State v. John L. Moore

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 25, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP196-CR Cir. Ct. No. 2017CF1206

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN L. MOORE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: JOHN ZAKOWSKI, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP196-CR

¶1 PER CURIAM. John Moore appeals a judgment of conviction for
armed robbery, in violation of WIS. STAT. § 943.32(2) (2019-20),1 entered after a
bench trial, and an order denying his motion for postconviction relief. Moore
argues that the circuit court erred by denying his postconviction motion to vacate
his conviction and sentence and to order a jury trial because Moore did not
knowingly, intelligently and voluntarily waive his right to a jury trial. We
conclude that although the court’s jury trial wavier colloquy was deficient, the
State proved by clear, satisfactory and convincing evidence that Moore’s waiver of
his right to a jury trial was knowingly, intelligently and voluntarily made. We
therefore affirm.

BACKGROUND

¶2 At a pretrial status hearing, Moore’s counsel, Raj Singh, told the
circuit court that after discussing the “pros and cons” of Moore’s “constitutional
right to a jury trial or requesting a bench trial,” Moore requested to have a bench
trial. Singh stated that Moore’s jury trial waiver was made “voluntarily and on an
informed basis” for “strategic reasons,” so that Moore could “utilize the judge as
the trier of fact instead of a 12-person jury.”

¶3 During the circuit court’s colloquy with Moore, the court asked if
Moore knew what a jury trial was. Moore responded, “Yes, sir.” After the court
explained the differences between a bench trial and a jury trial, Moore stated that
he wanted to have a bench trial. The court accepted Moore’s jury trial waiver,

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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concluding that his decision to do so was freely, intelligently and voluntarily
made.

¶4 Following his conviction, Moore filed a motion for postconviction
relief, requesting that the circuit court vacate his conviction and order a jury trial.
Moore alleged that his jury trial waiver “was defective because he was not advised
by the trial court of the unanimity requirement for jury trial verdicts.” The court
held an evidentiary hearing on Moore’s motion.

¶5 Attorney Singh and Moore testified at the evidentiary hearing.
Singh could not recall the circumstances of Moore’s jury trial waiver from four
years prior and did not recall any of his consultations with Moore. He
nevertheless testified as to his customary discussions with a client regarding the
right to a jury trial and its waiver. He testified that during such discussions, he
would take care to explain to the client that the waiver of a jury trial was “100
percent” the client’s decision, not the trial attorney’s decision. He would explain
to the client that he or she has a constitutional right to a jury trial. Singh would
also explain to the client that he or she has an absolute right to request a bench
trial and waive a jury trial. Singh would further explain that the State also has a
right to demand a jury trial, and that the circuit court can deny a request for a
bench trial for any reason or for no reason at all. Singh would also explain that the
jurors would weigh the credibility of the evidence in a jury trial, whereas a judge
would weigh the credibility of the evidence in a bench trial.

¶6 Singh testified that as a regular part of his practice, he always had “a
very detailed discussion with [his] client about waiving a right to a jury trial,”
during which he discussed with the client the requirement of the “unanimity of a
jury verdict.” Since Singh began his practice, he had been aware of the

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requirement of a unanimous jury verdict; it was “not something new,” and Singh
had “always” and “very carefully” gone “over the idea of unanimity,” often within
“the context of the Plea Questionnaire/Waiver of Rights form because that’s one
of the elements on there ….” Singh testified “[w]ithout a doubt,” he routinely told
his clients that the jury’s function was to deliberate “to see if there’s proof beyond
a reasonable doubt,” and “[i]n general” he talked about the requirement of a
“unanimous agreement of the jury.”

¶7 Further, Singh said he would tell the client what to expect during the
colloquy with the circuit court judge regarding the waiver of a jury trial. He
would tell the client that he expected the judge to ask the client if he or she had
enough time discuss his or her decision with counsel. He would also advise that
the judge would likely inquire into whether any promises were made to the client
to induce the client to waive his or her right to a jury trial. Similarly, he would
advise the client that he expected the judge to ask the client if he or she received
any threats or pressure from anyone seeking to induce a waiver. Singh would also
stress the need to be honest and accurate with the judge.

