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2000  WI  App  3
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                           97-1219-CR
97-1899-CR
†Petition for review filed
Complete Title
of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMES H. OSWALD,
DEFENDANT-APPELLANT. †
Opinion Filed:                                                      December 8, 1999
Submitted on Briefs:                                                September 23, 1999
JUDGES:                                                             Brown, P.J., Nettesheim and Anderson, JJ.
Concurred:                                                          Nettesheim, JJ.
Dissented:
Appellant
ATTORNEYS:                                                          On behalf of the defendant-appellant, the cause was submitted on the
briefs of  James L. Fullin of Fullin Law Office of Madison.
Respondent
ATTORNEYS:                                                          On behalf of the plaintiff-respondent, the cause was submitted on the
briefs of James E. Doyle, attorney general, and Sally L. Wellman,
assistant attorney general.




COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 8, 1999
A  party  may  file  with  the  Supreme  Court  a
petition  to  review  an  adverse  decision  by  the
Marilyn L. Graves
Court of Appeals.   See § 808.10 and RULE 809.62,
Clerk, Court of Appeals
STATS.
of Wisconsin
Nos.  97-1219-CR
97-1899-CR
STATE OF WISCONSIN                                                                      IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMES H. OSWALD,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an  order  of  the circuit court for
Waukesha County:   LEE S. DREYFUS, JR., Judge.   Affirmed.
Before Brown, P.J., Nettesheim and Anderson, JJ.
¶1                                                                                      BROWN, P.J.     James H. Oswald was convicted of twenty felony
counts on May 30,  1995, after a jury trial. The charges stemmed from a bank
robbery, an escape in a stolen car, a shootout with police officers and the resulting
death of Captain James Lutz of the City of Waukesha Police Department. The




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gunfire  exchange  with  the  police  was  captured  on  videotape  by  a  television
reporter and widely broadcast.   Oswald raises several arguments on appeal, the
most noteworthy being that several jurors should have been struck for cause.   In
light of the Wisconsin Supreme Court’s recent clarification of Wisconsin law on
juror bias, we address this issue at length.   Ultimately, we conclude that the trial
court did not err by refusing to strike the jurors Oswald claims were biased.   We
additionally reject Oswald’s other arguments and affirm.1
¶2                                                                                              We  begin  with  a  brief  recitation  of  the  facts,  which  we  will
supplement later as needed.   Oswald, along with his son Theodore, robbed a bank
in Wales, Wisconsin, on the morning of April 28, 1994.2   They fled and traveled
toward Waukesha.   Two Waukesha police officers stopped the Oswald vehicle, at
which point the Oswalds, armed with semi-automatic rifles, got out of the vehicle
and shot at the officers, killing one.   A chase ensued, during which the Oswalds
forced their way into a private residence, took a woman who was inside hostage
and forced her to drive them away in her vehicle.   The chase ended in a shootout
between the Oswalds and numerous police officers, in which two officers and the
hostage sustained gunshot wounds.   By the time of the shootout, local media had
gotten wind of the incident and the shootout was filmed live and rebroadcast
extensively.
1 Oswald first appealed only his judgment of conviction.   He then moved this court to
consolidate that appeal with another attacking the trial court’s order denying postconviction
relief.  We granted the motion to consolidate.
2   Theodore also appealed his conviction.   See State v. Oswald, No. 97-1026-CR (Wis.
Ct. App. Dec. 8, 1999).
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¶3                                                                                         Oswald was charged with a variety of felonies and convicted by a
jury of twenty felony counts.   On appeal he raises several claims, grouped into the
following categories:  juror bias, right to self-representation, right to representation
by retained counsel of his choice, evidentiary issues and responsibility plea.   We
address them in that order, adding facts where relevant.
1.   Juror Bias
¶4                                                                                         On  July  8,                                                       1999,  the  Wisconsin  Supreme  Court  released  four
opinions  discussing  juror  bias.    See  State  v.  Faucher,                             227  Wis.2d  700,  596
N.W.2d 770 (1999); State v. Kiernan, 227 Wis.2d 736, 596 N.W.2d 760 (1999);
State v. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), petition for cert. filed,
(U.S.  Oct.  4,  1999)  (No.  99-6572);  State  v.  Mendoza,  227  Wis.2d  838,  596
N.W.2d 736 (1999).   In those cases, the court clarified the previously turbid state
of  juror  bias  jurisprudence  in  Wisconsin,  adopting  the  terms                       “statutory,”
“subjective” and “objective” bias to replace the misused “implied,” “actual” and
“inferred” bias terminology.   See Faucher, 227 Wis.2d at 705-06, 596 N.W.2d at
773.   A person is statutorily biased if he or she “is related by blood or marriage to
any party or to any attorney appearing in the case” or “has any financial interest in
the case.”   Section 805.08(1), STATS.   Subjective bias refers to the prospective
juror’s state of mind.    See Faucher,  227 Wis.2d at  717,  596 N.W.2d at  778.
Finally, a prospective juror is objectively biased if his or her relationship to the
case is such that no reasonable person in the prospective juror’s position could
possibly be impartial, despite the desire to set aside any bias.   See id. at 718, 596
N.W.2d at 778-79.   We discuss these four cases with respect to our standard of
review, subjective bias and objective bias.
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a.   Standard of Review
¶5                                                                                          In reviewing a trial court’s determination of subjective and objective
bias, we give two different levels of deference to the trial court’s conclusions.3
First, the trial court’s determination of subjective bias will be upheld unless clearly
erroneous.   See Kiernan, 227 Wis.2d at 745, 596 N.W.2d at 764.   We employ the
clearly erroneous standard because the trial court is in the unique position to assess
the prospective juror’s demeanor and tone.   See id.   We will not second-guess
these observations when all we see is a cold record.    Second, the trial court’s
determination of objective bias will be reversed only if, as a matter of law, a
reasonable judge could not have reached the same conclusion.   See id.; Faucher,
227 Wis.2d at 721, 596 N.W.2d at 780.   This is a higher standard of review than
the  clearly  erroneous  standard  but  still  very  deferential  to  the  trial  court’s
conclusions.   See Faucher, 227 Wis.2d at 720, 596 N.W.2d at 779.   We employ
this intermediate standard because the trial court’s conclusion on the question of
law of whether the facts add up to objective bias is so intertwined with the factual
findings supporting that conclusion.   See id.   Thus, our review of a trial court’s
determination of both subjective and objective bias is deferential, though less so
for objective bias than subjective.   Compare id. at 718, 596 N.W.2d at 778, with
id. at 718-21, 596 N.W.2d at 778-80.
