On behalf of the defendant-appellant, the cause was
submitted on the briefs of Rebecca R. Lawnicki of Henak Law Office, S.C., Milwaukee.
On behalf of the plaintiff-respondent, the cause was
submitted on the brief of J.B. Van Hollen, attorney general and Thomas J. Balistreri, assistant
2011 WI App 25
COURT OF APPEALS
DATED AND FILED
January 25, 2011
Acting Clerk of Court of Appeals
This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
from a judgment and an order of the circuit court for MilwaukeeCounty:jeffreya.wagnerandjeffreya. conen, Judges.Affirmed.
Before Fine, Kessler and Brennan,
¶1FINE, J. DemetriusM.Boyd appeals a judgment convicting
him of twenty crimes (three counts of armed robbery with threat of force as
party to a crime and as an habitual criminal, seeWis. Stat. §§
943.32(2), 939.05, 939.62; driving someone else’s car without the owner’s
consent and while having a dangerous weapon as party to a crime and as an
habitual criminal, seeWis. Stat. §§ 943.23(1g), 939.05,
939.62; unlawfully possessing a firearm as a convicted felon, as an habitual
criminal, seeWis. Stat. §§ 941.29(2)(a), 939.62; unlawfully possessing
a short-barreled shotgun as an habitual criminal, seeWis. Stat. §§ 941.28(2),
939.62; driving someone else’s car without the owner’s consent as an habitual
criminal, see Wis. Stat. §§ 943.23(3), 939.62; ten counts of felony bail
jumping as an habitual criminal, seeWis. Stat. §§ 946.49(1)(b), 939.62;
battery, see Wis. Stat. § 940.19(1); unlawfully and intentionally pointing
a firearm at another person, seeWis. Stat. § 941.20(1)(c); and
resisting or obstructing a law enforcement officer, see Wis. Stat. § 946.41(1)).He also appeals the circuit court’s denial of
his motion for postconviction relief.He claims that he is entitled to a new trial
because:(1) the trial court should
have given him a new lawyer when he complained about his trial lawyer; and
(2) he contends that his trial lawyer gave him constitutionally deficient
representation.He also argues that
convicting him on bail-jumping counts based on criminal acts for which he was
also convicted violated his double-jeopardy rights.Finally, he asserts that the circuit court
should have granted him an evidentiary hearing on the issues he raised in his
postconviction motion.We affirm.
¶2The jury convicted Boyd
of crimes involving four victims.The
jury found that Boyd and two
associates robbed AbdelHussein, BasilAwieus,
and MongedAsad with a sawed-off shotgun shortly
after on January 3, 2008.The jury also found that Boyd battered LanitaSkinner,
the mother of Boyd’s son, and threatened
her with a shotgun several hours after the January 3 robbery.
¶3Hussein told the jury that he had
just closed the liquor store where he worked and was in the store’s parking lot
with Awieus, his uncle, and Asad, his cousin, when three men drove into the
parking lot in a van, jumped from the van, and, armed with a shotgun, took
things from their pockets and Hussein’s black Nissan
Maxima.The testimony of Awieus and Asad
was essentially the same, and surveillance tapes of the parking lot
substantiated their testimony.None of
the men could identify any of the robbers, however, because they wore masks.
accomplices also testified about the robbery, and supported the victims’
told the jury that he, Kenyarie Washington, and Boyd were driving around in the van looking for
someone to rob.According to Nickelson,
the robbery was Boyd’s idea.When they arrived at the store, Boyd gave the shotgun to Nickelson, who held it while
told everyone to get on the ground.Washington
took Hussein’s Maxima, and Nickelson and Boyd went to Nickelson’s house.The three of them met up later and drove with
Skinner to where Boyd wanted Skinner
to rob her sister’s boyfriend, which Skinner told
the jury was her idea to divert Boyd’s
attention from her because he had been hitting her.They were in Hussein’s
Maxima and Boyd was driving.Skinner said that
when Boyd became frustrated because
she did not get the money, he threatened her with the shotgun, and that she
soiled herself from fear.Washington’s
testimony was similar to that of Nickelson and Skinner.
¶5As luck would have it, a police officer, MichaelVagnini,
later saw Hussein’s Maxima run through a stop sign,
and tried to stop the car.After chasing
the Maxima at speeds reaching some eighty miles per hour, Vagnini told the jury
that a man jumped from the car while it was still moving, albeit slowly, and,
after a foot chase, Vagnini caught him.The man was Boyd.When captured, Boyd
had Hussein’s credit and debit cards and Hussein’s driver’s license, and also Asad’s check and credit
¶6After his arrest, Boyd
voluntarily gave the police a DNA sample.A technician employed by the State Crime Laboratory testified that she
matched Boyd’s sample to DNA found on
the Maxima’s steering wheel.
