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Appellate Procedure – Standard of Review: Testify, Defendant’s Right to

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:

¶11. A defendant’s right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660, 670-672, 508 N.W.2d 44, 48 (Ct. App. 1993). “The standard is whether the record demonstrates that the defendant knowingly and voluntarily waived the right.” Simpson, 185 Wis. 2d at 778-779, 519 N.W.2d at 664.¶12. A trial court’s ruling on whether a waiver was knowing and voluntary presents mixed questions of fact and law. See Reckner v. Reckner, 105 Wis. 2d 425, 435, 314 N.W.2d 159, 164 (Ct. App. 1981). We will uphold the trial court’s findings of fact unless they are clearly erroneous. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830, 833 (1990). The application of the facts to the constitutional principles is a question of law that we review de novo. Id., 156 Wis. 2d at 137-138, 456 N.W.2d at 833.

¶13. We consider the totality of the record, including the record of the postconviction proceedings, in deciding whether Arredondo knowingly and voluntarily waived his right to testify. Simpson, 185 Wis. 2d at 779, 519 N.W.2d at 664. …

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