2010AP1090-CR State v. Boyd

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Criminal Procedure
Right to counsel

Where a defendant could not show how his disagreements with his attorney were prejudicing his defense, the court properly denied his request for new counsel five days made before trial.

“[E]ven 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.’).”

Affirmed.

Publication in the official reports is recommended.

2010AP1090-CR State v. Boyd

Dist. I, Milwaukee County, Wagner, Conen, JJ., Fine, J.

Attorneys: For Appellant: Lawnicki, Rebecca Robin, Milwaukee; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

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