*1 Plaintiff-Respondent, of Wisconsin, State
v. Jerry Defendant-Appellant.† J. Meeks,
Court of Appeals No. 4, 01-0263-CR. Submitted on December briefs 2001.— 5, February Decided
2002 WI App (Also 526.) reported in 643 N.W.2d † granted Petition to review 4-22-02. *7 defendant-appellant, was of the the cause
On behalf Eisenberg, B. of of Howard submitted on briefs Milwaukee. plaintiff-respondent, the cause was
On behalf attorney Doyle, E. submitted on the brief of James general, Pray, attorney general. Eileen W. assistant and Wedemeyer, PJ., Schudson, and JJ. Before Fine Jerry appeals from SCHUDSON, J. J. Meeks felony judgment for murder —armed conviction (habitual robbery criminality), following guilty plea his challenges sentencing. order, He and the circuit court guilty plea, approximately entered six months before his concluding competent proceed.1 that he was by C. Judge on a decision Elsa The order based Lamelas, hearing makes most who conducted the to which Meeks however, judgment, challenges of his here. The was entered Konkol, denying Judge request L. Meeks's Daniel whose decision in competency hearing challenged an also is this for additional appeal. argues
¶ 2. Meeks that the court, circuit at the (1) competency hearing, by considering prior erred: his attorney's testimony, divulged which, Meeks maintains, (2) privileged evaluating communications; in his trial (3) attorney's opinion competence; of his and in consid- ering ways. Finally, the evidence in several other Meeks argues denying the circuit court erred in his request competency hearing for an additional before accepting guilty plea again, sentencing and, before him. attorney's testimony 3. We conclude that an on subject a client's is admissible at a competency hearing and that, case, this because
prior testimony counsel's was relevant to Meeks's com- petency divulge privileged and did not communications, properly it was admitted. Further, we that, conclude properly case, this the circuit court also considered trial counsel's view ably all the other evidence, and reason- competent. Finally,
concluded that Meeks was we conclude nothing that because Meeks offered to show changed that his condition had between the time the competent circuit court found him and the time of his guilty plea sentencing, he was not entitled to an competency hearing. additional affirm. Therefore, we
I. BACKGROUND ¶ 4. On 12, 1998, December Meeks and two ac- *8 complices charged, parties were as crime, to the felony criminality, resulting murder, habitual from robbery killing their 6, December 1998 armed of Singh, Narinder the owner of a Milwaukee food store.2 2 court, The supreme however, explained has "[c]harg- that ing felony murder party as a to the crime is redundant and unnecessary" person because "[a] convicted of a felony party as a
369 Meeks's for 1998, the date scheduled 22, December On the first raised attorney Meeks's hearing, preliminary examination. See for an and asked issue ("No 971.13(1) (1997-1998)3 who person § Wis. Stat. the to understand capacity mental lacks substantial bemay own defense in or her or assist proceedings an commission of for the or sentenced tried, convicted endures."); see also Wis. incapacity as the long offense so § 971.14.4 Stat. occurring a murder as to a principal becomes a
to the crime 423, 449, Oimen, 2d 516 184 Wis. felony." v. State result of (1994). felony Therefore, confusion to avoid 399 N.W.2d felony mur felony, and not cases, underlying only the murder crime, appropriate. if Id. to a der, charged party as a should be the Statutes are to the Wisconsin All references noted. unless otherwise 1997-1998 version 971.14, to the § relevant provisions The of Wis. Stat. case, are: in Meeks's competency proceedings (a) proceed under this section Proceedings, The court shall (1) competency to a defendant's is reason to doubt there
whenever proceed. (b) competency arises after the defendant to doubt If reason examination, preliminary after a over for trial has been bound by jury by finding guilty the or made has been rendered after a required court, not be probable shall cause determination the (2). proceed under sub. and the court shall (c) (b), proceed par. shall not Except provided in the court as (2) probable that it is until it has found under sub. charged .... committed the offense defendant (a) appoint or more shall one The court (2) Examination, by knowledge having specialized determined examiners report upon the condition appropriate to he to examine court inpatient is determined examination the defendant. If an may necessary, committed to a defendant be to be court specified period facility for the examination mental health suitable custody (c), days spent in under s. par. which shall be deemed [relating credit] .... to sentence 973.155 *9 (c)Inpatient completed report examinations shall he and the days examination filed within 15 after the examination is .of ordered.... (e) personally The examiner shall observe and examine the past present defendant and shall have access to his or her records, 51.30(l)(b) treatment [defining as defined under "treat- records"]. ment (g) may The defendant purposes be examined for any stage competency proceedings by at physicians or other experts by chosen attorney, defendant or the district who permitted shall be purposes reasonable access to the defendant for of the examination. (3) Report. The examiner shall submit to the court a written report following: which shall include all of the (a) description A of the nature of the examination and an persons interviewed, identification of specific records any reviewed and tests administered to the defendant.
(b) findings The clinical of the examiner. (c) opinion regarding The present examiner's the defendant's capacity mental proceedings to understand the and assist in his or her defense. (d) reports If the compe- examiner that the defendant lacks tency, opinion regarding the examiner's the likelihood that the defendant, provided treatment, may if be restored to (5)(a). period permitted within the time under sub. (e)The reasoning, detail, upon facts and in reasonable which (b) (dm) findings opinions pars, under are based. (4) (a) Hearing, copies report The court shall cause be attorney delivered forthwith to the district and the defense counsel.... *10 (b) attorney, defense counsel If the the defendant and district respective present opportunities to other evidence on
waive their issue, promptly the shall determine the defendant's the court and, issue, competency medication or if at to refuse the of the for the mental condition on basis treatment defendant's (3) (5). waivers, report In the of these filed under sub. or absence evidentiary hearing At the on the issue .... the court shall hold an hearing, judge the shall ask the defendant commencement of the competent incompetent. or If the whether he she claims to be incompetent, to be the defendant defendant stands mute or claims greater incompetent proves the shall be found unless the state compe- weight is of the evidence the defendant credible .... tent (c) competent, If the that the defendant is court determines proceeding resumed. the criminal shall be (d) compe- the If the court determines that defendant is not period likely competent the time tent and not to become within (5) (a), proceedings suspended provided and the in sub. shall be (6) Ob) released, [relating except provided in defendant as sub. discharge proceedings]. and civil (a) If the court that the defen- determines (5) Commitment, competent likely competent dant is not but is to become within period specified paragraph provided appropriate if in this treatment, suspend proceedings and commit the court shall custody department and the defendant to the of health family placement appropriate a services for in an institution for months, period time not to exceed 12 or the maximum sentence specifiedfor the serious offense with the defendant is most which charged, Days spent in under this whichever is less. commitment paragraph days spent custody are considered under s. 973.155. (b) periodically by the The defendant shall be reexamined facility. reports fur- treatment of examination shall be Written commitment, after 6 after nished to the court 3 months months commitment, days after within 30 months commitment and expiration report prior shall indicate to the of commitment. Each competent, either that the has become that the defen- defendant incompetent dant remains but that attainment of remaining likely period, within the commitment or that 10, 1999, 5. On a at February following hearing which the circuit court received a from report Dr. Gary Maier, J. a who had examined Meeks at the psychiatrist Mendota Mental Health pursuant Institute to the order, court's the court found that Meeks was not adjourned The court then for a competent. hearing later determination of whether Meeks was likely regain competency. months, 6. For the next eleven Meeks continued
to receive treatment as well as additional evaluations from Dr. Maier and other psychiatrists psycholo- time, this in seven gists. During separate sessions 22, 3, between June 2000, the court January conducted at which it considered competency hearing *11 numerous reports testimony extensive from psy- chiatrists and who had examined Meeks. psychologists The court also heard from: testimony Assistant State Scholle, Public Defender Mary who had represented in 1996-97; Meeks criminal cases in 1994 and Sandra progress compe- defendant has not made such that attainment of tency likely remaining period. Any within the commitment report indicating progress such a lack of sufficient shall include the opinion regarding mentally examiner's whether the defendant is ill, alcoholic, drug dependent, developmentally disabled or infirm aging incapacities. because of other like or (c) (b), Upon receiving report par. a under the court shall (4). proceed If the under sub. court determines that the defendant competent, discharged has become the defendant shall be from proceeding commitment and the criminal shall he resumed. If the making progress court determines that the defendant is sufficient becoming competent, toward the commitment shall continue. (d) If ... a defendant who has been restored to again incompetent, thereafter becomes the maximum commit- (a) period par. days ment under shall be 18 months minus subsection, spent previous in 12 commitments under this months, whichever is less.
