SUBMITTED ON BRIEFS ORAL ARGUMENT: October 3, 2017
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.
Court Racine County, L.C. No. 2011CF414, Allan B. Torhorst,
David W. Paulson, and Wayne J. Marik Jusge.
the defendant-appellant-petitioner there were briefs filed
and an oral argument by Andrew R. Hinkel, assistant state
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.
WALSH BRADLEY, J.
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. He asserts that the court of appeals
erred in determining that, by his conduct, he waived his
statutory right to be present at trial.
Washington specifically contends that his right to be present
at trial pursuant to Wis.Stat. § 971.04(1) (b) (2013-14)
was violated. 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.
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
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.
Accordingly, we affirm the decision of the court of appeals.
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.
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.
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.
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[.]"
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.
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
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.
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,
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.
words of the circuit court, Washington's demeanor was
"physically aggressive and threatening."
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. 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."
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.
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. 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.
case proceeded to jury selection in Washington's absence,
and the selected jurors returned the next ...