PUBLISHED OPINION
Case No.: 94-3369-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent.
v.
ROBERT VERDONE,
Defendant-Appellant.
Submitted on Briefs: June 12, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 20, 1995
Opinion Filed: June
20, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Taylor
(If "Special", JUDGE: James P. Jansen
so indicate)
JUDGES: Cane, P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of James
B. Connell of Crooks, Low & Connell, S.C. of Wausau.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and William C. Wolford, assistant
attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED JUNE 20, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3369-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent.
v.
ROBERT VERDONE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Taylor County:
JAMES P. JANSEN, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Robert Verdone appeals a judgment of
conviction of one count of felony battery, in violation of § 940.19(3), Stats., and one count of resisting an
officer, in violation of § 946.41(1), Stats. Verdone contends that: (1) he was denied his Sixth Amendment
right to counsel; (2) the evidence was insufficient to sustain a conviction;
(3) the trial court erred by not instructing the jury on the lesser included
offense of simple battery; and (4) there was a miscarriage of justice and the
real controversy has not been fully tried.
Because we conclude that the record fails to demonstrate that Verdone
asserted his right to counsel in an untimely fashion and because the evidence
is sufficient to support the conviction, we reverse and remand for a new trial.
BACKGROUND
The charges in this case
arose out of an incident on September 17, 1993, where Verdone, his brother and
his father allegedly attacked Ronald Sova, Verdone's ex-wife's boyfriend. On October 12, the trial court held the
initial appearance, where Verdone was instructed as to the role of the attorney
in such proceedings. Verdone replied
that he was waiving his right to an attorney of his own free will and that he
understood what he was doing. The court
found that Verdone had freely, voluntarily and intelligently waived his right
to counsel. The court delineated
Verdone's right to have an attorney at subsequent proceedings, including a
public defender if necessary. Finally,
the court asked the clerk to provide notice of such right.
The court held a
preliminary hearing for Verdone, his brother and father on December 6. Verdone appeared without an attorney. After the court bound Verdone over for
trial, the arraignment followed. The
court once again inquired into Verdone's lack of counsel, his understanding of
his right to counsel and his subsequent waiver of counsel. The court set a jury trial for March 3 and
4.
On March 3, Verdone
appeared at trial without an attorney.
The trial court held a conference call with a public defender to clarify
that earlier Verdone had requested counsel from the public defender's office
and that the office was unable to find an attorney who could represent Verdone
on the trial dates. Thus, the public
defender requested an adjournment of the trial until counsel could be obtained. The trial court stated that it had
communicated with the public defender's office two weeks prior to the trial
date, which reflected Verdone's request for counsel. At the conference, Verdone contended that he contacted the public
defender's office for representation over three weeks prior to the trial
date. The trial court denied the public
defender's adjournment request based on the trial schedule being set for
several months, that Verdone sought counsel too close to the trial date and
that Verdone waived his right to counsel because he did not have an attorney on
the day of the trial.
Consequently, the court
concluded that Verdone had waived his right to counsel and that the trial would
proceed. The jury found Verdone guilty on both charges on March 4. Verdone appeals the convictions.
RIGHT TO COUNSEL
Whether a defendant has
waived his right to counsel requires an application of constitutional
principles to the facts of a case, which we review independently of the trial
court. State v. Woods,
117 Wis.2d 701, 715-16, 345 N.W.2d 457, 465 (1984). Nonwaiver of counsel is presumed and waiver must be clear and
unequivocal in order to be valid. Pickens
v. State, 96 Wis.2d 549, 555, 292 N.W.2d 601, 605 (1980). The State has the burden of overcoming the
presumption of nonwaiver. State
v. Baker, 169 Wis.2d 49, 77-78, 485 N.W.2d 237, 248-49 (1992). A defendant must assert the right to counsel
in a timely manner, in the interest of the efficient administration of
justice. See State v. Kazee,
146 Wis.2d 366, 372-73, 432 N.W.2d 93, 96 (1988).
Here, although Verdone
waived his right to counsel in two earlier proceedings, it is also undisputed
that he asserted his right to counsel by contacting the public defender's
office for counsel in accordance with the trial court's instructions. He continued to demand representation at the
time of trial. Thus, we must determine
whether Verdone's assertion of counsel was made in a timely fashion and that it
did not hinder the prompt administration of justice. See id. at 372-73, 432 N.W.2d at 96. Specifically, did Verdone forfeit his right
to counsel by asserting his right to counsel at a time unreasonably close to
the date of trial or for the purpose of delaying the trial or interfering with
the administration of justice.
In
Keller v. State, 75 Wis.2d 502, 249 N.W.2d 773 (1977), a defendant
who had been previously represented by an attorney did not have counsel on the
trial date. Because the trial had been
set for three months, the court concluded that the parties would proceed with
the trial, as the witnesses and jury were ready. Id. at 505-06, 249 N.W.2d at 775. On appellate review, our supreme court
concluded that there are instances when the trial court would be justified in
proceeding with trial; however, the supreme court concluded that this was not
such a case. Id. at 506,
249 N.W.2d at 775-76. The supreme court
based its decision on the fact that the record contained no evidence that the
lack or change of counsel was for the purpose of delaying trial or manipulating
the right to counsel so as to interfere with the administration of
justice. Id.