373 agent supervised probation/parole who had Bucholtz, a Frey, probation/parole a 1993-94; in and Colleen Meeks supervised agent in Addition- had Meeks 1996-97. who hearing ally, at the the court observed Meeks asking directly him when whether he interacted testify. would January following completion
¶ 4, 2000, 7. On presented lengthy hearing, oral of the the court accurately analyzing The court decision the evidence. testimony, acknowledged reports and summarized the history problems health and his Meeks's of mental recognized many cognitive limitations, un- current evidence, reflected and noted the certainties difficulty malinger- discerning whether Meeks was ing. Ultimately, however, the court determined proceed. competent to Meeks was THE II. CHALLENGES TO COMPETENCY HEARING competent proceed in a 8. To be criminal a defendant must be able "to understand the case, object proceedings against [or nature and him preparing counsel, and to her], to consult with assist Drope [or her] Missouri, 162, defense." v. U.S. (1975); Byrge, 101, 27, see also State v. 2000 WI 197, Wisconsin, 2d In 237 Wis. N.W.2d 477. when issue, is at the circuit court find a must *12 incompetent proceed criminal defendant to unless the by greater weight proves State of the credible competent. Byrge, that the defendant is See evidence 971.14(4)(b). § ¶ 30; 2000 101 at see also WI Wis. Stat. regardless ¶ 9. These standards remain the same stage proceedings of the criminal at which the 374 competency Moran, issue is raised. Godinez v. 509 U.S. (1993) (competency 389, 397-99 test is the same for purposes determining capacity of defendant's to stand counsel). plead guilty, any trial, or waive at Further, stage, competency hearing the focus of the is the capacity proceedings defendant's to understand the proceedings. assist in the defense at the time of the Byrge, ¶ 2000 101 at WI competency hearing
¶ 10. "The of a aims are mod- seeking verify satisfy est, to that the defendant can competency Id. at A understand-and-assist hearing test." 48.5 judicial inquiry guided by ais the evidence and legal inquiry standard, a clinical not dictated a diagnosis. "[B]ecause competency hearing medical presents Id. a unique category inquiry
a in which the position apply circuit court is in the the law to best findings facts," our review of the court's and conclu- highly uphold sion is deferential. Id. at 4. We will a circuit court's determination unless it is clearly totally erroneous, id.-, is, see unless it is unsupported by record, see State v. Garfoot, (1997). 214, 224, Wis. 2d 558 N.W.2d626 A. Remoteness argues ¶ 11. Meeks first that the circuit court was [he] "clearly wrong competent to decide that "gave greatest weight it to the stand trial" because most testimony Scholle, Bucholtz, remote evidence"—the not, however, language suggesting interpret We do this as court, conducting hearing, that a circuit could any fairly preconceived try have notion that would lead it to Therefore, "verify competent. that" a defendant we read "verify that" to mean "determine whether." *13 years Frey, contact Meeks for
and who had not had testimony competency hearing. preceding their at the many testimony to that of the Meeks contrasts their recently professionals, all of whom had mental health competency opin- him in order to offer their examined that the court based its conclusion ions. Meeks insists lay Mary "largely testimony witnesses, on the of the argument, particular." Meeks Scholle, in In a related possibility adds that the court "didnot consider the that incompetent lay [he] since the had become witnesses had contact with him." (1) theory psychiatrists
¶ 12. clear: Meeks's (2) psychologists opined incompetent; and that he was suggested probation/parole agents Scholle and the oth- (3) competent; he erwise; the court concluded that (4) and the court must have therefore based testimony agents, conclusion on the of Scholle and the relatively weight all of which should have carried little given temporal remoteness of their contact with fairly theory, however, Meeks. Meeks's does not reflect analysis testimony either the or the circuit court's that the evidence. The record does not establish court "largely based its determination of on the testimony" agents. probation/parole and the Scholle improp- court And the record does not reflect that the erly testimony. considered their
¶ 13. The circuit court recounted the various psychiatrists psychologists their views of the opinions. recog- tentative conclusions and The court professionals, part, opined nized that these for the most incompetent. recog- The court also Meeks was expressed however, that of them also con- nized, some questioned doubt and whether Meeks was siderable malingering. Understandably, therefore, the court looked *14 agents from Scholle and the
to the additional evidence testimony and valued their about their numerous con- probation/parole. Meeks, in court and on tacts with both Learning agents that Scholle and the had not considered any years incompetent during time Meeks at their of fairly him, contact with the court the reasoned testimony professionals' "compro- mental health was they by inability know, mised do not their to what functioning [Meeks] perceive outside of mental the health institution." lay
¶ 15. The court's consideration the testi- mony particularly appropriate where, case this appellate concedes, as counsel Meeks "can relate facts regarding questions crime and can even answer appelfate where, facts," about the historical but counsel comprehension asserts, no or understand- Meeks "has ing legal process." Because the defense was cognitively seeking to establish that Meeks was too logical impaired proceed, for the it was State establishing counter evidence that his mental changed rep- had since the time Scholle condition not so, did deemed that, resented him and when she Scholle competent proceed. Meeks "Only judge the trial court can the credibil 16.
ity
testify
competency hearing,"
who
at the
of witnesses
testimony.
weigh their
207
2d at 223.