b.   Subjective Bias
¶6                                                                                          Faucher,   Kiernan,   Mendoza   and   Erickson   nail   down   the
proposition that “questions as to a prospective juror’s sincere willingness to set
3  Oswald does not allege that any one of the jurors was statutorily biased.
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aside bias should be largely left to the circuit court’s discretion.”   State v. Ferron,
219 Wis.2d 481, 501, 579 N.W.2d 654, 662 (1998).   In Ferron, a prospective juror
“continued to express his belief that criminal defendants who elect not to testify on
their own behalf are guilty.”   Id. at 500, 579 N.W.2d at 662.   The record reflected
that this juror refused to recognize a fundamental constitutional right despite the
trial court’s repeated instructions.   After much dialogue with the trial court, the
best the juror could muster was that he “probably” could set aside his bias.   See id.
at                                                                                             501,  579  N.W.2d  at  662.    The result of  that case  may have  inadvertently
encouraged the criminal defense bar to base claims of bias on particular words.
However, the Ferron court made it clear that “[t]here are no magical words that
need be spoken by the prospective juror, and the juror need not affirmatively state
that he or she can ‘definitely’ set the bias aside.”   Id.   The recent juror bias cases
confirm this holding.   Now, it is clear that “a prospective juror need not respond to
voir dire questions with unequivocal declarations of impartiality.”   Erickson, 227
Wis.2d at 776, 596 N.W.2d at 759; see also Faucher, 227 Wis.2d at 731 n.8, 596
N.W.2d at 784 (“[A] prospective juror need not unambiguously state his or her
ability to set aside a bias.”).   It is not just the juror’s words that are important.   The
manner in which the juror says the words and the body language he or she exhibits
while answering speak volumes—volumes that are not transmitted to a reviewing
court via the cold record.    Our inability to review demeanor and thus assess
sincerity is precisely why we leave the determination of subjective bias to the
circuit court.    See Erickson,  227 Wis.2d at  776,  596 N.W.2d at  759  (noting
appellate court’s inability to assess whether the juror’s “I think so” was stated with
earnestness  or  timidity).    Thus,  when  reviewing  a  circuit  court’s  decision  on
subjective bias, we do not focus on particular, isolated words the juror used.
Rather,  we  look  at  the  record  as  a  whole,  using  a  very  deferential  lens,  to
determine if it supports the circuit court’s conclusion.
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¶7                                                                                           We understand that there are those who will read this opinion and
say, “But in Ferron, the supreme court did not pay deference to the trial court.   If
Ferron  is  to  have  any  continuing  vitality  at  all,  then  it  must  stand  for  the
proposition that when a juror expresses a strongly held bias and then makes an
equivocal  commitment  to  set  that  bias  aside,  the  trial  court’s  finding  of
impartiality deserves a low  level of  deference or  no deference  at all and the
reviewing court must find subjective bias as a matter of law.”   We disagree with
that interpretation.   Ferron was a special case with unique facts.   It was those
unique facts—a juror  who expressed an intractable bias against a defendant’s
constitutional right to a presumption of innocence in the face of the defendant’s
possible election not to testify on his own behalf—which led the supreme court to
reach the result it did.    Ferron does not demand that prospective jurors give
unequivocal assertions of impartiality on voir dire.
c.   Objective Bias
¶8                                                                                           Study of Faucher, Kiernan, Erickson and Mendoza reveals that
exclusion  of  a  juror  for  objective  bias  requires  a  direct,  critical,  personal
connection between the individual juror and crucial evidence or a dispositive issue
in the case to be tried or the juror’s intractable negative attitude toward the justice
system in general.
¶9                                                                                           One situation when a juror must be dismissed for cause because of
objective bias is when the juror has a direct connection to crucial evidence to be
presented at trial.   For example, in Faucher, the juror was acquainted with the
State’s key witness and told the trial court that he believed her to be a “person of
integrity … [who] wouldn’t lie.”   See Faucher, 227 Wis.2d at 708, 596 N.W.2d at
774.   The case boiled down to a credibility contest between a sole eyewitness—the
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woman with whom the juror was acquainted—and the defendant.   See id. at 707,
596 N.W.2d at 773.   Together, the juror’s firmly held belief that the witness, with
whom he was personally acquainted, was incapable of lying and the fact that her
testimony was the cornerstone of the State’s case established the juror’s objective
bias.
¶10    In  contrast,  a  juror’s  connection  to  crucial  evidence  does  not
establish objective bias if the connection is remote.   In Erickson, the challenged
juror had been a victim of sexual abuse as a child.   The trial court noted at voir
dire that “often … in cases of this nature … it’s one person’s word against the
other.”   Erickson, 227 Wis.2d at 763 n.3, 596 N.W.2d at 753.   When the juror
replied that she did not feel that her own experience would make her more likely
to believe the victim’s testimony, the trial court refused to strike her for cause.
See id. at 763, 596 N.W.2d at 753.   Unlike the prospective juror in Faucher, this
juror expressed no direct, personal relationship to the witness (in this case, the
victim).  Furthermore,  her  sexual  assault  experience  was  remote  in  time,  thus
lessening the chance it would taint her judgment.   See id. at 763 n.5, 596 N.W.2d
at 753.4
¶11    The trial court must also strike a juror for objective bias if the juror
has a direct connection to a dispositive issue in the case, such as the defense
theory, coupled with a personal belief regarding the outcome of that issue.   See
4   In Erickson, the supreme court reasserted its reluctance to create new groups of people
automatically excluded from jury service due to a supposed inherent bias in their status.   See
State v. Erickson, 227 Wis.2d 758, 777, 596 N.W.2d 749, 759 (1999); see also State v. Mendoza,
227 Wis.2d 838, 852 n.9, 596 N.W.2d 736, 744 (1999); State v. Kiernan, 227 Wis.2d 736, 748-
49, 596 N.W.2d 760, 766 (1999) (citing cases).
