2018 WI 3

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP238-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Michael L. Washington,

 Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 373 Wis. 2d 214, 890 N.W.2d 592

PDC No: 2017 WI App 6 - Published

OPINION FILED: January 9, 2018

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 3, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Racine

JUDGE: Allan B. Torhorst, David W. Paulson, and Wayne 

J. Marik

JUSTICES:

CONCURRED: GABLEMAN, J. concurs, joined by R.G. BRADLEY, J. 

and KELLY, J. (opinion filed).

DISSENTED:

NOT PARTICIPATING: ABRAHAMSON, J. did not participate. 

ATTORNEYS:

For the defendant-appellant-petitioner there were briefs 

filed and an oral argument by Andrew R. Hinkel, assistant state 

public defender.

For the plaintiff-respondent there was a brief filed by 

Sarah L. Burgundy, assistant attorney general, and Brad D. 

Schimel, attorney general, and an oral argument by Sarah L. 

Burgundy.
2018 WI 3

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2016AP238-CR

(L.C. No. 2011CF414)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Michael L. Washington,

 Defendant-Appellant-Petitioner.

FILED

JAN 9, 2018

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 ANN WALSH BRADLEY, J. The petitioner, Michael L.

Washington ("Washington"), seeks review of a published court of 

appeals decision affirming his judgment of conviction and the 

circuit court's order denying his postconviction motion.1 He 

asserts that the court of appeals erred in determining that, by 

 

1 State v. Washington, 2017 WI App 6, 373 Wis. 2d 214, 890 

N.W.2d 592 (affirming the judgment and order of circuit court 

for Racine County, Wayne J. Marik, Allan B. Torhorst, and David 

W. Paulson, Judges).
No. 2016AP238-CR

2

his conduct, he waived his statutory right to be present at 

trial.

¶2 Washington specifically contends that his right to be 

present at trial pursuant to Wis. Stat. § 971.04(1)(b) (2013-14) 

was violated.2 He argues that the court erred in determining 

that his conduct waived his statutory right to be present given 

that § 971.04(3) permits waiver only after the trial has begun.3

¶3 We conclude that Wis. Stat. § 971.04(3) does not apply 

here. It does not place any limitation on a defendant's ability 

to waive the right to be present at any portion of trial.

¶4 We further determine that Washington, by his conduct, 

waived his Wis. Stat. § 971.04(1) right to be present at trial. 

Although we reach this determination under the facts presented, 

we emphasize that the best practice is an on-the-record waiver 

colloquy.

¶5 Accordingly, we affirm the decision of the court of 

appeals.

I

¶6 The State charged Washington with burglary and 

obstructing an officer. He was apprehended near the apartment 

 

2 Wis. Stat. § 971.04(1)(b) provides, in relevant part: 

"Except as provided in subs. (2) and (3), the defendant shall be 

present: . . . [a]t trial . . . ."

All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.

3 See infra, ¶¶22 n.7, 29.
No. 2016AP238-CR

3

where the burglary occurred and was uncooperative with law 

enforcement.

¶7 Washington's first appointed attorney was allowed to 

withdraw from the representation due to a breakdown in the 

attorney-client relationship. Less than a month later, 

Washington's second appointed attorney filed a motion to 

withdraw as counsel, citing an attorney-client relationship that 

was "irreparably broken" and a "fundamental difference of 

opinion regarding what defenses are appropriate and viable in 

this case." The circuit court granted the motion to withdraw 

and a third attorney was appointed to represent Washington.

¶8 Washington's third appointed attorney also moved to 

withdraw. The circuit court initially granted the motion, but 

then rescinded its ruling to give effect to Washington's 

previously filed speedy trial demand.

¶9 On the eve of jury selection, Washington's third 

appointed attorney again moved to withdraw, citing a broken 

attorney-client relationship as evidenced by Washington's 

repeated filing of pro se motions without consulting counsel. 

The circuit court denied the motion to withdraw, explaining its 

belief "that this is in a sense an act of manipulation on the 

part of Mr. Washington[.]"

¶10 The case proceeded to jury selection the following day 

and a jury was chosen. The next morning, before the jury was 

sworn, Washington's counsel informed the court that she had 

learned of some new, possibly exculpatory information. 

Washington agreed to withdraw his speedy trial demand and the 
No. 2016AP238-CR

4

circuit court dismissed the jury. It rescheduled the trial for 

a date approximately three months later.

¶11 Washington's counsel further advised the court that 

her relationship with Washington had improved and the two "have 

been working very well together[.]" She therefore asked "the 

[c]ourt to not consider [her] motions to withdraw." The circuit 

court indicated that it was "pleased to hear that the 

relationship has improved, and that you are now working together 

very well."

