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State v. Washington

Court of Appeals of Wisconsin, District II

December 21, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Michael L. Washington, Defendant-Appellant.

          APPEAL from a judgment and an order of the circuit court for Racine County Cir. Ct. No. 2011CF414: WAYNE J. MAPJK, ALLAN B. TORHORST and DAVID W. PAULSON, Judges. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          REILLY, P.J.

         ¶1 Michael L. Washington appeals from his conviction for burglary and resisting an officer and a postconviction order denying his motion for a new trial.[1] Washington asserts that his convictions should be vacated and he should be granted a new trial as his absence from the entirety of his jury trial violated his statutory right to be present under WIS. STAT. § 971.04(1) (2013-14).[2]We affirm as Washington waived his statutory right to be present.

         Background

         ¶2 Washington was charged with burglary and obstructing an officer, stemming from an incident on April 1, 2011, where Washington entered R.V.'s apartment in Racine. Washington was apprehended a short distance from R.V.'s apartment and had to be tased after failing to heed police instructions. Washington had two bags full of R.V.'s belongings.

         ¶3 Washington's first two appointed attorneys requested the court's permission to withdraw, citing "a break down in [the] relationship, " an inability to "effectively prepare a defense for this case, " and Washington's "[refusal] to acknowledge the evidence against him." When the second attorney withdrew, the trial court expressed its concern that Washington was engaging in a pattern of ignoring his attorneys' advice and the court would not allow another attorney to withdraw based on "difficulty in communication." Washington's third attorney also requested to withdraw. The trial court initially granted the request, but then rescinded it due to Washington's speedy trial demand. On the eve of trial, Washington's attorney again requested to withdraw, which the court refused as Washington's behavior was "an act of manipulation."

         ¶4 The next day, after the jury was chosen but before being sworn, trial counsel informed the court that she learned some new information that might be exculpatory of Washington. The court dismissed the jury and adjourned the trial. At the next hearing date, trial counsel again submitted a motion to withdraw, citing Washington's belief that counsel was not "adequately representing him." The trial court expressed its continued concern that "we have a pattern developing where no matter who is appointed to represent you if they don't tell you what you want to hear you're going to not get along with them and you're going to ask them to withdraw. And I can see this going on indefinitely." The trial court denied the motion to withdraw.

         ¶5 At the beginning of the second scheduled trial, trial counsel told the court that Washington had been uncooperative: "[Washington] stated that I was not his attorney. And refused to speak to me about [the case]." Washington and the trial court then engaged in the following exchange:

THE COURT: Well, sir, we've been down this road so many times over and over and over.
DEFENDANT: And we can keep going over and over it again.
THE COURT: No, we're-
DEFENDANT: She's not representing me, man.
THE COURT: Sir, the matter is set for trial.
DEFENDANT: I don't know what it's set for, she ain't ...

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