Garfoot,
Wis.
inquiry
competency
"a
on a
Moreover, while
focuses
present proceeding,
ability at
time of the
defendant's
the
point
at
in the
not on the defendant's
some
past,"
Farrell,
447, 454,
2d
distant
State v.
226 Wis.
(Ct.
1999),
past
App.
the defendant's
mental
N.W.2d64
may
present
condition
relevant to the
determination
be
competency,
id.;
Weber,
also State v.
see
see
Wis.
(Ct.
1988).
App.
817, 827,
2d
433 N.W.2d583
unquestionably,
record
the
Here,
reflects
careful consideration of all the evidence and its
court's
opin-
interplay
measured evaluation of
between
professionals
ions of the mental health
more
lay
Farrell,
remote information from the
witnesses. See
("The
¶ 20. Meeks did not to—and still does not dispute court's comments about Ms. Scholle. The —the court observed that Ms. Scholle was "accustomed to dealing people "ha[d] with in the real world" and tried [a] [the a] mentally case man, before court of ill and . . . acutely [was] ... of conscious the cultural milieu from many her which so clients and the clients of the state office come."6 The court's observations defender's public it was explanation why giving were relevant to its Scholle, that considerable credit to the fact Ms. it Meeks had never deemed previously, representing to raise the issue. appropriate contends that Nevertheless, Meeks now court considered Ms. Scholle's character. improperly Meeks, however, authority supports cites no 809.19(l)(e) (3)(a) contention. See Wis. Stat. & Rule supported by authority). must be (appellate arguments decision, the court commented: Earlier its quite clearly [Ms. Scholle] I a case that tried in remember front of me ... . And one of the reasons that case is so memorable defendant, competent, person very had is that the while was a who issues; outstanding [Ms. Scholle] mental health and did an serious circumstances, job handling him, making in terms of and his got that he a fair trial. sure any if scintilla of doubt [Ms. Scholle] testified that there was brought person's competency in her mind she would have about my attention, everything I consistent that to and think that's everything I her and that I have observed that have known about really attorney many years. I have no of her as an over these So cognitive my were in mind that if the defendant's limitations douht commitment, such[, given] experience if it Ms. Scholle's brought my notice, it have been had come to her would attention; not. and she did hearing] plea [Ms.] [at the 1997 that she had Scholle stated .., represented Meeks [Meeks]in 1994 . that she remembered Mr. *16 time, spoken him the and that she had to on from that when hearing, jail, previous night, night he had before the medication, so that she was indicated to her that he was on health issues at that of the fact that there were some mental aware point. very "a hard The commented that Ms. Scholle was court also public [assistant "one of the most able state worker" who was that in Milwaukee." defenders] we have
379 nothing suggest Moreover, Meeks offers that a circuit testimony attorneys from court should hear only familiarity, professional whom it has no or should not candidly knowledge experience reveal its of counsel's experience when that is relevant ("A Peterson, 222 2d at determination.7 See Wis. judicial sitting may. trial court as fact-finder . . take subject notice of a fact that is not to reasonable dis- pute . . . Opinion
C. Trial Counsel's argument, ¶ 22. In a related Meeks maintains opinion that the circuit court "failed to consider the [his] trial counsel in this case." He asserts that the court "entirely attorney's discounted" his view such that "one might thought [c]ourt well conclude that [defense counsel] incompetent either a was liar or was thinking competent for that Meeks was not to stand trial." agree
¶ 23. We with Meeks's unstated premise almost all cases where is at —in uniquely advantageous issue, defense counsel is in a position to advise the court whether the defendant proceedings understands the and is able to assist in the Uphoff defense. As Professor observed: Defense counsel is in the best position make in- formed, comparative judgments particular about a understanding client's the proceedings against him. say, issue, if credibility Needless to counsel's is at and if already circuit court holds an on opinion counsel's credibil ity, opinion should be disclosed and recusal should be Here, however, considered. testimony Ms. Scholle's was undis puted; credibility issue; her not at experience her was relevant. *17 in the position
Counsel is also best to that client's assess ability required to make decisions the client and provide to whatever assistance counsel deems neces- sary. Rodney Uphoff, J. The Role the Criminal Defense
Lawyer Representing Mentally Impaired in Defen Court?, dant: Zealous Advocate or 1988 Officer of (footnote omitted). 65, L. Rev. Thus, Wis. 87 not sur prisingly, courts have concluded that defense counsel is duty-bound accurately to inform the court of his or her opinion competence. Bishop Superior of a client's See v. (Ariz. 1986) (holding, part,
Court, 23, 724 P.2d in retrospective hearing at to determine whether defen competent pled guilty first-degree dant was when he to attorney represented murder, who defendant at the guilty plea required testify time of the to on the competent); issue of whether the defendant was see also v. Johnson, 207, 210-11, State 133 Wis. 2d 395 N.W.2d (1986) (holding, part, that where defense counsel competency, has reason doubt client's counsel must issue, raise the and failure to do so constitutes ineffec assistance). tive recognize Thus, a careful court will
singular opinion carefully value of counsel's con- light it, sider of all the at a evidence hearing. points nothing Here, however, Meeks in the record to substantiate his contention that the circuit "entirely opinion. court discounted" trial counsel's See 809.19(l)(e) (3)(a) (appellate argu- Wis. & Stat. Rule references). supported by Indeed, ments must be record opposite impression emerges record; from the frequently interrupted closing court argument defense counsel's hearing apparently
at the in an develop question, genuine and consider effort *18 view of the evidence.8 counsel's 8Moreover, trial counsel closing argument, in his Meeks's difficult," "very,very "complicated," that the case was conceded many expressed opinion He his respects. in and "troublesome" stated, "And I equivocation. at least a hint of Counsel function in you that Mr. Meeks is unable to submit to would a level areas, mainly ability,to abstract on sufficient critical on, going really to understand what a to understand what's Meeks did charge specify He then went on to that murder is." things basic as what 60 "felonymurder" or "such not understand time," means, long than a and "what a years prison other it's concluded, in bargain part: is." Counsel then plea decent know, any saying [areas I not one of of lack You am these understanding] enough push edge, him over the but what of [they understanding, [sic] a are] I think indicative of is lack of abstracting ability. it difficult for him to under- lack of It makes going on. stand what's obviously claim that or appellate does counsel Meeks is Nor court, In counsel unequivocally incompetent. his brief this comments: picture mentally present Mr. Meeks does not the usual of a regarding his crime and deficient individual. He can relate facts questions problem even about the historical facts. The can answer comprehension understanding legal
is that he has no or capacity process. He lacks the intellectual to make decisions case, regarding go accept plea, to trial or a such as whether to testify, raise, appeal. whether to what defenses to or whether to suggest that either trial offer these observations not to We legally inadequate counsel a appellate presented counsel indeed, agree "very, very the case argument; we evidence, and, "complicated" difficult" one based on the circuit court could well have come to embrace defense counsel's however, comments, do, both trial position. point We these (1) counsel, important for two reasons: appellate counsel and (2) call; they they of the circuit court's confirm the closeness circuit court's decision to further confirm wisdom the carefully transcripts previ- consider the from some of Meeks's
D. Meeks's "Demeanor" in a Previous Case argues improp- ¶ 25. Meeks that the circuit court erly considered his "demeanor" from a case which he had been the defendant before the same court several years by doing that, earlier. Meeks so, maintains judge essentially testifying prior "was about her obser- [him] case, vations of in another at another time." While conceding "probably that such relevant," evidence was impermissible Meeks asserts that it was under Wis. § disagree. 906.05. We Stat. § judge ¶ 26. Wisconsin 906.05 "The states: Stat.