¶8 If a client were African-American, as Moore was, Singh testified
that he would also ordinarily inform the client that there was “an extremely high
probability that a jury would be what we would call an all-white jury.” Singh
would further tell clients that “sociologists tell us that the more educated a person
is the less likely they are to be racially biased.” Singh would also observe the
judge will have a “baccalaureate degree and a juris doctorate,” whereas a jury is
likely to range from highly educated to high school dropouts.

¶9 Singh also testified regarding another case he handled around the
same time as Moore’s case. That particular case also involved a jury waiver, and

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Singh specifically remembered informing that client, Paul B. Jones,2 that “in a jury
trial any decision would have to be unanimous for the judge to accept the verdict.”
Because Singh recalled that he advised Jones of the jury unanimity requirement,
Singh testified that he would have also explained the requirement to Moore
because he is “ritualistic.” Singh further testified that he could not “imagine in
any given span of time that there would have been any changes from client to
client” as to what was discussed during Singh’s common “presentation” before a
client decided whether to waive a jury.

¶10 Moore, conversely, testified that Singh did not discuss the jury
unanimity requirement with him and that he did not understand that all twelve
jurors had to agree in order to find him guilty. Moore did recall discussing with
Singh the possibility of there being potential racial bias in a Brown County jury.

¶11 Moore admitted to having a number of prior convictions. The State
indicated that it could “confirm 23 prior convictions,” all of which were
plea-agreement cases. Moore testified that he had counsel in his previous cases,
but that he did not recall any of those attorneys explaining the unanimity
requirement. Moore further explained that he had an eighth grade education, that
he had been diagnosed with bipolar disorder and schizophrenia, and that he had
been prescribed medication for those conditions, but that he did not receive that
medication while in jail prior to his waiver hearing. Moore also testified that
Singh did not discuss anything with him about “the role of a jury” or “the
difference between the jury and bench” trial, and that he “didn’t really understand
anything” that Singh told him.

2
State v. Paul B. Jones, Brown County case No. 2016CF1681.

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No. 2021AP196-CR

¶12 The circuit court agreed with Moore’s assertion that its jury trial
waiver colloquy was deficient because the court failed to inquire if Moore
understood the unanimity requirement for a jury trial. The court nonetheless
denied Moore’s motion for a new trial. The court relied on State v. Lopez, 2010
WI App 153, ¶12, 330 Wis. 2d 487, 792 N.W.2d 199, where we stated that
although a defendant’s criminal history is not dispositive, “it is appropriate to infer
some understanding [of the defendant’s rights] based on prior experience” with the
criminal justice system. The court noted that Moore had multiple prior
convictions, and it wrote:

The court is unaware of how many specific plea hearings
this defendant has participated in, but it is more than a
reasonable inference that he has entered pleas on at least
multiple occasions where he was informed of his
constitutional rights. One such right is the right to a jury
trial where all twelve people would have to agree that the
State met its burden beyond a reasonable doubt per the
CR-227 plea questionnaire.

¶13 Furthermore, the circuit court noted that Singh had testified that he
informed his client in the Jones case of the unanimity requirement. The court also
noted that Singh’s consultation with Jones predated his discussion with Moore
about his waiver of his right to a jury trial. With this context in mind, the court
explained: “A logical extrapolation of Attorney Singh’s testimony would be [that]
he did inform Moore of the unanimous jury requirement.” The court concluded:

The court acknowledges that standing alone neither his
criminal history [nor] the vague testimony of Attorney
Singh would be sufficient for a finding that the waiver of
his jury trial was proper. However, “when combined” as in
Lopez (p. 494 ¶12) the testimony of Attorney Singh and the
defendant’s familiarity with the criminal justice system
leads the court to find that the State has met its burden by
clear and convincing evidence that the defendant’s waiver
of his jury trial was knowingly, intelligently and voluntarily
made.