¶12 However, Washington's relationship with his counsel 

quickly soured again. At the next status hearing, Washington's 

counsel submitted yet another motion to withdraw. The circuit 

court expressed concern that "we have a pattern developing where 

no matter who is appointed to represent you[,] if they don't 

tell you what you want to hear you're going to not get along 

with them and you're going to ask them to withdraw. And I can 

see this going on indefinitely." Consequently, the circuit 

court denied the motion to withdraw.

¶13 On the day the second scheduled trial was to commence, 

Washington's counsel informed the circuit court that Washington 

was again being uncooperative. She explained that "[h]e stated 

that [she] was not his attorney." The circuit court then turned 

to address Washington and the following exchange ensued:

THE COURT: Well, sir, we've been down this road so 

many times over and over and over.

DEFENDANT: And we can keep going over and over it 

again.
No. 2016AP238-CR

5

THE COURT: No, we're ——

DEFENDANT: She's not representing me, man.

THE COURT: Sir, the matter is set for trial.

DEFENDANT: I don't know what it's set for, she ain't 

representing me.

THE COURT: All right, Mr. Washington?

DEFENDANT: I'm telling you she's not representing me, 

man.

THE COURT: Sir, will you let me speak. The matter is 

scheduled for a jury trial this afternoon. And it is 

going to be going forward as a jury trial. We have 

addressed this issue of who is your ——

DEFENDANT: I said she's not representing me and we 

ain't going no trial now, I mean that.

THE COURT: Sir, we will go forward with the trial and 

if necessary you may have to be removed from the 

courtroom.

DEFENDANT: I'm gone. She's not representing me.

¶14 The circuit court then stated: 

[T]he record may reflect that Mr. Washington semi was 

removed and semi left on his own after the last 

outburst. So we are out of his presence right now. 

And the real issue that has come up here is one of 

manipulation. I think Mr. Washington has been trying 

to manipulate this case in my opinion for a very long 

period of time. 

In the words of the circuit court, Washington's demeanor was 

"physically aggressive and threatening."

¶15 Washington was taken back to the jail and refused to 

return to the courtroom. Outside of Washington's presence, the 

circuit court discussed with both counsel how it was going to 

proceed. Citing State v. Divanovic, 200 Wis. 2d 210, 546 
No. 2016AP238-CR

6

N.W.2d 501 (Ct. App. 1996), the circuit court ultimately 

determined that the trial should proceed because the defendant 

had waived his right to be present.4 The circuit court suggested 

that the "proper procedure" indicated that Washington should be 

"escorted involuntarily to court for trial" and that "[i]f he is 

uncooperative he should be warned on the record by the court 

that if his lack of cooperation continues he will be removed 

from the courtroom."

¶16 However, the circuit court did not follow this course 

of action. Instead, it determined that "attempting to 

involuntarily bring Mr. Washington back into court would unduly 

jeopardize the safety of officers and perhaps even Mr. 

Washington since his aggressiveness and his attitude suggest 

that he may be physically resistant to being brought back in and 

that it could result in an altercation." The circuit court 

further observed the prejudice that could result to Washington 

if he were to be brought in against his will in front of the 

jury.

¶17 Determining that Washington waived his constitutional 

right to be present, the circuit court concluded that the trial 

 

4 In State v. Divanovic, 200 Wis. 2d 210, 214, 546 

N.W.2d 501 (Ct. App. 1996), the defendant refused to participate 

in proceedings. The record revealed repeated contacts by the 

defendant's counsel, various court representatives, and the 

judge urging the defendant to attend the proceedings and warning 

him that the trial would proceed without him if he refused to 

attend. Id. at 221. The court of appeals determined that the 

defendant had waived his constitutional right to be present. 

Id. at 222.
No. 2016AP238-CR

7

would go forward in Washington's absence. It observed that 

"[Washington's] conduct has been so disruptive that there's no 

way to proceed with the trial with him here." The circuit court 

emphasized the manipulative history of Washington's conduct and 

his unwillingness to be present and cooperate or communicate 

with his attorney.5 It further explained that Washington would 

have the opportunity to consult with counsel and return to the 

courtroom if he could maintain the proper decorum:

Certainly at any point in time that Mr. Washington is 

willing to cooperate and behave he has the opportunity 

to return to this courtroom. Counsel will continue to 

represent him. Counsel will have reasonable 

opportunities to confer with him during the course of 

trial. And he should be periodically advised and 

we'll figure out how frequently this will be done and 

in what way it will be done of his right to return to 

the courtroom if he wishes to do that.

 

5 In making its determination, the circuit court stated:

I think that given the history first of all we have a 

series of positions taken by Mr. Washington and 

various instances of conduct on his behalf that again 

I don't want to wear out the word, but I can't 

characterize it as being anything other than 

manipulative in attempting to prevent this matter from 

going forward now to the point of refusing to come to 

court and to participate. And given that history and 

given his conduct today without there being any real 

showing that except for his attitude there's been any 

interference with the attorney/client relationship 

. . . , but that is due solely to the conduct of Mr. 

