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Waiver of right to testify

State v. Leshurn Hunt, 2010AP2516, District 4, 5/16/13 (not recommended for publication); case activity

Issue:  Was defendant’s decision not to testify at trial knowing, intelligent and voluntary on the grounds that; (a) the court conducted a defective colloquy; (b) the defendant was coerced to waive his right to testify; and (c) the defendant received ineffective assistance of counsel?

Holding:  Hunt’s waiver was fine.  The legal test is set forth in State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434, 666 N.W.2d 485: “The colloquy should consist of a basic inquiry to ensure that (1) the defendant is aware of his or her right to testify and (2) the defendant has discussed this right with his or her counsel.” “The colloquy should be simple and straightforward exchange between the court and the defendant outside the presence of the jury.”  Id., ¶41.

Hunt argued that the trial court violated Weed‘s “simple and straightforward” requirement because proceedings weren’t simple or straightforward.  Initially, Hunt intended to testify, so the court conducted a colloquy focused on that intent.  Then Hunt changed his mind, but the court did not conduct a new colloquy on Hunt’s waiver of the right to testify.  The court of appeals found the colloquy that was conducted met Weed‘s requirements.  It noted that Weed did not “establish a rule on the proper method of conducting the colloquy,” and Wis JI-Criminal SM-28 suggests sample questions for the inquiry, but not requirements.  Slip op., ¶18.

[C]ourts must have the flexibility when conducting a waiver colloquy to allow the opportunity for defendants to ask follow-up questions, as was the case here, and to afford the court an opportunity to explain in greater depth the constitutional rights at issue and the consequences of waiving those rights to ensure that the decision on whether to testify is knowing, intelligent, and voluntary. Id.

As for Hunt’s coercion claim, based on an alleged “combination of judicial error, prosecutorial tactics, and . . . trial counsel’s performance,” the court of appeals rejected it.  Apparently, the prosecutor, defense counsel, and the judge engaged in several discussion about what Hunt could testify to, and how the State could impeach him.  According to the court of appeals, hey were “typical of exchanges that take place during a jury trial. None . . . could be reasonably viewed as misleading, inaccurate or confusion.”  Id. ¶26.  The fact that they influenced Hunt’s decision not testify does not demonstrate coercion.

Finally, Hunt’s assertion that his trial counsel’s ineffective assistance an unknowing and involuntary waiver failed too due to the undeveloped nature of the argument.  Id., ¶¶30-31.

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