State v. Wilson

508 N.W.2d 44, 179 Wis. 2d 660, 1993 Wisc. App. LEXIS 1356
CourtCourt of Appeals of Wisconsin
DecidedOctober 26, 1993
Docket92-2212-CR
StatusPublished
Cited by22 cases

This text of 508 N.W.2d 44 (State v. Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wilson, 508 N.W.2d 44, 179 Wis. 2d 660, 1993 Wisc. App. LEXIS 1356 (Wis. Ct. App. 1993).

Opinions

WEDEMEYER, P.J.

Lenzy Wilson appeals from a judgment of conviction finding him guilty of armed robbery, party to a crime, as a habitual offender, contrary to secs. 943.32(l)(b) and (2), 939.05 and 939.62, Stats. Wilson also appeals from an order denying his request for postconviction relief. Wilson presents the [667]*667following issues for our review: (1) Was Wilson denied his right to testify?; (2) Was Wilson denied his right to due process and to present a defense when the trial court excluded expert testimony on eyewitness identification?; (3) Was trial counsel ineffective for failing to adequately advise Wilson that he had the right to testify over counsel's advice and for failing to make an adequate offer of proof about the proposed expert testimony?; and (4) Should the lineup and subsequent in-court identification have been suppressed? We consider each issue seriatim, and, for the reasons set forth below, we affirm.

I. BACKGROUND

This case has its genesis from the knife-point robbery of Myra Grabowski. On October 26, 1988, at approximately 5 p.m., Grabowski returned home from work and saw a "suspicious" vehicle parked in the middle of the alley where her garage was located. Grabowski took note of the license plate number as she drove around the vehicle to enter her garage. As Gra-bowski was exiting the garage, an assailant accosted her, grabbed her left arm and placed a knife to her throat. The assailant then stated: "Give me your purse or I will slash your throat." Grabowski surrendered her purse.

The assailant walked down the alley and entered the vehicle that Grabowski had observed earlier. Gra-bowski wrote down the license plate number and called the police. Grabowski gave a description of the vehicle, its driver and the clothes that the driver wore. Later that evening the police brought the vehicle and the driver to her residence where she identified them as being in the alley earlier that evening. The driver was Robert Green. Green implicated Lenzy Wilson as the [668]*668perpetrator of the robbery on Grabowski. Green, however, was discredited before trial and did not testify during the proceedings.

Two days after the crime, Grabowski was called into the police station to view a police lineup. She identified Wilson as her assailant. Wilson was then arrested.

The lineup identification was the subject of a suppression motion. Wilson moved for suppression based on illegal arrest, and also challenged the identification procedures and any in-court identification which might follow. Also prior to trial, the State brought a motion in limine to exclude expert testimony on eyewitness identification. The trial court ruled against Wilson on both motions and the case proceeded to trial. Wilson was convicted as charged and sentenced to thirty years in prison.

Wilson brought a postconviction motion for a new trial alleging, inter alia, that trial counsel was ineffective under the state and federal constitutions and that the defense was prejudiced. A hearing was held on August 6, 1992. The motion was denied. Wilson now appeals. Further facts necessary to a resolution of the case are set forth below.

II. WAIVER OF RIGHT TO TESTIFY

Wilson's first claim of error is that he was denied his right to testify at trial. Wilson asserts that the right to testify is a fundamental and personal right of the accused which may be waived only by the defendant, personally and directly to the court, together with the court's finding that the waiver is knowing and voluntary. Because, he says, the record does not reflect a knowing and voluntary waiver of his right to testify, Wilson reasons that the trial court erred. To address [669]*669his argument, we look to the law concerning a defendant's right to testify.

In 1980, the Wisconsin Supreme Court decided State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980). In Albright, the court concluded that a criminal defendant has a constitutional due process right to testify on his or her behalf. Id. at 129, 291 N.W.2d at 490. However, the court concluded that the right was not a "fundamental" or personal right that "can only be waived in open court on the record by the defendant." Id. at 130, 291 N.W.2d at 490-91. The court stated: "To be sure, the right to testify is an important constitutional right. However, we believe that the right to testify, as distinguished from those rights considered to be so fundamental as to be personal to the defendant, does not go to the very heart of the adjudicatory process." Id. at 130, 291 N.W.2d at 491. The court went on to conclude that although the decision to testify should be made by the defendant after consulting with counsel, nonetheless, "counsel, in the absence of the express disapproval of the defendant on the record during the pretrial or trial proceedings, may waive the defendant's right to testify." Id. at 133, 291 N.W.2d at 492.

In 1987, the United States Supreme Court decided Rock v. Arkansas, 483 U.S. 44 (1987). Rock considered the issue of "whether Arkansas' evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner's constitutional right to testify on her own behalf as a defendant in a criminal case." Id. at 45. Vickie Rock was charged with manslaughter in connection with the shooting death of her husband. Id. at 45. Because she was unable to remember the precise nature of the events surrounding the [670]*670shooting, her attorney recommended that she undergo hypnosis. Id. at 46. After learning of the hypnosis, the prosecutor filed a motion to exclude Rock's testimony. Id. at 47. The trial court subsequently issued an order limiting Rock's testimony to " 'matters remembered and stated to the examiner prior to being placed under hypnosis.'" Id. Rock challenged the ruling, arguing that her constitutional right to testify in her own defense was abridged. Id. at 49.

The Supreme Court first acknowledged, as discussed in Albright, that under common law, a party to the litigation was "disqualified from testifying because of their interest in the outcome of the trial." Id. The Court noted, however, that under our present adversarial system, it cannot be doubted that a criminal defendant has the right to take the stand and testify on his or her behalf. Id. The Court found the source of the right to testify in one's defense in several provisions of the Constitution: the Due Process Clause of the Fourteenth Amendment; the Compulsory Process Clause of the Sixth Amendment; and, as a corollary to the Fifth Amendment's guarantee against compelled testimony. Id. at 51-53. The Court also noted: "On numerous occasions the Court has proceeded on the premise that the right to testify on one's own behalf in defense to a criminal charge is a fundamental constitutional right." Id. at 53 n.10. Thus, in direct contrast with Albright, the United States Supreme Court has clearly indicated that the constitutional right to testify should be treated as fundamental in nature.

Our inquiry, however, is not complete. Rock did not address the issue of how and when a criminal defendant may waive his or her right to testify. Wilson, citing the cases of Johnson v. Zerbst,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jensen
2007 WI App 256 (Court of Appeals of Wisconsin, 2007)
State v. Arredondo
2004 WI App 7 (Court of Appeals of Wisconsin, 2003)
State v. Wright
2003 WI App 252 (Court of Appeals of Wisconsin, 2003)
State v. Weed
2003 WI 85 (Wisconsin Supreme Court, 2003)
State v. Coley
32 S.W.3d 831 (Tennessee Supreme Court, 2000)
Momon v. State
18 S.W.3d 152 (Tennessee Supreme Court, 2000)
State v. Oswald
2000 WI App 3 (Court of Appeals of Wisconsin, 1999)
State v. Brunette
583 N.W.2d 174 (Court of Appeals of Wisconsin, 1998)
State v. Turner
546 N.W.2d 880 (Court of Appeals of Wisconsin, 1996)
State v. Flynn
527 N.W.2d 343 (Court of Appeals of Wisconsin, 1994)
State v. Simpson
519 N.W.2d 662 (Court of Appeals of Wisconsin, 1994)
State v. Wilson
508 N.W.2d 44 (Court of Appeals of Wisconsin, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
508 N.W.2d 44, 179 Wis. 2d 660, 1993 Wisc. App. LEXIS 1356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-wisctapp-1993.