Washington it appears, and his unwillingness to even 

communicate with much less cooperate with counsel. 

That he has in fact waived his constitutional rights 

to be present.
No. 2016AP238-CR

8

The case proceeded to jury selection in Washington's absence, 

and the selected jurors returned the next day to be sworn and 

begin the trial.

¶18 As will be more fully detailed below, Washington was 

offered the opportunity to return to the courtroom five times. 

See infra, ¶¶41-50. Court personnel or counsel communicated 

with him twice prior to jury selection and three times during 

the single-day trial——directly prior to the beginning of trial, 

during a recess in testimony, and prior to the verdict being 

read. Each time Washington refused to participate.

¶19 Washington's trial, not including jury selection, 

lasted five to six hours.6 The State presented three witnesses 

and Washington did not present any.

¶20 The jury convicted Washington of both charges. 

Approximately three months after trial, with Washington present, 

the circuit court sentenced him to ten years' imprisonment, 

bifurcated as five years of initial confinement followed by five 

years of extended supervision.

¶21 Washington filed a motion for postconviction relief. 

He did not challenge the circuit court's determination that he 

had knowingly, intelligently, and voluntarily waived his 

 

6 There is a discrepancy in the record regarding the time 

the jury began its deliberations. According to the court 

minutes, the jury was excused for deliberations at 1:55 p.m., 

while the transcript of the trial indicates it was at 2:55 p.m. 

In either event, Washington's trial occupied only a short period 

of time.
No. 2016AP238-CR

9

constitutional right to be present at trial. Rather, he 

premised his motion on Wis. Stat. § 971.04(3), contending that 

the trial should not have taken place in his absence unless he 

was "present at the beginning of trial."7 The circuit court 

denied the motion.

¶22 On appeal, Washington renewed this argument. The 

court of appeals affirmed the circuit court, concluding that 

"Washington waived his statutory right to be present at the 

trial and the court held that right open to Washington 

throughout the trial proceedings." State v. Washington, 2017 WI 

App 6, ¶21, 373 Wis. 2d 214, 890 N.W.2d 592.

II

¶23 This case requires the court to interpret and apply 

Wis. Stat. § 971.04(1) and (3). Statutory interpretation and 

application present questions of law that this court reviews 

independently of the determinations rendered by the circuit 

court and court of appeals. State v. Soto, 2012 WI 93, ¶14, 343 

Wis. 2d 43, 817 N.W.2d 848.

 

7 Wisconsin Stat. § 971.04(3) provides in relevant part: 

If the defendant is present at the beginning of the 

trial and thereafter, during the progress of the trial 

or before the verdict of the jury has been returned 

into court, voluntarily absents himself or herself 

from the presence of the court without leave of the 

court, the trial or return of verdict of the jury in 

the case shall not thereby be postponed or delayed, 

but the trial or submission of said case to the jury 

for verdict and the return of verdict thereon, if 

required, shall proceed in all respects as though the 

defendant were present in court at all times.
No. 2016AP238-CR

10

¶24 Similarly, whether a defendant's statements and 

actions in a criminal proceeding constitute a waiver of the 

statutory right to be present is a question of law. Id. (citing 

State v. Ward, 2009 WI 60, ¶17, 318 Wis. 2d 301, 767 

N.W.2d 236). Again, we review this question independently of 

the determinations rendered by the circuit court and court of 

appeals. Id.

III

¶25 To provide context to the questions before us, we 

examine first the bases of the defendant's right to be present 

at trial.

¶26 A defendant has both a constitutional and a statutory 

right to be present at trial and at certain pre-trial 

proceedings. U.S. Const. amends. VI, XIV; Wis. Const. art. 1, 

§ 7; Wis. Stat. § 971.04; see also State v. Alexander, 2013 WI 

70, ¶22, 349 Wis. 2d 327, 833 N.W.2d 126 (citing Leroux v. 

State, 58 Wis. 2d 671, 689, 207 N.W.2d 589 (1973)).

¶27 The constitutional right to be present arises from the 

confrontation clause and the Fourteenth Amendment of the United 

States Constitution and grants the right to be present in the 
No. 2016AP238-CR

11

courtroom at every stage of trial.8 State v. Haynes, 118 

Wis. 2d 21, 25, 345 N.W.2d 892 (Ct. App. 1984) (citation 

omitted). However, a defendant may waive this right by conduct 

or by express waiver. Divanovic, 200 Wis. 2d at 220; see also

Illinois v. Allen, 397 U.S. 337, 345-46 (1970). "[W]hen a 

defendant is voluntarily absent from the trial proceedings, a 

defendant's failure to assert the right to be present can 

constitute an adequate waiver and an express waiver on the 

record is not essential." Divanovic, 200 Wis. 2d at 220.

