|
COURT OF APPEALS
DECISION
DATED AND FILED
November 4, 2008
David R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
|
|
|
Appeal No.
|
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
|
DISTRICT III
|
|
|
|
|
|
|
|
State of Wisconsin,
Plaintiff-Respondent,
v.
Mark P. Staffa,
Defendant-Appellant.
|
|
|
|
|
|
|
|
|
APPEAL
from a judgment and an order of the circuit court for Eau Claire County: BENJAMIN
D. PROCTOR, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Mark
Staffa appeals a judgment of conviction for second-degree sexual assault as
party to a crime and an order denying his postconviction motion for
relief. Staffa
complains the trial court erroneously permitted him to proceed pro se and made inappropriate,
biased comments in front of the jury. He
also seeks a new trial in the interests of justice. We conclude Staffa
forfeited his right to counsel and the court appropriately determined him
competent to represent himself; the court’s comments, placed in context, do not
demonstrate bias; and a new trial is not warranted. We therefore affirm the judgment and order.
Background
¶2 The State Public Defender appointed three attorneys for Staffa. Each was
fired or moved to withdraw because of difficulty working with him. After the third attorney withdrew, the court
directed Staffa to explain why he had been
through so many attorneys. In short, Staffa was not convinced they were working in his best
interest and, at a status conference, he indicated his frustration that the
attorneys would not do everything he wanted.
The court informed Staffa of the attorneys’ obligations to avoid
advancing frivolous claims and offered to find a fourth attorney,
but warned Staffa he was on the cusp of losing
the right to counsel. The court contacted an attorney who, after
reviewing the file, was willing to take the case. However, while the attorney was solicited in November
2006, he informed the court that he would likely be unavailable for trial until
April 2007. Staffa
thus refused his representation. The
court directed Staffa to proceed pro se.
¶3 Staffa was convicted after a
jury trial. The court set a date for sentencing
and ordered a presentence investigation, with which Staffa
refused to cooperate. The day of
sentencing, Staffa requested an attorney. The SPD appointed one, who asked for an adjournment
for a psychiatric evaluation of her client.
Staffa refused to submit to the
evaluation. The court ultimately
sentenced Staffa to fifteen years’ initial confinement
and ten years’ extended supervision.
¶4 Staffa moved for a new trial, arguing: (1) his due process right was violated
when the court failed to conduct a waiver colloquy under State v. Klessig, 211 Wis. 2d 194, 204-05, 564 N.W.2d 716 (1997), before
making Staffa proceed pro se; (2) the trial court demonstrated prejudice
against Staffa in front of the jury; (3) there was insufficient evidence
to support the conviction; and (4) the interests of justice warranted a
new trial. The court denied the motion
and Staffa appeals.
Discussion
I. Whether the Court Properly
Ordered Staffa to Proceed Pro Se
¶5 The right to counsel is guaranteed by both the United States
and Wisconsin Constitutions. State v. Cummings, 199 Wis. 2d 721,
747-48, 546 N.W.2d 406 (1996). However,
a defendant also has the right to be his or her own advocate. State v. Marquardt, 2005 WI 157,
¶56, 286 Wis. 2d
204, 705 N.W.2d 878. Because the right
to counsel is one of the most important elements of due process, we expect the
trial court to ensure a waiver of that right is knowing, intelligent, and
voluntary. See Klessig, 211 Wis. 2d
at 204-05.
¶6 Nevertheless, a defendant “may, by his or her conduct,
forfeit the right to counsel.” State
v. Coleman, 2002 WI App 100, ¶16, 253 Wis. 2d 693, 644 N.W.2d 283. This most often occurs in the case of a
manipulative or disruptive defendant, where the defendant “obstruct[s] the
orderly procedure of the courts” or hinders the administration of justice. Id.; State
v. Woods, 144 Wis. 2d
710, 715, 424 N.W.2d 730 (Ct. App. 1988).
In other words, forfeiture of the right to counsel means waiver occurs
“not by virtue of a defendant’s express verbal consent to such procedure, but
rather by operation of law because the defendant has deemed by his own actions that the case proceed
accordingly.” Woods, 144 Wis. 2d at 715-16.
¶7 Before forfeiture can be appropriate, the trial court must: (1) provide explicit warnings that, if
the defendant persists in specific conduct, the court will find that the right
to counsel has been forfeited; (2) engage in a colloquy indicating that
the defendant has been made aware of the difficulties and dangers inherent in
self-representation; (3) make a clear ruling when the court deems the right to
counsel to have been forfeited; and (4) make factual findings to sufficiently
support the court’s ruling. State
v. McMorris, 2007 WI App 231, ¶24, 306 Wis. 2d 79, 742 N.W.2d 322.
