STATE, Respondent, v. HARPER, Appellant.
No. State 33
Supreme Court of Wisconsin
Argued January 31, 1973. — Decided March 13, 1973.
205 N. W. 2d 1
For the respondent the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
HALLOWS, C. J. Harper raises three questions on this appeal: (1) Whether it was error to allow Mr. Schultz to identify him at the trial, (2) whether Harper reserved his right to have suppressed as evidence the jewelry seized in Chicago; and (3) whether Harper received effective assistance of counsel.
Harper was required to stand in a lineup in a Chicago police station in which Mr. Schultz identified him. Prior to trial, the trial court held a hearing and found that although the lineup was not suggestive, it was illegal because Harper had been denied the right to presence of counsel; therefore, the lineup identification could not be used at trial. However, the court ruled that Schultz could make an in-court identification. Harper now claims this latter ruling was error because the in-court identification was the result of an exploitation of illegality and tainted by a violation of due process of law. On motions after verdict, the trial court reaffirmed its ruling on the in-court identification.
In State v. Brown (1971), 50 Wis. 2d 565, at 569, 185 N. W. 2d 323, this court explained the test for in-court identification as follows:
The law is clear that an in-court identification must not be the result of an exploitation of illegality or tainted
by a violation of due process of law. In the trilogy of lineup cases, United States v. Wade (1967), 388 U. S. 218, 87 Sup. Ct. 1926, 18 L. Ed. 2d 1149; Gilbert v. California (1967), 388 U. S. 263, 87 Sup. Ct. 1951, 18 L. Ed. 2d 1178; and Stovall v. Denno (1967), 388 U. S. 293, 87 Sup. Ct. 1967, 18 L. Ed. 2d 1199, the supreme court followed the test laid down in Wong Sun v. United States (1963), 371 U. S. 471, 83 Sup. Ct. 407, 9 L. Ed. 2d 441, in determining the admissibility of in-court identifications following an illegal lineup or illegal confession. The Wong test is simply whether the evidence is acquired as the result of exploitation of illegality instead of by means sufficiently distinguishable and independent to be purged of any primary or prior taint of illegality. See State v. Schneidewind (1970), 47 Wis. 2d 110, 118, 176 N. W. 2d 303. Consequently, although there may be an illegal out-of-court identification, if the in-court identification can stand independently of such an out-of-court identification, it is admissible.
In Jones v. State (1970), 47 Wis. 2d 642, 178 N. W. 2d 42, and State v. Schneidewind, supra, we stated, relying on United States v. Wade, supra, and Gilbert v. California, supra, that certain factors should be considered by the court in determining whether the out-of-court identification impermissively tainted or influenced the in-court identification. Among these factors are the prior opportunity to observe the alleged defendant during the criminal act, any discrepancy between the pretrial description and the defendant‘s actual description, the identification of the defendant by picture prior to lineup, the failure to identify the defendant on prior occasions, and the lapse of time between the alleged act and the lineup identification.
Here, Schultz saw his assailant for two or three minutes. He directly faced Schultz in the store with a gun in his hand. The blow on the head by the other assailant did not affect Schultz’ memory. Schultz identified Harper in the lineup, which was not suggestive. It is quite true, between the time of the robbery and the
When asked the basis for his lineup identification of Harper, Schultz said he had seen “the gentleman face to face in my store while he was holding a gun to my face and it was the same man that was standing in that lineup.” It is quite true the identification in the lineup did fix the identification more firmly in Schultz’ mind, but this is not impermissive, if the lineup identification was not suggestive. While the lineup was illegal, the illegality was such that it had no effect upon the identification. From this record, we cannot say the in-court identification came about by an exploitation of an unfair lineup or in the language of Simmons v. United States (1968), 390 U. S. 377, 384, 88 Sup. Ct. 967, 19 L. Ed. 2d 1247, that the lineup was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” The basis of Schultz’ iden
As the law then stood, the search of Harper‘s car by the Chicago police, after he had been stopped and was unable to produce a driver‘s license, was illegal. The search revealed ammunition, 21 Wisconsin-license-plate-validation stickers and jewelry bearing the tags of Schultz Jewelry of Racine. Jay Schwartz, as trial counsel, did not prior to trial move for the suppression of this evidence, mostly because his preparation of the case was such he was unaware of its existence. He did discover it during the second day of trial and prepared a motion for suppression. While such a motion under
Waiver of a constitutional right has been traditionally defined as an intentional relinquishment of a known right. See Johnson v. Zerbst (1938), 304 U. S. 458, 464, 58 Sup. Ct. 1019, 82 L. Ed. 1461; State v. Beals (1971), 52 Wis. 2d 599, 191 N. W. 2d 221. Here, Harper claims he did not realize his entering into the stipulation would waive his right to have the jewelry suppressed if found to be the fruit of an illegal search. However, the record clearly shows that at the time of the hearing before the judge outside the presence of the jury he understood the stipulation, agreed to it, and even agreed to a correction. His present claim that he did not understand that the stipulation would be read to the jury is insufficient.