¶28 In addition to the constitutional right to be present, 

Wisconsin law provides a statutory right to be present at 

certain proceedings. Pursuant to Wis. Stat. § 971.04(1), a 

defendant has the right to be present at arraignment, trial, 

voir dire, and the return of the verdict, among other 

proceedings.9

A

¶29 Washington does not dispute that he waived his 

constitutional right to be present. Rather, he focuses on one 

 

8 The confrontation clause of the Sixth Amendment to the 

United States Constitution provides that "[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him[.]" U.S. Const. 

amend. VI. "[T]he Fourteenth Amendment makes the guarantees of 

this clause obligatory upon the States." Illinois v. Allen, 397 

U.S. 337, 338 (1970) (citing Pointer v. Texas, 380 U.S. 400 

(1965)). A similar provision is present in the Wisconsin 

Constitution: "In all criminal prosecutions the accused shall 

enjoy the right . . . to meet the witnesses face to face." Wis. 

Const. art. 1, § 7.

9 See infra, ¶38.
No. 2016AP238-CR

12

exception to the general rule of presence that is enumerated by 

Wis. Stat. § 971.04(3). It provides in relevant part:

If the defendant is present at the beginning of the 

trial and thereafter, during the progress of the trial 

or before the verdict of the jury has been returned 

into court, voluntarily absents himself or herself 

from the presence of the court without leave of the 

court, the trial or return of verdict of the jury in 

the case shall not thereby be postponed or delayed, 

but the trial or submission of said case to the jury 

for verdict and the return of verdict thereon, if 

required, shall proceed in all respects as though the 

defendant were present in court at all times.

¶30 We begin by examining the text of the statute. 

Previously, we have determined that the phrase "beginning of the 

trial" in the context of Wis. Stat. § 971.04(3) occurs when the 

selection of the jury has been completed and the jury has been 

sworn, in other words, when jeopardy attaches.10 State v. 

Miller, 197 Wis. 2d 518, 521-22, 541 N.W.2d 153 (Ct. App. 1995); 

see also State v. Koopmans, 210 Wis. 2d 670, ¶13, 563 N.W.2d 528 

(1997).

¶31 The statute discusses a defendant voluntarily 

absenting him or herself without any mention of a requirement 

 

10 We observe that this definition of the "beginning of 

trial" differs from that utilized in federal court. "Initially 

present at trial" in the context of Fed. Rule Crim. Proc. 43(c) 

refers to the day that jury selection begins. U.S. v. Benabe, 

654 F.3d 753, 771-72 (7th Cir. 2011). The concurrence seeks to 

overrule State v. Miller, 197 Wis. 2d 518, 541 N.W.2d 153 (Ct. 

App. 1995), and to instead interpret the "beginning of trial" 

for purposes of Wis. Stat. § 971.04(3) consistently with the 

federal rule. No party has asked us to do this. Further, we 

observe that the language of Wis. Stat. § 971.04(3) differs from 

that of Fed. Rule Crim. Proc. 43(c).
No. 2016AP238-CR

13

that the defendant's action be taken knowingly. It sets forth a 

way that a defendant can forfeit the right to be present——by 

leaving after the jury has been sworn.11 The text of the statute 

does not limit a defendant's ability to waive the right to be 

present and does not purport to set forth the exclusive manner 

in which a defendant can relinquish the right to be present.

¶32 Washington asserts that he was unlawfully tried in 

absentia because he was not present when the jury was sworn in 

violation of Wis. Stat. § 971.04(3). His argument misses the 

mark. Wisconsin Stat. § 971.04(3) was created to attend to the 

situation in which a defendant absconds, not where an 

obstreperous defendant seeks to delay and disrupt proceedings 

through his own actions.

¶33 Additionally, the Judicial Council comments to Wis. 

Stat. § 971.04(3) state that "Sub. (3) is designed to prevent a 

defendant from stopping a trial which has commenced by absenting 

himself." § 63 note, ch. 255, Laws of 1969; see State ex rel. 

Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶51, 271 

Wis. 2d 633, 681 N.W.2d 110 ("legislative history is sometimes 

 

11 Forfeiture is the "failure to make the timely assertion 

of a right." State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 

761 N.W.2d 612. Waiver, on the other hand, occurs when there is 

an affirmative "intentional relinquishment or abandonment of a 

known right or privilege." State v. Haynes, 118 Wis. 2d 21, 25, 

345 N.W.2d 892 (Ct. App. 1984) (citation omitted). "In contrast 

to forfeiture, waiver typically applies to those rights so 

important to the administration of a fair trial that mere 

inaction on the part of a litigant is not sufficient to 

demonstrate that the party intended to forgo the right." Soto, 

343 Wis. 2d 43, ¶37 (citing Ndina, 315 Wis. 2d 653, ¶31).
No. 2016AP238-CR

14

consulted to confirm or verify a plain-meaning interpretation"). 

