                                                                   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,
                                                                   FILED
      v.
                                                               JAN 9, 2018
Michael L. Washington,
                                                                 Diane M. Fremgen
            Defendant-Appellant-Petitioner.                   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



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.


                                    2
                                                                                 No.     2016AP238-CR



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
                                                  3
                                                                No.    2016AP238-CR



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.


                                         4
                                                       No.   2016AP238-CR


    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


                                   5
                                                                  No.   2016AP238-CR



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.


                                         6
                                                     No.   2016AP238-CR



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.


                                 7
                                                                 No.      2016AP238-CR



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.


                                        8
                                                                   No.    2016AP238-CR



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.


                                           9
                                                                  No.    2016AP238-CR



      ¶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




                                         10
                                                                               No.     2016AP238-CR



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.


                                                 11
                                                                 No.     2016AP238-CR



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).


                                          12
                                                                      No.    2016AP238-CR



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).


                                            13
                                                                 No.   2016AP238-CR



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.
                                         14
                                                                        No.    2016AP238-CR



     ¶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.


                                           15
                                                                          No.    2016AP238-CR


            (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


                                              16
                                                                           No.    2016AP238-CR



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
                                                 17
                                                                  No.    2016AP238-CR



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


                                         18
                                                                          No.     2016AP238-CR



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.


                                             19
                                                                                No.       2016AP238-CR



                                               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


                                               20
                                                                    No.     2016AP238-CR



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 on-
the-record colloquy regarding his right not to testify, this
case likely would not be before us." Id.


                                          21
                                                                     No.     2016AP238-CR



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.




                                       22
                                                               No.   2016AP238-CR.mjg


       ¶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.


                                          1
                                                               No.    2016AP238-CR.mjg


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.


                                             2
                                                                         No.      2016AP238-CR.mjg


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).


                                                  3
                                                           No.    2016AP238-CR.mjg


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).


                                         4
                                                           No.   2016AP238-CR.mjg


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.




                                       5
    No.   2016AP238-CR.mjg




1