¶7Boyd testified and
denied all the charges.He told the jury
that he was just standing around when Vagnini stopped the Maxima, which he
denied driving, and that the officers planted the victims’ property on him.He admitted, however, that he had earlier
told the police that he was in the Maxima with two other men who gave him the
victims’ cards, testifying that he told the police “several different stories”
about the cards.He also claimed that he
was at Skinner’s house “an hour of ”
the night of January 3.He denied
knowing Nickelson.As we have seen, the
jury convicted Boyd on all charges
except the one alleging that he battered Skinner in December of 2007 and the
underlying bail-jumping charge.We now
turn to his contentions on appeal.
A.Boyd’s request for a new lawyer.
¶8Although, with exceptions not material here, persons have the
right to retain counsel of choice, indigent defendants in criminal cases may
not select the lawyers who represent them.State v. Jones, 2010 WI 72, ¶¶38–42, 46, 326 Wis. 2d 380, 407–410,
412, ___ N.W.2d ___.An indigent
defendant does, however, have the right to a lawyer with whom he or she can
communicate effectively.Id., 2010 WI 72, ¶25, 326 Wis. 2d at 397–398, ___ N.W.2d at ___.When an indigent defendant seeks a new lawyer
because of an alleged breakdown in their communication, the trial court must
consider two factors:(1) whether the
request for a new lawyer is timely, and (2) “‘whether the alleged conflict
between the defendant and the attorney was so great that it likely resulted in
a total lack of communication that prevented an adequate defense and
frustrated a fair presentation of the case.’”Ibid.,(quoted source omitted).A request for a new lawyer is timely if it is
made when the “total lack of communication” becomes evident, even though that
might be on the eve of trial.Id., 2010 WI 72, ¶30, 326 Wis. 2d at 401–402, ___ N.W.2d at ___.A trial court has discretion to deny a
indigent defendant’s request for a new lawyer, and we will uphold the trial
court’s decision if it “‘examined the relevant facts, applied a proper standard
of law, and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach.’”Id., 2010 WI 72, ¶23, 326 Wis. 2d at 397, ___ N.W.2d at ___
(quoted source omitted).Thus, we must
assess “‘the adequacy of the [trial] court’s inquiry into the defendant’s
2010 WI 72, ¶25, 326 Wis. 2d
at 397–398, ___ N.W.2d at ___ (quoted source omitted).Although we review de novo whether the trial court correctly applied the applicable
law, see State v. White, 2008 WI App 96, ¶9, 312 Wis. 2d 799, 806,
754 N.W.2d 214, 218, a trial court’s findings of fact are binding on us unless
they are “clearly erroneous,” State
v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845, 848 (1990),
and those findings may be implicit in the trial court’s ultimate conclusion, Schneller v. St. Mary’s Hosp. Med. Ctr., 162 Wis. 2d 296, 311, 470 N.W.2d
873, 879 (1991).
¶9Boyd asserts that
the trial court erred in not letting him have a new lawyer, contending that it
applied the wrong standard (whether the lawyer was giving Boyd
ineffective representation, rather than whether there was the requisite
complete breakdown in communication).As
explained below, we disagree.
¶10Boyd asked for a new
lawyer twice:five days before the trial
and during the trial.We look at each in
request five days before trial.
¶11The first time Boyd
told the trial court that he wanted a new lawyer was when it appeared that a
police officer whom the State had subpoenaed and the defense wanted to call as
a trial witness was going to be out of the country when the trial was
scheduled.The State and Boyd’s lawyer agreed that the officer’s testimony
would be preserved by deposition.SeeWis.
Stat. § 967.04.Boyd told the trial court that he preferred to have
the officer testify in front of the jury at the trial, and offered to waive his
right to a speedy trial.He complained
that he first learned the previous evening that the trial court would hold a
hearing to see whether the officer’s testimony should be taken by deposition.He said that he “would have liked to have known
about, you know, him taking this trip at least 30 days before hand so we could
have prepared for this.”He added that
“it was just on short notice, and I’m afraid I don’t feel comfortable.”The trial court ordered that the officer’s
testimony be preserved by deposition.
¶12At the end of the hearing on whether to preserve the officer’s
testimony by deposition, Boyd’s lawyer
told the trial court, “I don’t know if my client has concerns about my
representation or not.”When the trial
court asked Boyd whether he wanted a
new lawyer, Boyd responded, “Yeah,
sure.”When asked to explain, Boyd said:“Me
and my attorney is having a lot of conflict issues.”The trial court then asked:
What type of conflicts?I don’t want to know specifically, because that’s attorney/client
privilege.So I don’t want to know
specifically what you have discussed.
Does it have to do with
strategy?Does it have to do with the
fact that somebody is calling somebody names? Does it have to do with the fact
that there is [sic] personality
conflicts?The rest of it I don’t want
the specifics, and I don’t care to know about the specifics.
responded, “Basically that’s about it.”The trial court denied Boyd’s
request, and noted the following:
insisted on testifying at his preliminary examination, and the trial court
reflected that this was not only rare but also not in Boyd’s
interest.“It appears that you’re the
one that is pulling the strings here and calling the shots as it is.”
