State v. Demoyne J. Davis

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.
October 4, 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. 2021AP1786-CR Cir. Ct. No. 2017CF2755

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEMOYNE J. DAVIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DENNIS R. CIMPL and DANIELLE L. SHELTON, Judges.
Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

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. 2021AP1786-CR

¶1 PER CURIAM. Demoyne J. Davis appeals his judgment of
conviction for two counts of armed robbery, as a party to a crime, as well as the
order denying his postconviction motion. Davis argues that his Sixth Amendment
right to self-representation was violated when the trial court1 denied his request
during his trial to proceed pro se. Upon review, we affirm.

BACKGROUND

¶2 The charges against Davis stem from an incident that occurred in
April 2017. According to the criminal complaint, M.P.J. and his wife, S.L.J., were
at a car dealership on Appleton Avenue in Milwaukee, attempting to buy two
vehicles for cash. M.P.J. stated that the sales associate they were dealing with made
a call on his cell phone, and approximately fifteen minutes later, two males arrived
at the dealership. The sales associate then told M.P.J. and his wife that he was going
to get them an ignition key, but never returned. Within one to two minutes, the two
men approached M.P.J. and S.L.J. and robbed them at gunpoint, stealing $3600 from
M.P.J. and $5850 from S.L.J., along with their cells phones and M.P.J.’s sunglasses.

¶3 Surveillance video footage of the robbery was provided to the local
media. Davis’s co-actor, Glen Jeffery, was identified and turned himself in.
Additionally, an informant provided Davis’s name to the Milwaukee Police
Department, and the investigating detective discovered that Davis was on extended
supervision at that time for armed robbery. Davis’s parole officer identified him
from the surveillance video.

1
Davis’s trial was before the Honorable Dennis R. Cimpl; we refer to him as the trial
court.

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¶4 Davis was initially charged with one count of armed robbery as a party
to a crime, but the information was later amended to two counts—one count for
each victim. Attorney Stephen Sargent was appointed as his counsel. At a pre-trial
hearing, Attorney Sargent informed the trial court that Davis wanted a new lawyer.
Attorney Sargent stated that he and Davis had a “discussion” about using
“appropriate language.” Davis, on the other hand, told the court that Attorney
Sargent had “blatantly” told Davis that he did not work for him, and had called him
a “joke.” Davis also stated that Attorney Sargent was not acting in his “best
interest,” because he had asked Attorney Sargent to do “specific things” but that
Attorney Sargent had “his own agenda.”

¶5 The trial court did not find Davis’s accusations to be credible. The
court also explained to Davis that his attorney was “in charge” of trial strategy.
Nevertheless, the court agreed to allow Attorney Sargent to withdraw when Davis
maintained that he wanted a new attorney.

¶6 Attorney Marcella DePeters was then appointed to represent Davis.
However, at the final pre-trial hearing, Attorney DePeters requested to withdraw as
Davis’s counsel, stating that she did not believe she could “get along with this
particular defendant.” During an outburst in court, Davis accused Attorney
DePeters of not “honor[ing] [his] requests[.]” The court explained—again—that
the attorney was in charge of trial strategy. The court further advised Davis that his
new lawyer would be the last one provided by the State Public Defender’s Office,
and that if he did not get along with that new lawyer, “you’re either going to be
stuck with that lawyer or you’re going to represent yourself. Or you hire a lawyer.”
The court then allowed Attorney DePeters to withdraw as Davis’s counsel.

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No. 2021AP1786-CR

¶7 Attorney Gary Rosenthal was then appointed as Davis’s attorney. The
matter proceeded to trial in February 2019, with Davis and Jeffery being tried
together.

¶8 On the second day of trial, Attorney Rosenthal requested a sidebar
conference. Out of the presence of the jury, the trial court stated for the record that
Attorney Rosenthal had informed the court during the sidebar that Davis had
requested to proceed pro se. The court proceeded to ask Davis if this was correct,
to which Davis responded, “I told Mr. Rosenthal I’d be better off pro se. I never
said I wanted to go pro se.” Davis then indicated that he did not want to proceed
pro se, but rather that he wanted to fire Attorney Rosenthal.

¶9 The trial court advised Davis that because they were already in the
middle of the trial, Davis’s only options were to keep Attorney Rosenthal as his
counsel or proceed pro se. Davis then stated that he wanted to represent himself.

¶10 The trial court proceeded to engage in the required colloquy with
Davis to determine whether Davis was knowingly, intelligently, and voluntarily
waiving his right to counsel. See State v. Klessig, 211 Wis. 2d 194, 206-07, 564
N.W.2d 716 (1997). In an exchange dotted with outbursts and profanity from Davis,
the court asked Davis, among other things, whether he understood the charges
against him; specifically, that he was charged with two counts of armed robbery.
Davis repeatedly stated that he did not understand why he was charged with two
counts of armed robbery instead of just one count for “one armed robbery incident,”
or why the penalties would be doubled upon his conviction of both counts. The
court also explained that neither it nor the prosecutor could provide Davis with legal
advice or explain court procedures to him; Davis replied that he did not understand
that, either.

