Date: 05-31-2016

Case Style: State of Wisconsin v. James Elvin Lagrone

Case Number: 2013AP1424-CR

Judge: Annette Kingsland Ziegler

Court: SUPREME COURT OF WISCONSIN

Plaintiff's Attorney: Katherine D. Lloyd, assistant attorney general, Brad D. Schimel, attorney general

Defendant's Attorney: Kaitlin A. Lamb, assistant state public defender

Description: This is a review of an unpublished decision of the court of appeals, State v. Lagrone,
No. 2013AP1424-CR, unpublished slip op. (Wis. Ct. App. Apr. 7,
2015), which affirmed the Milwaukee County circuit court's
judgment of conviction and order denying defendant James Elvin
Lagrone's ("Lagrone") postconviction motion for an evidentiary
hearing and a new trial on the question of Lagrone's mental
responsibility.
¶2 Criminal defendants possess a fundamental
constitutional right to testify in their own defense. See,
e.g., State v. Anthony, 2015 WI 20, ¶¶46, 48, 361 Wis. 2d 116,
860 N.W.2d 10 (citing Rock v. Arkansas, 483 U.S. 44, 49 (1987)).
Further, this court has stated that a circuit court "should
conduct an on-the-record colloquy to ensure that the defendant
is knowingly, intelligently, and voluntarily waiving his or her
right to testify." State v. Weed, 2003 WI 85, ¶2, 263
Wis. 2d 434, 666 N.W.2d 485.
¶3 The question before this court is whether, upon a plea
of not guilty by reason of mental disease or defect ("NGI")
under Wis. Stat. § 971.15 (2013-14),2 such right-to-testify
colloquies are also required at the responsibility phase of the
resulting bifurcated trial established by Wis. Stat. § 971.165.
See generally State v. Magett, 2014 WI 67, ¶¶33-40, 355
Wis. 2d 617, 850 N.W.2d 42 (discussing nature and history of
bifurcated trials resulting from NGI pleas).
¶4 Lagrone does not challenge the plea colloquy that
occurred during the guilt phase of his bifurcated NGI
proceedings. He does not argue that he was unaware that, by
pleading guilty to the criminal charges against him, he was
waiving his fundamental right to testify at a criminal trial
pertaining to the validity of those charges. Instead, we must
analyze Lagrone's opportunity to testify at the responsibility 2 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.
No. 2013AP1424-CR
3
phase of his bifurcated trial. The circuit court below did not
conduct a right-to-testify colloquy with Lagrone during the
responsibility phase of his bifurcated trial, and Lagrone argues
that because he did not understand that he had a right to
testify at that phase, he is entitled to an evidentiary hearing
under State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779
N.W.2d 718, so that a court may determine whether he properly
waived his right to testify. Ultimately, determining whether a
colloquy is necessary during the responsibility phase of NGI
proceedings requires us to determine whether the fundamental
right to testify applies at that phase. The court of appeals
below decided that resolution of this "issue of first
impression" was unnecessary because, it reasoned, the harmless
error doctrine applied and any error by the circuit court was
harmless. See State v. Lagrone, No. 2013AP1424-CR, unpublished
slip op., ¶¶13, 17, 19 (Wis. Ct. App. Apr. 7, 2015).
¶5 We conclude that, although a better practice, a
circuit court is not required to conduct a right-to-testify
colloquy at the responsibility phase of a bifurcated trial
resulting from a plea of not guilty by reason of mental disease
or defect.3 Further, Lagrone is not entitled to an evidentiary
3 As we will explain, nothing in this opinion affects our instruction in State v. Weed that circuit courts conduct an onthe-record colloquy at a criminal trial, or at the guilt phase of bifurcated NGI proceedings, to ensure that the defendant is knowingly, intelligently, and voluntarily waiving his or her fundamental right to testify. State v. Weed, 2003 WI 85, ¶2, 263 Wis. 2d 434, 666 N.W.2d 485.