presiding may testify at the trial not in that trial as a objection preserve witness. No need be made in order to point." judge case, however, the testify. In this did not *19 aspects
Rather, she summarized certain of a hearing pled guilty 1997 before her at which Meeks operating a vehicle the In without owner's consent. its determining competent, decision that Meeks was the [of court commented that it had the "reviewed record plea hearing] the 1997 care," and noted that it was any "devoid of indication that either Ms. Scholle or myself questioned ability Meeks'[s] Mr. to understand proceedings the at that time."9 appearances, together testimony ous court with the from Ms. probation/parole agents, Scholle and the in order to evaluate whether, fact, legal process. Meeks could understand the
9 determining In its decision the court competency, also plea proceeding, offering commented on the 1997 observations light appeal: that shed additional on several of the in this issues cautious!,] fairly generally speaking!,] I I think that am as a raising competency, matter of habit about the issue of as well as needs, language independently!,] appears during if it to me hearing any progress having difficulty of a that the is defendant responding, confused, reluctant, appears unable to understand. concedes, understand ¶ all but 27. As Meeks ing legal proceeding was relevant to of the 1997 proceed of his court's determination carefully testify, judge con did The did not but 2000. and her recollection of the record sider transcribed proper. proceeding. no That was We see substan judge's a a observations of tive difference between chal at the time defendant's demeanor judge's lenged of the defendant at and the observations may probative. proceeding; be See an earlier both ("The judge Byrge, has at 44 n.18 circuit WI 101 compe unique vantage [point] from to make a which tency judge significant determination has because defendant."). personal exposure to the Privileged E. Communications separately argues Meeks that the trial court testimony admitting because, he erred in Ms. Scholle's attorney-client privileged claims, it related communica- [Meeks,] during plea] hearing!,] [1997 the course of the taking medications!;] however, [he] indicated that he was assured attorney me he defense as as was able understand his well the court. during hearing also indicated the course of that Ms. Scholle him, charge against that the defendant... understood ... as *20 rights. well as his hearing during Ms. Scholle told me the course of that that she represented past, opportunity had him in the so she had an to develop relationship perhaps the defendant and know him probably relationship [in] than the usual between an better attorney and client. "regardless specific He tions.10 submits that questions testimony regard- [Ms. Scholle], asked of her counsel, Although appellate court, in his brief to this "objected claims that trial counsel testimony to the of Ms. relevancy privilege grounds," Scholle on both the record privilege-based challenge tentative, reveals that counsel's was at best.
First, the prosecutor alerted court that "there is [sic] potential privilege some client issues here as Ms. Scholle essentially here represented prior because she Mr. Meeks on Then, stand, occasions." before Ms. Scholle took witness stated, prosecutor "I don't know how Mr. Meeks would ever be knowingly, voluntarily, able to intelligently waive that [attorney-client] privilege when it's his contention he is incom- Then, petent go ahead with trial." after the court commented don't need privilege "[i]f [of we to reach that issue waiver], won't," prosecutor we advised the court that he did privilege not think and waiver would become issues. The "I prosecutor explained, agreed have with Ms. Scholle and [her lawyer,] Tyroler[,] essentially my Mr. questions limit to what I questions any way believe are that would not in call upon Ms. any lawyer Scholle to privileges violate client that Mr. Meeks may regard representation have with to her of him previously." Honor, then I responded, Defense counsel "Your would still added.) object relevancy grounds." to this on (Emphasis witness Next, stand, still before Ms. Scholle took the defense counsel, anticipating prosecutor "going that the to submit a of the last transcript proceeding that Mr. Meeks was involved in," transcript speaks commented: "That for I don't itself. know what Ms. Scholle could add to the situation that would not Mr. impinge upon privilege." Meeks'[s] During testimony, objected Ms. Scholle's defense counsel only termed, question "perhaps one on the basis of what he privileged you question conversation." The was: "Do recall not, you represented you whether or Mr. Meeks ... were when history?" aware his criminal The court overruled counsel's *21 necessarily ing [his] the revela- mental involved status by conveyed her conversa- to her of information tion disagree. [him]." tions with We prosecutor, examination 29. On direct generally, her fifteen testified, about Scholle first Ms. public years and, defender some- an state as assistant experi- specifically, her education and more about what representation whose of defendants ence relative to briefly might then testified at issue. She be separate representation of on two about her Meeks involving 1994 and occasions, cases, three between testimony portion was That of Ms. Scholle's 1997. conjunction presented introduction of cer- in with the transcripts portions of the records from those tain Finally, examination, Scholle testi- on direct Ms. cases. represented Meeks on a misdemeanor fied that she had pled guilty pursuant he to North Carolina case which (1970), commented, and she v. generally, 400 U.S. Alford, concept "approached the of an on how she plea a client." with Alford Cross-examining defense coun- Scholle, Ms. questions representation no about her
sel asked mentioning did, however, him. He Meeks, never even questions regarding a whether "sometimes it is ask few [her] difficult for to decide whether or not to raise may [clients have] competency particularly with who cognitive briefly questioned The court then disabilities." using guilty asking practices her Scholle, about Ms. plea questionnaires respect whether, to a questionnaires dealing specific on such "with section practice incompetence," it her "to mental illness or history inquire a client had "a about that" when answered, On objection; specifically." Ms. Scholle "I don't recall ruling challenge Meeks does not the court's on that appeal, question.
mental illness." Defense counsel also asked few more questions, following up *22 inquiries. on the court's Neither questions follow-up questions, the court's nor counsel's specifically however, referred to Meeks. presents standing
¶ 31. Meeks authorities for the proposition testify that counsel should not be allowed to competency inevitably, on the issue of because, opinions privi- counsel's and conclusions are based on leged communications. The State counters with au- supporting may testify thorities the view that counsel competency hearing violating privilege. aat without acknowledges, accept- theAs State also however, "the attorney testimony able limits of at hear- ings appears question impression to be a of first in this state." 905.03(2), § ¶ 32. Wisconsin Wisconsin's Stat.
attorney-client privilege, part provides: in relevant A client has a privilege to refuse to disclose and to prevent any person other disclosing from confidential communications made for the purpose facilitating professional legal the rendition of services to the client: between the client or representative the client's and the lawyer lawyer's client's or the representative; or be- lawyer lawyer's tween the client's representa- and the tive; lawyer the client or the lawyer client's to a representing interest; another in a matter of common or between representatives of the client or between representative client; client and a or between lawyers representing the client.
