones arguments. bered he them to us.2 presented briefed in the order that has Police into home. entry 1.

An at West Windlake registered automobile in one of the implicated address was robberies. Street residence, they on where converged Police officers involved, are Although judgment there one ofconviction attempted had separate appellate files because two post-conviction relief before appeal the denial of his motion for not applicable appeal of the are entry orders. The merits procedural complexity. by this affected not, inadequately, not issues are or We will decide 627, 646-647, Pettit, 2d briefed. See State v. Wis. (Ct. 1992) 633, 642 may court decline App. (appellate briefed; arguments that inadequately issues that are address considered); W. legal authority not be supported by not will are 620, 634, 460 State, Co. 157 Wis. 2d N.W.2d Pugh Coal H. (Ct. 1990) (an may consider App. appellate court decline to supported undeveloped in that is that is the briefs or not issue by legal authority); Assocs. v. Advertis citation to Reiman R/A (Ct. App. 306 n.1, ing, 2d 294 n.1 102 Wis. (issue 1981) argued be is deemed to raised but not briefed or abandoned); 809.19(l)(e), see also § STATS. Flynn. They

ultimately have either a did not found arrest warrant. warrant or an search pre- responding at a officers testified One of the hearing of the house he knocked on the door eventually Flynn's wife Street, that on West Windlake entry their into consented to answered, and that she upstairs portion of the two- in the home, her family which was they According officer, told residence. to they looking Flynn male for a white were Mrs. armed-robbery suspect. The officer testified that Mrs. Flynn had the car, owned the that she said that she permission only keys, drive the one had her that no in the house. there were no white males car, and that only living her in the home with She claimed to be According tes- to the officer's and her mother. children go Flynn gave permission timony, them Mrs. also Flynn they there, she attic, and when found into the commenting not them that she did know told him — " anyone up be there.'" that there 'shouldn't removing Flynn attic, from the As the officers were police nothing. "[D]on't tell the he called to his wife: according my attorney." point, to the testi- At that Call Flynn mony police officers, Mrs. became "belligerent," аnd told them combative" and "somewhat disorderly con- The officers arrested her for leave. They he identified outside, duct. took where was He then as the robber one of the victims. arrested. hearing. suppression

Mrs. testified at the entry officers' into She denied that she consented to the court, however, her home and into the attic. The trial testimony. the officers' believed applicable review, we Under standard findings uphold of historical facts the trial court's State erroneous. See clearly are findings unless those Schwegler, 292, 487, 494, v. N.W.2d 2d 490 170 Wis. de novo 1992). (Ct. issue legal We analyze App. 294 violation. See was a constitutional whether there of ibid. Our we apply is the same whether analysis United States Constitution Amendment to the Fourth Wisconsin Constitution. 1, 11 of the or article section Fry, v. N.W.2d 153, 171-176, 388 See State Wis. 2d 131 denied, cert. U.S. 989. (1986), 479 565, 573-575 wеll-reasoned recognized As the trial court its Amendment, a warrant- under the Fourth oral opinion, unreasonable. presumptively and search is entry less Bustamonte, 412 U.S. v. 218, 219 See Schneckloth Boggess, v. 443, 448-449, 340 State Wis. 2d (1973); 115 (1983). well settled 516, "It is equally N.W.2d 520 to the exceptions established specifically one of the of both a warrant requirements Amendment] [Fourth conducted pursu a search that and cause is probable Schneckloth, 412 U.S. The trial 219. ant to consent." discov husband was that before her court determined attic, fully cooperative in the Mrs. ered These what did. they officers to do gave permission The trial erroneous. clearly are not historical facts actions constituted then found that Mrs. court finding This is a entry for the and search. consent the" 'application fact because it requires constitutional as facts [historical] constitutional principles Mazur, v. 309, found.'" See State 293, 280 90 Wis. 2d (citation omitted). (1979) we Although 194, 201 N.W.2d of consti findings a trial court's independently review Woods, State Wis. 2d 345 fact, tutional granted corpus on (1984), habeas grounds, (E.D. Clusen, other Woods F. Supp. (7th Clusen, 794 F.2d 293 Woods v. aff'd, 1985), Wis. of findings trial court's the 1986), agree we that Cir. to the conclusion ineluctably fact lead historical her come into consent the officers Flynn gave Mrs. the attic. and to search home Flynn's arrest. 2. West Wind- to the responding