Assuming Harper did not knowingly enter into the stipulation, there is raised the important question of when an attorney may waive a constitutional right of his client. It is perfectly obvious that if during trial a client must be consulted on every possible waiver, the trial could not expeditiously proceed; constant interruption caused by attempts to explain technical and professional reasons to a lay person would prevent such a result. In Henry v. Mississippi (1965), 379 U. S. 443, 85 Sup. Ct. 564, 13 L. Ed. 2d 408, the United States Supreme Court held a constitutional right may be waived by counsel‘s deliberate choice of strategy even without consultation with his client. This court in State ex rel. Goodchild v. Burke (1965), 27 Wis. 2d 244, 133 N. W. 2d 753, certiorari denied, 384 U. S. 1017, 86 Sup. Ct. 1941, 16 L. Ed. 2d 1039, applied the Henry rule to a situation where as a part of the strategy counsel made no objection to the introduction of the defendant‘s admissions into evidence. In State v. Strickland (1965), 27 Wis. 2d 623, 135 N. W. 2d 295, the rule was applied to a situation where counsel chose to utilize an existing guilty plea, rather than to attempt to withdraw it, in hopes of obtaining leniency on sentencing. In State v. McDonald (1971), 50 Wis. 2d 534, 184 N. W. 2d 886, wherein counsel elected to refrain from moving to suppress lineup evidence, we stated, at page 539, “While the defendant should be consulted concerning pleas of guilty and the general defense of his case,
In State v. Beals, supra, the action of counsel in forsaking his client in a lineup to protest the manner in which it was conducted was held not to be a trial tactic, binding upon the client. Harper argues that, as in Beals, the stipulation cannot be justified as a trial strategy or tactic, but this part of his argument overlaps with that relating to competency of counsel. We think the stipulation was part of the trial strategy and correctly considered such by the trial court. Whether it was good strategy is beside the point; whether it was occasioned by the failure of trial counsel to prepare his case earlier is also beside the point on the issue of trial strategy or technique.
The last contention of Harper is that he was denied effective assistance of counsel. In State v. Simmons, ante, p. 285, 203 N. W. 2d 887, this court approved Standard, sec. 8.6, of the American Bar Association Project on Standards For Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function (Approved Draft, 1971), p. 307, and suggested an evidentiary inquiry should be held on the effective
“Mr. Schwartz conducted a very vigorous defense in behalf of Mr. Harper. He conducted a strenuous cross-examination of all witnesses and demonstrated a good background of the matter which would be necessary for such cross-examination. The court knows the clients want a great deal of time to be in contact with their attorney and this is only natural, but time spent with clients is dependent upon the quality and not the quantity.
“Mr. Schwartz is an able and experienced trial lawyer, especially in the criminal field. And he can get to the nuts and bolts of a case, so to speak, very quickly, and to get to relevant matters in an expedient manner. He was successful in prevailing in the Wade hearing, and having the testimony of the lineup excluded. During his cross-examination he brought out points that would only be known to the defendant, and in some way that matter was given to Mr. Schwartz by the defendant.”