•That if Boyd had differences with his
lawyer over strategy, it was “within reason” for the lawyer “to make decisions
of what is appropriate as far as making tactical decisions,” and that “[i]f you
think that you know better, and you want to put on certain evidence, or
continue to pursue this case in a specific way, then I guess you can make those
suggestions to him.”
The trial court then ruled, in
what Boyd contends was a flawed
analysis under Jones and its antecedents:
Everything that I have seen so
far throughout the course of the representation that has been going on here has
indicated that your lawyer has worked extremely hard and diligently in
preparing this case.At the final
pretrial we had a long discussion about preparation and what needs to be done
in this case and how it needs to move along, and I have seen nothing in this
matter so far that indicates any deficient performance.
My thoughts are that the
attempt to fire your lawyer is nothing more than a delayed [sic] tactic, so that is not going to be
¶13Boyd argues that by using the phrase “deficient performance,”
the trial court applied the wrong test and did not assess whether Boyd and his
lawyer had a conflict that was “‘so great that it likely resulted in a total
lack of communication that prevented an adequate
defense and frustrated a fair presentation of the case.’”SeeJones,
2010 WI 72, ¶25, 326 Wis.
2d at 397–398, ___ N.W.2d at ___ (quoted source omitted).The very analysis that Jones
tells us is required, however, negates Boyd’s
contention:a “total lack of
communication” between a lawyer and his or her client is one that “‘prevent[s]
an adequate defense and frustrate[s] a fair presentation of the case.’”Ibid. (quoted source omitted).Thus, even though a trial court does not make
an exhaustive “full inquiry,” its decision to not permit an indigent defendant
to get a new lawyer will not be overturned when the Record is devoid of
evidence “‘of a conflict that made counsel’s continued representation untenable.’”State v. McDowell,
2004 WI 70, ¶73, 272 Wis.
2d 488, 525, 681 N.W.2d 500, 518 (adopting State’s analysis) (emphasis
added).Mere disagreement over strategy
does not suffice.Id.,
2004 WI 70, ¶75, 272 Wis.
2d at 526, 681 N.W.2d at 518.The crux,
as the trial court’s brief analysis of Boyd’s
conclusory complaint recognized, is whether the alleged conflict “prevented an
adequate defense.”Seeibid.Significantly, Boyd
has not shown, other than by mere assertion, how the alleged problems he was
having in communicating with his trial lawyer either prejudiced his defense or,
in the words of McDowell quoted earlier,
made the lawyer’s “continued representation untenable.”Seeid.,
2004 WI 70, ¶73, 272 Wis.
2d at 525, 681 N.W.2d at 518 (internal quote marks and quoting source omitted).
The trial court thus applied the
appropriate standard and did not erroneously exercise its discretion in concluding
that the disagreements Boyd had with his trial lawyer did not warrant giving
Boyd a new lawyer.Accordingly, a remand
for a retrospective hearing is not required.See State v. Lomax, 146 Wis. 2d 356, 365, 432 N.W.2d 89,
93 (1988) (“When a trial court has not made an adequate inquiry into a
defendant’s last-minute request to discharge appointed counsel, a retrospective
hearing, at which the defendant may present whatever he deems necessary to
fully articulate his reasons for wanting counsel discharged, strikes a proper
balance between the constitutional rights of defendants and the efficient
administration of justice.”).
request during trial.
¶14The second time Boyd
told the trial court that he wanted a new lawyer was during the examination at
trial of Detective David Lopez, who took a sample of Boyd’s
DNA with Boyd’s consent.The dispute focused on questions that Boyd wanted his lawyer to ask Lopez
and the lawyer’s reasons for not asking them.The following is the pertinent colloquy.The jury was not present:
trial lawyer]: My client wanted me to ask the detective, and I
explained to him why I felt that those were not appropriate questions and
unnecessary and not a good strategic decision.
He disagrees with me.He wants to ask the question.I then asked him if he wanted to represent
himself because I wasn’t going to be asking those questions and he indicated
that he would like to represent himself and ask his own questions.
THE COURT: So what
are the questions?
trial lawyer]: The first question that he wanted me to ask was are
you required to record such a procedure [for taking a DNA sample].I explain [sic] to him that that’s exactly what the detective already
Did you -- the second question,
did you explain to Mr.Boyd why you were requesting his
DNA.I didn’t feel that was a necessary
question because then that would go into the 22 counts again and I thought it
would be prejudicial to his case.
The third question was how
much time did you spend with Mr.Boyd.I didn’t think that was necessarily a
question that needed to be asked.
And, number four, did you
question Mr.Boyd about the charges.Again, I didn’t want to bring up the 22
charges.I think it hurts his case every
time we talk about 22 charges being brought against him.I didn’t feel that any of these questions
were in his best interest to ask and I wanted the detective off the stand as
quickly as possible.
