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Counsel: Request for Substitute – Effective Assistance (Disclosure of Communications, et al.); Double Jeopardy: Bail Jumping

State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply

Request for New Counsel

An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel, the trial court must consider whether there is a total lack of communication that prevents an adequate defense and frustrates fair presentation of the case, ¶8. In denying Boyd’s request for change of counsel, the trial court observed, “I have seen nothing in this matter so far that indicates any deficient performance,” ¶12.

¶13      Boyd argues that by using the phrase “deficient performance,” the trial court applied the wrong test and did not assess whether Boyd and his lawyer had a conflict that was “‘so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.’”  See Jones, 2010 WI 72, ¶25, 326 Wis. 2d at 397–398, ___ N.W.2d at ___ (quoted source omitted).  The very analysis that Jones tells us is required, however, negates Boyd’s contention:  a “total lack of communication” between a lawyer and his or her client is one that “‘prevent[s] an adequate defense and frustrate[s] a fair presentation of the case.’”  Ibid. (quoted source omitted).  Thus, even though a trial court does not make an exhaustive “full inquiry,” its decision to not permit an indigent defendant to get a new lawyer will not be overturned when the Record is devoid of evidence “‘of a conflict that made counsel’s continued representation untenable.’”  State v. McDowell, 2004 WI 70, ¶73, 272 Wis. 2d 488, 525, 681 N.W.2d 500, 518 (adopting State’s analysis) (emphasis added).  Mere disagreement over strategy does not suffice.  Id., 2004 WI 70, ¶75, 272 Wis. 2d at 526, 681 N.W.2d at 518.  The crux, as the trial court’s brief analysis of Boyd’s conclusory complaint recognized, is whether the alleged conflict “prevented an adequate defense.”  See ibid. Significantly, Boyd has not shown, other than by mere assertion, how the alleged problems he was having in communicating with his trial lawyer either prejudiced his defense or, in the words of McDowell quoted earlier, made the lawyer’s “continued representation untenable.”  See id., 2004 WI 70, ¶73, 272 Wis. 2d at 525, 681 N.W.2d at 518 (internal quote marks and quoting source omitted).  The trial court thus applied the appropriate standard and did not erroneously exercise its discretion in concluding that the disagreements Boyd had with his trial lawyer did not warrant giving Boyd a new lawyer.  Accordingly, a remand for a retrospective hearing is not required.  See State v. Lomax, 146 Wis. 2d 356, 365, 432 N.W.2d 89, 93 (1988) (“When a trial court has not made an adequate inquiry into a defendant’s last-minute request to discharge appointed counsel, a retrospective hearing, at which the defendant may present whatever he deems necessary to fully articulate his reasons for wanting counsel discharged, strikes a proper balance between the constitutional rights of defendants and the efficient administration of justice.”).

Same analysis applies to a subsequent request made by Boyd, ¶16.

Effective Assistance of Counsel

The court rejects several ineffective-assistance claims.

1. Counsel did not perform deficiently in his response to Boyd’s request for change of counsel; namely, he did not violate attorney-client privilege. A communication isn’t confidential if intended to be disclosed to other persons, and the matters discussed openly to the court by counsel related to matters Boyd ultimately wanted revealed anyway, ¶20.

¶21      Third, and of special significance here, it is settled that a criminal defendant waives the attorney-client privilege by claiming that his or her lawyer was constitutionally deficient.  State v. Flores, 170 Wis. 2d 272, 277–278, 488 N.W.2d 116, 118 (Ct. App. 1992) (“[W]hen a defendant charges that his or her attorney has been ineffective, the defendant’s lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the charge of ineffective assistance.  Section 905.03(4)(c), Stats., specifically states that there is no lawyer-client privilege ‘[a]s to a communication relevant to an issue of breach of duty by the lawyer to his [or her] client or by the client to his [or her] lawyer.’”) (all brackets except the first pair by Flores).  Although no Wisconsin case has yet considered the issue (and we have found none from other jurisdictions), we believe that this common-sense application of the attorney-client privilege applies with equal force when a defendant in a criminal case claims that he or she cannot effectively communicate with his or her lawyer—otherwise no court (either nisi prius or reviewing) could assess whether there was, as phrased by Jones, “‘a total lack of communication’” between them.  Jones, 2010 WI 72, ¶25, 326 Wis. 2d at 397–398, ___ N.W.2d at ___ (quoted source omitted).  Stated another way, unless the attorney-client privilege gave way in connection with confidential client-to-lawyer communications that are material as to whether there was “a total lack of communication” between them, reviewing courts would be bound by a defendant’s sheer assertion.  Indeed, WIS. STAT. RULE 905.03(4)(c) tells us that the attorney-client privilege does not apply “to a communication relevant to an issue of breach of duty by the lawyer to the lawyer’s client or by the client to the client’s lawyer”; a lawyer’s unremedied failure to effectively communicate with a client is such a breach of duty.

SCR 20:1.6(c)(4) similarly permits a lawyer “to respond to allegations in any proceeding concerning the lawyer’s representation,” ¶23.

2. Counsel’s disclosure to the trial judge, outside the presence of the jury, that he had “discussed with [Boyd] perjury and the Fifth Amendment” didn’t result in any prejudice, ¶25.

3. Counsel’s failure to request a hearing on a possible breakdown in relations with his client was neither deficient nor prejudicial, in view of the lack of “evidence of such a breakdown to warrant a hearing,” ¶26 (citing State v. Golden, 185 Wis. 2d 763, 771, 519 N.W.2d 659, 662 (Ct. App.1994), for the idea that prejudice won’t be found “when the lawyer does not make a motion that would have been denied”).

4. Failure to impeach a witness with the facts underlying his two prior convictions wasn’t prejudicial, even assuming deficient performance, in that any further damage to the witness’s credibility would have been minimal, ¶27.

Double Jeopardy – Bail Jumping

Conviction on bail-jumping counts based on criminal acts for which Boyd was also convicted didn’t violated double jeopardy, ¶28, citing State ex rel. Jacobus v. State, 208 Wis. 2d 39, 53–54, 559 N.W.2d 900, 905 (1997).

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