One of the officers descrip- matched the that Flynn testified lake address the victims. one of given by robber tion of the armed for an on-the- from the house took Flynn The officers and permissible This was prudent identification. scene Wilkens, Wis. 618, See State 2d 159 practice. police 1990) (Ct. may 206, (police 210 626, App. N.W.2d 465 State time); of period for a reаsonable a suspect detain 506, Isham, Wis. 723-724, 718, 2d (1975) (one-on-one soon after identification 509-510 " " fair- ’promote[s] 'entirely is reasonable'" crime " 'memory the because ness, assuring reliability'" by omitted). (citations fresh'") One of still [is] the witness his robber by as the armed Flynn identified the victims the victim testimony, an officer's According voice. identification, but the sure as to "stated that she wasn't voice, that it in his was, because of the accent his voice This, station." gas like the just guy sounded as of the car Flynns' the identification with together the officers robber, probable gave the one driven Mitchell, State v. Wis. 2d to arrest See Flynn. cause (1992) ("Probable cause 672, 681, 482 N.W.2d a would lead to the of evidence which quantum refers the defendant officer to believe police reasonable Cheers, 102 Wis. State v. 2d crime."); committed (1981) 385-389, (discussing 684-686 306 N.W.2d in The arrest wаs lawful. depth). criteria Flynn 3. Cross examination Mrs. at trial. Flynn's gun arrest, After officers found a They house. did not have a search warrant. The trial granted Flynn's suppress gun. court Flynn motion to required

claims that reversal because Mrs. impeached by suppressed the "use" of this during disagree. evidence her cross-examination. We during Mrs. testified on direct examination the course of surrebuttal case that she did not sign implicating a statement her husband because the During statement "was all lies." cross-examination, the prosecutor Flynn following question: asked Mrs. the you testifying "Do remember from that same witness July you 27th, chair back on 1992, that were dishonest police something." Flynn replied: with the about Mrs. thing. thing."3 "One ... I was not honest one about Although underlying Flynn's the reference was to Mrs. gun gun initial denial that there in house, was a the the Accordingly, contrаry itself was never mentioned. Flynn's argument, Flynn impermissibly Mrs. was not impeached by suppressed the use of evidence in viola- tion of the rule Illinois, announced in James 493 U.S. (1990) (suppressed may 307, evidence not be used testimony to contradict the of defense witnesses other defendant). than that of the Alleged suppressed gun during

4. mention of sidebar conference.

3The testimony during earlier was suppression hearing. a jury. This was not disclosed to the during appeal

Flynn's an claims that this brief on during trial, "the the conference sidebar unrecorded prosecutor [about suppressed the evidence this elicited support jury. hearing gun] the In distance" of within complaint prosecutor's Flynn to the cites the claim, this speaking Flynn's trial counsel was court that trial loudly saying during conferences, and was the sidebar Although prosecution. things prejudice the would proseсutor trial court that told the the during complained confer- one of these sidebar counsel looking apart police for "tore that house that the ences by Flynn's gun," was not elic- counsel statement ‍​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‍a this import by prosecutor. of that Further, the clear ited the gun by jury, that no was the was statement, if heard during the trial. introduced none was found because transcript purports points to be a to what also telephone had with one of Mrs. a conversation juror jurors the trial, the and attested the after juror statement, asserts In that an affidavit. gun during jury course of their discussed transcript/affidavit not, how- does The deliberations. brought gun improperly ever, indicate that during jury's the trial: the course of attention Well, I did not sit Flynn]: Tump, Mr. [Mrs. sequestered, I but the through the trial because was evidence, so my suppressed in home was gun found got to the as how that information I am curious to jurors. Well, remember you right are don't Tump:

Mr. —I about at the gun being argued about a anything trial, an issue and it did but —somehow it was to consider and we did. a matter for us become understand, I need to know I but Flynn]: [Mrs. an issue. how that became

44 really I can't remember Tump: sorry, I'm but Mr. definitely it it was brought up, but person which it. and we did know about brought up omitted.) (Uppercasing recently

As we have stated: determining In whether to overturn a verdict misconduct, grant juror and a new trial because the the court must first determine whether the valid- jurors competent testify regarding are to Pederson, ity of the verdict. Castenada 185 Wis. (1994). 200, 209, 249-50 In 2d 518 N.W.2d finality and maintain the promote order to verdict decision-making body, a integrity jury of the as made jurors testify regarding statements cannot testify regarding during deliberations and cаnnot process place reaching the deliberative that took Shillcutt, 906.06(2), Stats.; a verdict. See State § 788, 793-94, 119 Wis. 2d 906.06(2)

(1984). to provides exception Section an rule, testify question "on the allowing jurors this prejudicial [of] extraneous information whether The improperly brought jury's to the attention." party seeking impeach the verdict has the burden proving juror's testimony that a is admissible (i) establishing: juror's testimony "that the con- (rather cerns extraneous information than the (2) processes jurors)," deliberative of the "that brought extraneous information was improperly (3) attention," jury's and "that the extraneous State v. potentially prejudicial." information was Poh, 510, 520, Wis. 2d 343 N.W.2d (1984). burden, party juror's

If a satisfies this testi- admissible; however, mony is deemed to overturn verdict, clear, party prove by must also sat- isfactory convincing evidence thаt there is informa the extraneous possibility that reasonable average jury. hypothetical prejudice a would tion Messelt, 282-83, State 2d 185 Wis. 232, 243(1994). N.W.2d N.W.2d 304-305, 525 2d Eison, Wis.

State 1994). nature (Ct. ambiguous In of the light 91, 93 App. his not carried recollection, has juror's of the "clear, satisfactory prong by the second under burden robberies; armed These were evidence." convincing gun during the to discuss jury natural for it be would in the record no evidence There is its deliberations. suppressed that was gun the discussed jury the trial court.4 trial counsel.