THE COURT: Mr.Boyd,
you have a lawyer.Your lawyer is going
to run the trial as he sees fit.He’s
the one that went to law school.So
that’s what we’re going to do.
THE DEFENDANT: Your
Honor, may it please the Court.
THE COURT: Sure.
THE DEFENDANT: My
attorney -- my attorney, he instruct me, he said write down these questions
that I may have for anybody who takes the stand.
THE COURT: Okay.
THE DEFENDANT: I
feel like -- I feel as though some of these questions are important that would
lead to -- they will lead to -- I believe that I’m very concerned about the
integrity of the evidence, the DNA.I
understand that I did give my consent.I
did understand that the documents that were presented in court showed that I
signed my consent, but there was no video or audio recording.That’s a procedure that I understand that is
usually taken when detectives or someone of that profession is collecting DNA.
THE COURT: I don’t
think it is.I’ve never heard of
that.I’ve heard of taking statements
that have to be recorded now, but I’ve never heard audio or video being taken
of DNA samples.
The trial court then explained
that Boyd would have to defer to his
lawyer’s decisions on strategy.Boyd responded by saying that he felt that he “may
need to plea or somethin’ because it’s not workin’ between me and my
attorney.My attorney may not want to
represent me to the best of my interest because of the conflict of interest
between us.”The trial court
appropriately asked Boyd to explain:
What’s the conflict of interest then?We’re in the middle of a trial at this
point.I’m not going to have him removed
from the trial unless it’s really bad.If he beat you.If he out and out
lied to you about everything that went on with this trial.
THE DEFENDANT: Yes,
he have [sic] lied and I have
documentation.He has sent me letters, I
mean in black and white, stipulatin’ that he has filed motions with the Court
to be heard and he’s just waiting to hear back from the Court.I have these letters.I have no problem bringing them to court to
show proof they’re from him.The motions
was [sic] never filed.As a matter of fact, when we had the hearing
about the deposition hearing, he told me that day, okay, I lied.I didn’t file the motions.But, you know, you lied to me for the past
two months and you told me several times that you filed the motion.You was just playin’ it by ear.You was waitin’ for the Court to give us a
date to hear the motion.I’m very
concerned about this man defendin’ me, Your Honor. I believe he
THE COURT: What
motions are we talking about?
lawyer said that it was a motion to lift some of Boyd’s
jail restrictions, and that he would file the motion if Boyd
wanted him to.“I wasn’t in the
Courthouse for several weeks.We had a
subsequent meeting.He told me, I’m
fine, or don’t worry about it, so I didn’t file it.”(Formatting altered.)Boyd
responded, “Your Honor.That is --
that’s totally not true.”When the trial
court said that the jail matter did not concern the trial itself, Boyd added that his trial lawyer also did not ensure
that Skinner’s cell phone, which Boyd
had when he was arrested, would be available to show pictures that Boyd said proved that he was elsewhere when the
victims were robbed.His trial lawyer
explained that the cell phone belonged to Skinner and that the police returned
it to her:
I sent out an investigator to see if they [sic] could get the cell phone.They were unsuccessful.I didn’t think -- Mr.Boyd
told me there was a motion that I could file.But I was not aware of a motion I could file to dismiss the case because
the State failed -- because the State released evidence prematurely and we
didn’t have a right to discover.
Boyd then said that the cell
phone belonged to Skinner’s sister, and that he didn’t “blame my attorney for
not bein’ able to obtain the cell phone because I understand that he wasn’t the
one who made the order of the release of the cell phone.”After further colloquy about the cell phone
and whether it would show that Boyd
was somewhere else when the victims were robbed, Boyd
again explained why he did not want the trial lawyer to represent him:
THE DEFENDANT: I
totally feel like this man is not going to represent me to the best of my
interest.He has already told me he’s
going to make sure that I have no appellate issues.Now, have you not said that?
trial lawyer]: I was going to make sure he had a fair trial and that
we wouldn’t leave any stone unturned.That’s exactly what I said to him.
then listed other matters that he said made him uncomfortable with his trial
•“He called me an idiot.I called him names, of course.We went back and forth.”
•The trial lawyer’s investigators
hadn’t come up with any exculpatory evidence.
The trial court refused to
dismiss Boyd’s trial lawyer, noting
that Boyd’s “credibility with the
Court is pretty much minimal.”Later in
the colloquy, Boyd repeated that he
did not “believe this man is going to represent me to the best of his interest
-- I mean my interest.”The trial court
responded:“I believe he’s doing an
excellent job that I can tell right now.”Boyd then repeated that he “may
want to enter a plea of no contest because, Your Honor, basically I see right
now at this time I can’t excuse this counsel from the case.”He accused the lawyer of being a “doormat for
the prosecutor’s office.”