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No. 2021AP196-CR

Moore now appeals.

DISCUSSION

¶14 On review, we accept the circuit court’s factual findings unless they
are clearly erroneous. State v. Miller, 2012 WI 61, ¶26, 341 Wis. 2d 307, 815
N.W.2d 349. We determine de novo whether those facts demonstrate that Moore
knowingly, intelligently and voluntarily waived his right to a jury trial. See State
v. Anderson, 2002 WI 7, ¶12, 249 Wis. 2d 586, 638 N.W.2d 301.

¶15 Where a circuit court fails to conduct an adequate colloquy with a
defendant regarding the waiver of his or her right to a jury trial, the court must
hold an evidentiary hearing on whether the defendant’s waiver was knowing,
intelligent and voluntary. Id., ¶25. The presumption is that a defendant did not
waive his or her right to a jury trial; however, the State may overcome this
presumption by proving, by clear and convincing evidence, that the waiver was in
fact knowing, intelligent and voluntary. Id., ¶26. If the State cannot meet this
burden, then the defendant is entitled to a new trial. Id.

¶16 The State acknowledges that the circuit court’s colloquy was
deficient because the court did not explicitly discuss the jury unanimity
requirement with Moore. The issue for our review, therefore, is whether the State
proved by clear and convincing evidence that Moore nevertheless freely,
voluntarily and intelligently waived his right to a jury trial despite the defective
colloquy.

¶17 Moore argues that the combined bases for the circuit court’s denial
of his motion—i.e., his prior criminal conviction history and Singh’s testimony
about what he told the defendant in the Jones case concerning the unanimity

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No. 2021AP196-CR

requirement—do not constitute clear and convincing evidence that his jury trial
waiver was proper. In response, the State contends, and we agree, that the court’s
decision denying a new trial was based on its findings of fact, primarily its
credibility findings, which we must uphold unless they are clearly erroneous. See
Miller, 341 Wis. 2d 307, ¶26. Based on these factual findings, the court
concluded that Moore understood the “purpose and function” of the jury, that his
guilt or innocence would be “determined by a single judge rather than by a group
of twelve lay persons,” and that all jury members had to agree on the verdict. See
State v. Resio, 148 Wis. 2d 687, 695-96, 436 N.W.2d 603 (1989) (stating that
“[w]hen a defendant waives the right to a jury trial understanding that his or her
guilt or innocence will be determined by a single judge rather than by a group of
twelve lay persons, that waiver is valid and effective”).

¶18 As to the circuit court’s consideration of Moore’s prior criminal
history, Moore contends that the presentence investigation report provided the
only evidence in the record regarding his significant criminal history. Moore
asserts that what he may have understood at the time of his pleas in his prior cases
does not accurately reflect what he recalled and understood about the jury
unanimity requirement on the date of his jury trial waiver in the present case.
Moore notes that the State did not put into evidence a copy of a plea questionnaire
in this case or in any other case in which he had entered a plea, and he asserts that
there was no testimony that anyone had ever explained the unanimity requirement
to him in at least one of his prior cases. Moore further claims that his educational
limitations, coupled with his mental illness diagnoses, further support doubt
regarding his knowledge. Moore therefore argues that the court’s inference that he
understood the unanimity requirement on the date of his jury trial waiver was
based solely upon “conjecture.”

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No. 2021AP196-CR

¶19 Moore further argues that

[g]iven the length of time since Moore’s previous plea, his
personal characteristics, and the lack of evidence showing
that Moore was in fact explained the unanimity requirement
in any of his prior cases, Moore’s criminal record was a
very slender reed upon which to impute on Moore
knowledge of the unanimity requirement.

He asserts that given the lack of evidence of his knowledge of the unanimity
requirement, the only inference that could logically be drawn is the adverse
inference—i.e., that he did not understand that requirement on the date of his
waiver in this case.