This court has held for some time that a new trial will not be granted upon the ground of inadequate representation unless counsel‘s performance is “so inadequate and of such low competency as to amount to no representation.” Pulaski v. State (1964), 23 Wis. 2d 138, 148, 126 N. W. 2d 625; Quinn v. State (1972), 53 Wis. 2d 821, 193 N. W. 2d 665; Swonger v. State (1972), 54 Wis. 2d 468, 195 N. W. 2d 598. The test is whether the
In view of the recent American Bar Association Project on Standards For Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function, this test may be too lenient. It is contended the representation of Harper was deficient as judged by the standards in a number of respects. First, it is pointed out that trial counsel did not interview his client before trial to determine all relevant facts known to Harper, contrary to ABA Standard, p. 204, sec. 3.2 (a).2 The trial counsel stated it was his custom not to interview his client until shortly before the trial as he found this to be a more expeditious way of working. This method of preparing a case may work in isolated instances, but we think the sooner a case is prepared by counsel the greater his chance of success. As stated in the Commentary to the Standard at pages 204, 205, “An adequate defense cannot be framed if the lawyer does
It is also contended counsel made no independent investigation of the case and did not in advance of trial inspect police reports available to him, contrary to the ABA Standard, pp. 225, 226, sec. 4.1.3 Trial counsel said he did not inspect police reports prior to trial because in prior cases where he had done so, he had been misled in relying upon them.4 But the inspection of such reports does not require counsel to rely on them. An effective representation consists of much more than performing the advocate‘s function in the courtroom. An adequate investigation may avoid any courtroom confrontation. The trial court thought trial counsel adequately performed in the courtroom and his representation was such that he must have made an investigation and proper preparation. Of course, the relationship of effective investigation by a lawyer to competent representation at trial is obvious, for without adequate investigation he is not in a position to make the best use of such mecha-
It is also claimed trial counsel failed to move for a change of venue although his client requested him to do so. There seems to be some conflict between ABA Standards, pp. 216, 217, sec. 3.6,5 which admonishes counsel to move promptly for a change of venue when he can do so in good faith, and pp. 237, 238, sec. 5.2,6 which
It is pointed out that contrary to ABA Standard 3.6, counsel failed to make a timely presentation of an alibi notice. It is claimed as a result no witnesses were allowed to be called and Harper‘s testimony as to his whereabouts was limited to one-half hour before the time of the robbery; that had the notice of alibi been presented earlier, more alibi witnesses might have been found and subpoenaed, and that evidence could have been produced showing Harper‘s presence in Milwaukee at the time of the crime. These alleged shortcomings, viewed cumulatively, it is argued, prejudiciously affected the trial of the case. Part of the questioned activity of counsel is ascribed to his opinion that the role of appointed counsel was somewhat different than that of retained counsel. Of course, the obligation of appointed counsel and retained counsel is identical. An appointed counsel cannot and should not rely upon the court for the protection of the accused. ABA Standard, pp. 222, 223, sec. 3.9.7
Lastly, it is argued that if trial counsel had moved in advance of trial to suppress the Chicago lineup identification of Harper by Mr. Schultz, as suggested by Standard 3.6, he might have taken a different view about the reception of the jewelry in evidence. This argument stands on the same footing as counsel‘s failure to make a timely motion for the suppression of evidence.
We must point out that appellate counsel, who was under a duty to raise all these objections in the interest of his client, is to be commended for undertaking the most difficult task of raising the question of incompetency against a colleague. Nevertheless, this court is satisfied the trial court was correct in its determination that the representation by trial counsel was not below the standards of effectiveness. In considering alleged
We think it is time for this court to restate a higher test for competency of counsel for the future. This court has always been most solicitous of the right of one accused of crime to be properly and adequately represented by counsel. Effective representation is not to be equated, as some accused believe, with a not-guilty verdict. But the representation must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his services. Just as an indigent is entitled to receive from a doctor or a dentist the same standard of professional care given to those able to pay for medical and dental services, so, too, is he entitled to the same standard of professional legal services from an attorney. We now approve the ABA Standards8 cited in this opinion for future cases as partial guidelines to the determination of effective representation; we do not hold that a violation thereof automatically determines incompetency or ineffectiveness of the representation. While in this case the representation in the respects noted leaves something to be desired, we cannot hold under the Pulaski rule then applicable that Harper was deprived of effective assistance of counsel.