5. Effectiveness Amendment has a Sixth criminal defendant Every of counsel. Strickland assistance to the effective right (1984). In order 668, 686 466 U.S v. Washington, a defen- right, fundamental of this violation establish (1) or her lawyer's that his two things: dant must prove (2) if that "the defi- deficient, and, so, was performance Id., 466 the defense." performance prеjudiced cient not deficient A lawyer's performance U.S. 687. that counsel so serious he or she "made errors unless guaranteed as the 'counsel' functioning not Further, a Ibid. the Sixth Amendment." defendant by appeal this his affidavit attached to his brief on Flynn has conference that prosecutor said at a sidebar effect that the Flynn's home search of during the course of their police omitted.) As suppressed." (Uppercasing gun that was "found as it comes to us court, limited to the record appellate an we are court; See may Flynn's affidavit. we not consider from the trial (Ct. 405, 411 Kuhn, 428, 439, 178 Wis. 2d State v. 1993). hearing. testify post-conviction App. did not at the on the based entitled to a reversal is not defendant the defen- counsel unless of trial performance deficient were so "counsel's errors both that can establish dant trial, a trial of a fair the defendant deprive as to serious ibid., and that "there is rehable," is result whose that, unprofes- but for counsel's probability reasonable would have of the errors, proceeding the result sional id., The crux U.S. at 694. different," 466 been the renders deficient performance "whether counsel's funda- or the proceeding of the trial unreliable result Fretwell, 113 S. Ct. 838, Lockhart v. unfair." mentally (1993). we 180, Although give 122 L.Ed.2d 191 844, fact, of historical court's findings to the trial deference court show that found the trial by the facts whether so, if whether and, deficient lawyer's performance are legal was prejudicial, performance the deficient trial court's of the independent that we decide issues Pitsch, 124 628, 2dWis. State v. See determination. (1985). N.W.2d assis- denied effective claims that he was Flynn these We discuss twо respects. tance of counsel in turn. claims adequately counsel to by trial Alleged

A. failure case. investigate dis failed to that his trial counsel claims accused of he was one of the service stations

cover that night, cameras on that had surveillance robbing the robbery to customers when station was closed between was an feud alleged and that there took place, worked at of the woman who family Mrs. evidentiary The trial court held an the service station. Machner, 2d State 92 Wis. as is hearing, required 1979). (Ct. 797, 804, 905, 908 App. N.W.2d hearing: Machner testified at the Two witnesses Flynn. Flynn did not Mrs. counsel and analyze testify. coun- Strickland, need not we Under performance can defendant unless sel's prejudiced any alleged deficiencies demonstrate right Strickland, 466 U.S at fair trial. her to a or his 121, 128, 449 Johnson, 153 Wis. 2d 687; State (1990). "[a] Moreover, defendant who part investigate alleges of his counsel on the a failure to investigation specificity allege what must with altered the and how it would have would have revealed Green, F.2d v. 882 of the trial." United States outcome 1989). (5th State, also v. 43 999, Cir. See Jandrt 1003 (1969). 602, 497, 505-506, N.W.2d 607 Wis. 2d Flynn 168 satisfy burden; he has not failed to this has investigation should he claims demonstrated how of his have affected the result have been done would trial. hearing Flynn Machner

Mrs. testified at the the surveillance cameras she did not know whether working during robbery. Further, has were of whether the station was not shown how the issue robbery open mate- for at the time of the business alleged feud to defense, rial to his and has not tied the beyond speculation. Indeed, the facts of his case Flynn's allegations mere investigation pre- are

of deficient strung tоgether speculation "might haves" mised on — Accordingly, in a nowhere. as to this series leads aspect claim that his trial counsel was ineffective his pro- he has failed to establish that "the result of the ceeding Strickland, would have been different." See

48 Pitsch, 124 Wis. 2d at 642, 369 N.W.2d 694; at 466 U.S. at 719.5 ‍​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‍own on his testify desire to

B. behalf. in one's own behalf on testify to right "[T]he constitu fundamental is a charge a criminal defense to Arkansas, n.10 v. U.S. 53 Rock 483 right." tional defendant, and (1987). personal This right Barnes, v. Jones the defendant. only by waived may be (1983) (”[T]he the ulti accused has 745, 751 463 U.S. decisions fundamental make certain authority mate or his testify to... case, as to whether regarding Wilson, 179 Wis. behalf.") 2d (dictum); State own her cert. (Ct. 1993), 44, 48 670-672, App. N.W.2d 508 185 Simpson, see also State denied, 100; S. Ct. (Ct. 662, 663-664 778-779, N.W.2d 2d Wis. 1994). knowing be must The defendant's waiver App. 671-672, at Wilson, Wis. 2d voluntary. at Wis. 2d Simpson, see also 48; N.W.2d at 664. 778-779, 519 that he He claims at the trial. testify did not threatened his trial counsel because testify