The statute was aimed at a defendant the court cannot locate. 

It is not aimed at a defendant who is easily located in the jail 

but steadfastly refuses to participate in any proceedings. A 

contrary interpretation would allow a defendant to be as 

disorderly as they pleased, and as long as the unruly conduct 

took place prior to the jury being sworn, there could be no 

consequence.

¶34 Washington seeks support for his contention that the 

circuit court violated his statutory right to be present in 

State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (Ct. App. 1994) 

and Koopmans, 210 Wis. 2d 670. In Dwyer, the defendant did not 

return to court after a recess while jury selection was ongoing. 

181 Wis. 2d at 832. Dwyer was tried and convicted in absentia. 

Id. The court of appeals granted Dwyer a new trial, concluding 

that, because Dwyer was not present at the beginning of the 

trial, the circuit court violated Wis. Stat. § 971.04(3). Id.

at 836-37.

¶35 In Koopmans, the defendant did not appear for two 

separate sentencing hearings, and there was evidence she had 

absconded to Belize. Koopmans, 210 Wis. 2d 670, ¶4. The 

circuit court concluded that Koopmans was voluntarily absent and 

sentenced her in absentia. Id. This court determined that 

although the circuit court may have "proceeded carefully and 

reasonably in attempting to resolve the situation[,]" Wis. Stat. 

§ 971.04(1) is mandatory and requires a defendant's presence at 

sentencing. Id., ¶15.
No. 2016AP238-CR

15

¶36 Washington argues that Dwyer and Koopmans cut in his 

favor because like Washington, the defendants in both cases 

clearly chose not to be in court. However, Dwyer and Koopmans

are forfeiture, not waiver cases. Although couched in terms of 

waiver,12 both of these cases present situations where the 

defendant did not make, on the record, any affirmative 

intentional relinquishment of the right to be present. Unlike 

Washington, who conveyed personal, on-the-record comments, the 

defendants in both Dwyer and Koopmans simply absconded. Rather 

than decline repeated offers to participate in proceedings, they 

merely practiced avoidance, which is exactly the situation Wis. 

Stat. § 971.04(3) addresses. See supra, ¶¶32-35.

B

¶37 Having determined that Wis. Stat. § 971.04(3) does not 

apply, we turn now to examine whether Washington waived his 

§ 971.04(1) right to be present.

¶38 Wisconsin Stat. § 971.04(1) provides a defendant with 

the right to be present at certain proceedings. It states:

(1) Except as provided in subs. (2) and (3), the 

defendant shall be present:

(a) At the arraignment;

(b) At trial;

 

12 This court has acknowledged that "cases sometimes use the 

words 'forfeiture' and 'waiver' interchangeably." State v. 

Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. 

However, "the two words embody very different legal concepts." 

Id.
No. 2016AP238-CR

16

(c) During voir dire of the trial jury;

(d) At any evidentiary hearing;

(e) At any view by the jury;

(f) When the jury returns its verdict;

(g) At the pronouncement of judgment and the 

imposition of sentence;

(h) At any other proceeding when ordered by the 

court.

¶39 Similar to the constitutional right to be present, a 

defendant may waive his or her statutory right to be present at 

certain proceedings enumerated in Wis. Stat. § 971.04(1). See

Soto, 343 Wis. 2d 43, ¶40. Waiver can be either express or by 

conduct. See id., ¶45.

¶40 "Although a formal colloquy is often employed to show 

waiver, it is not the only way in which waiver may be shown." 

Id.,; see also, State v. Denson, 2011 WI 70, ¶66, 335 

Wis. 2d 681, 799 N.W.2d 831. Determining whether there is 

waiver by conduct presents a fact intensive inquiry.

¶41 Turning to the facts of this case, the record 

demonstrates that Washington, by his conduct, waived his Wis. 

Stat. § 971.04(1) right to be present at trial. Washington 

repeatedly refused to participate in proceedings after being 

offered the opportunity numerous times.

¶42 After Washington "semi was removed and semi left on 

his own[,]" the circuit court indicated that it would 

periodically, over the course of the proceedings, "make 

inquiries as to whether he wishes to come back to the 
No. 2016AP238-CR

17

courtroom[.]" He would also be given "reasonable opportunities" 

to confer with counsel during the course of trial. The circuit 

court followed through with this course of action.

¶43 Following Washington's last outburst and before jury 

selection, Washington was twice asked if he wanted to 

participate. First, the bailiff called the jail. The bailiff 

reported that "the officer upstairs asked Mr. Washington if he 

would like to come down and participate in his jury trial. Mr. 

Washington said no. No further comment."

¶44 Subsequently, Washington's counsel was "escorted up to 

the jail to be given the opportunity to confer with Mr. 

