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Obstructing – Complaint, Probable Cause; Self-representation

State v. Richard A. Wusterbarth, 2010AP1306-CR, District 3, 2/1/11

court of appeals decision (1-judge, not for publication); for Wusterburth: Eileen A Hirsch, SPD, Madison Appellate; case activity; Wusterburth BiC; State Resp.; Reply

The complaint established probable cause for obstructing, § 946.41(1), by alleging that Wusterburth made a false report to the police that a neighbor was manufacturing drugs, after having been earlier told by the police there was no such activity, ¶¶15-17.

Wusterburth clearly had mental health issues. They were so glaring, he argued on appeal, that he didn’t knowingly give false information; rather, in his paranoia, he genuinely believed the truthfulness of his report. The court doesn’t discuss the argument. Perhaps the idea is that where there are competing inferences, you draw the one in favor of probable cause. Challenge to sufficiency of the evidence yields a similar result:

¶31      We cannot conclude that the evidence in support of Wusterbarth’s conviction is so lacking in probative value and force that it can be said, as a matter of law, that no reasonable trier of fact could have drawn the inference that Wusterbarth knowingly obstructed an officer.  Although the officers’ testimony indicated concern with Wusterbarth’s mental health and Wusterbarth argued during trial that he truly believed his neighbor was manufacturing methamphetamine, the jury simply chose not to believe that Wusterbarth’s mental health had any bearing on the reports made to police.  “The trier of fact is free to choose among conflicting inferences of the evidence and may, within the bounds of reason, reject that inference which is consistent with the innocence of the accused.”  Poellinger, 153 Wis. 2d at 506.


Self-representation requires not merely knowing, intelligent and voluntary waiver of the right to counsel, but also a standard of competency to proceed pro se higher than that to stand trial.

¶23      In this case, the circuit court failed to independently consider Wusterbarth’s competence to proceed pro se.  The circuit court did adopt the findings of a competency evaluation, deeming Wusterbarth competent to stand trial; however, the circuit court never independently determined on the record whether Wusterbarth met the higher standard of being competent to represent himself.

While the typical remedy for this misstep is procedural, in the form of remand for an evidentiary hearing, in this instance outright relief is warranted:

¶25      We conclude that an evidentiary hearing regarding Wusterbarth’s competence to proceed pro se is unnecessary.  The record clearly indicates Wusterbarth was not competent to proceed pro se.  We note that from the onset of this prosecution, the record reflects that both the State and the circuit court repeatedly expressed concern that Wusterbarth’s paranoia would interfere with his ability to represent himself.  Although Dr. Brooke Lundbohm’s report on Wusterbarth’s competency to proceed did not evaluate his competency to represent himself, it did suggest he would benefit from standby counsel.  Finally, on the morning of trial, after the State told the circuit court it felt Wusterbarth would benefit from seeing a mental health professional and the circuit court agreed, the circuit court nevertheless proceeded to trial without any further examination into Wusterbarth’s competency to proceed pro se.

¶26      A circuit court “has a continuing responsibility to watch over the defendant and insure that his incompetence is not allowed to substitute for the obligation of the state to prove its case.”  Pickens, 96 Wis. 2d at 569.  Because the record demonstrates the circuit court’s concern with Wusterbarth’s mental health and ability to proceed pro se, the circuit court had an obligation to ensure Wusterbarth was adequately represented.  Accordingly, we reverse.

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