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Kiernan, 227 Wis.2d at 749-50, 596 N.W.2d at 766-67.   In Kiernan, several of the
jurors had sat on a case two days earlier in which the same defense attorney had
tried a “carbon copy” of Kiernan’s case using the same defense theory he planned
to present for Kiernan.   See id. at 740, 596 N.W.2d at 762.   That theory was that
breathalyzer readings could be rendered inaccurately high when the subject had an
object in his or her mouth.   The trial court declined to remove the veteran jurors
for  cause.    While  the  supreme  court  noted  that                                     “veteran  jurors  need  not  be
removed for cause when called upon to decide multiple cases with similar issues
and identical witnesses,” it then went on to conclude that the particular jurors at
issue were nevertheless objectively biased.   Id. at 748-49, 596 N.W.2d at 765-66.
At voir dire, the jurors had stated that they would conclude that breathalyzer tests
are accurate absent operator error or machine malfunction.   See id. at 749, 596
N.W.2d at 766.   Given Kiernan’s theory of defense, “[t]hose jurors had formed a
steadfast opinion outside the confines of Kiernan’s trial on the very issue they
were being called upon to decide at her trial.”   Id. at 750, 596 N.W.2d at 767.
Like the Faucher juror’s premature conclusion about the credibility of the State’s
key witness, these jurors’ pretrial conclusion that breathalyzer results are accurate
went right to the heart of Kiernan’s case.   The jurors’ direct, personal connection
to the theory of defense constituted objective bias.
¶12    The third situation we discuss in which jurors must be struck for
cause is when the jurors demonstrate an intractable negative attitude toward the
justice system.   For example, in Mendoza, the State moved to strike four jurors
who had been convicted of crimes.   See Mendoza, 227 Wis.2d at 843, 596 N.W.2d
at 739.   The trial court, in an attempt to err on the safe side and avoid even the
appearance of bias, removed the jurors.   The supreme court, however, held that
“the court’s blanket decision to strike a class of jurors was an error of law.”   Id. at
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853, 596 N.W.2d at 744.   As with the veteran jurors in Kiernan, the previously
convicted panel members should not have been excluded by virtue of that status
alone.   However, the error in striking on that status alone did not preclude the
possibility  that  the  four  jurors,  viewed  as  individuals,  could  have  exhibited
objective bias.   Therefore, the supreme court examined the responses of each of
the struck jurors to see if the record supported the trial court’s decision to strike.
See id. at 854, 596 N.W.2d at 744.
¶13    After reviewing the responses of the struck jurors, the supreme court
held that three of the four challenged jurors should have been excluded because of
their negative experiences with the criminal justice system and their resultant
residual hostility.   One of these jurors was set to begin serving his sentence for a
drug offense in three weeks; his contact with the criminal justice system was so
“recent and continuing” as to render him objectively biased.   Id.   A second felt
that a sentence imposed on him for an armed robbery of which he was convicted
in 1966 “was too stiff” and “still bothered him.”   Id. at 854, 596 N.W.2d at 745.
The supreme court held this “residual hostility” constituted objective bias.   Id. at
855, 596 N.W.2d at 745.   The third had been convicted of and incarcerated for
burglary.   He stated that he had been falsely accused and that “he thought people
are set up by others who do not like them.”   Id.   This attitude, too, constituted
objective bias.   Thus, the record supported the trial court’s conclusion that three of
the four struck jurors were objectively biased.   In contrast, the supreme court held
that no reasonable judge could have found the fourth struck juror to be objectively
biased.   That individual had pled guilty to a burglary about thirty years previously
and  stated  that  “he  had  no  problem with  the  manner  in  which  the  police  or
prosecutor handled [his] case.”   Id. at 856, 596 N.W.2d at 745.   No reasonable
judge could have concluded that this person was objectively biased, given the
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remoteness of his conviction and apparent lack of negative feelings toward the
criminal justice system.   See id.
d.   The Oswald Jurors
¶14    We now apply the juror bias analysis to Oswald’s case.   The trial
court denied Oswald’s motions to strike five jurors for cause.   Two of these jurors
remained on the panel and Oswald struck the other three using his peremptory
strikes.   He argues that the trial court erred in refusing to strike these jurors for
cause, resulting in a violation of his right to an impartial jury and his right to
peremptory strikes.   Our review of the record leads us to conclude that the trial
court did not err in refusing to strike the jurors.
¶15    Juror Rebecca B. testified that she formed the opinion that Oswald
was guilty due to viewing the film of the shootout twice on television.   She also
stated that she generally based her decisions on her initial “gut feeling” and that
this method of decision making had worked for her in the past.   When the court
asked her if she could set aside information she had received about the case and
“view ... evidence, listen to the instructions that I would give at the close of trial,
apply the evidence to the facts ... and be able to render a verdict at that time,” she
responded, “I just don’t know if—I guess I have a strong feeling that what took
place, that the media said took place, actually did take place and I don’t know if I
could be objective to say that.   No.   After hearing the evidence I don’t know if I
could.”   When asked if she would be “willing to listen to all of the evidence ...
before  coming  to                                                                        [her]  own                                                                ...  conclusions  based  upon  the  evidence,”  she
responded,                                                                                “Probably,  yeah.”    Oswald  claims  that  these  responses  were  too
equivocal  for  the  trial  court  to  have  concluded  that  Rebecca  B.  was  not
subjectively biased.
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¶16    Oswald claims that Juror Patti H. should have been struck for both
subjective and objective bias.   First, she had seen the tape of the shootout and
believed that it showed that “one of them [either Oswald or his son] is guilty.”
When asked about her ability to set aside what she had seen and heard and base
her decision on the evidence presented at trial, she said,  “As a juror I know I
would have to  ....”    Oswald claims that her statement reflects subjective bias.
Second, Oswald argues that Patti H. was objectively biased because her husband
was a police officer.   Given the defense theory in this case—that the slain officer
had actually been killed by an errant bullet fired by another officer—Oswald
argues that no wife of a police officer could put aside her bias in a case such as
his.
¶17    Oswald  goes  on  to  contend  that  Juror  Paul  A.  was  also  both
subjectively and objectively biased.   When asked if he could make a determination
of guilt based on the evidence at trial and not on media coverage, Paul A. stated, “I
would  try  to  do  my  best.”  Oswald  claims  this  equivocal  reply  demonstrates
subjective  bias.     Furthermore,  Oswald  posits,  Paul  A.’s  background  as  an
immigration officer tainted him with objective bias.
