State v. McDowell, 2004 WI 70, 272 Wis. 2d 488

Summary

The Supreme Court of Wisconsin reviewed Derryle S. McDowell's claims of ineffective assistance of trial counsel and the denial of his request for new counsel. The court held that defense counsel may use narrative questioning instead of the traditional question-and-answer format only when counsel knows the client intends to testify falsely, ordinarily based on the client's unambiguous admission. Although counsel performed deficiently by switching to narrative questioning without adequate notice and without concluding that McDowell intended to lie, the court found no prejudice and affirmed the court of appeals.

Holdings

1. Defense counsel may not substitute narrative questioning for traditional question-and-answer examination unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, that knowledge must be based on the client's unambiguous, directly expressed admission of an intent to testify untruthfully. Counsel must advise the defendant, opposing counsel, and the circuit court of the change before using the narrative format, and the court must make a record concerning the basis for counsel's conclusion, the defendant's right to testify, and the nature and limitations of narrative questioning.
2. Counsel performed deficiently by switching to narrative questioning without advising McDowell beforehand and by using narrative questioning despite believing that McDowell intended to testify truthfully. McDowell nevertheless failed to establish prejudice because there was no reasonable probability that the result would have been different.
3. The circuit court did not erroneously exercise its discretion in refusing to appoint new counsel. Applying the Lomax factors, the lack of a clear request or evidence of an untenable conflict, the eleventh-hour timing, and the absence of a total breakdown in communication supported retaining existing counsel.

Questions Presented

1. When may criminal defense counsel replace ordinary question-and-answer examination with narrative questioning because counsel believes the defendant intends to commit perjury?
2. Did trial counsel provide ineffective assistance by switching to narrative questioning without advising McDowell beforehand and despite believing that McDowell intended to testify truthfully?
3. Did the circuit court erroneously exercise its discretion by refusing to appoint new counsel or conduct a more extensive inquiry into McDowell's dissatisfaction with counsel?

Disposition

affirmed