did not taking on if he insisted from the case withdraw discretion exercise our argues we should Flynn also that because, 752.35, Stats., in his under ary power of reversal § investigation, deficient view, trial counsel's as a result of his indi previously As we have controversy" was not tried. "real court to vest this however, not intended cated, 752.35 "was § defendant to enable a discretionary reversal to power of with may have not been that alternative defense" present an representation by at the first trial whose trial counsel advanced State v. that failure. because of alleged to be ineffective is (Ct. 1992), App. Hubanks, 96, 106 1, 29, 496 N.W.2d 173 Wis. 2d denied, 114 S. Ct. 99. cert. the Machner Flynn's hearing, During

witness stand. threat, affirming that making counsel admitted trial him of his asked the court to relieve that he would have in Flynn persisted if Flynn to responsibility represent however, in lawyer, response The testify. his desire that the decision recognized to questioning by Flynn, that make, Flynn for and contended Flynn was one his eventually took advice: you not ultimately agreed with me that would

[Y]ou stand, advice; my would and you take the follow agreed in on that with your my wife was corner and it, long you strongly felt that about me that as as my decision. I you by should listen to me and abide interests. trying your to do what was in best on, in his part, trial counsel based his advice Flynn's that could be as a witness with impeached view see RULE 906.09, STATS., convictions, and prior seven home that had been sup- found gun could also be used as if pressed impeachment James, see testified, 493 U.S. at 312 obtained (illegally of a evidence be used to may impeach credibility The court considered defendant's trial both testimony). Strickland test, and found that Flynn's aspects ineffeсtive, not there was no counsel was prejudice. two-part Strickland

The test "the appropriate vehicle" to assess a defendant's contention that his or her "right was violated defense counsel." testify Teague, United States (11th 1525, 1534 Cir. 953 F.2d (en banc), denied, cert. see also 1992) 127; 113 S. Ct. People Naranjo, (Colo. 1992); P.2d Rodriguez, Commissioner Correction v. 610 A.2d Strickland, (Conn. 1992). Under we need not ana counsel's if lyze performance any deficiencies alleged

50 Strickland, U.S at 466 the defendant. not prejudice did 128, at 848. Johnson, 153 Wis. 2d at 449 N.W.2d 687; to whether make as any findings did not The trial court his relinquished and voluntarily Flynn knowingly lawyer.6 with his ultimately agreeing testify by right Fleischman, Wurtz fact, not decide issues mayWe 155, n.3 n.3, 159 100, 2d 107 293 Wis. 97 trial court to remand to the (1980), we would have turned on a resolu- if this case finding for further fact however, necessary, A is not issue. remand tion of that not Flynn we аre convinced because trial counsel if we assume even prejudiced, did prevent from testifying.7 testify at the Machner hearing. noted, As did not the Dissent's exe Contrary premise that underlies to the under Strickland's second prong gesis, analysis prejudice an inquiry. Lockhart is not harmless-beyond-a-reasonable-doubt 180, Fretwell, 838, n.2, 189 n.2 122 L.Ed.2d 113 S. Ct. (1993). infra, the "harmless error" cases can Although, as noted examination, concepts fungi not the two are light shine on our analyze Flynn's Simply put, of this case. we ble in the context whether he claim to determine ineffective-assistance-of-counsel later in prejudice. We discuss "harmless error" has established apply appropriate it is opinion only to determine whether this component of Strickland in cases where a defen "prejudice" from prevented the defendant dant claims that trial counsel own The sets fire to a straw man of its testifying at trial. Dissent there when it frames the issue as one of whether contrivance error," "prejudice" appended. even with the word was "harmless beyond a reasonable prove State must "harmless error" The Rewolinski, 1, 27-28, State v. 464 N.W.2d 159 Wis. 2d doubt. denied, Dyess, State v. 909; cert. (1990), 500 U.S. 411-412 (1985). The 544 n.11, 232 n.11 2d 370 N.W.2d Wis. Dyess, defendant, on the other hand, "prejudice," must show n.11, at 544 370 N.W.2d at 232 n.11. 124 Wis. 2d Flynn trial, is no reason had a fair and there has on retrial a different a likelihood of outcome able eyewit testify. First, was he there substantial should by Flynns' Flynn car the of both and ness identification Flynn's trial Second, as the of robberies. victims the recognized, suppressed gun most would the counsel topic Flynn's likely prime of cross-exami have been a prime topic testified, of he and would be a nation had testify any hе at retrial. should that cross-examination Flynn impeached by testifying at Further, a would be prior are of These least some his seven convictions. determining appropriate whether considerations testify prejudiced his failure to at Rodriguez, law 631 A.2d at 636-637. trial. See yer good gave to a advice; him is not entitled hope he of time second roll the dice with the that this ("The lucky. get Strickland, at will U.S. See proceed assump prejudice on the assessment should reasonably, tion conscientiously, decisionmaker is impartially applying the stan decision."); govern Fretwell, see also dards ("The an 843, 122 S. at 189 Ct. at L.Ed.2d touchstone claim is the of the adver ineffective assistance fairness sary judging prejudice proceeding, and 'in and the "[a] no outcome, of a defendant has likelihood different decisionmaker."'") luck of entitlement (citations omitted). a lawless mandating impose per The Dissent would se rule prevents a reversal whenever trial counsel defendant testifying, irrespective from of the likelihood of a differ- only any one ent outcome on retrial. We have found per where such a se rule has been instance imposed analysis. underlying little United —with (D. Supp. 1145, Butts, F. Me. States 1148-1149 1986).8 As far as aware, we are no appellate panel, federal, Rather, either state or has such a imposed rule. Strickland's cases appellate apply test. two-step (11th Butler, Nichols 1550, 1552-1554 953 F.2d Cir. 1992) (en (defense banc) threatened attorney with case, Naranjo, 840 P.2d found); draw —close prejudice Rodriguez, see 323-325, 326; n.9; 610 A.2d at 636 (not also Teague, 953 F.2d at reaching 1534-1535 se rule per prejudice). We believe that a inaрpropri ate for the reasons we now discuss.