¶15The State said that it “would … encourage the Court not to
accept a no contest plea,” and the trial court said that it would not accept
one.After expressing a concern that Boyd was trying to create an
ineffective-assistance-of-counsel issue, the trial court opined that it was not
going to get into that matter in the middle of the trial.It then asked Boyd’s
trial lawyer whether he “believe[d] that you’re in a position to properly
represent your client at this time and try this case?”The lawyer responded:
Your Honor, I fully investigated this case.I’ve spent countless hours preparing for
trial.I’ve spent time with my client
discussing this case.I don’t care about
his mental status.I operate as an
officer of this Court who is defending him.My interest is to defend him.It
always has been.I’ve discussed my
concerns in several letters with him regarding this case and his desire to
proceed to trial so my desire is to proceed to trial.I don’t have any conflict of interest with
him.I’ve simply advised him of the
difficulties that this trial is going to have, but I’ve always maintained my
steadfast and diligent effort to defend him and I’m not operating in behalf of
the State in this case,I’m operating on
again asked whether he would be allowed to ask witnesses the questions he
wanted to ask, the trial court repeated that that was his lawyer’s decision and
that it was not going to get into an ineffective-assistance-of-counsel analysis
in the middle of the trial.Finally, the
trial court opined that it saw what Boyd
was attempting to do as “nothing more … than a delay tactic.”
¶16As he did with his complaint about the trial court not letting
him have a new lawyer that we discussed in Part 1 of this subsection, Boyd
focuses on the trial court’s reference to Boyd’s possible
ineffective-assistance-of-counsel claims and argues that the trial court thus
applied the wrong legal standard.But,
here, as with the matter we discussed in Part 1 of this subsection, Boyd has
not shown that he had such a disagreement with his trial lawyer that it was the
type of “‘conflict that made counsel’s continued representation untenable.’”See McDowell, 2004 WI 70, ¶73, 272 Wis. 2d at 525, 681
N.W.2d at 518 (quoted source omitted) (emphasis added).Indeed, other than conclusory assertions that
his trial lawyer was not representing the “best of my interest,” Boyd’s
unhappiness with his trial lawyer focused on questions he wanted to ask, and,
as described in Part 1 of this subsection, whether a witness’s testimony should
have been preserved by deposition.As we
have already seen, however, a mere disagreement over strategy does not
2004 WI 70, ¶75, 272 Wis.
2d at 526, 681 N.W.2d at 518. Boyd has
pointed to nothing that demonstrates a breakdown so serious that it “‘resulted
in a total lack of communication that prevented
an adequate defense and frustrated a fair presentation of the case.’”See Jones, 2010 WI 72, ¶25, 326 Wis. 2d at 397–398, ___
N.W.2d at ___ (quoted source omitted).The trial court did not erroneously exercise its discretion in denying Boyd’s second request for a new lawyer, and a remand
for retrospective hearing is not required.SeeLomax, 146 Wis. 2d at 365, 432 N.W.2d at 93.
B.Boyd’s contention that his trial lawyer gave him
constitutionally deficient representation.
¶17Boyd claims that his trial lawyer’s representation was
constitutionally deficient in four respects and that the postconviction circuit
court erred in not giving him a hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979) (hearing to determine whether lawyer gave a defendant ineffective
assistance).We address his contentions
after we set out the overall governing standard.
¶18To establish constitutionally deficient representation, a
defendant must show:(1) deficient
representation; and (2) resulting prejudice.Strickland
668, 687 (1984).To prove deficient
representation, a defendant must point to specific acts or omissions by his or
her lawyer that are “outside the wide range of professionally competent
assistance.”Id., 466 U.S.
at 690.To prove prejudice, a defendant
must demonstrate that the lawyer’s errors were so serious that the defendant
was deprived of a fair trial and a reliable outcome.Id.,
at 687.Thus, in order to succeed on the
prejudice aspect of the Strickland
analysis, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.”Id., 466 U.S. at 694.This is not, however, “an
outcome-determinative test.In decisions
following Strickland, the Supreme Court has reaffirmed
that the touchstone of the prejudice component is ‘whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.’”State v. Smith, 207 Wis. 2d 258, 276, 558 N.W.2d 379, 386 (1997)
(citations and quoted source omitted).We need not address both aspects of the Strickland test if the
defendant does not make a sufficient showing on either one.See Strickland,
1.Trial lawyer’s alleged violation of Boyd’s attorney-client privilege.
¶19Boyd complains that
his trial lawyer’s explanations to the trial court in the instances we have
already recounted in the immediately preceding section violated Boyd’s attorney-client privilege because, as he
writes in his main brief on this appeal, the lawyer “divulged privileged
information.”Other than general
assertions, Boyd specifies nothing
that is protected by the attorney-client-privilege shield.
