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State v. Anthony S. Irving, 2011AP1908-CR, District 2, 8/8/12

court of appeals decision (not recommended for publication); case activity

A defendant has a constitutional right to self-representation, State v. Imani, 2010 WI 66, ¶20, 326 Wis. 2d 179, 786 N.W.2d 40, but it must be triggered by a “clear and unequivocal” request for self-representation, State v. Darby, 2009 WI App 50, ¶24, 317 Wis. 2d 478, 766 N.W.2d 770. Irving’s putative request for self-representation fell short of this standard, hence he wasn’t denied his right to represent himself:


¶12      As the trial court noted, throughout the pendency of his case, Irving indicated a desire to be represented by counsel.  When the court warned Irving four days before trial that it might require Irving to represent himself, Irving responded, “I ain’t going to do it.”  On the day of trial, when Irving indicated he wanted to fire his counsel and the court asked Irving if he intended to represent himself, he responded that he would do so because he had “no choice.”  When the court again asked Irving if he intended to represent himself, Irving asked his counsel why he would not sign the list of issues Irving wanted counsel to bring up at trial, indicating a continued desire to be represented by counsel.  While Irving did at one point indicate that representing himself was his “final decision,” he subsequently asked the court about the possibility of his counsel continuing to represent him, but Irving retaining the right to discharge him during the trial if counsel was not doing what Irving wanted him to do. Then, while discussing certain evidence that might be used at trial, Irving indicated he could not defend against the evidence, “[e]ven if [he] want[ed] to represent [himself].”

¶13      Irving’s conduct well illustrates one of the primary purposes of the clear and unequivocal standard, to require a defendant to make an explicit choice.  The standard seeks to prevent a defendant, such as Irving, who “vacillates at trial” between the desire for counsel and self-representation from later claiming he was denied either the right to self-representation or the right to counsel, depending on how the court interprets conflicting comments.  See Darby, 317 Wis. 2d 478, ¶20 (quoting Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989)).  Here, Irving never clearly and unequivocally invoked his right to self-representation.

The court separately rejects, for absence of prejudice, an IAC claim that is too fact-specific to warrant detailed summary, ¶¶14-33. Essentially, Irving argued that trial counsel failed to impeach several witnesses with available evidence, but the court concluded that these witnesses were either insignificant or were shored up by other, unchallenged witnesses and evidence. Additionally, counsel’s failure to develop an alibi defense didn’t impact the outcome, because support for the alibi was weak.

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