46 Wis. 2d 47 - State v. Ritchie

Wilkie, J.

¶1(concurring). I must respectfully disagree with the majority’s holding that the point in a felony trial at which the jury returns for reinstruction and repetition of testimony (as here), further instructions, or to ask questions, is not a critical stage. I would hold that it is.

¶2The defendant here was charged with a felony and it is well settled in such cases that the trial stage of such *59a prosecution is a critical stage at which the defendant is entitled to a lawyer to represent him.1

¶3The point at which the proceedings at issue in the instant case took place was clearly a part of the defendant’s trial. I would view the trial of the defendant as a homogeneous whole; if he is entitled to counsel at the beginning of the trial, surely he is entitled to counsel at any point during the trial.

¶4This does not mean that counsel cannot be waived.2 The majority hold that there was such a waiver. I must respectfully disagree. Such waiver must be express. Any claim of waiver in this instance must be presumed from the defendant’s silence when his counsel indicated he was absenting himself during jury deliberations. Insofar as Russell approves the finding of a waiver under such circumstance, I think that part of Russell is now no longer the law in view of Carnley,3 which requires a record to substantiate an effective waiver. The waiver must be express, not presumed.

¶5I agree with the majority that, in any event, the absence of counsel during the period when the jury returned for reinstruction and repetition of testimony, and at the later stage when the verdict was announced, was harmless under the test in Chapman v. California.4 There was no prejudicial constitutional error here, and I therefore agree with affirmance.5

¶6 *60I am authorized to state that Mr. Chief Justice Hallows and Mr. Justice Heffernan join in this concurrence.

¶7See Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. 2d 799; but for limited right to counsel in misdemeanor cases, see State ex rel. Plutshack v. H&SS Department (1968), 37 Wis. 2d 713, 155 N. W. 2d 549, 157 N. W. 2d 567.

¶8 State v. Russell (1958), 5 Wis. 2d 196, 92 N. W. 2d 210.

¶9 Carnley v. Cochran (1962), 369 U. S. 506, 82 Sup. Ct. 884, 8 L. Ed. 2d 70.

¶10 (1967), 386 U. S. 18, 24, 87 Sup. Ct. 824, 17 L. Ed. 2d 705.

¶11See Steele, The Doctrine of Right to Counsel: Its Impact on the Administration of Criminal Justice and the Legal Profession, 23 Southwestern L. J. (1969), 488.

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