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No. 2021AP1786-CR

¶11 After completing the colloquy, the trial court determined that because
Davis had replied that he did not understand these questions, it was denying his
request to proceed pro se.2 Shortly thereafter—before the trial proceedings
continued—Davis admitted, through Attorney Rosenthal, that some of his answers
during the colloquy were “given in effect as obstruction rather than as a correct
answer[.]” However, Attorney Rosenthal stated that Davis had indicated that he did
not want to pursue his pro se request, and instead wanted to proceed with Attorney
Rosenthal representing him.

¶12 The trial proceeded, and Davis was convicted of both counts of armed
robbery, as a party to a crime. He was sentenced to two consecutive eleven-year
terms of imprisonment, bifurcated as seven years of initial confinement followed by
four years of extended supervision for each count.

¶13 Davis subsequently filed a postconviction motion, arguing that he was
denied his right to self-representation. Specifically, Davis asserted that the trial
court’s determination was based on an inaccurate portrayal of Davis’s answers
during the colloquy. The postconviction court,3 however, determined that Davis’s
answers did not satisfy the factors for waiving his right to counsel, as set forth in
Klessig. See id. at 206. Furthermore, the postconviction court noted that not only
had Davis conceded to being obstructive during the colloquy, he had also ultimately
stated that he did not want to pursue proceeding pro se. Therefore, the

2
During the trial court’s colloquy with Davis, Jeffery declared that he also wanted to
proceed pro se. The court engaged in a colloquy with Jeffery, and because he responded that he
understood all of the court’s questions, the court granted his request to proceed pro se. However,
before the trial proceedings continued, Jeffery informed the court that he had a “change of heart”
and did not wish to represent himself.
3
Davis’s postconviction motion was decided by the Honorable Danielle L. Shelton; we
refer to her as the postconviction court.

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No. 2021AP1786-CR

postconviction court found no error in the trial court’s denial of Davis’s request, and
denied his motion. This appeal follows.

DISCUSSION

¶14 Defendants have the right to conduct their own defense under both the
Sixth Amendment of the United States Constitution and Article I, § 7 of the
Wisconsin Constitution. Klessig, 211 Wis. 2d at 203; see also Faretta v. California,
422 U.S. 806, 819 (1975) (although not explicitly stated in the Sixth Amendment,
this right is “necessarily implied by the structure of the Amendment”). Whether a
defendant’s constitutional right to self-representation has been violated is a question
of law, which this court reviews de novo. State v. Darby, 2009 WI App 50, ¶13,
317 Wis. 2d 478, 766 N.W.2d 770.

¶15 A defendant who wishes to invoke the right of self-representation
must “clearly and unequivocally” inform the trial court of this decision. Faretta,
422 U.S. at 835. If the defendant establishes this request clearly and unequivocally,
the trial court must then ensure that the defendant “has knowingly, intelligently and
voluntarily waived the right to counsel,” and that the defendant is “competent to
proceed pro se.” Klessig, 211 Wis. 2d at 203.

¶16 To establish these requirements, the trial court must engage in a
colloquy with the defendant to confirm the defendant’s understanding of the
ramifications that relate to this choice. Id. at 206. During that colloquy, the court
should establish that the defendant: “(1) made a deliberate choice to proceed
without counsel, (2) was aware of the difficulties and disadvantages of self-
representation, (3) was aware of the seriousness of the charge or charges against
him, and (4) was aware of the general range of penalties that could have been
imposed on him.” Id. “[A]s long as the [trial] court finds that one of the four

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No. 2021AP1786-CR

conditions is not met, the court cannot permit the defendant to represent himself.”
State v. Imani, 2010 WI 66, ¶26, 326 Wis. 2d 179, 786 N.W.2d 40.

¶17 Here, it is clear from the record that Davis repeatedly stated that he
did not understand the charges against him—specifically, that he was charged with
two counts of armed robbery, as opposed to one count for the entire incident—and
that he did not understand the range of the penalties that could be imposed against
him. Thus, two of the Klessig factors were not satisfied. See id., 211 Wis. 2d at
206.

¶18 Furthermore, after admitting to making some obstructionist comments
during the colloquy, Davis stated that he did not want to pursue proceeding pro se.
This relinquishing of his request so quickly after making it calls into question
whether he had actually made a “deliberate choice to proceed without counsel,” the
first Klessig factor. See id.

¶19 Additionally, Davis’s request to proceed pro se came after the jury
trial had already commenced. Moreover, it was made after he had “fired” two
lawyers while his trial was pending, and was seeking to fire the third.

¶20 Our supreme court has previously determined that “the right to
[c]ounsel cannot be manipulated so as to obstruct the orderly procedure for trials or
to interfere with the administration of justice.” Hamiel v. State, 92 Wis. 2d 656,
672, 285 N.W.2d 639 (1979) (citation omitted). These same considerations “apply
when the right involved is that of self-representation.” Id. at 673. While both the
right to secure other counsel and the right to proceed pro se “are guaranteed by the
Sixth Amendment and are intended to ensure the defendant’s right to a full and fair
trial, they are not intended to allow the defendant the opportunity to [a]void or delay
the trial for any unjustifiable reason.” Id. Furthermore, when the request to proceed

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No. 2021AP1786-CR

pro se is made “on the day of trial,” the “determinative question is whether the
request is proffered merely to secure delay or tactical advantage.” Id. Davis’s
conduct with regard to his representation, throughout the proceedings, suggests such
manipulation of the judicial process.

¶21 Therefore, we conclude that Davis’s right to self-representation was
not violated. Accordingly, we affirm his judgment of conviction and the order
denying his postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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