Further, a communication is "confidential" if it is "not persons intended to be disclosed to 3rd other than those whom disclosure is furtherance of the rendition of professional legal services to the client or reason- those ably necessary for the transmission of the communica- 905.03(l)(d). § tion." Wis. Stat. Under the cir- unusual assume, without case, we will cumstances of this attorney at Meeks, through that deciding, the privilege invoked hearing, properly with Ms. Seholle.11 to his communications relation attorney-client asserting The party that the privi- establish the burden to bears privilege Wis., Hosp. v. Children's See Franzen lege applies. (Ct. Inc., 169 Wis. 2d 366, 386, App. 485 N.W.2d 1992). "strictly narrowly must be The privilege id., the commu- showing and a "mere interpreted," is insufficient attorney from a client to his nication was communication is privi- finding to warrant Jax, 581, Jax v. 572, 2d 243 N.W.2d 73 Wis. leged," *23 11 905.03(3) provides: § Wisconsin Stat. may by privilege claimed the may privilege. The he Who the claim conservator, represen- client, personal guardian the the client's or successor, trustee, client, similar or the tative of a deceased association, organization, corporation, representative a or other lawyer person who was the at the or not in existence. The whether privilege only may on claim the but time of the communication authority presumed lawyer's in The to do so is
behalf of the client. contrary. the absence of evidence to the added.) Here, privi- Seholle did not invoke (Emphasis Ms. Instead, privilege if invoked the lege on Meeks's behalf. Meeks all, through at he did so trial counsel. conceivably, incompetent who is
Although, a rare individual might intelligently privi- proceed to still be able to invoke counsel, it is lege previous to communications with respect Thus, protect not. safe to assume that most would rights opportunity and to assure a defendant's defendant's attorney-client privilege consider have a court whether that most defendants apply, appreciate would a court should only to invoke the is at issue will be able competency whose through trial counsel. attorney-client privilege
388 (1976). determining privilege "When whether a exists, inquire the trial court must into the existence of the relationship upon privilege which the is based and the sought." nature of the information Franzen, 169 2dWis. at 386.12 implicitly
¶ 34. Meeks concedes that Ms. Scholle's testimony any specific did not relate conversations she had with him. He offers authorities, however, that explain typically, attorney's opinion that, an about a competency only client's could come from information large part, privileged obtained, in from communica- e.g., See, tions. United Kendrick, States v. 110, 331 F.2d (4th 1964) (Sobeloff, concurring) ("Any 115 Cir. J., expression as to the client's mental neces- sarily [s] by any- embrace more than facts observable comprehend[s] one; it conclusions drawn the course uniquely regarded law."); of an association that is in the ("[I]t Bishop, reality pretend E2d 724 at 29 defies opinions lawyer that has formed on defendant."). relying upon without discussions with the 12Meeks failing faults circuit court for to "set forth its reasoning" explain why order to testimony Ms. Scholle's did not Hydrite Co., See State v. Chem. privilege. violate the (Ct. 1998) (where 51, 64-65, 2dWis. App. N.W.2d court failed reasoning to "set forth its determining for the notes [prepared party's attorney] privileged," were not appellate court "cannot conclude [the circuit properly court] exer *24 discretion"). cised however, its As we explained, have Meeks's privilege-based, general "objection" tentative, best; at it required ruling no and called for See reasoning. no statement of Majority n.10, Further, at 28 above. ¶ as we also have ex plained, only specific Meeks's privileged-based objection, while overruled, elicited an inconsequential response from Ms. Scholle. See id. error, Any therefore, in the court's failure to elaborate ruling, basis for its was harmless.
389
Uphoff
recognize
observed,
Professor
that, as
We also
privilege
attorney-client
not
protection
"[t]he
of the
may
only
include
words but
to the client's
limited
supra,
Uphoff,
communications."
nonverbal
client's
omitted).
(footnote
L. Rev. at 91
1988 Wis.
acknowledges the sub
however, also
Meeks,
35.
distinguishing impermissible testi
law
stantial case
permissible
mony relating
from
statements
a client's
testimony
opinion
providing
client's com
about the
an
(9th
e.g.,
petency.
sarial roles in order to fulfill their duties as officers of the court. In area, this contrary what some might Uphoff that, Professor explains regard, this the su preme court's conclusion is consistent ABA Standard 7-4.2(c), "[djefense states, which in part, counsel should move for evaluation of the defendant's competence to stand trial whenever the defense good counsel has a faith doubt as to the competence." defendant's ABA StaNdards for CRIMINALJustice 7-4.2(c) (2d 1986). Standard ed. He writes: commentary The [to ABA 7-4.2] Standard concludes . .. that lawyer's duty paramount the to the court is and overrides counsel's obligations [his or] points her client. At various in the commen- tary, slightly language drafters use justify different this professional result. Defense responsibility counsel's independent justice toward the court and the fair provide administration of justification. initial commentary, Later in the the drafters refer to lawyer's duty integrity judicial process to maintain the as requirement. Additionally, the basis for this disclosure requirement provides protection drafters stress that this also for incompetent by ensuring lawyers defendant that defense do deprive personal rights not defendants of their to make fundamen- tal case decisions. wholly compat are their roles and duties believed, have *26 well the over-zealous No defendant is served ible. strategic attorney foster efforts unneeded whose inappropriate mental commitment or treatment. health ("The Bishop, at usual will 724 P.2d 27 defendant See she] [or always guilty ., . . he found not but wish to be incompetent may always to stand not wish to be found trial."). fairly by token, same no defendant is And the prosecutor efforts treated the over-zealous whose incompetent or, ulti- an defendant to stand trial force Rodney Lawyer J. The Role the Criminal Uphoff, Defense of Advo- Mentally Impaired the Zealous Representing Defendant: ?, (footnote 65, L. Rev. cate or the Court 1988 Wis. Officer of omitted). Similarly, Professor Pizzi observes: Although responsibility to determine the issue of it is the court's flowing duty competency, obligation, the to counsel has from protect rights, correctly. is to see that the issue decided his client's competency issue, question raising As with of counsel adversary hearing not free an course at the based on his to chart [or her] the client's interests. view of best rights obligation protect [CJounsel's to defendant's entails the duty making to the court in the correct decision aid inquiry and a free to counsel. court should be make such defense Pizzi, to Trial in the Courts: Competency William Stand Federal 21, Problems, 45 U. L. Rev. Conceptual and Constitutional Chi. (1977). Cohen, Attorney-Client A. The 58-59 See also James Rules, Privilege, Impaired Defendant, Ethical and the Criminal (1998) 529, ("Only by permitting 52 U. Miami L. Rev. testify inability her to attorney [his or] defense about client's rationally defense, can [or in his her] communicate assist rights incompetent adequately be constitutional clients protected.").