Although, noted, as we have an of analysis Strickland's under prejudice second is not a prong Fret harmless-beyond-a-reasonable-doubt inquiry, well, n.2, 113 S. Ct. at 122 n.2, 843 L.Ed.2d at 189 the two similar.9 See State v. are inquiries conceptually (Ct. Myren, 430, 441, 818, 133 Wis. 2d 395 N.W.2d 824 " 1986) (The App. 'reasonable test" under probability' the harmless-error v. by State established analysis Dyess, 525, 543, 124 Wis. 2d 222, N.W.2d 370 231-232 (1985), "is substantively the same as the 'reasonable test probability' declared the Court in Supreme (1984). Strickland v. Washington, 668, 466 U.S. 694 232."). Dyess, 124 Wis. 2d at 544, 370 Both 8Interestingly, dissenting opinion in Butts relied on a 1978) (en Estelle, Wright banc), v. cert. (5th 572 F.2d 1071 Cir. denied, 1004, 439 U.S. which held the refusal of a that defense attorney testify beyond to let the defendant was harmless a minority reasonable doubt. "Like opinions," most the dissent in Wright it is not." See State v. is, "is not what the law but what O'Connell, (Ct. 598, 614-615, 23, 179 Wis. 2d 508 N.W.2d 30 1993). App. 9 finding Strickland's second "prejudice" A of under prong precludes logically finding beyond a the errоr was harmless People Naranjo, v. (Colo. a reasonable doubt. 840 P.2d 326 1992). system's

require balancing the need of, side, on one a system's side, and, the results, on other for reliable Chapman litigation. v. See need for an end nia, Califor (1967) (harmless error); U.S. (prejudice); Morris Strickland, 466 U.S. at 691-694 cf. (1983) (trials "sporting Slappy, are not 1, 15 v. 461 U.S. " 'inquiry of the is, Have rules where the contests" omitted). (citation game strictly?'") carried out been Accordingly, "harm turn to the cases that discuss we violations ‍​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‍less error" in the context constitutional only of whether to assist our determination applied prejudice prong be test should the Strickland prevented defen in counsel has cases where trial testifying. dant from generally subject to a

Constitutional violations are analysis. Fulminante, harmless-error Arizona (1991) (Rehnquist, C.J., for the U.S. 306-307 Court) (citing examples).10 Thus, will be a conviction Chapman Since this Court's landmark decision Califor nia, (1967), adopted general 386 U.S. 18 in which we rule automatically require a not reversal of constitutional error does conviction, applied analysis a the Court has harmless-error recognized range most wide of errors has constitutional and See, e.g., Mississippi, be v. 494 U.S. errors can harmless. Clemons (1990) 738, jury (unconstitutionally 762-754 overbroad instruc case); sentencing stage capital of a v. tions at the Satterwhite (admission (1988) Texas, 249 at 486 U.S. of evidence the sentenc ing stage capital a in the Sixth Amendment of case violation of (1989) Clause); California, 263, U.S. Counsel Carella v. 491 266 (jury containing presump an instruction erroneous conclusive (1987) tion); Illinois, 497, (jury Pope v. 481 U.S. 501-504 offense); Clark, misstating instruction an element of the Rose v. (1986) containing (jury 478 U.S. 570 instruction an erroneous 683, Kеntucky, presumption); 476 691 rebuttable Crane v. U.S. (1986) (erroneous testimony regarding of exclusion defendant's Arsdall, confession); of his Delaware v. circumstances Van (1986) (restriction right