No. 2013AP1424-CR
4
hearing because he has not made the requisite showing for such a
hearing. Accordingly, we affirm the decision of the court of
appeals.
I. FACTUAL BACKGROUND
¶6 On April 30, 2011, at about 10:00 p.m., Lagrone
arrived at the Milwaukee home of his ex-girlfriend, B.M.J.4
Lagrone wanted to enter B.M.J.'s home, but she refused to let
him in. Lagrone nevertheless forced his way into the home and
then "proceeded to 'humiliate'" B.M.J., abusing her both
physically and sexually, until about 1:00 p.m. the following
day. This violent episode ceased only when an apparent
acquaintance of B.M.J. arrived at the home to check on her
because she was not answering his phone calls. The acquaintance
observed that the door to the home was wide open and heard
screaming. He entered the home and saw B.M.J. lying on the
floor; Lagrone was on top of her with his hands around her neck.
The acquaintance called 911 and Lagrone fled in B.M.J.'s car.
Lagrone turned himself in later that day.
II. PROCEDURAL BACKGROUND
¶7 On May 5, 2011, a criminal complaint was filed against
Lagrone charging him with: (1) strangulation and suffocation,
contrary to Wis. Stat. § 940.235(1) (2011-12); (2) false
imprisonment, contrary to Wis. Stat. § 940.30 (2011-12); (3)
4 The facts of this case are not material to the outcome of this appeal and are taken from the criminal complaint filed against Lagrone.
No. 2013AP1424-CR
5
second-degree sexual assault (force or violence), contrary to
Wis. Stat. § 940.225(2)(a) (2011-12); (4) recklessly endangering
safety (first degree), contrary to Wis. Stat. § 941.30(1) (2011
12); and (5) operating a motor vehicle without owner's consent,
contrary to Wis. Stat. § 943.23(3) (2011-12). Each count
carried the domestic abuse modifier. See Wis. Stat.
§ 968.075(1)(a) (2011-12).
¶8 On May 13, 2011, Lagrone's attorney informed the
Milwaukee County circuit court5 that she had reason to doubt
Lagrone's competency. The attorney asked the court to order a
competency evaluation of Lagrone. The court granted the
request. On May 25, 2011, Dr. Robert Rawski filed a report in
which he provided his belief to a reasonable degree of medical
certainty that Lagrone suffered from paranoid schizophrenia but
was currently competent to stand trial.
¶9 On June 9, 2011, a preliminary hearing was held and
Lagrone pleaded not guilty and NGI. On June 21, 2011, the court6
ordered that Lagrone be examined for purposes of his NGI plea.
On July 22, 2011, Dr. John Pankiewicz filed a report which
stated his belief to a reasonable degree of medical certainty
that Lagrone was suffering from schizophrenia on the date of his
offense. However, the report also stated that Dr. Pankiewicz
could not support Lagrone's NGI plea.7 On October 31, 2011, at a 5 The Honorable Mary Kuhnmuench presided.
6 The Honorable Kevin Martens presided.
7 The report stated in part:
(continued)
No. 2013AP1424-CR
6
final pretrial conference,8 Lagrone's attorney distributed a
report authored by Dr. Anthony Jurek and dated October 24, 2011.9
The report stated Dr. Jurek's opinion that Lagrone was suffering
from paranoid schizophrenia on the date of his offense and that
"the diagnosis of Paranoid Schizophrenia impaired the subject's
capacity to understand the wrongfulness of his behavior and
rendered him unable to conform his behavior to the requirements
of law." On March 5, 2012, at a final pretrial conference,
Lagrone's attorney requested an additional competency evaluation
because she had reason to doubt Lagrone's competency.10 The
court granted the request. On March 14, 2012, Dr. Deborah L.
