A state appeals court has ordered a retrospective hearing to determine whether Rory Kuenzi, of Weyauwega, was properly denied a new attorney during his 2010 homicide trial.
On Nov. 18, 2010, a jury found the then 26-year-old Kuenzi guilty of of hit-and-run involving death and of homicide by intoxicated use of a vehicle after a four-day trial. He was later sentenced to 23 years in prison.
Kuenzi was convicted more than six years after he killed Kevin McCoy while driving from an underage drinking party at a home in the town of Farmington.
About three weeks prior to the trial, Kuenzi’s two public defenders, Troy Nielsen and David Dickmann, requested that they be allowed to withdraw as his legal counsel.
They told Waupaca County Circuit Court Judge Philip Kirk that Kuenzi did not feel he could work well with them and that he was attempting to secure private counsel.
At a motion hearing on Oct. 26, 2010, the public defenders told the court they needed more time to prepare for the trial. They also reiterated their desire to be allowed to withdraw from the case.
The public defenders said Kuenzi’s family would attempt to retain private counsel if the public defenders were allowed to withdraw.
Kirk denied the motions to withdraw and for a continuance on the case.
The judge said the public defenders were competent, that Kuenzi’s request for a substitution was not justified and that Kuenzi did not actually have retained counsel in place.
Two days after the motion hearing, attorney Nathan Schnick faxed a letter to the circuit court saying Kuenzi’s family had retained him to review the case. He said he would represent Kuenzi if the court would grant a 60-day continuance.
Kirk wrote back and said Schnick had not established that he had actually been paid to represent Kuenzi at trial. He said Schnick needed to demonstrate that adequate financial arrangements had been made.
About nine days before the trial was scheduled to begin, Schnick appeared before Kirk and said Kuenzi’s family had retained him that morning to represent Kuenzi throughout the trial.
Schnick said he needed more time to review the case and asked Kirk to reschedule the trial.
Kirk opposed any continuance of the trial date, noting the length of time since the incident occurred and the interest of the victim’s family and the community in a timely resolution of the case.
Kirk denied the motion to substitute Schnick as Kuenzi’s attorney.
He ruled that an indigent defendant with appointed counsel does not have a Sixth Amendment right to the counsel of his choice.
“A decision to deny a motion to substitute retained counsel may not be based on the interests of expediency alone,” according to the District 4 Court of Appeals in its Aug. 14 decision. “Rather, a circuit court must consider factors relevant to weighing the balance between the constitutional right to counsel of one’s choice and the efficient administration of justice.”
Kuenzi’s appeal for a new trial also argued that the public defenders failed to adequately represent him when they failed to persuade Kirk to prohibit mention of his prior drunken driving conviction during the trial.
In its decision, the appeals court found sufficient evidence for Kuenzi’s conviction.
“We are satisfied that there was overwhelming evidence of Kuenzi’s intoxication. Thus, there is no reasonable probability that the outcome of the case as to the homicide charge would have been different had the jury not learned that Kuenzi had a prior OWI conviction,” the appeals court said. “We are not persuaded by Kuenzi’s argument that the jury likely believed that Kuenzi fled the scene after discovering he struck and killed a pedestrian because he feared a second OWI conviction.”
However, the appeals court remanded the case back to circuit court for a review of Kirk’s decision not to allow Kuenzi to substitute counsel.
“If the circuit court determines that Kuenzi was improperly denied his right to counsel of his choice, or if meaningful inquiry is not possible, Kuenzi is entitled to a new trial,” the decision said.