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Denial of substitute counsel affimed; it was defendant’s responsibility to procure his witnesses for trial

State v. Anthony Donte Dixon, 2017AP2221-2222-CR, 6/5/18, District 1 (1-judge opinion, eligible for publication); case activity

Dixon wasn’t happy with his trial lawyer. They hadn’t communicated before the final pre-trial conference. When they did communicate, Dixon told his lawyer that he wanted him to contact several alibi witnesses and provided their names and numbers. Two witnesses didn’t return counsel’s call. One “simply gave her information” [no explanation of that means.] On the day of the trial, counsel informed the court that Dixon wanted to fire him and was prepared to get a new lawyer on his own. The trial court denied the request so Dixon tried his case pro se.

You can guess how that turned out. A jury convicted him of knowingly violating a domestic abuse order and disorderly conduct in two cases. To Dixon’s credit, he was found not guilty of criminal damage to property and disorderly conduct in one of the cases.

Request for substitute counsel.  This is a discretionary decision by the trial court. The court of appeals considers (1) whether the trial court adequately inquired into the request, (2) whether the defendant’s request was timely, and (3) whether the conflict between attorney and client resulted in a lack of communication that prevented an adequate defense and frustrated a fair presentation of the case. State v. Lomax, 146 Wis. 2d 356, 360, 432 N.W.2d 89 (1988).

The court of appeals blamed Dixon for failing to communicate with trial counsel: “[T]he record establishes that it was Dixon who was not communicating with trial counsel. At the final pretrial conference, trial counsel advised the trial court that he had not met with Dixon yet because he had just received a working telephone number. When the trial court asked Dixon why he had not called trial counsel, Dixon said he worked long hours and was too tired to call. Moreover, Dixon admitted that he spoke with the witnesses but never told them to call trial counsel. We conclude that the trial court conducted an adequate hearing.” Opinion ¶20.

The court of appeals also affirmed the trial court’s finding that “Dixon’s sudden desire for a new attorney was an attempt to get an adjourned trial date in the hope that the witnesses who were present for trial might not come back on the adjourned date.” Opinion ¶21.

Regarding whether the conflict prevented an adequate defense, the court of appeals held “the trial court found trial counsel’s version of the communications credible and that the responsibility for the failure to obtain those [alibi] witnesses rested with Dixon, not lack of communication with trial counsel.” See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345.  Opinion ¶22.

For the record, Peppertree does not hold that it is the client’s responsibility to track down alibi witnesses. It only holds that the circuit court is the arbiter of witness credibility. The idea that the defendant has to obtain witnesses for trial seems harsh . . . and questionable.

Ineffective assistance of trial counsel. The circuit court denied a Machner hearing on Dixon’s claim that trial counsel’s failure to investigate alibi witnesses amounted to ineffective assistance of counsel. The court of appeals affirmed because Dixon failed to file signed statements by alibi witnesses or make a showing regarding what those witnesses would say. He failed the 5 “w’s” and 1 “h” needed to get a hearing under  State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. Opinion ¶¶30-32.

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