mately, to be incarcerated where essential mental may health treatment be unavailable. See Johnson, 133 ("We proposition 2dWis. at 223 start with the that an trial."). incompetent may subjected not be to a Thus, in instance, this rare conscientious counsel must under- stand that their advocate hat and officer-of-the-court hat are one. just
¶ 39. And as defense counsel must be candid expressing opinion competency, an about a client's opin- courts, in turn, should understand that counsel's part, ion derives, in substantial from confidential con- versations with the Therefore, client. courts, careful give weight under most circumstances, will due opinion testing questions counsel's without it with likely expose the details of client conversations and *27 privileged other communications.14 principles logically apply only 40. These not to a prior counsel, defendant's trial but to counsel as well. In interestingly enough, challenges, case, this we have contrasting albeit ones, to the circuit court's treatment case, In this typically case, as the is Meeks's trial counsel offered opinion competency through his on argument his to the court; testify he did in a formal sense. problem We see no not that. In unique circumstance, with this counsel's officer-of-the- merged court role advocacy Quite with his role. properly, hearing testimony without from trial counsel in a conventional way, the court could opinion consider counsel's on Meeks's competency. As one court concluded: competency hearing, judge may upon [I]n a the call both counsel as provide opinions officers of the court to whatever conclusions and
they may have, together
supporting
with so much of the
facts as
may
violating
attorney-client
be obtained without
either the
privilege
confidentiality provided
attorney's
prod-
or the
to
work
uct.
(Ariz. 1986).
Bishop
Superior Court,
v.
23,
724 P.2d
29-30
prior
opinions
counsel.
both trial counsel
the
of
of
inadequate
of
trial
consideration
claims
Meeks
competency,
opinion
much consid-
but too
on
counsel's
very
testimony relating
prior
counsel's
of
eration
that the circuit
however, we conclude
case,
In this
issue.
properly
cases,
And in close
both.
considered
court
malingering
possible
particularly
concerns about
where
may
present,
of
a court's determination
be
present
opinions
may depend
counsel,
of
both
on
prior.
improperly consider
did not
Here, the court
Explicitly,
did
privileged
Ms. Scholle
communications.
any
Meeks or
of her conversations
not relate
testify
privileged
any
other
about
substance
conveyed
Implicitly,
course,
she
communications.
privileged
with Meeks
conversations
that she had had
allowing
that,
conclude
at the
her to
cases,
about
competent
pro-
represented
he
him,
times she
quite
conveyance
inevitable, and
But
ceed.
proper.
A.
3 Jack B. Weinstein
Margaret
See
Berger,
&
503.14(4)(c),
§
at 503-04
Federal
Evidence
Weinstein's
2001) ("Courts
(2d
attorney
permit
generally
an
ed.
testify
to stand trial when
client's
to the
testimony
communica-
confidential
does not relate to
to the
client,
instead relates
but
tions with
during
attorney's
the time of
the client
observations of
communication.").
*28
testimony,
in combination
42. Ms. Scholle's
transcripts
earlier
of some of those
the court's review
knowledge
together
proceedings,
with the court's
and
experience,
professional
relevant to
Ms. Scholle's
competency.
current
determination of Meeks's
attorney-client
not established
Meeks has
privilege precluded the court's consideration of Ms.
testimony.
Franzen,
Scholle's
See
F. Conclusion supreme explained: ¶ 43. The court has trial weigh [T]he court must evidence that the defen- competent against dant is evidence that he or she is not. The trial court is in position the best to decide whether competence evidence of outweighs the evidence of incompetence .... [T]he court ulti- must mately determine whether evidence that the defendant competent convincing is more than evidence that he or she is not. particularly
Garfoot, 207 Wis. 2d at Here, 222-23. in a challenging provided case, the circuit court did so. It factually comprehensive legally hearing, solid analytically an sound decision.
III. DENIAL OF ADDITIONAL
COMPETENCY HEARINGS
argues
¶ 44. Meeks also
the circuit court
ordering
competency
erred in not
an additional
evalu-
hearing
again
ation
when defense counsel
raised
and/or
competency
guilty plea
again,
issue before
and,
sentencing. Again,
disagree.
before
we
noted,
45. As
a circuit court must conduct com-
petency proceedings "whenever there is reason to doubt
proceed."
a defendant's
Wis.
Stat.
971.14(l)(a).
§
The
determination,
however, of
"[w]hether
giving
there is evidence
rise to a
reason
question
doubt
is a
left to the sound
Weber,
discretion of the trial court."
¶ Meeks's 46. hearings, Judge Konkol competency evaluations and/or competency Judge determination Lamelas's referred to had not offered Meeks that because and concluded anything change since in his condition to establish competency evaluation no further determination, findings required. Judge hearing were Konkol's was clearly was correct. erroneous; his conclusion not to some of the our attention Meeks directs 47. Judge developments Lamelas deter- after in his case notably, entry special competency of a mined plea —most Judge leading additional evalua- Konkol to order developments, reports. detail those must We tions the circuit whether well, to determine and others as compe- correctly that no additional concluded court entry tency hearing required of his before sentencing. guilty plea, also must We and before his appellate developments in to correct order those detail critically impor- gross misrepresentation of a counsel's part the record. tant Judge deter- made the Lamelas January January 21, 2000, at On 4, 2000.