475 on cross- U.S. 673 a defendant's

54 of a in face of a violation defendant's even upheld circumstances of the if, under the rights constitutional a doubt that a case, it can be shown reasonable beyond in the defect[ ] error" as to a "structural opposed "trial a for bias in violation of the Sixth Amendment examine witness 117-118, 114, Clause); Spain, U.S. Confrontation Rushen v. (1983) (denial right present be at and n. 2 of a defendant's (1983) (improper trial); Hasting, 461 U.S. 499 United States trial, on at in violation of the Fifth comment defendant's silence Evans, Clause); Hopper v. Amendment Self-Incrimination (1982) (statute improperly forbidding giving trial court's U.S. 605 jury capital in case in a instruction on a lesser included offense a Whorton, Clause); Kentucky violation of the Due Process (1979) (failure jury presumption on the of U.S. 786 to instruct the (1977) (admission Illinois, 220, 232 innocence); Moore v. 434 U.S. in violation of the Sixth Amendment identification evidence States, Clause); Counsel Brown v. United 411 U.S. 231-232 (1973) (admission nontestifying of the out-of-court statement of a in Amendment Counsel codefendant violation of the Sixth (1972) (confession Clause); Wainwright, Milton v. 407 U.S. States, obtained in violation of Massiah v. United 377 U.S. (admis (1970) (1964)); Maroney, Chambers v. 399 U.S. 52-53 Amendnjent); sion of evidence obtained in violation of the Fourth (1970) (denial Alabama, 1, 10-11 Coleman v. 399 U.S. of counsel preliminary hearing in of the Sixth Amendment violation Clause). Counsel connecting is that each The common thread these cases during presenta- involved "trial error" —error which occurred jury, may to the which therefore be tion the case and presented quantitativеly in assessed the context of other evidence beyond to determine whether its admission was harmless order applying analysis In to these a reasonable doubt. harmless-error violations, many different constitutional the Court has been faith- ful to the belief that the harmless-error doctrine is essential to preserve "principle purpose of a criminal trial the central question guilt is to the factual of the defendant's or inno- decide cence, promotes public respect process by for the criminal focusing underlying of the rather than on the on the fairness virtually presence inevitable of immaterial error." (1991) (Rehn- Fulminante, Arizona v. 499 U.S. 306-307 Court). C.J., quist, for the

55 Fulminante, 499 mechanism," of the trial constitution not C.J., Court), for the did (Rehnquist, U.S. at 309 Chapman, verdict, U.S. at to the 386 guilty contribute "not what effect namely 24. is inquiry case-specific, The to be might generally expected error constitutional it but rather what effect have a reasonable jury, upon hand." Sulli in the case guilty had verdict upon 2081, Louisiana, van 2078, 124 L.Ed.2d v. 113 S. Ct. (1993). errors 182, some constitutional Although 189 of the defects —total deprivation that are structural of by trial biased counsel, judge, deprivation to a right right self-representation the defendant's to —have no harm right been held to so jury-trial vitiate ibid., contrary to less-error analysis appropriate, analysis Dissent the harmless-error argues, what does right to the a defendant's apply deprivation (1986) see v. Kentucky, Crane U.S. 691 testify, 476 (exclusion of the attempted explanation of defendant's subject an to harm circumstances of confession alleged v. analysis); Ortega O'Leary, F.2d less-error 843 (7th denied, cert. Nix 841; U.S. 1988), 262 Cir. 488 cf. (trial (1986) Whitesidе, v. not U.S. 157 counsel deficient, and defendant not counsel's prejudiced by defendant). by perjured testimony refusal sanction Moreover, even certain defects in the trial structural Strickland's mechanism are subject prejudice prong Batiste counsel, if defects caused defense by those were (Tex. 1994) State, 14-16 Cr. App. S.W.2d (waiver Batson counsel Kentucky, U.S. violation), (1986), though even a "harmless error" id., analysis would be not S.W.2d at appropriate, We decline the 13-14. Dissent's invitation to ignore Strickland required two-prong impose analysis se rule, per would require which reversal those cases where trial counsel a defendant from prevents testify- of evidence of ing, irrespective overwhelming guilt. alleged prove 6 State's to an essential ele- failure robbery. ment of A does not commit armed person robbery unless is taken "from the or of the property person presence 943.32(1), owner." Section STATS. "Owner" is "a person in possession whether his is law- property possession 943.32(3), ful or unlawful." Section STATS. Constructive is sufficient. See possession 971.33, property § Mosley, State v. 636, 102 Wis. 2d Stats.; (1981). N.W.2d 206-207

Flynn that there complains was no that proof money taken, was fact was not money returned, the victims were actually employed by stations, the service and that taken money (as belonged any of the victims opposed, presumably, their employers). These contentions are without merit. There was sufficient evidence for the jury reasonably conclude that both victims worked at service sta- tions, and that money to the service stations belonging Indeed, was taken from them by Flynn. the employees of both service Flynn stаtions testified that robbed them, him in they identified court as the robber. Poellinger, See State v. 493, 507, Wis. 2d (1990) (verdict must 757-758 stand unless fact, "no trier of acting could have found reasonably, doubt"). need, a reasonable There no guilt beyond as for the station owners to at the argues, testify trial. arguments. Flynn's

7-11.11 unbriefed five develop does not brief identifies but mate- he us Rather, refers arguments. additional This to the court. presented rial he has denied This repeatedly court unacceptable. limit imposed to exceed the page-number leave Rule those not circumvent 809.19(8)(c), may Stats. He with complies to so it revise his brief by failing orders by reference rule, incorporate and then to attempt the in we will documents. As out footnote pointed other in has not developed he arguments not consider on appeal. his brief this the and orders affirmed.