¶20First, the privilege only encompasses confidential
communications from the client to the lawyer, Journal/Sentinel, Inc. v. School
Bd. of School Dist. of Shorewood, 186 Wis. 2d 443, 460, 521 N.W.2d
165, 173 (Ct. App. 1994), and those communications from the lawyer to the
client if their disclosure “‘would directly or indirectly reveal the substance
of the client’s confidential communications to the lawyer,’” Lane
v. Sharp Packaging Systems, Inc., 2002 WI 28, ¶40, 251 Wis. 2d 68,
104, 640 N.W.2d 788, 804 (quoted source omitted). Second, a communication is
“confidential” under the rule only if it is “not intended to be disclosed to
3rd persons other than those to whom disclosure is in furtherance of the
rendition of professional legal services to the client or those reasonably
necessary for the transmission of the communication.”Wis.
Stat. Rule 905.03(1)(d).Thus,
questions Boyd wanted to ask Detective
Lopez were not “confidential” because they would have been revealed by the
asking, which is what Boyd
objection to taking the witness’s testimony by deposition was also not
“confidential” because Boyd wanted the
trial court to know that he objected.
¶21Third, and of special significance here, it is settled that a
criminal defendant waives the attorney-client privilege by claiming that his or
her lawyer was constitutionally deficient.State v. Flores, 170 Wis. 2d
272, 277–278, 488 N.W.2d 116, 118 (Ct. App. 1992) (“[W]hen a defendant
charges that his or her attorney has been ineffective, the defendant’s
lawyer-client privilege is waived to the extent that counsel must answer
questions relevant to the charge of ineffective assistance. Section 905.03(4)(c), Stats., specifically
states that there is no lawyer-client privilege ‘[a]s to a communication
relevant to an issue of breach of duty by the lawyer to his [or her] client or
by the client to his [or her] lawyer.’”) (all brackets except the first pair by
Flores).Although no Wisconsin case has yet considered
the issue (and we have found none from other jurisdictions), we believe that
this common-sense application of the attorney-client privilege applies with
equal force when a defendant in a criminal case claims that he or she cannot
effectively communicate with his or her lawyer—otherwise no court (either nisi prius or reviewing) could assess
whether there was, as phrased by Jones, “‘a total lack of communication’” between them.Jones, 2010 WI 72, ¶25, 326 Wis. 2d at 397–398, ___ N.W.2d at ___
(quoted source omitted).Stated another
way, unless the attorney-client privilege gave way in connection with
confidential client-to-lawyer communications that are material as to whether
there was “a total lack of communication” between them, reviewing courts would
be bound by a defendant’s sheer assertion.Indeed, Wis. Stat. Rule
905.03(4)(c) tells us that the attorney-client privilege does not apply “to a
communication relevant to an issue of breach of duty by the lawyer to the lawyer’s
client or by the client to the client’s lawyer”; a lawyer’s unremedied failure
to effectively communicate with a client is such a breach of duty.
however, that State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859, requires a
different result.We disagree.
¶23The issue in Meeks was whether a lawyer could
testify about her “opinions, perceptions, and impressions relating to a former
client’s mental competency” when the client’s competency was in issue.Id., 2003 WI
104, ¶2, 263 Wis.
2d at 798, 666 N.W.2d at 861.Holding
that the lawyer could not so testify, Meeks engrafted on Wis. Stat. Rule 905.03, the lawyers’
ethical duties set out in SCR 20:1.6, Meeks, 2003 WI 104, ¶60, 263 Wis. 2d
at 823, 666 N.W.2d at 873–874, and determined that the lawyer’s views of her
client’s competency necessarily was based on matters encompassed by the
privilege, id., 2003 WI 104, ¶54, 263 Wis. 2d at 821, 666 N.W.2d at 873.Unlike the situation here, however, there was
no claim in Meeks that the confidential communications were material to an
alleged breach of the lawyer’s duties to her client.Thus, and in light of Meeks’s application of
SCR 20:1.6 to the attorney-client privilege, it is significant that SCR
20:1.6(c)(4), similar to Wis. Stat. Rule
905.03(4)(c), provides that “[a] lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary … to establish a … defense on behalf of the lawyer in a controversy
between the lawyer and the client … or to
respond to allegations in any proceeding concerning the lawyer’s representation
of the client.”(Emphasis added.)
¶24Boyd has not pointed
to anything in this Record that shows that his trial lawyer violated Boyd’s attorney-client privilege.
2.The trial lawyer’s request for a brief
recess to research the law.
¶25In the middle of Boyd’s
testimony on cross-examination, his lawyer asked for a brief recess to research
trial lawyer]: Your Honor, I need to ask for a brief recess at this
point.I need to address some legal
COURT: Okay.Why don’t we
send the jury out.
THE BAILIFF: All
rise for the jury.
(Whereupon the following
proceedings were held in the absence of the jury.)
[Then there was a brief
non-material colloquy with a lawyer from Boyd’s
trial lawyer’s firm.]
trial lawyer]: I just need a brief 10 minutes to do some legal
THE COURT: Okay.
trial lawyer]: I would prefer not to discuss the issue at this
point, I think it’s an attorney-client issue.
COURT: Okay.Go ahead.