mination on Judge arraignment Konkol, defense before Meeks's acknowledged Judge Lamelas's counsel my objection put "I would still conclusion but advised: proceedings at record to the continuation on the ruling, [c]ourt has made its I time. understand this my objection." I to continue record have for the but Judge Judge "Order Lamelas's then referred Konkol January Competence," 2000, asked, 10, entered on change indicating you some since that there's been "Are you just continuing objection?" are date or responded: my objection, continuing, your Counsel "I'm *30 any particular change I Honor. haven't seen in Mr. point. any change, Meeks until this Of course if there is [cjourt's certainly bring I would it to the . . . attention added.) (Emphasis
¶ 49. On behalf, Meeks's defense counsel then pleas guilty guilty by entered of not and not reason of mental result, disease defect. As a at the conclusion arraignment, appointed the court Dr. John Pank- psychiatrist, psy- iewicz, a Smail, and Dr. Kenneth chologist, purposes assessing to examine Meeks for appropriateness plea. the of such a See Wis. 971.16(2). § Additionally, explain, as will we de- Stat. subsequently arranged fense counsel for an examina- psychologist, tion another Dr. John Y.Liccione. By proceedings the 50. time of the further February 24, 2000, the court had received letters from Dr. Smail supported Dr. and Pankiewicz. While neither letter special plea, Dr. Pankiewicz advised that he had "terminated the examination" he had because regarding Meeksfs] competency become "concerned Mr. proceed." competency He "I added, understand has adjudicated past I] in months[;] however[,
been few believe it needs to be As a result, readdressed." defense argued: again formally counsel I Honor, "Your would competency [Dr.Pankiewicz's] raise on based letter .... [Meeks] compe- I would that ask be re-examined for tency." prosecutor responded length, The at sum-
marizing Judge for Konkol the evidence that, presented Judge asserting had been Lamelas, "[njothing changed that has Mr. Meeks's situation competency finding from the time that made 'til today," arguing quite "it's Dr. Pank- clear that already really in this case." we've been where
iewicz is nothing to refute offered Defense counsel Judge Dr. prosecutor's considered Konkol then view. carefully compared it to Dr. letter, Smail's Pankiewicz's part: observed, in letter, Dr. Pankiewicz indicates Interestingly enough, while Mr. regarding Meeks'fs] concern his examination, he also rec proceed and terminated [who, previously, Dr. Smail had also ommended that competency] complete for evalua evaluated Meeks prior to compare previous ... assessment tion and competency [commitment to] Mendota Meeks'[s] Mr. 23rd, February On Dr. Institute] .... [Mental Health Mr. for one hour and Smail did fact interview Meeks Smail, again finding Dr. while thirty minutes and mental *31 regard with to mild retar problems there are an dation, quite was to conduct inter apparently able he plenty ... from did receive informa view which in a provided quite competent from Mr. Meeks ... tion manner, Dr. so I think that the concerns... that report that had are even alleviated the Pankiewicz subsequent has to Dr. Pankiewicz Dr. Smail submitted those any Dr. Smail does not raise same where Pankiewicz, point I as Dr. so think at this the concerns changed competency really as to hasn't in that issue the a nothing changed been on factual there's been that's DQt's looking the again, .. . another doctor at basis[.] well, standpoint from a he saying, matter and medical regard questions competency, some to but has legal standpoint questions from a those have been in and have been resolved favor of heard considered competency[.] adjourned
Judge approxi- for Konkol the case then mately Pankiewicz, month, to Dr. some one allow complete special plea doctor, to other a evaluation. completed Dr. then Meeks's 52. Pankiewicz letter, and, 8, in his March advised the evaluation suggest court that he had found "no to evidence that his exculpa- mental illness or mental retardation was an tory proceedings in factor his At the further behavior." requested 28, 2000, of March defense counsel a date for projected guilty plea. April On 2000, the for 5, date scheduled the guilty plea, adjourn- requested a defense counsel brief ment he because wanted time to view a surveillance videotape camera of the offense with Meeks. The court granted request counsel's and also noted it had report. Although received Dr. Pankiewicz's defense counsel offered no on issue, comment Pankiewicz, court recalled that Dr. in letter, his first expressed compe- [Meeks's] had "some concerns about tency." court The then commented Dr. Pankiewicz completed had Meeks, examination of and had explain using indicated "that he did have to items simple apparently require terms, so that that does some going get understanding." slow order day, guilty ¶ 54. The next the court conducted a plea proceeding commendably comprehensive that was going" necessary and "slow where assure Meeks's understanding. colloquy The covered more than one many questions, hundred of which elicited substantive responses "yes" more than or "no."At the conclu- —far colloquy, sion of however, counsel, defense re- sponse inquiry to the court's as whether Meeks rights relinquishing by pleading he understood *32 guilty, answered that he not De- was "still satisfied." examples fense went offer counsel on to of difficulties he communicating had Meeks, had and he took pains explain game "[t]his protect to that is not some to appellate really record," the that rather, but he had really [Meeks] "serious whether not doubts as to rights against charges understands his and the him and
399 intelligent making knowing waiver of his a Understandably, prosecutor rights." then advised the to the that record we have set the court "with this matter for trial."15 days later,
¶ At four the status conference 55. again Meeks re- counsel that "be defense asked Presenting information, however, new examined." no my representation only argued, on on "Based counsel action, I that a re- the record and the court's think "no for is in order."16The court saw basis examination jury request, for the and scheduled trial that," denied July 10, 2000. parties July re- 6, 2000, however, On 56. again guilty. pled Before
turned to court and Meeks Judge acknowledged however, so, did Konkol Meeks history challenges again, competency and, once case's "nothing actually changed" that has since observed Although Judge determination. Lamelas's continuing concerns defense counsel maintained possible incompetency, he Meeks's clarified about guilty. again, plead to And once Meeks did indeed want commendably colloquy. conducted a careful court ap- In court, however, Meeks's brief to this specific pellate counsel, with a record reference encom- passing twenty-five-page plea colloquy, writes: throughout proceedings, note these both the We appeared appreciate their prosecutor defense counsel candidly court. counsel responsibilities as officers Defense trying compe conceded his uncertainties assess Meeks's demonstrates, tency, prosecutor, plea proceeding and the as this rights. actively help protect trial intervened to Meeks's referring to for a re-examination Whether counsel For Meeks's special plea or for Meeks's is unclear. however, benefit in this we will assume that counsel was appeal, referring competency. *33 Judge proceeded
The to ask Mr. Meeks a of series "yes" all If questions, answered or "no." Defendant said he could not question, judge understand asked simpler questions getting until word At one answer. point anywhere no this i[n] record was ashed Defendant explain anything to in his own words. All of Defendant's responses monosyllabic were response affirmations grossly leading questions posed Judge Konkol. added.) (Emphases record, however, The refutes this absolutely astounding misrepresentation. In addition to questions July plea colloquy counsel, asked of 6, questions 2000 included 133 of Meeks. Meeks an- seventy-four; swered: "Yes"or "Yeah"to twelve; "No"to something than "Yes," "Yeah," other or "No" to forty-seven questions. many indeed, And of his answers lengthy unquestionably were and substantive, estab- lishing engagement plea full and informed in the proceeding.17 examples A few court's questions Meeks's
answers, typical plea of the full proceeding, should suffice confirm Meeks's active and informed participation: Q: you go [jury] party [on Did also over to a those instructions
crime, felony murder, robbery, degree armed and second reckless attorney? your homicide] with A: Yes. Q: you your attorney Did read the form and the or did instructions you?
read them A: He read them to me.