¶18    Finally, Oswald claims that Jurors Debora S. and Thai V. should
have been struck for objective and subjective bias, respectively.   In Debora S.’s
case, her two sisters and their husbands were law enforcement officers.   This is
enough to show objective bias here due to the nature of the case, Oswald opines.
While Thai V. indicated on the jury questionnaire that he felt Oswald was guilty,
he stated at voir dire that he would be able to set aside his preformed opinion and
judge the case based on the evidence presented.   Nevertheless, Oswald claims that
he exhibited subjective bias.
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¶19    We  first  examine  Oswald’s  claims  of  subjective  bias,  on  which
prong Oswald challenges jurors Rebecca B., Patti H., Paul A. and Thai V.   After
first admitting that seeing the shootout on television had made her think Oswald
was guilty, Rebecca B. ultimately stated that she “probably” could set this belief
aside and judge the case solely on the evidence presented at trial.    With respect to
Patti H., our review of the record leads us to agree with the State:                      “There is
absolutely nothing in this record to indicate that  [Patti H.] had a preconceived
opinion of guilt, much less that she would be unable to put any such opinion aside
and decide the case based on the evidence presented.”   Paul A., when asked if he
could decide the case based solely on evidence presented in court and not be
swayed by the pretrial publicity, stated,  “I would try to do my best.”   Finally,
Oswald relies on Thai V.’s written questionnaire to show subjective bias.   But
Thai V. clearly stated at voir dire that he could and would weigh the evidence
presented  and  base  his  decision  on  that  evidence  alone.    We  repeat  that  a
prospective juror need not give “unequivocal assurances” of his or her ability to
set aside any prior knowledge or opinion about the case.   See Kiernan, 227 Wis.2d
at 750 n.10, 596 N.W.2d at 767.   The trial court is in a much better position than
we to determine if a response of “probably” or “I’ll try” is sincere.   The record
supports the trial court’s decision not to strike any of these jurors for subjective
bias and we will not overturn that decision.   See Mendoza, 227 Wis.2d at 849, 596
N.W.2d at 742.
¶20    Next,  we  examine  and  reject  Oswald’s  claims  of  objective  bias
concerning  Patti  H.,  Paul  A.  and  Debora  S.    Paul  A.  used  to  be  a  federal
immigration  officer.     Both  Patti  H.  and  Debora  S.  have  relatives  in  law
enforcement.    Citing Kiernan and Mendoza, Oswald contends that their close
relationships to the profession would unfairly prejudice them against the defense
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theory of police error—that it was actually an errant bullet fired by another officer
that killed the officer who died.
¶21    We are not persuaded.   Neither experience as an immigration officer
nor  a  familial  relationship  to  a  police  officer  creates  the  direct,  personal
connection to a dispositive issue in the case necessary to render a juror objectively
biased.    This  is  not  a  case  like  Kiernan,  where  the  prospective  jurors  had
previously decided the crucial issue in a carbon copy of Kiernan’s case.    See
Kiernan, 227 Wis.2d at 740, 596 N.W.2d at 762.     There, the jurors stated at voir
dire  that  they  would  reach  a  particular  conclusion  regarding  the  accuracy  of
breathalyzer tests—the very issue upon which Kiernan’s theory of defense was
based.   See id. at 749-50, 596 N.W.2d at 766-67.   There is nothing in the record
here suggesting that these jurors’ connections to the law enforcement field made
them believe that police officers are infallible; their backgrounds did not foreclose
Oswald’s  defense  theory  of  police  error.     A  reasonable  person  with  some
connection to law enforcement does not believe that police officers are incapable
of error.
¶22    Neither is this a case like Mendoza, where jurors were objectively
biased due to their ingrained negative attitude toward the criminal justice system.
See Mendoza, 227 Wis.2d at 854-56, 596 N.W.2d at 744-45.   Oswald likens the
jurors’ positive relationship with law enforcement to the negative views held by
the Mendoza jurors, claiming that such a close connection renders their partiality
towards law enforcement impossible to set aside.   But if a current, local police
officer himself or herself is not so predisposed to favor an officer’s version of
events as to be considered objectively biased, see State v. Louis, 156 Wis.2d 470,
482-83, 457 N.W.2d 484, 489-90 (1990), certainly a former immigration officer or
relative of an officer is not objectively biased on that fact alone.   A reasonable
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person could be impartial despite a relationship to an officer or past experience as
an officer.   This fact—that a reasonable person in the position of the prospective
juror could be impartial—is the sine qua non of the absence of objective bias.   See
Faucher, 227 Wis.2d at 718, 596 N.W.2d at 778-79.   These jurors’ relationship to
law enforcement did not render them objectively biased.
¶23    Finally,  even  though  Oswald  does  not  base  his  objective  bias
argument on Faucher, some might argue that he would have been better off had
he  done  so.    We  understand  why  he  did  not.    The  two  cases  are  easily
distinguished.   In Faucher, the prospective juror knew the State’s only eyewitness
and was convinced that witness would not lie.   See Faucher, 227 Wis.2d at 732-
33,                                                                                         596  N.W.2d  at  785.    Furthermore,  the  Faucher  case  boiled  down  to  a
credibility battle  between  that  witness  and  the  accused.    See  id.  at  733,  596
N.W.2d at  785.    Here, Patti H. did state that she thought police officers were
“more  truthful”  than  others.                                                             But,  the  record  does  not  show  that  she  was
personally acquainted with any of the officers who were to testify at trial.   Also,
there was no one witness upon whose testimony the entire State’s case hung.   The
evidence against Oswald was overwhelming and varied.   Faucher does not help
Oswald establish objective bias.
2. Right to Self-Representation
¶24    Oswald  claims  that  the  trial  court  violated  his  right  to  self-
representation by not allowing him to represent himself until approximately one
month before the trial was scheduled to begin, by denying him a continuance at
that point and by denying him transcripts from Theodore’s trial and recorded
statements of the State’s witnesses at that trial.   We first relate the facts pertinent
to these claims and then address their merit.
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¶25    Oswald’s  case  was  originally  consolidated  with  that  of  his  son
Theodore.   However, Oswald moved to draw the jury from another county.   When
the court granted that motion, Oswald’s trial was separated from Theodore’s.
Theodore was tried and convicted of nineteen of the same twenty felony counts of
which Oswald was ultimately convicted.   Theodore’s trial ended several weeks
before Oswald’s began.
¶26    Oswald  had  three  different  attorneys  before  finally  representing
himself.   His first attorney, Daniel Fay, was appointed for him by the state public
defender.   Oswald became dissatisfied with Fay and requested to proceed pro se.
The court ordered an examination of Oswald to determine if he was competent to
represent himself.   After a hearing, the court denied Oswald’s request.   Later that
week, Alan Eisenberg took over as attorney for Oswald and the trial court relieved
Fay of any responsibility for the case.   Eisenberg later withdrew, citing Supreme
Court Rule 20:1.16(a)(1), which requires a lawyer to withdraw if representation
will  result  in  a  violation  of  the  Rules  of  Professional  Conduct.    See  SCR
20:1.16(a)(1)                                                                            (West   1998).  Oswald  again  requested  permission  to  represent
himself.   The trial court again denied Oswald’s request.   Douglas Bihler was then
appointed by the state public defender.    Three months later, Bihler moved the
court to allow him to withdraw and allow two other private attorneys, Robert
Sosnay and William Marquis, to represent Oswald.   The court denied this request,
holding that the trial strategy conflicts that had caused Fay, Eisenberg and Bihler
to  feel  compelled  to  withdraw  would  probably  continue  with  new  counsel.
Ultimately,  however,  the  court  did  allow  Bihler  to  withdraw  and  Oswald  to
represent himself, with Bihler remaining as standby counsel.
¶27    The trial court’s decision to allow Oswald to proceed pro se occurred
twenty-five days before the jury trial was scheduled to begin.   Oswald requested a
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Nos. 97-1210-CR
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continuance, which the trial court denied.   Oswald also requested the transcripts of
Theodore’s trial.    The trial court denied this request, noting that most of the
testimony had not then been transcribed.
a.   Initial Denials of Requests to Proceed Pro Se
¶28    We first discuss the trial court’s initial denials of Oswald’s requests
to represent himself.   A defendant has a constitutionally protected right to proceed
on his or her own behalf.   See State v. Klessig, 211 Wis.2d 194, 203, 564 N.W.2d
716, 720 (1997) (noting that right to self-representation is identical under state and
federal constitutions).   This right, however, is not absolute.   See State v. Haste,
175 Wis.2d  1,  22,  500 N.W.2d  678,  686  (Ct. App.  1993).    Before allowing a
defendant to waive the right to counsel and proceed pro se, the trial court must
ensure that the defendant “(1) has knowingly, intelligently and voluntarily waived
the right to counsel, and (2) is competent to proceed pro se.”   Klessig, 211 Wis. 2d
at                                                                                         203,  564  N.W.2d  at  720.    To  verify  that  the  waiver  is  indeed  knowing,
intelligent  and  voluntary,  the  trial  court  must  conduct  a  colloquy  with  the
defendant to determine that he or she: “(1) made a deliberate choice to proceed
without  counsel,  (2)  was  aware  of  the  difficulties  and  disadvantages  of  self-
representation, (3) was aware of the seriousness of the charge or charges against
him [or her], and (4) was aware of the general range of penalties that could have
been imposed on him [or her].”   Id. at 206, 564 N.W.2d at 721.   The trial court’s
decision  whether  the  waiver  was  valid  is  reviewed  de  novo  because  it  is  a
constitutional fact.   See id. at 204, 564 N.W.2d at 721.
¶29    Oswald claims that the trial court based its initial denials of his
requests to proceed pro se on the extent of Oswald’s legal knowledge.   Oswald is
correct that lack of legal expertise is an impermissible basis on which to deny a
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Nos. 97-1210-CR
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request to represent oneself.   See WIS J I—CRIMINAL SM-30A at 4 (citing Faretta
v. California, 422 U.S. 806, 836 (1975)).   However, we agree with the State that
the basis for the trial court’s decision was the lack of clarity in some of Oswald’s
responses during the colloquy.   When asked if he understood the charges against
him, Oswald answered, “Read them.”   When asked if anyone had threatened him
to make him pursue self-representation, he replied, “Not that I know.”   Because
these  answers  do  not  unequivocally  demonstrate  a  knowing,  intelligent  and
voluntary waiver, the trial court did not err in denying Oswald’s initial requests to
proceed pro se.
b.  Refusal to Grant Continuance
¶30    Next,  Oswald  claims  that  his  right  to  self-representation  was
infringed by the trial court’s refusal to grant him a continuance and to provide him
with transcripts of Theodore’s trial and written statements of the witnesses at
Theodore’s trial.
¶31    First, the decision to grant a continuance is one committed to the
trial court’s discretion, which we will reverse only if that discretion has been
erroneously exercised.   See State v. Wollman, 86 Wis.2d 459, 468, 273 N.W.2d
225, 230 (1979).   The decision requires the trial court to balance the defendant’s
right  to  adequate  representation  and  the  public’s  right  to  the  efficient
administration of justice.   See id.   In balancing those two interests, the trial court
should consider the following factors:
1.                                                                                         The length of the delay requested;
2.                                                                                         Whether the ‘lead’ counsel has associates prepared
to try the case in his absence;
3.                                                                                         Whether other continuances had been requested and
received by the defendant;
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4.                                                                                           The convenience or inconvenience to the parties,
witnesses and the court;
5.                                                                                           Whether  the  delay  seems  to  be  for  legitimate
reasons; or whether its purpose is dilatory;
6.                                                                                           Other relevant factors.
Id. at 470, 273 N.W.2d at 231.
¶32    The trial court did not err in weighing the Wollman factors.   While
the requested delay was not long, the trial court’s experience with Oswald and his
inability to work with his attorneys could justifiably have led it to believe that the
request was in part dilatory.    More importantly, the request was made shortly
before a complex trial and would have necessitated rescheduling on the part of
many people.   Also, Oswald was intimately familiar with his case; he was not
thrown cold into trial preparation at the eleventh hour, unfamiliar with the facts
and  issues.    Furthermore,  not  only  had  Oswald  consented  to  his  attorney’s
withdrawal on the eve of trial, he had filed a motion with the court to discharge
Bihler.     Oswald, by his own desire, took over his own defense.   Finally, Oswald
fails  to  even  allege  that  he  was  prejudiced  by  the  trial  court’s  denial  of  a
continuance.   See id.   We uphold the trial court’s denial of a continuance.
c.   Refusal to Provide Transcripts
¶33    Second, Oswald claims error in the trial court’s refusal to provide
him with transcripts of Theodore’s trial.   He points to Britt v. North Carolina, 404
U.S. 226, 227 (1971), which states that, as a matter of equal protection, the State
must provide indigent prisoners with the tools of an adequate defense.   The State
responds that, when requesting the court to pay for transcripts, the defendant
should have to show a particularized need for such transcripts.
¶34    We  agree  with  the  State.  Oswald  claims  that  Britt  rejected  the
“particularized showing of need” requirement.   Id. at 228.   There, however, as in
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Nos. 97-1210-CR
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Griffin v. Illinois, 351 U.S. 12, 13 (1956), the indigent defendant was requesting
transcripts of his own prior proceeding, not that of a third party.   See Britt, 404
U.S. at 226.   And while the Court rejected a showing of particularized need, it did
set forth a requirement that the defendant show some need.   See id. at 227-28.   In
determining whether need has been demonstrated, the relevant factors to consider
are:                                                                                        “(1) the value of the transcript to the defendant in connection with the appeal
or trial for which it is sought, and (2) the availability of alternative devices that
would fulfill the same functions as a transcript.”   Id. at 227.   The Britt Court noted
that in the case of prior proceedings against the defendant himself or herself, “it
can ordinarily be assumed that a transcript … would be valuable.”   Id. at 228.
Thus,  the  Court  looked  to  prong  two  and  upheld  the  trial  court’s  denial  of
transcripts on the basis that Britt had informal means to get at the information
revealed  by the  transcripts.    See  id. at  229-30.    The  Supreme  Court has  not
extended Britt’s presumption of usefulness to transcripts of other people’s trials
and we decline to do so here.   Furthermore, the adoption of a threshold showing of
need comports with analogous Wisconsin law; in State ex rel. Dressler v. Circuit
Court, 163 Wis.2d 622, 640, 472 N.W.2d 532, 540 (Ct. App. 1991), this court
upheld  the  trial  court’s  decision  not  to  provide  funds  for  witnesses  absent  a
showing of particularized need.   In sum, we conclude, as have numerous other
jurisdictions, see, e.g., People v. Brown, 337 N.W.2d 915 (Mich. Ct. App. 1983),
that where an indigent defendant requests that the State furnish him or her with a
free transcript of the separate trial of a codefendant, the defendant must show that
the transcript will be valuable to him or her.
¶35    Oswald did not make a sufficient showing as to how Theodore’s
transcripts would have been useful to him.   The best Oswald can muster is that the
transcripts were “extremely relevant.”   He points to no witness whose testimony at
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Nos. 97-1210-CR
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his trial was inconsistent with testimony by the same witness at Theodore’s trial.
Oswald’s “mere speculation” that the transcripts may have proved valuable is not
enough.   See State v. Cox, 244 A.2d 693, 697 (N.J. Super. Ct. App. Div. 1968).5
d.  Discovery of Witnesses’ Statements Under § 971.24(1), STATS.
¶36    Oswald’s final claim regarding the trial court’s alleged interference
with his right to self-representation is that he should have been supplied with
verbatim  renditions  of  witnesses’  testimony  in  Theodore’s  trial  pursuant  to
§ 971.24(1), STATS., 1993-94.6   That statute read:
At  the  trial  before  a  witness  other  than  the  defendant
testifies, written or phonographically recorded statements
of the witness, if any, shall be given to the other party in
the absence of the jury.   For cause, the court may order the
production of such statements prior to trial.
¶37    The  State  argues  that  the  statute  does  not  apply  to  prior  trial
testimony and that we should decline to address the issue since it was not raised
until Oswald’s postconviction motion.   We resolve the claim on other grounds;
assuming,  arguendo,  that  the  statute  applies,  Oswald  has  failed  to  show  any
prejudice because, as discussed above, he has not indicated how the witnesses’
statements would have helped his case.   See State v. Lenarchick, 74 Wis.2d 425,
452,  247  N.W.2d  80,  94  (1976)  (finding  no  prejudicial  error  even  assuming
5   We note that the court in State v. Cox, 244 A.2d 693, 697 (N.J. Super. Ct. App. Div.
1968), also distinguished Beasley v. State, 404 P.2d 911 (Nev. 1965), one of the few cases upon
which Oswald attempts to hang his hat.
6 The statute has since been amended and renumbered to § 971.23(1)(e), (6m), STATS.
See 1995 Wis. Act 387, §§ 27-29.
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Nos. 97-1210-CR
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arguendo that the trial court erroneously refused to order production of witness’s
prior statements.)
3.   Right to Representation by Retained Counsel of Choice
¶38    Oswald  claims  that  the  court  infringed  his  right  to  counsel  by
refusing  to  allow  him  to  substitute  attorneys  Sosnay and  Marquis  for  Bihler.
However,  Marquis  informed  the  trial  court  that  absent  a  continuance  he  and
Sosnay would not take the case.   Thus, leave to substitute counsel would have
ensured a continuance.   Whether to grant such a request is within the discretion of
the trial court.    See Phifer v. State,  64 Wis.2d  24,  31,  218 N.W.2d  354,  357
(1974).   As discussed above, a continuance would have severely inconvenienced
the State, the court and all the witnesses.   Furthermore, Sosnay and Marquis would
have been Oswald’s third stab at retaining counsel to his liking.    Under those
circumstances, the trial court understandably had suspicions that they too would
soon be moving to withdraw or would be the subject of a motion to discharge.   We
uphold the trial court’s denial of the request to substitute counsel.
4.   Evidentiary Issues
¶39    Oswald claims that certain evidence admitted at trial was seized in
violation of the Wisconsin and United States Constitutions and that the admission
of this evidence constitutes reversible error.   Under this rubric, Oswald objects to
the admission of documents seized from his residence, documents seized from his
minivan, documents seized from a storage locker, and a statement Oswald made
while  under  arrest  and  hospitalized.    We  first  examine  the  claims  about  the
documents and then turn to the statement.
a.  Documents
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Nos. 97-1210-CR
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¶40    Because the modus operandi of the April 1994 bank robbery was
similar to that of unsolved robberies of other financial institutions, the police
obtained a warrant to search Oswald’s residence for evidence linking him to those
other crimes.    The warrant authorized a search for and seizure of  “numerous
firearms, handguns and ammunition,  … clear plastic  masks, smoke bombs or
incinerary devices, various amounts of United States currency, all of which were
used in the commission of or may constitute evidence of the crime of masked
armed robbery.”   Before the police conducted the search, the Milwaukee bomb
squad inspected the residence.    When the  police conducted their  search, they
leafed  through  notebooks  and  other  documents  that  might  have  contained
currency.   During this process, words relating to bank robberies, police, guns and
armored cars were apparent.   The officers thus seized the documents as evidence
relating to the bank robberies.   The officers also conducted a search of Oswald’s
minivan pursuant to a separate search warrant.   They seized more documents from
the  minivan.     Finally,  while  searching  Oswald’s  residence,  the  police  saw
newspapers on which were highlighted advertisements for commercial storage
facilities.   Based on this information, the police searched a storage facility Oswald
had rented and seized documents there as well.   Oswald moved to suppress the
seized documents, but the trial court denied his motion.
¶41    Oswald  claims  that  the  seizure  of  the  documents  violated  his
constitutional right to be free from warrantless searches and seizures.   First, he
claims that the evidence seized from his residence was not within the scope of the
warrant.   While the police could briefly peruse documents to see if they contained
currency, Oswald claims the officers here went way beyond that by reading the
documents  more  thoroughly and seizing entire  boxes of  documents.    Second,
Oswald claims that the plain view exception to the warrant requirement does not
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Nos. 97-1210-CR
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apply here because of the bomb squad’s initial three-and-one-half hour “sweep” of
the   premises.   According to Oswald, the police cannot claim that documents were
in plain view when the officers did not enter the residence until after the bomb
squad had moved things around.   Oswald claims that the search warrant for the
minivan was only obtained because the bomb squad had informed the police that
there were incriminating documents in the vehicle.   Finally, Oswald claims that
documents seized from the storage facility were “fruit of the poisonous tree,” as
Oswald’s connection to the storage locker was based on newspapers improperly
seized from his residence and a receipt recovered in the tainted search of his
minivan.
¶42    Our standard of review on a denial of a motion to suppress is mixed.
We uphold the trial court’s findings of fact unless clearly erroneous.   See State v.
O’Brien, 223 Wis.2d 303, 315, 588 N.W.2d 8, 13 (1999).   Whether those facts
pass constitutional muster is a question of law we review de novo.   See id.
¶43    A person’s right to be free from unreasonable searches and seizures
is guaranteed by both the Wisconsin and United States Constitutions.   See U.S.
CONST. amend. IV; WIS. CONST. art. I,  § 11.    Wisconsin courts treat the two
provisions as providing the same scope of protection.   See O’Brien, 223 Wis.2d at
316, 588 N.W.2d at 14.
¶44    Here,  we  agree  with  the  State  that  the  warrants  authorized  the
searches.                                                                               “Generally a premises warrant authorizes the search of all items on the
premises so long as those items are plausible receptacles of the objects of the
search.”   State v. Andrews, 201 Wis.2d 383, 389, 549 N.W.2d 210, 212 (1996).
Here, currency was listed on the warrant, so the officers were justified in looking
through documents where bills could have been hidden.   While looking through
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Nos. 97-1210-CR
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the documents, the officers noticed  “various notes and items relating to bank
robberies, … escape plans and battle notes.”   When the incriminating nature of a
document is apparent from a brief perusal, such document is justifiably seized
under the plain view doctrine.   See United States v. Crouch, 648 F.2d 932, 933
(4th Cir. 1981) (upholding seizure of letters taken from envelopes during search
for chemicals).   We need not decide whether the warrant to search the minivan
was granted due to the fruits of an illegal search by the bomb squad because the
minivan was within the scope of the warrant to search the residence.   See O’Brien,
223 Wis.2d at 317-18, 588 N.W.2d at 14 (holding that warrant to search residence
encompasses owner’s vehicle parked at residence).   Finally, because the search of
the residence was within the scope of the warrant, the information leading to the
warrant to search the storage locker was not tainted.
b.   Statement
¶45    Oswald claims that a statement he made to the police while he was
hospitalized should not have been admitted because he made it while he was being
held incommunicado.    Oswald was injured in the crash that put an end to his
standoff with the police.   As a result, he was hospitalized after his April 28 arrest.
Four days later, police came to his hospital room to collect a hair sample.   At that
time, Oswald started to ask the officers about his son, the condition of the hostage
and the results of the search of his residence.   One of the officers told Oswald that
if  he  wanted  to  discuss the  case,  the  officer  would have  to read Oswald his
constitutional rights.   This he did.   Oswald then waived those rights and continued
to make statements concerning the offenses.
¶46    When a confession is the product of “unreasonable police detention
for purposes of interrogation,” it must be suppressed whether voluntary or not.
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Nos. 97-1210-CR
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State v. Wallace,  59  Wis.2d  66,  75-76,  207 N.W.2d  855,  860-61  (1973).    A
lengthy detention for interrogation is improper if  its purpose is to coerce the
accused into making “a confession or culpable statements to assure a finding of
guilty.”   Briggs v. State, 76 Wis.2d 313, 325, 251 N.W.2d 12, 17 (1977).
¶47    Here, Oswald’s detention was not even for interrogation, much less
prolonged interrogation meant to extract a confession.   Oswald was hospitalized
because he had injured himself in a police chase after committing armed robbery.
Contrary to Oswald’s testimony that he was held incommunicado, the officers
collecting the hair sample testified that they informed Oswald that an attorney was
on his or her way to the hospital and would talk to him if he so desired.   While
Oswald’s  testimony  was  otherwise,  we  will  not  overturn  the  trial  court’s
credibility determinations.   See State v. Wilson, 179 Wis.2d 660, 683, 508 N.W.2d
44, 53 (Ct. App. 1993).   Finally, Oswald himself called his hospital guard as a
witness at trial.   That officer testified that he had offered to pass along Oswald’s
request for an attorney or to get Oswald a phone book so that he could call an
attorney.                                                                               In  sum,  the  record  belies  Oswald’s  claim  that  he  was  held
incommunicado and his statement was the result of an unreasonable detention for
purposes of interrogation.
5.   Responsibility Plea
¶48    Finally,  we  address  Oswald’s  claim  that  the  trial  court  erred  in
denying his motion to reenter a plea of not guilty by reason of mental disease or
defect.    While represented by his first attorney, Oswald entered an NGI plea.
When his second attorney came on the case, he withdrew that plea.   Oswald’s third
attorney proposed that he reenter the insanity plea, but Oswald refused.   Then, just
three days before his trial was scheduled to begin, Oswald moved to change his
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Nos. 97-1210-CR
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plea from not guilty to not guilty by reason of mental disease or defect.   The court
denied  the  motion  and  the  accompanying  request  to  order  a  psychological
examination of Oswald.   Oswald claims the denial “infringed his rights to trial by
jury, to present a defense, to present witnesses, and to choose his plea.”
¶49    The decision whether to grant a defendant’s motion to change his or
her plea from “not guilty” to “not guilty by reason of mental disease or defect” is
within the discretion of the trial court.   See State v. Kazee, 192 Wis.2d 213, 221,
531 N.W.2d 332, 335 (Ct. App. 1995).   Thus, we will not disturb that decision as
long as it is “consistent with the facts of record and established legal principles.”
Id. at  222,  531 N.W.2d at  336  (quoted source omitted).   Furthermore, when a
defendant makes an eleventh-hour request to change his or her plea, he or she has
the burden of showing why the plea change is appropriate.   See id.   In other words,
the defendant must make an offer of proof encompassing the elements of the
defense as set forth in § 971.15, STATS.   See Kazee, 192 Wis.2d at 222-23, 531
N.W.2d at 336.   In addition, the defendant must show why the nonresponsibility
plea was not entered earlier.   See id. at 223, 531 N.W.2d at 336.   Ultimately, when
dealing with a request to change a plea at a late stage of the proceedings, the trial
court must balance the interests of the defendant with the institutional need to
resolve cases in a timely fashion.   See id. at 222, 531 N.W.2d at 336.
¶50    Oswald made neither of the required threshold showings in this case.
First, regarding his offer of proof, Oswald points to a report by Dr. Feinsilver, who
had conducted a psychological examination of Oswald.    Feinsilver opined that
Oswald did suffer from clinically recognized mental disorders.   But, Feinsilver
went on to conclude that Oswald was aware of the wrongfulness of his conduct.
Oswald contends that the “substantial capacity” question was for the jury and thus
Feinsilver’s conclusion was irrelevant.   He points out that “[a] favorable expert
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Nos. 97-1210-CR
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opinion is not an indispensable prerequisite to a finding of mental disease or
defect.”   But the problem with Oswald’s offer of proof is not the lack of an expert
opinion; it is the presence of an uncontested expert opinion that goes contrary to
the elements of the defense as set forth in the statute.   Second, Oswald makes no
attempt to explain the timing of his request.   Indeed, at the Machner7 hearing,
Oswald’s attorney testified that Oswald had told him that “he didn’t for a second
think he was insane and that this  [plea] was nothing more than a sham and a
manipulation on his part.”    Oswald did not dispute that testimony.    Given the
insufficiency of Oswald’s offer of proof and the timing of his request to change his
plea, the trial court’s denial of Oswald’s request was consistent with the facts of
this case and relevant legal principles.   We will not disturb the decision.
By the Court.—Judgment and order affirmed.
7 See State v. Machner, 101 Wis.2d 79, 303 N.W.2d 633 (1981).   Oswald alleged that
Eisenberg’s advice to withdraw the nonresponsibility plea constituted ineffective assistance of
counsel.  Oswald brings this claim up tangentially on appeal as part of his argument that the court
erred in prohibiting him from changing his plea at the last minute.   However, the record supports
the trial court’s finding that the decision to withdraw the plea was Oswald’s own decision.   Thus,
he was not prejudiced by any advice from Eisenberg and we need not address the issue further.
See Strickland v. Washington, 466 U.S. 668, 697 (1984) (when no prejudice has been shown
reviewing court need not address performance prong); State v. Pettit, 171 Wis.2d 627, 647, 492
N.W.2d 633, 642 (Ct. App. 1992) (reviewing court need not address issues inadequately briefed).
27




Nos. 97-1210-CR
97-1899-CR
Nos.                                                                                       97-1219-CR(C)
97-1899-CR(C)
¶51    NETTESHIEM, J. (concurring).   I agree with the majority opinion.
I write separately regarding the jury selection issues.
¶52    In State v. Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), the
supreme court recently reaffirmed an often-stated principle that trial courts should
err on the side of caution when considering a request to remove a prospective juror
for cause.   The court said:
[T]he circuit courts are  … advised to err on the side of
striking prospective jurors who appear to be biased, even if
the appellate court would not reverse their determinations
of impartiality.   Such action will avoid the appearance of
bias, and may save judicial time and resources in the long
run.
Id. at 864, 596 N.W.2d at 749 (alteration in original; quoting State v. Ferron, 219
Wis.2d 481, 503, 579 N.W.2d 654, 666 (1998)).
¶53    At a minimum, the responses of the challenged jurors in this case
established an appearance of bias.   While that alone is not a basis for reversal, it is
hardly a desirable state of affairs.   The propriety of a trial court’s ruling is not
always  measured  by  whether  it  is  affirmed.    It  would  be  far  better  for  all
concerned—the  victims,  the  State,  the  judicial  institution,  the  public  and
Oswald—if it could be said that Oswald was convicted by a jury that reflected no
appearance of bias.
28




Nos. 97-1210-CR
97-1899-CR
¶54    More  importantly,  when  the  State  decided  to  resist  Oswald’s
challenges for cause and the trial court opted to reject those challenges, no one
could confidently say that the appearances of juror bias might not translate into
subjective or objective bias in the judgment of a reviewing court.   In short, the
State and the trial court took an unnecessary risk of reversal.   Fortunately for the
State and the trial court, that has not come to pass.
29

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