Washington if he is willing to come out of his cell[.]" After 

conferring with Washington, counsel reported back that "[h]e 

informed me he is not participating. I did explain to him the 

[c]ourt's ruling. He said he is not coming down to 

participate."

¶45 In response to Washington's reaffirmation of his 

refusal to participate, the circuit court crafted a jury 

instruction, indicating that Washington was not present, he had 

waived his constitutional right to be present, and "his absence 

must not influence [the jury's] verdict in any manner 

whatsoever." The circuit court read this instruction to the 

jury prior to voir dire, and reiterated during questioning of 

jurors that Washington's absence should have no effect on the 

jury's deliberations.

¶46 The next morning, the circuit court initiated 

proceedings by stating: "For the record I was advised earlier 
No. 2016AP238-CR

18

this morning that when Mr. Washington was contacted by a 

corrections officer or deputy to inquire as to whether he would 

be coming down and willing to come down for trial today he 

indicated that he would not." Again, the circuit court gave 

Washington's counsel "the opportunity to go up to the jail to 

attempt to have contact with Mr. Washington and to discuss the 

matter with him." Washington's counsel reported that she "spoke 

with him and he informed [her] that he does not want to come 

down."

¶47 During a recess in testimony, counsel yet again met 

with Washington, and Washington again refused to participate. 

Counsel reported: "I did speak with Mr. Washington. He does 

not want to come down. He does not want to participate in the 

trial. I explained to him that we are approaching the point 

where he would have a constitutional right to testify on his own 

behalf. He stated he did not want to do that."

¶48 The circuit court responded: "All right, once again 

contact has been made with Mr. Washington. He's been given the 

opportunity to consult with his attorney and . . . been given 

the opportunity to appear here in court if he wishes to. Based 

upon his continuing attitude and conduct the [c]ourt finds that 

he continues to waive his constitutional right to be present."

¶49 After the close of testimony, the circuit court again 

instructed the jury that Washington's waiver of the right to be 

present "must not be considered by you in any way and it must 

not influence your verdict in any manner. You are not to 
No. 2016AP238-CR

19

speculate about or draw any inferences from Mr. Washington's 

waiver of his right to be present."13

¶50 Washington was given one more opportunity to be 

present——for the reading of the verdict. The circuit court 

explained that "[p]rior to bringing the jury into the courtroom 

we have had a court officer contact jail personnel to inquire of 

Mr. Washington as to whether he would now come out of his cell 

and come down for purposes of receiving the verdict." 

Washington again refused to participate, indicating "very 

emphatically to personnel which was heard over the telephone by 

someone from this courtroom that he is not, does not wish to 

come down[.]".

¶51 Given this sequence of events and the repeated 

opportunities the circuit court afforded to Washington to 

participate in the trial, we conclude that Washington knowingly 

and voluntarily waived his statutory right to be present at 

trial. He knew he had the right to be present——counsel apprised 

him of that right on several occasions. Further, his 

relinquishment of the right was voluntary——he refused numerous 

invitations to participate over the course of the relatively 

short single day of trial. These circumstances demonstrate that 

Washington waived, rather than forfeited, the right to be 

present.

 

13 Like the court of appeals, we commend the circuit court 

for taking numerous steps to ensure that the jury was not 

prejudiced by Washington's absence. See State v. Washington, 

2017 WI App 6, ¶19, 373 Wis. 2d 214, 890 N.W.2d 592.
No. 2016AP238-CR

20

IV

¶52 Although we do not find Washington's arguments 

persuasive, we once again emphasize that the best practice is to 

engage the defendant in a colloquy. A formal colloquy is by far 

the best practice to ensure that a defendant is knowingly, 

intelligently, and voluntarily waiving a right. State v. 

Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997) 

(determining that a colloquy "is the clearest and most efficient 

means of insuring that the defendant has validly waived his 

right to the assistance of counsel, and of preserving and 

documenting that valid waiver for purposes of appeal and 

postconviction motions").

¶53 "[A] properly conducted colloquy serves the dual 

purposes of ensuring that a defendant is not deprived of his 

constitutional rights and of efficiently guarding our scarce 

judicial resources." Id. Indeed, a colloquy is required in 

some cases. See State v. Anderson, 2002 WI 7, ¶24, 249 

Wis. 2d 586, 638 N.W.2d 301 (explaining that a colloquy is 

required to prove a valid waiver of the right to a jury trial); 

Klessig, 211 Wis. 2d at 206 (mandating the use of a colloquy in

every case where a defendant seeks to waive the right to counsel 

and proceed pro se).

¶54 Consequently, in response to questions at oral 

argument regarding whether Washington should have been returned 

to the courtroom for a colloquy or if a court reporter should 

have been dispatched to his jail cell to record a colloquy, the 
No. 2016AP238-CR

21

State recognized that a colloquy is always preferable and the 

best practice.