Here, the trial court
record is also insufficient for a determination of whether Verdone had asserted
his right to counsel in an untimely manner after having previously waived his
right to counsel. At the teleconference
preceding the trial, the trial court and a public defender discussed the
dilemma of finding an attorney for Verdone.
The record indicates that two weeks before trial, the public defender's
office informed the court that Verdone had requested counsel. Because the public defender spent some time
attempting to obtain counsel for Verdone, it appears that Verdone's request for
counsel was made at some unspecified time prior to the public defender's
contact with the court. The only other
indication of when Verdone requested counsel was by Verdone himself, who stated
at the conference that he requested counsel more than three weeks prior to the
trial. Although a letter from the
public defender's office to the trial court indicating Verdone's desire for
counsel was alluded to in the conference, the letter is not part of the record
on appeal. Without more evidence of the
time frame involved, it is impossible to determine exactly when Verdone first
contacted the public defender's office asserting his right to counsel. Consequently, we cannot make a precise
determination of when Verdone requested counsel from the public defender. However, it is clear that two weeks prior to
trial, the court was aware that Verdone was exercising his right to counsel.
At trial, Verdone
continued to assert his right to counsel.
We do not condone Verdone's actions of first waiving counsel and then
later asserting his right to counsel shortly before trial. But because counsel's representation at a
criminal trial is such an important and essential right, mere inconvenience to
the court is insufficient to deny a defendant's right to counsel. Here, there was no affirmative showing in
the record that reflects that Verdone's assertion of the right to counsel was
untimely or that his assertion was for the purpose of delaying trial or
interfering with the administration of justice. Generally, the State has the burden of overcoming the presumption
of nonwaiver of the right to counsel. See
Baker, 169 Wis.2d at 77-78, 485 N.W.2d at 248-49. The State must demonstrate that Verdone's
demand for counsel was so unreasonably close to the trial date that it
constituted waiver by conduct. We
conclude that the State failed in this burden.
In sum, we conclude that
the present record is insufficient to conclude that Verdone's initial waiver of
his right to counsel and his later assertion of his right to counsel was
untimely or for the purpose of delaying the trial or interfering with the
administration of justice. Thus, we
reverse and remand for a new trial.
SUFFICIENCY OF THE EVIDENCE
Even though we have
ordered a new trial on other grounds, double jeopardy considerations require
that we address Verdone's sufficiency of evidence claim. See Burks v. United States,
437 U.S. 1, 17-18 (1978). Specifically,
Verdone asserts that there was insufficient evidence to support a conviction of
felony battery in violation of § 940.19(3), Stats., 1991-92.[1] Specifically, Verdone contends that the
evidence that his conduct created a high probability of great bodily harm was
insufficient. We may not reverse a
conviction unless, viewing the evidence most favorably to the State and the
conviction, it is so insufficient in probative value and force that it can be
said as a matter of law that no trier of fact, acting reasonably, could have
found the defendant guilty beyond a reasonable doubt. State v. Poellinger, 153 Wis.2d 493, 507, 451
N.W.2d 752, 757-58 (1990). At trial,
the doctor who examined Sova testified regarding Sova's injuries:
QDoctor, Mr. Sova also
testified that the Defendant, Rob Verdone, kicked him with a foot in the
abdomen, the face — or it appears someone kicked him in the abdomen and face,
and the evidence is going to be that Mr. Verdone, Mr. Rob Verdone, did
this. Those kinds of actions, would
those also create a high probability of great bodily harm?
AYeah,
it could possibly. It depends on the
intensity of the force by the injury.
It could possibly cause injury to the liver and the spleen, as well to
other vital organs. But that injury to
the spleen and the liver could be fatal because they are very vascular organs. He could basically bleed to death.
Verdone
contends that this medical testimony is insufficient evidence upon which to
base a conviction because it was not to a reasonable degree of medical
certainty. We disagree.
The medical testimony
indicates that depending on the intensity of the force, Verdone's actions could
have caused great bodily harm. Whether
Verdone's actions constituted such force is a question for the jury to
decide. The jury also heard Sova's
testimony as to his injuries, such as choking on his own blood and consequent
inability to breathe. The nature of Sova's
injuries are a factor that the jury can consider in determining the nature of
Verdone's conduct. See State
v. Crowley, 143 Wis.2d 324, 337, 422 N.W.2d 847, 853 (1988).
The evidence of Sova's
injuries coupled with the medical testimony provided the jury with sufficient
evidence to establish that Verdone's conduct created a high probability of
great bodily harm. Viewing the evidence
most favorably to the State, we cannot conclude that the evidence was so
insufficient as a matter of law that no trier of fact, acting reasonably, could
have found Verdone guilty beyond a reasonable doubt. Because this conviction is reversed and remanded for a new trial,
it is unnecessary to address Verdone's remaining issues.
By the Court.—Judgment
reversed and cause remanded with directions.