By Judgment Court. — in dissenting in {concurring part; SCHUDSON, J. part). except I on all issues join majority's opinion the emphatically I to declare most separately one. write who, trial, threatens to with- lawyer during that a a if from the client elects to exercise draw representation to is a has testify, lawyer the constitutional who right ineffective assistance of counsel. provided to the one receive from Contrary impression might discussion, not the the issue is whether majority's to is the issue counsel's advice sound. Nor case whether a to lawyer vigorously attempt this can whether, a client not to The is persuade testify. issue assis- constitutionally, lawyer provides ineffective when, in persuade testify, tance order to a client not brief, argument In there are two number "VIII"s. argument Therе is no number "VII." representation lawyer from threatens to withdraw during a trial.1 testify '[T]he acknowledges," right majority

The charge is a behalf in defense to a criminal on one's own Majority op. right.'" at 49 constitutional fundamental (1987)). (quoting Rock Arkansas, 44, 53 v. 483 U.S. n.10 "Every majority acknowledges, criminal Further, right to the effec defendant has a Sixth Amendment Majority op. (citing tive assistance of counsel." (1984)). Washington, 466 U.S. Strickland acknowledges Finally, majority that some con also right including deprivation of the errors, stitutional totally jury right counsel, that harm so vitiate Majority op. analysis inappropriate. at 56 less error (citing is 2078, 2081, 124 Louisiana, S.Ct. Sullivan (1993)). majority Nevertheless, 182, 189 L.Ed.2d analysis "the harmless-error does still asserts that right apply deprivation to tes to the of a defendant's deprivation tify," majority id., when that even deprivation inextricably to a threаtened connected disagree. right to counsel. I According undisputed. are to testi-

The facts the. mony postconviction motion, told his at the guilty lawyer, Usow, he not of at least Herbert that was repeatedly, charges. Flynn Usow, also told one of during trial, that he wanted to both before and testify. [the Usow testified that "wanted to take per majority impose this "would a The claims that dissent se rule mandating prevents a reversal whenever trial counsel testifying." Majority That is not cor op. defendant from at 52. Clearly constitutionally, lawyer's vigorous rect. and fair and testifying. persuasion may prevent a defendant from This dis only prevention sent addresses the unconstitutional of the of testimony resulting defendant's from the threatened denial during the counsel trial. acknowledged repeatedly desperately."

stand] Usow Flynn take the to should he withdraw that threatened questions Responding Flynn's pro se at the to stand. postconviction motion, not have been counsel could clear:2 more me, to of Court on

Q: You walk out threatened you? didn't Yes.

A: stand, Q: you you If I to take the said: take wanted get try myself, ‍​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‍it because I will out this case and of here? my I relief of my

A: I will ask the Court said you. responsibility represent to hearing: in the Later not, Usow, I

Q: Did I Mr. did not think it was else, you if nothing if I know important don't voice, they my get if I can exon- don't think hear One, I, least, get up from Count at there erated Yeah, just got prison, them: I out of tell Iwhy that's am here? thought poor psychology.

A: I it would be Q: exactly my thought You it was. I point. That's way get you agree to to every

tried the world take the witness stand. me to way you. I every stop A: tried in the world 2Indeed, although the trial court did not conclude that ineffective, emphatic style: it his counsel noted me, may be, IAs look this case Usow before whatever Mr. rude, extent, argumentative, I sometimes assaultive a certain during think that don't from the vociferous endeavor he made trial, your you say he was or did course could ineffective not commonly being reach the standard we refer to as com- usual County. petent legal ty in within the field or commun this added.) (Emphasis hearing, responding questions in from the

Later to prosecutor, emphasized: Usow further circumstances, try

A: Under no if I were to again today, case over would I ever allow him to any lawyer take the witness I think stand.

would, guilty malpractice would be or cer- if him to tainly poor judgment, he allowed take the witness stand.

Q: "allow," you say When not physically prevent-

ing taking him from stand? witness make; A: That was a choice he if would have to but him, defending, I were as I told I would ask the my obligation, Court to relieve me of because as before, I have said that would be tantamount throwing guilty plea. in a

Finally, responding Flynn's questions on re-direct postconviction at the exchange: motion, Usow and had this Q: out, You never threatened to walk Mr. Usow? times, I you you

A: told at all if want to take the stand, you get witness would have to another attorney. majority lawyer's performance concedes,

As the a if is deficient "he or she 'made errors so serious that guaran- functioning counsel was not as the "counsel" teed the defendant the Sixth Amendment.'" Majority op. (quoting Strickland, at U.S. at 687). lawyer threatening to not It is self-evident that a lawyer be a in order to defendant's defendant force relinquish right "not to functioning constitutional fundamental guaranteed the defendant as the 'counsel' by the Sixth Amendment." proposition is,