¶55 The State further acknowledged the obvious efficiency 

and savings of court resources——had the circuit court engaged in 

such a colloquy, this case likely would not be before this 

court.14 At oral argument, in response to a question from this 

court, the State's counsel asserted, with regard to best 

practices:

That's just a matter of . . . when I'm standing before 

this court and you're asking me where on the record is 

there a knowing, intelligent waiver, I wouldn't be 

here if there was, or none of us would be here, if 

there was . . . .

¶56 Under the circumstances of this case, we cannot fault 

the circuit court for failing to engage in a personal colloquy. 

Here, the circuit court's actions were sufficient and a colloquy 

was not required.

¶57 The circuit court, on the record, described 

Washington's manipulative history and disruptive behaviors. It 

explained that his demeanor was "physically aggressive and 

threatening." The court surmised that returning Washington to 

court for a colloquy may have placed court personnel, as well as 

Washington himself, in danger. See State v. Vaughn, 2012 WI App 

 

14 We observed in State v. Denson, as we do here, that an 

on-the-record colloquy is the "better practice." 2011 WI 70, 

¶67, 335 Wis. 2d 681, 799 N.W.2d 831. Similarly, we recognized 

in Denson that "had the circuit court engaged Denson in an onthe-record colloquy regarding his right not to testify, this 

case likely would not be before us." Id.
No. 2016AP238-CR

22

129, ¶26, 344 Wis. 2d 764, 823 N.W.2d 543 ("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").

¶58 In conclusion, we determine that Wis. Stat. 

§ 971.04(3) does not apply here because it does not place any 

limitation on a defendant's ability to waive the right to be 

present at any portion of trial. We further determine that 

Washington, by his conduct, waived his § 971.04(1) right to be 

present at trial.

¶59 Accordingly, we affirm the decision of the court of 

appeals.

By the Court.—The decision of the court of appeals is 

affirmed.

¶60 SHIRLEY S. ABRAHAMSON, J., withdrew from 

participation.
No. 2016AP238-CR.mjg

1

¶61 MICHAEL J. GABLEMAN, J. (concurring). I agree with 

the mandate of the majority, and join the majority's reasoning; 

that is, I agree that a defendant may waive his right to trial 

at any time, as Washington did through his conduct.1 However, I 

would go further and hold that Washington forfeited his right to 

be present at trial. I would reach this conclusion by adopting 

the definition of "at the beginning of trial," Wis. Stat. 

§ 971.04(3), as "the day jury selection begins." This is how 

federal courts define "initially present at trial." See Federal 

Rule of Criminal Procedure 43(c)(1) (reciting the federal 

analogue to § 971.04(3)).2

¶62 Currently, Wisconsin defines "at the beginning of 

trial" as "when . . . the jury is sworn." State v. Miller, 197 

Wis. 2d 518, 521-22, 541 N.W.2d 153 (Ct. App. 1995). The Miller

court reached its conclusion through a syllogism. Id. It noted 

that in State v. Gonzalez, "a jury trial commences with the 

administration of the jury's oath." Id. at 521 (quoting State 

v. Gonzalez, 172 Wis. 2d 576, 580, 493 N.W.2d 410 (Ct. App. 

1992)) (emphasis added). The Miller court then reasoned that 

because the "beginning of trial" is when the trial "commences," 

 

1 Accordingly, I join the majority opinion except footnote 

ten.

2 The majority puts significant stock in "beginning of 

trial" and "initially present at trial" being different words. 

Majority Op., ¶30 n.10. The fact that Wis. Stat. § 971.04(3) 

and Federal Rule of Criminal Procedure 43(c)(1) do not use 

identical language is a distinction without a difference as one 

cannot be "initially present at trial" unless the "beginning of 

trial" has occurred.
No. 2016AP238-CR.mjg

2

id. (emphasis added), the "beginning of trial" is "when the jury 

is sworn." Id. at 521-22.3

¶63 Conversely, federal courts define "initially present 

at trial" as "the day that jury selection begins." United 

States v. Benabe, 654 F.3d 753, 771-72 (7th Cir. 2011); accord

United States v. Bradford, 237 F.3d 1306, 1309 (11th Cir. 2001) 

("[E]very other circuit to address the issue . . . [has] held 

that a trial commences under Rule 43 when jury selection 

begins.").4

¶64 The right to be present at trial was considered so 

sacrosanct at common law that for many years it could not be 

lost in felony cases—whether by waiver or forfeiture.

5 Crosby v. 

 

3 The court also noted that jeopardy attaches when the jury 

is sworn. Id. at 522 (citing Wis. Stat. § 972.07(2)).