After the recess and before the
jury returned, Boyd’s trial lawyer and
the trial court put the matter on the Record.
lawyer]: In the middle of the testimony I had concerns about my own
duties as to my client after hearing his testimony, I did a little bit of
research, and I concluded that the only things that I could advise my client of
were that there is a penalty for perjury and that the Fifth Amendment is no
longer able to be invoked.I discussed
that with him and I believe he understands that at this point and we’re
prepared to continue on with testimony.
THE COURT: All
right.Just so the record is clear then,
there was no discussion of specific testimony, I’m not -- I know it’s
attorney-client privilege, but what I’m concerned about is the fact that it may
appear as though you were telling your client what to say and that is not the
case; is that correct?
trial lawyer]: That is not the case.I simply discussed with him perjury and the Fifth Amendment and left it
THE COURT: That’s
trial lawyer]: I believe he is fully advised.
THE COURT: It’s
more for appearance sake than anything else, we’ve discussed it in chambers and
I am satisfied that that didn’t go on, but I want to make sure that there is a
record that that did not happen for appearance sake.
Pointing out that the request
by Boyd’s trial lawyer for a recess came immediately after the following
question and answer on cross-examination, Boyd argues that his lawyer somehow
telegraphed to the jury by his request for a recess that the lawyer believed
that Boyd was committing perjury:
QSo, in any event, going back to what
was going on there on Booth Street
[where the Maxima stopped after Officer Vagnini chased it] did you see anybody
get out of the car or no?
ANo, I did not.
QAnd that’s totally contrary to
everything that you have told this tribunal in the past; isn’t that true?
AWell, the thing about me seeing
somebody get out [of] the car would be almost impossible, because from the
angle the car stopped and they got out at, I couldn’t see no -- I couldn’t see
the driver or passenger door.
As the Record shows, however,
there is no way the jury could have perceived from his trial lawyer’s request
that the lawyer was concerned that Boyd was committing perjury.Insofar as Boyd’s
trial lawyer revealed that matter to the trial court outside of the jury’s
presence, Boyd does not show how,
under the Strickland standard, he
was prejudiced, and that ends the matter.
3.The trial lawyer’s failure to request a
hearing as to whether he and Boyd had
a complete breakdown in their communications.
¶26Boyd contends that his
trial lawyer was constitutionally deficient because the lawyer did not seek an
evidentiary hearing on whether he and Boyd
had a complete breakdown in their communications.As we have already analyzed earlier in this
opinion, the Record shows that there was no evidence of such a breakdown to
warrant a hearing.Thus, Boyd’s trial lawyer was not constitutionally
deficient for not asking for that hearing.See State v. Golden, 185 Wis. 2d 763, 771, 519 N.W.2d 659, 662 (Ct. App. 1994) (A
defendant is not prejudiced under the Strickland
standard when the lawyer does not make a motion that would have been denied.).
¶27As is required under application of Wis. Stat. Rule 906.09, the jury was allowed to hear that Washington
had previously been convicted of two crimes.Boyd faults his trial lawyer, however, for not seeking to adduce that,
as phrased by his main brief on this appeal, that:“Washington had pled guilty to and been
convicted of crimes very similar to the ones at issue at trial:operating a motor vehicle without the owners
[sic] consent … In both cases, Washington
allegedly stole cars, either as the driver or the passenger.”Wisconsin
does not, of course, permit such an inquiry under Rule 906.09.See Voith
v. Buser, 83 Wis. 2d
540, 546, 266 N.W.2d 304, 307 (1978).Nevertheless, Boyd argues that
his trial lawyer should have sought under Wis.
Stat. Rule 906.08(2) to cross-examine Washington
about the specifics of those crimes.Rule 906.08(2) provides:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’s credibility, other than a
conviction of a crime or an adjudication of delinquency as provided in s.
906.09, may not be proved by extrinsic evidence.They may, however, subject to
s. 972.11(2), if probative of truthfulness or untruthfulness and not
remote in time, be inquired into on cross-examination of the witness or on
cross-examination of a witness who testifies to his or her character for
truthfulness or untruthfulness.
Although it may be true(a matter that we do not decide) that,
as Boyd writes in his main brief on appeal, Washington could have been asked
about his earlier brushes with the law “without referencing whether [they]
resulted in a conviction,” see State v. Boehm, 127 Wis. 2d 351,
358, 379 N.W.2d 874, 878 (Ct. App. 1985) (not mentioning an apparent
conflict with Wis. Stat. Rule
906.09), the jury already knew that Washington was in custody for the January 3
armed robbery, and that he took the Maxima from the liquor store parking lot,
and that he actively confronted the armed-robbery victims.The additional damage to Washington’s
credibility would have been minimal.Boyd has not established Strickland
C.Alleged double-jeopardy violation.
¶28As we have seen, Boyd argues that convicting him on bail-jumping counts
based on criminal acts for which he was also convicted violated his
double-jeopardy rights.He recognizes,
however, that State ex rel. Jacobus v. State, 208 Wis. 2d 39, 53–54, 559 N.W.2d 900,
905 (1997), forecloses that argument, at least in our court.SeeState
v. Lossman, 118 Wis. 2d 526, 533, 348
N.W.2d 159, 163 (1984). Accordingly, we do not discuss the issue.