¶8 Staffa’s primary complaint
on appeal is that the court failed to conduct the appropriate colloquy under Klessig
before it found his waiver of the right to counsel was knowing,
intelligent, and voluntary. Questions
related to a constitutional right present us with questions of constitutional
fact. Cummings, 199 Wis. 2d at
748. The trial court’s historical
factual findings are affirmed unless clearly erroneous, but we review de novo application
of the law to those facts. State
v. Johnson, 2007 WI 32, ¶13, 299 Wis. 2d
675, 729 N.W.2d 182. Here, we agree with
the State that Staffa forfeited, not waived,
his right to counsel, making a Klessig colloquy unnecessary.
¶9 Consistent with McMorris, the court advised Staffa that his repeated firing of attorneys was potentially
abusive. In November 2006, when the
court agreed to find a fourth attorney, it advised Staffa
that if he fired that attorney, “then the lawyer is off and you’re on your
own.” In a December letter setting a
status conference, the court advised Staffa that it would “probably make a
determination that you have forfeited your right to counsel … based upon the
amount of attorneys you have been through, your failure to cooperate with
attorneys, and the fact that the court believes that your conduct has seriously
interfered with the orderly administration of the case.”
¶10 At the January status conference, the court detailed Staffa’s history of attorneys. The court advised Staffa that attorneys
provide services, including a defense or the best case possible within the law,
and that lawyers know more than Staffa about
how to present a case to the jury. The
court also advised Staffa that he would be
held to the same standards as an attorney.
As Staffa extemporaneously offered
information at the hearing, the court advised him that certain things, such as
calling the victim a “known lesbian,” would not be permitted and ran the risk
of a mistrial. This conversation served
to demonstrate the difficulties and dangers of self-representation.
¶11 Further, it was clear the court deemed the right to counsel forfeited
when it concluded the status conference by advising Staffa, “You are now the
lawyer.” The record adequately supports
the forfeiture determination based on Staffa’s
refusal to cooperate with counsel, and the court’s obligation under McMorris
was satisfied.
II. Whether Staffa was Competent
to Proceed Pro Se
¶12 A defendant who appears pro se, either because of waiver or forfeiture,
must be competent to represent himself. See Klessig, 211 Wis. 2d at 208. Competence to stand trial requires a
defendant to be able to understand the proceedings against him and to assist in
his own defense. See id.; see also Wis. Stat. § 971.13 (2005-06). But competence to represent one’s self is
greater than this standard. Klessig,
211 Wis. 2d
at 212. Thus, a trial court should also consider
a defendant’s “education, literacy, fluency in English, and any physical or psychological
disability which may significantly affect his ability to communicate a possible
defense to the jury.” Id. (quoted source omitted).
¶13 This test for competency should not prevent an individual of
average ability and intelligence from self-representation. Klessig, 211 Wis. 2d at 212. A timely and otherwise proper request should
be denied only if there is a specific problem or disability that can be
identified which may prevent a meaningful defense from being offered, should
one exist. Id.
Competence is not the same as eloquence or sophistication, nor does
competence guarantee success. We will
not reverse a competency determination unless it is clearly erroneous. State v. Byrge, 2000 WI 101, ¶46,
237 Wis. 2d
197, 614 N.W.2d 477. In some cases,
though, the record will be so clear that an evidentiary hearing on the matter
is unnecessary. Klessig, 211 Wis. 2d at 214 n.9.
¶14 Here, the trial court indicated in its postconviction ruling
that Staffa was clearly able to represent himself. The record supports this determination. Although Staffa
previously experienced some head trauma which resulted in seizures and memory
issues, there is no showing that these maladies hindered his defense in any
way. Indeed, the record indicates the contrary.
¶15 Although Staffa had only an eighth-grade education, he obtained
his general equivalency diploma. He had
been a self-employed mechanic, owning his own business. Staffa was
familiar with the criminal justice system, having been accused and acquitted of
another set of sexual assault charges. Staffa was able to file motions, understand the proceedings,
and conduct legal research. Further, Staffa provided a cogent defense. He offered an alternate explanation for why
he was with the victim, offered testimony regarding a knee injury to counter testimony
he ran away from the victim when caught, emphasized the victim’s drug and
alcohol use, objected to improper testimony, impeached his co-actor, and
emphasized there was no DNA evidence to link him to the victim. Thus, Staffa’s
assertion he had “no clue … how to present his case” misrepresents the record. He was able to understand the case against
him, conduct his own defense, and had no identifiable disability preventing him
from communicating a defense to the jury.