4 The Eleventh Circuit Court of Appeals has since made clear 

that the phrase "when jury selection begins" it used in United 

States v. Bradford, 237 F.3d 1306, 1309 (11th Cir. 2001) is 

substantively identical to the phrase "the day jury selection 

begins" used by the Seventh Circuit Court of Appeals in United 

States v. Benabe, 654 F.3d 753, 771-72 (7th Cir. 2011). United 

States v. Sterling, 738 F.3d 228, 236 (11th Cir. 2013) ("Reading 

Bradford . . . together with the persuasive reasoning of Benabe, 

we conclude that trial commences no later than on the day of 

jury selection, without respect to whether the defendant is 

present at the time prospective jurors enter the courtroom."). 

5 "Although cases sometimes use the words 'forfeiture' and 

'waiver' interchangeably, the words embody very different legal 

concepts. 'Whereas forfeiture is the failure to make the timely 

assertion of a right, waiver is the intentional relinquishment 

or abandonment of a known right.'" State v. Ndina, 2009 WI 21, 

¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoted source omitted). 

Because the majority adequately analyzes a defendant's ability 

to waive his right to be present at trial, I focus on the issue 

of forfeiture.
No. 2016AP238-CR.mjg

3

United States, 506 U.S. 255, 259 (1993) (citing W. Mikell, 

Clark's Criminal Procedure 492 (2d ed. 1918)). Courts began 

recognizing a defendants' forfeiture6 of that right due to 

efficiency concerns. Diaz v. United States, 223 U.S. 442, 457 

(1912) ("It does not seem to us to be consonant with the 

dictates of common sense that an accused person, being at large 

upon bail, should be at liberty, whenever he pleased, to 

withdraw himself from the courts of his country and to break up 

a trial already commenced.") (quoting Falk v. United States, 15 

App. D.C. 446, 454 (1899)). Rule 43(c)(1) codified this 

holding. See Crosby, 506 U.S. at 259-60. Wisconsin similarly 

seeks to balance the right of one accused of criminal conduct to 

be present at trial with efficiency concerns. State v. Dickson, 

53 Wis. 2d 532, 545-46, 193 N.W.2d 17 (1972) (construing prior 

version of Wis. Stat. § 971.04).

¶65 Defendants may forfeit their right to be present 

after, but not before, trial begins because "the costs of 

suspending a proceeding already under way will be greater than 

the cost of postponing a trial not yet begun." Crosby, 506 U.S. 

at 261. See also Illinois v. Allen, 397 U.S. 337, 349 (1970) 

(Brennan, J., concurring) ("there can be no doubt whatever that 

the governmental prerogative to proceed with a trial may not be 

defeated by conduct of the accused that prevents the trial from 

 

6 Though the federal courts use the term "waiver," a plain 

reading shows they use waiver to encompass both waiver and 

forfeiture. See, e.g., Falk v. United States, 15 App. D.C. 446, 

460 (1899). 
No. 2016AP238-CR.mjg

4

going forward").7 The balance between the rights of a defendant 

and judicial efficiency are better met by the federal rule than 

by the Miller holding. Under Miller, a jury panel could be 

assembled, brought into the courtroom, and put through voir 

dire, yet be rendered unnecessary if the defendant chooses to 

absent himself before the jury is sworn. State v. Koompans, 210 

Wis. 2d 670, 679, 563 N.W.2d 528 (1997). 

¶66 This result is as absurd as it is wasteful. Like the 

First and Seventh Circuit Courts of Appeal, I find that "the 

concept that a defendant could go through trial proceedings to 

the point of selecting the entire jury and then, perhaps because 

he was dissatisfied with the complement thereof, freely depart, 

does not appeal to" me. Benabe, 654 F.3d at 772 (quoting United 

States v. Miller, 463 F.2d 600, 603 (1st Cir. 1972)). The 

reality is "[m]odern American courts simply do not have the 

luxury of time to indulge the obstructionist tactics of these 

defendants. Budgets, calendars, and administrative capacities 

are already too strained." Benabe, 654 F.3d at 770.

¶67 The time has come to overrule State v. Miller, 197 

Wis. 2d 518, 521-22, 541 N.W.2d 153 (Ct. App. 1995), and 

interpret Wis. Stat. § 971.04(3) consistent with Federal Rule of 

Criminal Procedure 43(c)(1). In addition to furthering our 

general policy of interpreting state provisions consistent with 

their federal counterparts, this also presents the most logical 

balance between honoring the rights of those charged with 

 

7 This language was quoted approvingly in Taylor v. United 

States, 414 U.S. 17, 20 (1973) (per curiam).
No. 2016AP238-CR.mjg

5

criminal conduct while at the same time acting as prudent 

stewards of the public fisc. For the foregoing reasons, I 

respectfully concur.

¶68 I am authorized to state that Justices REBECCA GRASSL 

BRADLEY and DANIEL KELLY join this concurrence.
No. 2016AP238-CR.mjg

1