D.Alleged entitlement to an evidentiary
hearing on Boyd’s claims.
¶29Finally, Boyd contends
that he should have an evidentiary hearing to further flesh out his
claims.As we have seen, however, none
of Boyd’s contentions are supported by
specific material facts that are in
dispute so that an evidentiary hearing is needed.SeeState v. Velez, 224 Wis. 2d 1, 12, 589 N.W.2d 9, 14–15 (1999)
(pre-trial motion, but applicable to postconviction motions as well).Thus,State
v. Allen, 2004 WI 106,
¶24, 274 Wis. 2d 568, 585–586, 682 N.W.2d 433, 441–442, gives an example of
what is and what is not sufficient
to require an evidentiary hearing.In
our de novo assessment and as we have
already explained in the preceding sections of this opinion, the Record here
“conclusively demonstrates that the defendant is not entitled to relief.”See id.,2004 WI 106, ¶9, 274 Wis.
2d at 576, 682 N.W.2d at 437.Remand for
an evidentiary hearing is not warranted.
By the Court.—Judgment and order
Honorable Jeffrey A. Conen presided over Boyd’s
trial and sentenced him.The Honorable
Jeffrey A. Wagner denied Boyd’s
postconviction motion.The notice of
appeal recites that, in addition to appealing the order denying his motion for
postconviction relief, Boyd is
appealing “from the final amended judgment of conviction entered in this matter
on July 30, 2008.”There are, however, three judgments of
conviction:one dated July 30, 2008, one dated July 31, 2008, and an
amended judgment of conviction dated January 12, 2010.The notice of appeal’s flawed reference does not, however, affect our
jurisdiction.See Wis. Stat. § 808.04(8)
(“If the record discloses that the judgment or order appealed from was entered
after the notice of appeal or intent to appeal was filed, the notice shall be
treated as filed after that entry and on the day of the entry.”).
Boyd was also charged with battering Skinner in
December of 2007, and with bail-jumping as a result of that incident, but the
jury acquitted him of those charges.
Boyd does not point us to anything he would have done
differently if he had the “30 days” advance notice, or, for that matter, how he
was prejudiced by the deposition procedure.As it turned out, the officer was available to testify at the tail end
of the trial but did not.Boyd does not assert that he was prejudiced by that
Conen presided over Boyd’s preliminary
examination as well as the trial.After the
State rested at the preliminary examination, Boyd’s
lawyer (who also represented Boyd at
the trial) explained why he was calling Boyd
as a witness.We reprint the pertinent
colloquy in full because it reveals that the trial court was familiar with Boyd’s interaction with his trial lawyer.
trial lawyer]: I know this is highly unusual where the defendant
takes the stand at a preliminary hearing.I advised that my client -- I had a very long conversation last night at
the House of Corrections with Mr.Boyd about the ramifications of
him taking the stand.I advised him of
the possible negative consequences to his case.I advised him of the risks he’s taking.I advised him that he has the right to remain silent, that he doesn’t
have to testify, and he is not being forced to do so.I believe Mr. Boyd
is making this decision on his own free will.And I believe he’s doing it against my advice.
COURT: Mr. Boyd, do you understand that you have the right to remain
COURT: And do you understand that when you testify here today that
you pretty much have extinguished that right to remain silent in advance of the
trial; do you understand that?
QYou don’t have the opportunity to
really decide on the day of trial whether you are going to testify or not any
longer.It does not mean that you could
be called and forced to testify on the day of trial, but anything that has been
brought up today and anything that has been discussed with you even on direct
examination, as well as cross examination, can be brought up to the jury at
that time.Do you understand that?
QAnd this is something you wish to do?
Wisconsin Stat. Rule905.03(2) sets the general rule:
A client has a privilege to refuse to disclose and
to prevent any other person from disclosing confidential communications made
for the purpose of facilitating the rendition of professional legal services to
the client: between the client or the
client’s representative and the client’s lawyer or the lawyer’s representative;
or between the client’s lawyer and the lawyer’s representative; or by the
client or the client’s lawyer to a lawyer representing another in a matter of
common interest; or between representatives of the client or between the client
and a representative of the client; or between lawyers representing the client.
Boyd argues that the evidence of Washington’s
earlier brushes with the law was “necessary to rebut the state’s false
suggestion that Washington and Nickelson were
innocent babes in the woods.”Boyd, however, does not point us to anything in the
Record where the State attempted to do that with either co-actor other than
passing references to their youth.Au contraire, all three men—Boyd, Nickelson, and Washington
were presented as the criminals Nickelson and Washington
admitted to be, and as the jury found Boyd
was. Further, Boyd
has only made the Wis. Stat. Rule
906.08(2) argument in connection with Washington.