Collins filed a report in which she provided her belief to a
reasonable degree of medical certainty that Lagrone was
presently competent to proceed. The report "urge[d] court Overall, I do not believe that there was sufficient evidence to find to a reasonable degree of medical certainty that the predominant factor in Mr. Lagrone's offense related behavior was a consequence of his mental illness. I therefore could not find to a reasonable degree of medical certainty that he lacked substantial capacity to understand the wrongfulness of his act or conform his behavior to the requirements of the law . . . .
8 The Honorable Richard J. Sankovitz presided.
9 It is not clear from the record if this report was ever actually filed with the circuit court. The report itself is in the record.
10 The attorney explained that when she had met recently with Lagrone, "Lagrone was unable to function. He was bringing up inappropriate religious things in the middle of our discussions. He was shaking."
No. 2013AP1424-CR
7
officers to remain sensitive in the event of any significant
changes in [Lagrone's] overall mental status and/or compliance
with psychiatric treatment," as "such changes [might] signal
fluctuations in his competency and warrant his re-examination."
¶10 On March 16, 2012, a plea hearing was held at which
the parties informed the court that they had negotiated an
agreement according to which Lagrone would plead guilty to all
five criminal counts against him but would proceed to try the
mental responsibility phase of the bifurcated trial. If
Lagrone's NGI plea were rejected, the State agreed to recommend
a sentence of 15 years of initial confinement and seven years of
extended supervision.
¶11 Lagrone then pleaded guilty to all five criminal
counts against him. The court confirmed that Lagrone had
reviewed or signed certain documents, including a plea
questionnaire and waiver of rights form and addendum,
correspondence between the State and Lagrone's attorney, a
penalty chart, and jury instructions.11 The court also confirmed
that Lagrone understood his rights as listed in certain of the
documents and the fact that he was waiving some of the rights by
pleading guilty, but that he was not waiving his right to the
11 Some of these documents, such as the plea questionnaire form, feature handwritten notes in the margins. For example, on the plea questionnaire form under the heading "Constitutional Rights," and next to the checked box reading "I give up my right to testify and present evidence at trial," the following is handwritten: "True for Phase I, not for II."
No. 2013AP1424-CR
8
second phase of the bifurcated trial.12 The court asked
Lagrone's attorney whether she was "satisfied Mr. Lagrone
understands all the rights that he gives up about pleading
guilty in phase one"; Lagrone's attorney indicated that she was
satisfied.
¶12 On March 23, 2012, and April 27, 2012, the court
conducted the responsibility phase of the bifurcated trial.
Testimony was offered at this phase by: (1) the police officer
12 A portion of the exchange proceeded as follows:
THE COURT: Do you see all the rights listed in these documents?
THE DEFENDANT: Yes.
THE COURT: Do you understand them?
THE DEFENDANT: Yes.
THE COURT: Do you understand that by pleading guilty in the first phase of this case, you give up all those rights, like the right to have a trial on whether you committed these crimes and the right to force the State to prove you committed these crimes and the right to present witnesses about whether you committed the crimes, all those rights, did you understand all those and understand that you're giving them up?
THE DEFENDANT: Yes.
THE COURT: Now, there's an important right that you did not give up by pleading guilty. That's the right to have the second part of the trial. That's the right to have the court decide whether you should be held responsible; do you understand that?
THE DEFENDANT: Yes.
No. 2013AP1424-CR
9
to whom Lagrone had first spoken when Lagrone had turned himself
in; (2) a social worker who had interacted with Lagrone on
several occasions; (3) Dr. Jurek, who supported Lagrone's NGI
plea; and (4) Dr. Pankiewicz, who did not support Lagrone's NGI
plea. On April 27, 2012, the court found that Lagrone had "not
satisfied the court on Phase Two of this two-phase trial" and
that "he should be held responsible for the crimes for which he
was convicted in the first phase." The court adjudged Lagrone
guilty of the five counts against him and entered a judgment of
conviction.