By the Court.—Judgment affirmed.
It is my opinion that the record in this case so conclusively demonstrates the defendant was, in fact, represented by competent counsel, that this is not an appropriate case in which to reconsider the established test of competency of counsel.
The majority opinion makes no reference to several facts which I consider to be significant. The preliminary examination was set for April 16, 1971, at which time the defendant appeared with his counsel, Attorney Schwartz. Counsel requested an adjournment to prepare for the preliminary examination because of his recent appointment. The matter was adjourned to May 21, 1971, by consent, at which time a preliminary examination was held. The defendant was bound over for trial and a five-day jury trial, which resulted in defendant‘s conviction, was commenced on September 9, 1971. A female employee of the jewelry store was in the store at the time the defendant entered. She testified that he was armed with a gun; that she was ordered to open the vault; and that the entire incident took approximately twenty minutes. This witness made a positive identification of the defendant, and it is not and never has been challenged.
Also, I view the motion to suppress evidence differently than the majority of the court and would consider the method in which it was used to be a successful trial tactic. An unsuccessful motion to suppress would have created a situation in which other incriminating evidence found in the defendant‘s car could have been introduced in evi-
In any event, I do not concur with the test adopted by the majority of the court. The majority states the test to be as follows, “the representation must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his services.” It is my opinion that the adoption of such a standard presents an entirely impractical, if not impossible, test for the competency of counsel. The inference is that counsel provided for indigent defendants by the taxpayer is somehow less skilled or versed in criminal law than privately retained counsel. Stated conversely, the implication is that privately retained counsel would be more skilled and versed in criminal law than counsel provided by the public for indigent defendants. I know of no recognized basis for equating the skills of appointed or assigned counsel with those of privately retained counsel. I do not believe it is practical to attempt to make such a categorical comparison of legal skills. The majority opinion cites no authority to support the test which it adopts. I do not know of any, and do not believe it should be the test. To the best of my knowledge, it is not the test in any other jurisdiction.
It is my understanding that the right to counsel finds its basis in the sixth and fourteenth amendments to the United States Constitution. Essentially, these amendments prohibit the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right. This means that the de-
The standard of review on the issue of competency of counsel should go directly to whether the defendant received a “fair trial,” not on the play of one counsel‘s ability against another. It seems to me the applicable standard is broadly stated in Edwards v. United States (D. C. Cir. 1958), 256 Fed. 2d 707, certiorari denied, 358 U. S. 847, 79 Sup. Ct. 74, 3 L. Ed. 2d 82. Criminal convictions will be upset as a result of trial counsel‘s ineptitude only in the most compelling cases.
“. . . Mere improvident strategy, bad tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel, unless taken as a whole the trial was a ‘mockery of justice.’ . . .”1
As stated in Mitchell v. The People (1952), 411 Ill. 407, 408, 104 N. E. 2d 285, certiorari denied, 343 U. S. 969, 72 Sup. Ct. 1065, 96 L. Ed. 1364:
“. . . Any other rule would put a premium upon pretended incompetence of counsel; for, if the rule were otherwise, a lawyer with a desperate case would have only to neglect it in order to ensure reversal or vacation of the conviction.”
I would not adopt the test for competency of counsel as set forth in the majority opinion.
Finally, the majority adopts five of the Standards Relating to The Prosecution Function and The Defense Function of the American Bar Association Project on Standards for Criminal Justice. In adopting these five
Furthermore, I have some reservation about adopting the standards at all. Presumably, it could be argued that the adoption of certain selected standards is comparable to the propounding of common law and the recognition of constitutional rights in judicial decisions. However, I would consider the adoption of the standards referred to by the majority in this case more akin to rules of the court and within the purview of
I am authorized to state that Mr. Justice ROBERT W. HANSEN joins in this concurrence.