We are satisfied Staffa was competent
to represent himself.
III. Alleged Trial Court Bias
¶16 Staffa points to two comments
the court made in his allegation of bias.
As reproduced in his brief, they are as follows:
DEFENDANT STAFFA: Well,
why ask the question if everything I ask he doesn’t have to answer?
COURT: Well, because he’s supposed to be
able to read your mind, okay.
DEFENDANT STAFFA: No,
I asked him a question why he portrayed me to be a certain way.
COURT: He’s sworn to tell the truth under
oath and he just did.
DEFENDANT STAFFA: Okay,
whatever. I’m done with you.
….
COURT: You can testify to that. If he said that, that’s what he said.
DEFENDANT STAFFA: I
know, but I’m coming around to a question, trust me.
COURT: Well, I’m not sure you’re worthy
of the trust. (Underlining in brief.)
Staffa contends the first statement
is an improper comment on the witness’s veracity, and the second statement is
an improper comment on Staffa’s credibility.
¶17 We agree with the State that these complaints were waived. Staffa
failed to object at trial, ask the judge to remove himself, or otherwise
complain. See State v. Davis,
199 Wis. 2d 513, 517-18, 545 N.W.2d 244
(Ct. App. 1996); State v. Marhal, 172 Wis. 2d
491, 505, 493 N.W.2d 758 (Ct. App. 1992).
¶18 Even on the merits, however, Staffa’s
claim of error fails. Whether a judge
was a “neutral and detached magistrate” is a question of constitutional
fact. State v. Neuaone, 2005 WI
App 124, ¶16, 284 Wis. 2d
473, 700 N.W.2d 298. We presume that a
judge is free of bias and prejudice. Id. The burden is on the party asserting judicial
bias to demonstrate that bias by a preponderance of the evidence. Id. Further, we apply both a subjective and an
objective test. Id.
Subjectively, we first look to the judge’s determination of whether he
or she will be able to act impartially. Id. Objectively, we look to whether there are
objective facts demonstrating that the judge was actually biased, which
requires the judge actually treated the defendant unfairly. Id.
¶19 The subjective test was never truly applied because Staffa never asked the judge to recuse himself and thus
the court never had to determine whether it could proceed impartially. Under the objective test, however, the context
of the challenged comments and the court’s postconviction decision reveal there
was no actual bias. The court explained:
The first comment, referencing witness Michael Peterson
… was made by the Court after a lengthy exchange with Mr. Staffa about the
appropriateness of certain statements Mr. Staffa had made regarding
[Peterson’s] credibility …. [I]t was the Court’s intent to underline to the jury
that, in fact, Mr. Peterson was under oath in front of the jury at the time he
testified. The Court was making no
comment about Mr. Peterson’s credibility….
The next statement by the Court … came again at the end
of a conversation between Mr. Staffa and the Court wherein the Court was trying
to get Mr. Staffa to focus on questioning the witness and not testify[ing] from
the defendant’s table, including the offering of irrelevant, inadmissible and unfairly
prejudicial statements. The Court is
satisfied that the jury clearly understood that the “trust” issue raised had to
do with whether Mr. Staffa could understand and follow the Court’s clear
direction in this regard.
Our review of the transcript
reveals the trial court appropriately characterized these comments. They do not reveal “that the judge actually treated
the defendant unfairly.” Id.
¶20 At worst, the court’s comments in this case reveal judicial
frustration, not judicial bias.
[J]udicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that
derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible. … Not establishing bias or
partiality, however, are expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect men and women … sometimes
display. A judge’s ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune.
Liteky v. United States, 510 U.S. 540,
555-56 (1994).
IV. A New Trial in the Interests of
Justice
¶21 Finally, Staffa seeks a new
trial in the interests of justice, see Wis. Stat. § 752.35 (2005-06), asserting
he had no idea how to present a defense.
Because we have concluded he was capable of self-representation, his
claim for a new trial on the contrary notion fails. Staffa also
asserted judicial bias as a justification when he made his argument for a new trial
in the trial court. Although not
repeated on appeal, we note that because there was no judicial bias, it cannot
serve as a basis for a new trial either. Consequently, there is no reason to invoke our
discretionary reversal power.
By the Court.—Judgment and order affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5
(2005-06).