¶13 At no time during the responsibility phase did the
court inform Lagrone that he had a right to testify or ask
Lagrone whether he was waiving his right to testify.13 On 13 At the close of evidence, however, the following conversation took place between the court, Lagrone, and Lagrone's attorney:
THE COURT: Ms. Erickson, does Mr. Lagrone want to present any additional evidence?
MS. ERICKSON: No.
THE COURT: Okay. Mr. Lagrone, did you hear what Ms. Erickson just told me?
THE DEFENDANT: (Nods head.)
THE COURT: You have to say "yes" or "no."
THE DEFENDANT: Yes.
THE COURT: Do you understand what she told me?
THE DEFENDANT: Yes.
THE COURT: Do you agree with her?
(continued)
No. 2013AP1424-CR
10
May 25, 2012, the court sentenced Lagrone to a cumulative six
years of initial confinement and six years of extended
supervision.
¶14 On May 17, 2013, Lagrone filed a postconviction
motion. According to the motion, "At no point during the court
trial did the court conduct an on-the-record colloquy regarding
Mr. Lagrone's right to testify. . . . Lagrone asserts that he
did not understand that he had a right to testify at the mental
responsibility phase." Lagrone argued that "the fundamental
right to testify . . . is applicable to the mental
responsibility phase" of a bifurcated trial resulting from an
NGI plea, and requested an evidentiary hearing "at which the
State carries the burden to show by clear and convincing
evidence that the defendant's waiver of the right to testify at
trial was knowing and voluntary." Lagrone also requested an
order granting a new trial on the responsibility phase. He did
not provide information regarding the content of his proposed
testimony.
¶15 On May 29, 2013, the circuit court14 issued a decision
and order denying Lagrone's motion. The court concluded:
[Lagrone] does not have a fundamental constitutional right to testify during the mental responsibility phase . . . . In the absence of either a fundamental right or a statutory duty on the part of the court to conduct a colloquy concerning the right to testify in
THE DEFENDANT: Yes.
14 The Honorable Jeffrey A. Wagner presided.
No. 2013AP1424-CR
11
a Phase II proceeding, the court declines to hold an evidentiary hearing, particularly where the defendant has not set forth anything in his motion of what his testimony would have been.
¶16 On June 17, 2013, Lagrone filed a notice of appeal.
On April 7, 2015, the court of appeals affirmed the decision of
the circuit court in an unpublished decision. Lagrone,
unpublished slip op., ¶19. The court of appeals acknowledged
that the question of whether circuit courts are required to hold
a right-to-testify colloquy at the responsibility phase of a
bifurcated trial resulting from an NGI plea was an "issue of
first impression," but resolved the case on other grounds. Id.,
¶13. Relying on State v. Nelson, which held that "the denial of
a defendant's right to testify is subject to harmless error
review," State v. Nelson, 2014 WI 70, ¶43, 355 Wis. 2d 722, 849
N.W.2d 317, the court of appeals concluded that "a trial court's
failure to hold an evidentiary hearing following the failure to
conduct a colloquy regarding a defendant's right to testify is
no different than the direct denial of a defendant's right to
testify at trial" and that harmless error review therefore
applied. Lagrone, unpublished slip op., ¶¶16-17. The court
subsequently determined that any error that had occurred was
harmless. Id., ¶19.
¶17 On May 7, 2015, Lagrone filed a petition for review in
this court. On September 9, 2015, this court granted the
petition.
No. 2013AP1424-CR
12
III. STANDARD OF REVIEW
¶18 This court "review[s] constitutional questions, both
state and federal, de novo." State v. Schaefer, 2008 WI 25,
¶17, 308 Wis. 2d 279, 746 N.W.2d 457 (citation omitted).
IV. ANALYSIS
A. The Fundamental Constitutional Right of Criminal Defendants to Testify in Their Own Defense
¶19 In 1980 we confronted the question of whether criminal
defendants possess a constitutional right to testify in their
own behalf at a criminal trial. State v. Albright, 96
Wis. 2d 122, 126-29, 291 N.W.2d 487 (1980), modified, Weed, 263
Wis. 2d 434. We explained that although the United States
Supreme Court had never determined whether a criminal defendant
possesses a constitutional right to testify, the right was "part
of the due process rights of the defendant protected by the
Fourteenth Amendment." Albright, 96 Wis. 2d at 128. We thus
concluded that with reference to a criminal trial, wherein the
State bears the burden to prove the defendant's guilt beyond a
reasonable doubt, "there is a constitutional due process right
on the part of the criminal defendant to testify in his own
behalf." Id. at 129.
¶20 We also examined in Albright whether a criminal
defendant's right to testify is a "fundamental" constitutional
right such that, as with rights ranging from the right to an
appeal to the right to the assistance of counsel, only a
defendant's personal waiver of the right is an effective waiver.
No. 2013AP1424-CR
13
Id. at 129-30 (citations omitted). While recognizing that a
criminal defendant's right to testify is "important," we
declined to characterize it as fundamental, ultimately
concluding, "We perceive no need for courts in post conviction
hearings to delve into the processes by which an attorney and
his client determine whether the defendant should waive his
right to testify." Id. at 130-32. Instead, "counsel, in the
absence of the express disapproval of the defendant on the
record during the pretrial or trial proceedings, may waive the
defendant's right to testify." Id. at 133.
¶21 Less than a decade later, in Rock v. Arkansas, the
United States Supreme Court recognized that the United States
Constitution guarantees "a defendant in a criminal
case . . . the right to take the witness stand and . . . testify
in his or her own defense." Rock, 483 U.S. at 49. Although the
Court did not isolate any single explicit statement of the right
in the federal constitution, and although the Court acknowledged
that the right "is a change from the historic common-law view,
which was that all parties to litigation, including criminal
defendants, were disqualified from testifying because of their
interest in the outcome of the trial," id., the Court explained
that the right "is essential to due process of law in a fair
adversary system" and "has sources in several provisions of the
Constitution." Id. at 51 (citing Faretta v. California, 422
U.S. 806, 819, n.15 (1975)).
¶22 First, the Court explained, a criminal defendant's
right to testify is a "necessary corollary to the Fifth
No. 2013AP1424-CR
14
Amendment's guarantee against compelled testimony." Id. at 52.
The Fifth Amendment of the United States Constitution states in
part, "No person . . . shall be compelled in any criminal case
to be a witness against himself . . . ." U.S. Const. amend. V.15
The Court reasoned that a privilege against self-incrimination
is exercised when an accused decides whether to testify;
"[e]very criminal defendant is privileged to testify in his own
defense, or to refuse to do so." Rock, 483 U.S. at 53 (quoting
Harris v. New York, 401 U.S. 222, 230 (1971)).
¶23 Second, a criminal defendant's right to testify is
located in the Compulsory Process Clause of the Sixth Amendment
of the United States Constitution. Id. at 52. The amendment
provides in part, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process
for obtaining witnesses in his favor . . . ." U.S. Const.
amend. VI.16 "Logically included in the accused's right to call
witnesses whose testimony is 'material and favorable to his
defense' is a right to testify himself, should he decide it is
in his favor to do so." Rock, 483 U.S. at 52 (citation
omitted).
15 The Fifth Amendment privilege applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).
16 The Sixth Amendment's Compulsory Process Clause applies to the states through the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 17-19 (1967).
No. 2013AP1424-CR
15
¶24 Finally, "[t]he necessary ingredients of the
Fourteenth Amendment's guarantee that no one shall be deprived
of liberty without due process of law include a right to be
heard and to offer testimony. . . ." Id. at 51. The Rock Court
added in a footnote that "[t]his right reaches beyond the
criminal trial: the procedural due process constitutionally
required in some extrajudicial proceedings includes the right of
the affected person to testify." Id. at 51 n.9. The Court
cited as examples cases involving probation revocation, parole
revocation, and the termination of welfare benefits. Id.