¶20 We conclude that the circuit court properly considered Moore’s
“extensive criminal history,” and it made a “reasonable inference” that Moore had
entered multiple pleas “where he was informed of his constitutional rights,”
including “the right to a jury trial where all twelve people would have to agree that
the State met its burden beyond a reasonable doubt per the CR-227 plea
questionnaire.” The court’s consideration of Moore’s criminal history is
supported by Lopez, which held that while “not dispositive,” a defendant’s
familiarity with the court system made it “appropriate” for the court “to infer some
understanding” of the defendant’s knowledge of his constitutional rights, including
the right to a unanimous jury verdict. Lopez, 330 Wis. 2d 487, ¶12.

¶21 Moore next asserts that Singh’s testimony about his consultation
with Moore and his discussion about the unanimity requirement was vague.
According to Moore, Singh could not definitively state that it was his routine
practice to discuss the unanimity requirement with defendants at the time he
represented Moore. While Singh testified that, in the Jones case, he told Jones
any decision of a jury would have to be unanimous for the judge to accept the

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No. 2021AP196-CR

verdict, Moore argues Singh could not testify to the same in Moore’s case, nor
could Singh say that it was his ordinary practice to do so at the time. Additionally,
Moore contends Singh’s recollection regarding the Jones case was also weak.

¶22 Moore further asserts that while routine practice or habit evidence
alone “can be insufficient as a matter of law,” here we do not even have evidence
of a routine practice. Instead, Moore contends that “we have a weak recollection
of a single instance in which Attorney Singh believes he discussed the unanimity
requirement ….” Moore further contends that the confluence of Singh’s
statements to Moore about facing an “all-white jury,” coupled with his failure to
discuss the unanimity requirement, interfered with Moore’s ability to make an
informed decision.

¶23 As the State correctly argues, Moore cherry picks Singh’s testimony
to argue that Singh “could not truthfully testify that it was his routine practice to
explain the unanimity requirement to clients waiving jury trials.” The record is
replete with Singh’s testimony that he routinely and thoroughly advised clients in
a “painfully detailed” manner about all of the rights that they would give up by
waiving a jury trial, including jury unanimity. In light of this routine, Singh
testified he was “absolutely certain” that he had counseled Moore on his rights
before waiving a jury trial. Although Singh did not have a clear memory of his
specifically informing Moore that a jury’s verdict would have to be unanimous,
Singh succinctly testified about his routine practice of informing his clients
regarding the jury unanimity requirement.

¶24 Moore’s argument is further misplaced because he ignores the fact
that the circuit court found Singh’s testimony regarding his routine practice of
discussing the jury unanimity requirement—as part of his in-depth discussion with

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No. 2021AP196-CR

clients before the jury waiver hearing—more credible than Moore’s claiming that
he had no such discussion with Singh. Again, we defer to the court’s credibility
findings. See Miller, 341 Wis. 2d 307, ¶26. The court found it significant that
Moore recalled part of Singh’s ritual—that being the discussion regarding the
impact of race. This recollection told the court that Moore and Singh engaged in a
discussion similar to the ritual to which Singh testified. The court was satisfied
that the discussion between Singh and Moore included topics beyond the
likelihood of the impact of race. The combination of Moore’s experience with the
criminal justice system—during which he had “been exposed to numerous plea
questionnaires and plea colloquies”—with Singh’s routine practice of extensively
counseling his clients about jury trial waivers undermined Moore’s claims that
Singh did not discuss unanimity with him and that Moore did not know that a
jury’s verdict had to be unanimous.

¶25 We therefore conclude that there is sufficient evidence to support the
circuit court’s finding that Moore’s waiver of his jury trial was knowingly,
intelligently and voluntarily made despite the defect in the court’s colloquy. The
court properly inferred Moore’s understanding of the unanimity requirement based
on Moore’s extensive criminal history, combined with the court’s credibility
determinations related to Singh’s and Moore’s testimony. The court’s findings of
fact were not clearly erroneous, and the court properly applied those facts to
conclude that the State had shown that Moore’s jury trial waiver was knowing,
voluntary and intelligent. Accordingly, we affirm.

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No. 2021AP196-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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