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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 2, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2832-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JIMMY LEE HENSLEY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Douglas County: MICHAEL T. LUCCI, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Jimmy Lee Hensley appeals a judgment of
conviction and an order denying his motion to withdraw his pleas and obtain a
new trial based upon ineffective assistance of trial counsel. A jury found Hensley guilty of nine felony
counts: two counts of armed robbery,
three counts of false imprisonment, two counts of taking hostages and releasing
without bodily harm, and two counts of first-degree recklessly endangering
safety. Because we conclude Hensley
received effective assistance of counsel, the judgment and order are affirmed.
After learning that his
sister had been sexually assaulted, Hensley escaped from a minimum security
prison and the nine felony charges resulted from his efforts to reach his
sister. These charges consisted of
taking various cars and holding the occupants hostage. All the hostages were released
unharmed. At the urging of his trial
counsel, Hensley pled not guilty by reason of mental disease or defect and did
not testify at the jury trial. Because
his pleas were not joined with pleas of not guilty, only the matter of his
mental capacity was tried to the jury.[1] The jury concluded that Hensley did not have
a mental disease at the time he committed the charged crimes and the trial
court found him guilty of all nine counts.
Before trial, Hensley
became romantically obsessed with his female attorney, Assistant State Public
Defender Kelly Holck. Hensley contends
that the trial court erred by not allowing him to withdraw his pleas and obtain
a new trial due to inadequate assistance of defense counsel after Holck failed
to withdraw from further representation of him after learning from the defense
psychologist that Hensley's romantic obsession impaired his ability to assist
in his defense as long as she remained his attorney. Following an evidentiary hearing, the trial court rejected his
motion and this appeal followed.
Importantly, we observe that on appeal, Hensley does not pursue the
issue whether he was incompetent at the time of his pleas or trial.
On May 5, 1994, Holck
received a letter from Hensley along with two drawings that he called "self-portrait"
and "father." These drawings
had several sexual connotations. In the
letter Hensley wrote:
You
should have been an angel not a lawyer.
Because just your beauty and presents (sic) is enough to tame a
lion. ... You know I look forward to
our meeting and I hate them at the same time.
Because I look across the table at your beauty. And I think of things that might have been
in my life.
Because of Hensley's
special pleas, he was examined by two mental health professionals, Drs. John
Laney and Gary Cowan. Hensley's
argument revolves on two sentences in Laney's report, received in early June
1994:
With
respect to [Hensley's] ability to assist in his own defense, his psychosexual
development impairs his ability to do so with the female attorney. He is enamored of her and cannot
concentrate, much like an adolescent boy not paying attention in class because
of his thoughts about a girl in the room.
Hensley
relies on this quoted language and the romantic letter with the drawings he
sent Holck as support for his contention that she had reason to doubt Hensley's
competency and, therefore, her continued representation of him constituted
ineffective assistance of counsel as a matter of law.
The right to effective
assistance of trial counsel is guaranteed by the Sixth Amendment to the United
States Constitution and art. I, § 7, of the Wisconsin Constitution. Strickland v. Washington, 466
U.S. 668, 687 (1984); State v. Wirts, 176 Wis.2d 174, 180, 500
N.W.2d 317, 318 (Ct. App. 1993). These
guarantees are intended to ensure that criminal defendants receive fair
trials. See Lockhart v.
Fretwell, 506 U.S. 364, 368-69 (1993).
To prevail on appeal,
Hensley must prove that his trial counsel's performance was well below the norm
of competence in the profession, and that this caused prejudice. Strickland, 466 U.S. at
687-88. Under our standards of review,
the performance and prejudice components of Strickland are mixed
questions of law and fact. Id.
at 698. Findings of historic or
evidentiary fact may not be set aside unless they are clearly erroneous. State v. Pitsch, 124 Wis.2d
628, 634, 369 N.W.2d 711, 714 (1985); § 805.17(2), Stats. The questions
whether counsel's behavior was deficient and whether it was prejudicial are
questions of law, and we do not give deference to decisions of the trial
court. Pitsch, 124 Wis.2d
at 634, 369 N.W.2d at 715.
When reviewing defense
counsel's performance, this court must address not what is prudent or
appropriate, but only what is constitutionally compelled. United States v. Cronic, 466
U.S. 648, 665 n.38 (1984). As stated in
Strickland, the appellate court
must
judge the reasonableness of counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in
light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance. In making that determination, the court
should keep in mind that counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing process work in the
particular case. At the same time, the
court should recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.
Id. at
690.
If trial defense counsel
had a bona fide reason to doubt Hensley's competency and failed to raise the
issue with the trial court, counsel's representation was ineffective under the
state and federal constitutions. See
State v. Haskins, 139 Wis.2d 257, 262-63, 407 N.W.2d 309, 311
(Ct. App. 1987). The existence of a
reason to doubt competency is a constitutional fact, reviewed de novo. Id. at 265, 407 N.W.2d at
312. If we conclude that Hensley's
trial counsel rendered ineffective assistance in this regard, then we must
remand the case to the trial court so it can determine whether a meaningful
nunc pro tunc inquiry can be made into the question whether Hensley was
incompetent to proceed. See id.
at 267, 407 N.W.2d at 313. Hensley
claims that his lack of competency is so obvious, a retrospective competency
determination is unnecessary. The State
disagrees because Hensley's actual competency was not the primary focus at the
postconviction Machner[2]
hearing.
The question before this
court is whether Laney's two-sentence observation regarding Hensley's romantic
obsession (psychosexual development) and the romantic letter and drawings
generated a reason for Holck to doubt his competency as a matter of law and,
therefore, her decision not to withdraw her representation constituted
ineffective assistance.
