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State v. Washington

Supreme Court of Wisconsin

January 9, 2018

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

          SUBMITTED ON BRIEFS ORAL ARGUMENT: October 3, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis.2d 214, 890 N.W.2d 592');">890 N.W.2d 592, PDC No: 2017 WI.App. 6 - Published.

         Circuit Court Racine County, L.C. No. 2011CF414, Allan B. Torhorst, David W. Paulson, and Wayne J. Marik Jusge.

          For the defendant-appellant-petitioner there were briefs filed and an oral argument by Andrew R. Hinkel, assistant state public defender.

          For the plaintiff-respondent there was a brief filed by Sarah L. Burgundy, assistant attorney general, and Brad D. Schimel, attorney general, and an oral argument by Sarah L. Burgundy.


         ¶1 The petitioner, Michael L. Washington ("Washington"), seeks review of a published court of appeals decision affirming his judgment of conviction and the circuit court's order denying his postconviction motion.[1] He asserts that the court of appeals erred in determining that, by his conduct, he waived his statutory right to be present at trial.

         ¶2 Washington specifically contends that his right to be present at trial pursuant to Wis.Stat. § 971.04(1) (b) (2013-14) was violated.[2] He argues that the court erred in determining that his conduct waived his statutory right to be present given that § 971.04(3) permits waiver only after the trial has begun.[3]

         ¶3 We conclude that Wis.Stat. § 971.04(3) does not apply here. It does not place any limitation on a defendant's ability to waive the right to be present at any portion of trial.

         ¶4 We further determine that Washington, by his conduct, waived his Wis.Stat. § 971.04(1) right to be present at trial. Although we reach this determination under the facts presented, we emphasize that the best practice is an on-the-record waiver colloquy.

         ¶5 Accordingly, we affirm the decision of the court of appeals.


         ¶6 The State charged Washington with burglary and obstructing an officer. He was apprehended near the apartment where the burglary occurred and was uncooperative with law enforcement.

         ¶7 Washington's first appointed attorney was allowed to withdraw from the representation due to a breakdown in the attorney-client relationship. Less than a month later, Washington's second appointed attorney filed a motion to withdraw as counsel, citing an attorney-client relationship that was "irreparably broken" and a "fundamental difference of opinion regarding what defenses are appropriate and viable in this case." The circuit court granted the motion to withdraw and a third attorney was appointed to represent Washington.

         ¶8 Washington's third appointed attorney also moved to withdraw. The circuit court initially granted the motion, but then rescinded its ruling to give effect to Washington's previously filed speedy trial demand.

         ¶9 On the eve of jury selection, Washington's third appointed attorney again moved to withdraw, citing a broken attorney-client relationship as evidenced by Washington's repeated filing of pro se motions without consulting counsel. The circuit court denied the motion to withdraw, explaining its belief "that this is in a sense an act of manipulation on the part of Mr. Washington[.]"

         ¶10 The case proceeded to jury selection the following day and a jury was chosen. The next morning, before the jury was sworn, Washington's counsel informed the court that she had learned of some new, possibly exculpatory information. Washington agreed to withdraw his speedy trial demand and the circuit court dismissed the jury. It rescheduled the trial for a date approximately three months later.

         ¶11 Washington's counsel further advised the court that her relationship with Washington had improved and the two "have been working very well together[.]" She therefore asked "the [c]ourt to not consider [her] motions to withdraw." The circuit court indicated that it was "pleased to hear that the relationship has improved, and that you are now working together very well."

         ¶12 However, Washington's relationship with his counsel quickly soured again. At the next status hearing, Washington's counsel submitted yet another motion to withdraw. The circuit court expressed 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." Consequently, the circuit court denied the motion to withdraw.

         ¶13 On the day the second scheduled trial was to commence, Washington's counsel informed the circuit court that Washington was again being uncooperative. She explained that "[h]e stated that [she] was not his attorney." The circuit court then turned to address Washington and the following exchange ensued:

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 representing me.
THE COURT: All right, Mr. Washington?
DEFENDANT: I'm telling you she's not representing me, man.
THE COURT: Sir, will you let me speak. The matter is scheduled for a jury trial this afternoon. And it is going to be going forward as a jury trial. We have addressed this issue of who is your -
DEFENDANT: I said she's not representing me and we ain't going no trial now, I mean that.
THE COURT: Sir, we will go forward with the trial and if necessary you may have to be removed from the courtroom.
DEFENDANT: I'm gone. She's not representing me. ¶14 The circuit court then stated:
[T]he record may reflect that Mr. Washington semi was removed and semi left on his own after the last outburst. So we are out of his presence right now. And the real issue that has come up here is one of manipulation. I think Mr. Washington has been trying to manipulate this case in my opinion for a very long period of time.

         In the words of the circuit court, Washington's demeanor was "physically aggressive and threatening."

         ¶15 Washington was taken back to the jail and refused to return to the courtroom. Outside of Washington's presence, the circuit court discussed with both counsel how it was going to proceed. Citing State v. Divanovic, 200 Wis.2d 210, 546 N.W.2d 501');">546 N.W.2d 501 (Ct. App. 1996), the circuit court ultimately determined that the trial should proceed because the defendant had waived his right to be present.[4] The circuit court suggested that the "proper procedure" indicated that Washington should be "escorted involuntarily to court for trial" and that "[i]f he is uncooperative he should be warned on the record by the court that if his lack of cooperation continues he will be removed from the courtroom."

         ¶16 However, the circuit court did not follow this course of action. Instead, it determined that "attempting to involuntarily bring Mr. Washington back into court would unduly jeopardize the safety of officers and perhaps even Mr. Washington since his aggressiveness and his attitude suggest that he may be physically resistant to being brought back in and that it could result in an altercation." The circuit court further observed the prejudice that could result to Washington if he were to be brought in against his will in front of the jury.

         ¶17 Determining that Washington waived his constitutional right to be present, the circuit court concluded that the trial would go forward in Washington's absence. It observed that "[Washington's] conduct has been so disruptive that there's no way to proceed with the trial with him here." The circuit court emphasized the manipulative history of Washington's conduct and his unwillingness to be present and cooperate or communicate with his attorney.[5] It further explained that Washington would have the opportunity to consult with counsel and return to the courtroom if he could maintain the proper decorum:

Certainly at any point in time that Mr. Washington is willing to cooperate and behave he has the opportunity to return to this courtroom. Counsel will continue to represent him. Counsel will have reasonable opportunities to confer with him during the course of trial. And he should be periodically advised and we'll figure out how frequently this will be done and in what way it will be done of his right to return to the courtroom if he wishes to do that.

         The case proceeded to jury selection in Washington's absence, and the selected jurors returned the next ...

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