Criminal Procedure — right to testify — waiver

Listen to this article

Wisconsin Court of Appeals

Criminal

Criminal Procedure — right to testify — waiver

Where a defendant refused to participate in his trial he also waived his right to testify.

“[A] defendant in a criminal case may lose fundamental rights (such as the right to appear at the trial and confront the accusers) when the defendant forfeits those rights by interfering with the ability of the trial court to protect those rights. See Allen, 397 U.S. at 343; see also Taylor v. United States, 414 U.S. 17, 20 (1973) (per curiam); Fischetti v. Johnson, 384 F.3d 140, 151 (3rd Cir. 2004) (‘Through misconduct, defendants can outright forfeit trial rights as fundamental as the Sixth Amendment right to counsel.’). By refusing to come to court so the trial court could personally explain what Weed requires must be explained, Vaughn made it, as a practical matter consistent with safety, impossible for the trial court to explain his right to testify, and determine whether his decision to not testify was, in Weed’s phrase, ‘knowing, intelligent, and voluntary.’ Indeed, we have seen how when the trial court discussed with the State and Vaughn’s trial lawyer the possibility of having the courthouse deputies forcibly bring Vaughn into court, Vaughn’s trial lawyer objected. We reprint what the lawyer said because it bears significantly on how far circuit courts must go to comply with the palliative Weed requirements: ‘[A]s a Defense counsel, I, obviously, would not sign onto that option since it would lead to additional charges for my client. So, no matter how precious his right to be in trial, I don’t think that it would be of any value to him to end up with additional potential charges and, obviously, injuries to himself or deputies just to sit and watch this, when he’s made it so clear that he doesn’t want to.’ This warning makes even more sense given the lawyer’s testimony at the postconviction hearing that Vaughn ‘is a pretty big guy.’ Vaughn gave the trial court no choice but to forego what it wanted to do in order to ensure that his decision to not testify was knowing and voluntary. He cannot now complain, and we will not impose on the circuit courts a rule that not only would be pyrrhic in the sense that if an obstreperous defendant is dragged into court and still does not cooperate, dragging that defendant into court accomplishes nothing, but would also endanger everyone including the defendant.

Affirmed.

Recommended for publication in the official reports.

2012AP94-CR State v. Vaughn

Dist. I Milwaukee County, Flanagan, Fiorenza, JJ., Fine, J.

Attorneys: For Appellant: Cornwall, Andrea Taylor, Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee