Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy with defendant; ineffective assistance of counsel

State v. Mark J. Libecki, 2013 WI App 49; case activity

Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy

In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record, though such a colloquy might be “good practice” in some cases. Here’s the background:

Libecki was convicted of first-degree intentional homicide in the stabbing death of Theresa Wesolowski. At trial the state’s case included evidence of Wesolowski’s blood that had been discovered in the back seat of the Ford Explorer Libecki owned at the time of her murder. This blood evidence was discovered following Libecki’s immunized, compelled testimony in John Doe proceedings concerning Wesolowski’s murder. Libecki’s defense hinged on the story he gave in those John Doe proceedings: that a third party, a since-deceased coworker dealing in drugs, killed Wesolowski in the backseat of Libecki’s Explorer. That story provided an alternative explanation for the physical evidence linking Libecki to the scene, and the blood evidence was consistent with his version of events. (¶¶5-14). Because the blood evidence was consistent with his defense, Libecki did not object to the state’s introduction of the evidence; indeed, defense counsel elicited (over the state’s objection) the fact Libecki urged the police to look for the blood evidence. ( ¶¶12-13, 21).

On appeal, however, Libecki argued his Fifth Amendment right against compelled self-incrimination was violated because the circuit court was required to establish, in a personal colloquy on the record, that Libecki knowingly and voluntarily waived his immunity as to the blood evidence. The court of appeals rejects this claim:

¶18 Libecki does not cite, and we have not found, any authority holding that the right to exclude immunized testimony or evidence derived from that testimony falls within that narrow class of rights that only the defendant, personally, may waive. See State v. Smith, 2012 WI 91, ¶¶53-54, 342 Wis. 2d 710, 817 N.W.2d 410 (discussing, generally, that the defendant’s waiver of certain rights must be made in person and on the record), cert. denied, 133 S.Ct. 635 (2012); see also State v. Brimer, 2010 WI App 57, ¶5, 324 Wis. 2d 408, 781 N.W.2d 726 (applying ineffective assistance of counsel standard to issue of failure to object to admission of compelled testimony). While a personal colloquy must be made if the defense announces that the defendant will not take the stand in his or her own defense, State v. Weed, 2003 WI 85, ¶40, 263 Wis. 2d 434, 666 N.W.2d 485, no such personal colloquy is mandated when a defendant wants to take the stand, State v. Denson, 2011 WI 70, ¶63, 335 Wis. 2d 681, 799 N.W.2d 831. The decision to allow the use of compelled testimony is the same thing as a decision to take the stand because, after all, it is the defendant’s testimony. So, requiring a personal colloquy before a defendant decides to waive immunity would make little sense under these precedents. A grant of use and derivative use immunity is designed to provide protection “coextensive” with the privilege against self-incrimination, not broader protection. See State v. Spaeth, 2012 WI 95, ¶36, 343 Wis. 2d 220, 819 N.W.2d 769 (discussing Kastigar v. United States, 406 U.S. 441 (1972)).

Though there was no personal colloquy in this case, the record establishes that Libecki’s waiver of immunity regarding the blood evidence was knowing and voluntary:

¶22 …[I]t is obvious that both the State and the defense viewed Libecki’s act of leading investigators to the blood evidence in his vehicle as exculpatory, not damaging, when viewed in context with the rest of the evidence. It was Libecki’s view, both before and during trial, that this blood evidence and the way it was discovered would help him, not hurt him. He wanted this evidence before the jury. It supported his story.

While the lack of a personal colloquy is not an error here, the court does say that such a colloquy “would generally be a good practice if the circuit court has been alerted to the fact that the defendant was given use immunity and one party or another wants to use the testimony anyway.” (¶19). If the trial court knows beforehand the evidence will be used, it “can make sure that there is no confusion by the defendant concerning waiver, if in fact the defendant wants to waive immunity. It can also hear whether the evidence comes from a source that is independent of the testimony provided as a result of use immunity.” (Id.).

The court also rejects the state’s assertion that this issue can be resolved by Libecki’s failure to object to the use of the blood evidence at trial. Instead, the court says:

¶20 …. A defendant who has a preexisting immunity agreement with the State should be able to rely upon that bargain with the State without having to object should the State intend to violate its promise. …. Simply put, the State is prohibited from trying to use that evidence to make its case, absent an independent source or a waiver. As an officer of the court, the prosecutor should be up front with both the defendant and the court.

All very true, and even helpful, but ultimately precatory, so don’t be lulled into a false sense of security. If your client has an immunity agreement and the state is introducing evidence that violates it, object, up and down, clearly and persistently. If you don’t, any appeal will likely include an ineffective assistance claim, which is, typically, both unpleasant and unsuccessful. And that brings us to the next issue:

Ineffective assistance of counsel — failure to object to use of immunized testimony or evidence; failure to object to amendment of information

As will be obvious from the above discussion, trial counsel was not deficient for failing to object to the state’s use of the blood evidence. The admission of the evidence was clearly part of counsel’s trial strategy, and “[t]hat strategy was sound because, as we have already commented, the location of the blood in the Explorer and the manner by which the evidence was finally found, tended to support Libecki’s story of what happened, a story that provided an alternative explanation for the otherwise damning physical evidence.” (¶25). Nor, finally, was counsel ineffective for failing to object to the state’s amendment to the information to drop the party-to-a-crime theory, for eliminating that theory fit with Libecki’s defense that he was a mere bystander, and forced the jury to face squarely the question of whether Libecki, himself, did the crime, or whether he was simply present at the scene. (¶26).