Unusual behavior by a
defendant does not automatically translate into a reason to doubt a defendant's
competency. Defense attorneys must be
permitted to exercise their professional judgment, assess the totality of the
circumstances and determine for themselves whether there is reason to doubt
their client's competency. See Haskins,
139 Wis.2d at 265-66, 407 N.W.2d at 312-13 (question whether there is reason to
doubt defendant's competency is resolved by examining all relevant facts of
record). Consistent with Strickland,
in any challenge to trial counsel's effectiveness, counsel's decision-making
must be directly assessed for professional reasonableness in all the
circumstances, applying great deference to counsel's judgments. Id., 466 U.S. at 691.
Holck testified that she
first learned of Hensley's romantic interests when she received his letter on
May 5, 1994. After discussing this
matter with her supervising attorney and asking for permission to withdraw from
the case, she elected to take her supervisor's advice and discuss the matter
with Hensley. Accompanied by her
investigator, Walter Gayan, Holck talked to Hensley on May 9, 1994, and
"laid it on the line for him just what exactly was involved and my
position and his position and the duties that I had to perform, and we did tell
him that if he, you know, wasn't able to deal with me in the professional
manner, that he could have another attorney." She also stated, "we told him I was an attorney, I was a
professional, I had certain obligations I had to fulfill in that role ... and
that I had to exercise independent judgment;
that if he was going to have problems participating in his defense,
asking me questions, being objectionable, listening to my opinions as a lawyer
and not as somebody he had feelings for ... then I couldn't represent him. We made that very clear. Like I said, we were up there about an hour,
and we did tell him that if he wished another attorney, we would certainly ...
appoint one for him."
Hensley thought about
the matter and then declined the offer to appoint new counsel. He told Holck that he understood her role as
his advocate and that it was in his best interest to maintain a professional,
not personal, relationship with her.
After this conversation, Holck made greater use of Gayan when
communicating with Hensley "just to make sure that the boundaries were
set." Gayan also testified that
Hensley told him "he would be able to keep his feelings to the side while
we were going through this process, and that it would not interfere with our
representation of him."
Gayan testified that he
saw nothing to suggest that Hensley's competency to plead or to stand trial was
adversely affected by Holck's continued representation. He observed that Hensley acted in an
understanding and comprehensible manner at all relevant stages of the criminal
proceedings. He stated that Hensley was
very bright, understood the nature of the judicial proceedings, read all
relevant documents, asked intelligent questions and actively participated in the
discussions pertaining to his pleas and his defense. After discussion of the available options, Hensley decided to
enter his special pleas and not testify.
Additionally, he observed that Hensley was not afraid to contradict
Holck on matters pertaining to his defense, citing as an example Hensley's
insistence that they exercise a peremptory strike against a particular juror.
At the Machner
hearing, Holck stated:
The way I interpreted Dr. Laney's short ... statement there in the
recommendations is not that Jimmy Lee was incompetent to assist in his
defense. He understood my position, the
judge's position, prosecution, what he was charged with, the crimes. And Mr. Laney had said his ability was
impaired like a school boy. School boys
still get their homework done. And I
didn't say--It doesn't say in there that it prohibited him from concentrating
or anything like that. I believe we
addressed the issue, and Mr. Hensley was able to participate in his defense.
....
I'm an experienced trial lawyer. I do this all the time every day with a lot
of people. I know when people are
participating and when people don't care and just want me to take the lead. Jimmy Lee cared. He asked a lot of questions, he was actively participating in his
defense, more so than almost anyone I've had.
Additionally, Holck had
received Cowan's July 11, 1994, psychiatric report pronouncing Hensley
competent to stand trial. Cowan
performed his psychiatric evaluation of Hensley approximately five weeks after
Laney performed his psychological evaluation.
Under these circumstances, Holck concluded that she had no reason to
doubt Hensley's competency.
At the Machner
hearing, Hensley portrayed himself as romantically obsessed with Holck and, in
effect, did whatever she told him to do.
However, the trial court rejected his claim when it observed:
The court further finds that defendant's
claim that he was not provided an adequate opportunity to assist in his own
defense because of his infatuation with his attorney is not persuasive in light
of the attorney's testimony. While it
is clear that [Hensley] was by his own admission enamored of his counsel and
was to some extent distracted by that factor, the evidence indicates again that
it was a situation on which his attorney confronted her client and made clear
to him the necessity of maintaining a professional relationship in this case
and that the defendant appeared to understand that necessity to the point of
resolving this problem. Defense counsel
testified that after that session the defendant [began] to become more focused
on the case and his defense and certainly became involved in discussing the
case and in preparing for trial.
Under our standard of
review, we defer to the trial court's assessment of Hensley's credibility. Trial courts, not appellate courts, judge
the credibility of witnesses and the weight of their testimony. Artis-Wergin v. Artis-Wergin,
151 Wis.2d 445, 450, 444 N.W.2d 750, 752 (Ct. App. 1989).
Considering all these
factors, we agree with the trial court that it was reasonable for Holck to
determine there was no reason to doubt her client's competency to enter his
special pleas and to litigate only the matter of his mental capacity at the
time of the committed crimes. It was
reasonable for her to conclude that Hensley was able to assist in his defense,
and it was not necessary to withdraw from representing Hensley. The order denying his postconviction motion
and judgment of conviction are affirmed.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
[1] Section 971.06(1)(d), Stats., provides that a plea of not guilty by mental disease "may be joined with a plea of not guilty. If it is not so joined, this plea admits that but for lack of mental capacity the defendant committed all the essential elements of the offense charged in the indictment, information or complaint."