Q: [accompliceFitzgerald] going gun? What was to do with the idea, toy gun. IA: had no because it was a Q: happened And what then after he went inside the store? plea. guilty Spe- accepted Meeks's 58. The court *34 findings making required
cifically, the in addition intelligent voluntary, respect free, to the with flapfped] open a little and that's when bit A: The door kind of in, Hayes [accomplice]Zachary in the store. went went Fitzgerald Q: Zachary Hayes and so Mr. and Mr. And went inside point? Hayes the at that were both inside store Exactly. A:
Q: you did then? What do go couple later I in the store. That's I said like a minutes A: Then tussling with the store owner. I seen them wrestlin' and when Q: you you tussling? them did do after saw What helped. IA:
Q: hit the owner? You store wrestling hit him. I didn't him. A: I was with any record, trying the to locate conceiv- We have searched of record. appellate able for counsel's characterization this basis possibility that counsel somehow confused pursued We even the the But the record plea proceeding the with first. second careful, and equally that the court was Meeks was establishes active, plea first as well. equally proceeding in the by three appellate note that counsel was assisted We also leadership educational law students. We value counsel's willingness to be truly appreciate appellate involved proceedings, participation with the active of students under his not, however, may modify We the standards of supervision. and, indeed, we appellate practice pedagogical purposes for They the students. must understand must not mislead law importance represen- record review and paramount careful Thus, tations, to this we be and accurate assertions court. would identify gross misrep- appellate if we failed to briefs remiss record, given insulting distor- particularly resentation of the its Judge exceptionally tion of Konkol's conscientious conduct proceedings. both plea plea,
nature of reflecting the court certain offered comments appreciation its of the concerns carefully and its effort to monitor Meeks's understand- ing proceedings: defendant!,] I particular
[I]n feel that the as we've had colloquy!,] this express has been able to in his own various ideas and that he ques- words has answered tions appropriately [c]ourt. [c]ourt The particu- larly asking questions get was not always that would yes from answers Mr. Meeks. Mr. Meeks was able on pick up that and did answer no when no would have been appropriate again answer. He engaged has discussion He's been able [c]ourt. to talk with counsel while the morning matter has been here this I he actually and feel does understand what's involved *35 in all this. of
Accordingly, sentencing. the set the for court case day sentencing July
¶ The 28, 59. before the report 2000, defense counsel submitted a from Dr. John psychologist Liccione, V a who had on examined Meeks May 31, 13, 26 and and In June 2000. 29 letter June to counsel, defense Dr. Liccione observed that "a serious question [Meeks's] competency proceed mental to recommend[ed] "strongly the involved," trial is and a competency re-examination of his to stand be trial at conducted this time." Counsel the advised court that bring he felt he had to the letter to the court's attention competency "and one raise more time." allege any however, Counsel, 60. did not changes in Meeks's condition or new circumstances warranting competency hearing. another evaluation or dispute prosecutor's He did not the comment that "[defense counsel] [the would concede between competency hearing day time of the the and of sentenc- ing], nothing there is new." Nor did defense counsel "especially...
dispute prosecutor's if view that the guilty plea.. during the . had been here someone impossible... Meeks, Mr. it would be entered really anything than total conclude other by Mr. Meeks." agreed. Again, it summarized the The court hearing, then ob- the
evidence from served:
Basically reviewing Dr. what the other Liccione indicated, coming fairly inup reports ['] had doctors I as other And much the same situation the doctors. interesting, again, looking think he was at it's strong he did not find aspect, N.G.I. and indicated while capacity support that the defendant lacked substantial wrongfulness appreciate of his behavior either requirements of the law for conform his conduct to defect, he reason of mental illness or believes there's in the competency question proceeding to trial matter.... And, again, report pre-
. from Dr. Liccione .. again, nothing rehashing, than the sents new other things brought and that up other doctors had [cjourt. by the had been discounted unnecessary again it Thus, the circuit court found competency hearing; it then conduct an additional Meeks. sentenced
¶ As details of 62. The trial court was correct. the proceedings post-competency re determination these again stage veal, at each where counsel raised the Judge carefully compared competency issue, Konkol reports psychiatric psychological to the evi new Judge State dence had come before Lamelas. v. that Cf. App 699, 624 Fosnow, 2, 26, WI 240 Wis. 2d 2001 (new opinion, expert on avail- based facts N.W.2d 883 previous expert, "newly- able to does not constitute evidence"). Judge Konkol con- discovered continued to Judge sider defense counsel's view. Konkol continued to consider demeanor Meeks's and in-court communica- presented anything tion. Trial counsel never to estab- any change lish substantial Meeks's condition or Judge circumstances that would have altered competency Lamelas's Therefore, conclude, determination. we Judge correctly repeated requests Konkol denied the for hearing. an additional evaluation and By Judgment affirmed. Court.— {concurring). agree I FINE, J. with the result appeal join Majority Opinion in this cannot in the but explained for the reasons below. Majority opines may
¶ 64. The a trial court opinion lawyer representing consider the of the a de- competency hearing fendant at a as whether disagree. competent. defendant I is general lawyer may ¶ 65. The rule is that a not testify proceeding as a witness in a at which he or she is representing parties. 20:3.7; one of the SCR see Peck v. Corp., 662, 670-673, Meda-Care Ambulance 2dWis. (Ct. 1990).1 App. 538, Thus, 542-543 457 N.W.2d absent 1 SCR provides: 20:3.7 witness, (a) Lawyer lawyer as A shall not act as advocate at a lawyer likely necessary except trial in which the to he a witness
where: (1) testimony issue; relates to an uncontested (2) testimony legal relates to the nature and value of case; services rendered (3) disqualification lawyer would work substantial hardship on the client. *37 extraordinary mentioned in Rule circumstances by Jerry competency hearing testimony J. 20:3.7, at the lawyer have been trial would Meeks's then-current professional Majority doubt, as the misconduct. No lawyer compe opines, who doubts the a defendant's tency issue, raise the State v. of his or her client must 210-211, 176, N.W.2d Johnson, 207, 133 Wis. 2d 395 (1986), may give he his or her 178 but or she not personal opinion on merits of the issue. SCR 20:3.4(e) (lawyer may personal opinion not "state a as to cause"); justness Younger Paper & of a v. Rosenow Supply 556-557, 841, Co., 548, 63 2d 217 N.W.2d Wis. (1974). Majority's agree ex- I do not with the also attorney- paragraphs 28 to 42. The tended discussion privilege protect not all communications client does lawyer client, and his or her Wis. Stat. Rule between 905.03(4); only protects it "confidential communica- lawyer, lawyer from the client to the and from the tions lawyer-to-client to the client if com- disclosure directly indirectly reveal the munications would of the client's confidential communications to substance lawyer." Borgwardt Redlin, 342, 2d v. 196 Wis. (Ct. 1995). App. 581, 352-353, 538 N.W.2d 585-586 showing prior lawyer's at all that the There has been no hearing testimony at revealed or from tended to reveal confidential communications during representation of her Meeks to her the course Upjohn 383, States, him. See Co. v. United 449 U.S. (1981) (attorney may not refuse to disclose relevant fact knowledge, knowledge within his or her unless that (b) lawyer may lawyer A act as advocate in a trial which another lawyer's likely in the firm is called as a unless be witness precluded doing or Rule from so Rule 1.7 1.9. client-to-attorney from a confidential commu- derived *38 nication). analysis. me, For ends foregoing although agree I reasons, 67. For the by Majority, join with the reached I cannot result opinion. Accordingly, respectfully I concur.