To characterize a "self-evident" as sidestep analysis may times, belie the critical Court, however, The a Supreme provided proposition. Louisiana, when, in Sullivan v. 113 revealing corollary (1993), declared, "It 124 L.Ed.2d it is 2078, S.Ct. 182 think, the Fifth Amendment self-evident, we doubt and a reasonable beyond of requirement proof verdict are Sixth Amendment a requirement jury the Sullivan, at L.Ed. at 2081, 124 S.Ct. interrelated." 113 that when Sullivan helps Thus, one understand 188. two con linkage the inextricable between fundamental forms the chain of constitutional rights stitutional Here, chain. destroys either link the protection, cutting Sulli in Sullivan, Here, in we have such as linkage. as van, the is a similar deprivation[ ] "constitutional structural the framework within which affecting defect in error the simply the trial rather than an proceeds, Fulminante, itself." Arizona 499 U.S. process (1991). Thus, 279, 310 the error prejudice/harmlеss Sullivan, Id.) see also 113 analysis inapplicable.3 2082, 124 S.Ct. at L.Ed. at 189.

"The not individuals government require may Schwantes rights." choose between two constitutional Schwantes, 121 Wis. 2d (Ct. 1983). as not certainly, lawyer may Just App. my majority quarrels The references to "harmless- with analysis." op. majority n. Majority Why? error at 51 7. As Strickland, explains, prejudice under error "are harmless Understandably, conceptually Majority op. 53. similar." ("Accord majority Majority concepts. op. the two at 54 blends ingly, we turn to the cases that discuss 'harmless error' only to assist our determina context constitutional violations prejudice test prong tion of whether the of the Strickland should prevented applied in cases trial counsel has defen be where citing testifying."). Therefore, except dant from when majority's analysis, error I refer to own refеrences to harmless "prejudice/harmless analysis." error require a defendant to choose between two constitu- rights. lawyer tional A must never force a defendant to stay legal off the witness stand in order to retain representation.4 1992) (en (11th Butler, In Nichols v. 953 F.2d 1550 Cir.

banc), majority relies, a case on which the effectively the court explained: beyond question attorney It is that an cannot threaten to with- during relinquish draw a trial in order to coerce the defendant to right testify. attorneys his fundamental to All have an ethical obli- gation represent competently zealously. to their clients and An attorney representation only should seek to withdraw from where compelling circumstances, there are Model Code of Professional (1986), Responsibility only EC 2-32 and "if withdrawal can be accomplishеd without material adverse effect on the interests of 1.16(b) (1991); the client." Ala.Rules of Professional Conduct see 2-110(A)(2) Responsibility also Model Code of Professional DR (1986) ("a lawyer employment shall not withdraw from until ‍​​​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‍he has steps prejudice rights taken reasonable to avoid foreseeable to the client, client, including giving allowing of his due notice to his time employment complying applicable for of other counsel... and with rules"). already begun, laws and Where a trial has the risk of prejudice significant. to the client from withdrawal of counsel is by right The decision a defendant to exercise his fundamental to trial, more, testify clearly at his own criminal without is not a withdraw, attorney sufficient reason for his to seek to even where against course, that decision is the advice of counsel. Of counsel strongest possible should advise his client in the if terms he feels However, testify. that it would be unwise for the client to to coerce remaining by threatening

his client into silent to abandon him mid- goes beyond proper advocacy.... the bounds of testimony . . . The of a criminal defendant at his own trial is unique inherently significant. persuasive and "The most counsel may speak might, not be able to for a defendant as the defendant himself," halting eloquence, speak with for When the defendant testifies, jury given opportunity is an to observe his demeanor judge credibility and to his firsthand. As the United States Supreme Arkansas, important Court noted in Rock v. "the most many witness for the defense in criminal cases is the defendant Further, question himself." in a case such as this where the was not whether a crime was committed but whether the was the defendant testify. Flynn right hаd the also had the by right representation To force him counsel. right relinquish the second in order to retain first guaranteed [ ] 'counsel' as the to "function was a failure failure, This Amendment." the Sixth the defendant defect" Sullivan, a "structural is under Fulminante process.'" Fulminante, the criminal that" 'transcends for Thus, does not allow it U.S. at 310-311. 499 prejudice/harmless analysis; a new trial error respectfully Accordingly, required. I dis- issue, on this sent. crime, testimony on even person his takes who committed Indeed, very point greater importance. "[w]here of a trial is to activity, involved in criminal an individual was determine whether prime testimony considered of of the individual himself must be

importance." (footnotes omitted; emphasis Id. at 1553-1554 and case citations out, majority points the court in original). Although, as the Strickland's two-step analysis Nichols did utilize to measure explicitly harmless prejudice, the court did not address whether Sullivan, analysis Clearly, under it is not. appropriate. error

Case Details

Case Name: State v. Flynn

Court Name: Court of Appeals of Wisconsin

Date Published: Dec 6, 1994

Citation: 527 N.W.2d 343

Docket Number: 93-2532-CR, 94-0425-CR

Court Abbreviation: Wis. Ct. App.