State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
¶15 The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.
¶16 However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶41, 268 Wis. 2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right. See State v. Baker , 169 Wis. 2d 49, 76, 485 N.W.2d 237 (1992). In this case, at virtually the last minute before entering the courtroom, Strand informed Champlain he had to wear the Band-It. This event occurred outside the courtroom setting and thus was not captured or preserved on the record. Nor was it memorialized by any other method. Generally, waiver will not be presumed from a silent record. See id. We are not prepared to hold that by opting to wear his own clothing instead of something from jail storage, Champlain should be held to have appreciated and weighed the legal implications of declining Strand’s offer. In short, the record does not show that Champlain intentionally relinquished a known right.  Matson, 268 Wis. 2d 725, ¶41.