(citations omitted).
¶25 After Rock this court revisited Albright and concluded
that a criminal defendant's constitutional right to testify in
his or her behalf is a fundamental right. Weed, 263
Wis. 2d 434, ¶¶37-39. We further concluded that "a circuit
court should conduct a colloquy with the defendant in order to
ensure that the defendant is knowingly and voluntarily waiving
his or her right to testify," though recognizing that only a
minority of jurisdictions required the practice. Id. at ¶¶40
41.
¶26 Most recently, we recognized that the right to testify
identified in Rock finds additional support in the Wisconsin
Constitution. State v. Denson, 2011 WI 70, ¶¶49-54, 335
Wis. 2d 681, 799 N.W.2d 831. Article I, Section 7 of the
Wisconsin Constitution states in part, "In all criminal
prosecutions the accused shall enjoy the right to be heard by
himself and counsel . . . [and] to have compulsory process to
No. 2013AP1424-CR
16
compel the attendance of witnesses in his behalf . . . ." Wis.
Const. art. I, § 7. Article I, Section 8 of the Wisconsin
Constitution states in part, "No person . . . may be compelled
in any criminal case to be a witness against himself or
herself." Wis. Const. art. I, § 8(1). Thus the due process,
compulsory process, and non-incrimination sources of the federal
constitutional right of criminal defendants to testify in their
own behalf have analogues in our state constitution.
¶27 Given this history, Lagrone now argues that an on-the
record colloquy regarding waiver of his fundamental right to
testify should also be required at the responsibility phase of
his bifurcated trial. In order to test the merits of this
claim, we must review the nature and purpose of NGI pleas and of
the responsibility phase of bifurcated NGI trials.17
B. NGI Pleas and the Responsibility Phase of the Bifurcated Trial Resulting From an NGI Plea
¶28 At the outset, it is critical to understand the
essential differences between a plea of not guilty and a plea of
not guilty by reason of mental disease or defect. Typically,
upon a plea of not guilty, the parties proceed to trial wherein
the State bears the burden of securing a unanimous jury verdict 17 We recently had occasion to thoroughly examine the nature and history of both Wisconsin's NGI plea and the bifurcated trial resulting from such a plea. See generally State v. Magett, 2014 WI 67, ¶¶32-40, 355 Wis. 2d 617, 850 N.W.2d 42; State v. Burton, 2013 WI 61, ¶¶42-46, 349 Wis. 2d 1, 832 N.W.2d 611. We do not repeat in full the discussion that occurred in these cases, but instead set out only the principles most germane to the issues before us.
No. 2013AP1424-CR
17
that it has proven each essential element of the offense charged
against the criminal defendant beyond a reasonable doubt. See,
e.g., Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 88
(1979). A court may not direct a verdict of guilt against a
defendant in a criminal case. State v. Peete, 185 Wis. 2d 4,
19, 517 N.W.2d 149 (1994) (citation omitted). After the jury
renders a guilty verdict, the circuit court sentences the
defendant. See, e.g., In re Eckart, 85 Wis. 681, 681, 56
N.W. 375 (1893).
¶29 If, however, a criminal defendant enters a plea of NGI
(without joining it with a plea of not guilty), the defendant
thereby "admits that but for lack of mental capacity the
defendant committed all the essential elements of the offense
charged in the indictment, information or complaint." Wis.
Stat. § 971.06(1)(d). "[T]he court will find the defendant
guilty of the elements of the crimes, and the NGI plea will be
left for trial." State v. Burton, 2013 WI 61, ¶43, 349
Wis. 2d 1, 832 N.W.2d 611. This trial, however, is much
different than the criminal trial previously discussed. In this
proceeding——which is concerned with the criminal defendant's
mental responsibility——the defendant, not the State, bears the
burden of establishing mental disease or defect excluding
responsibility. See Wis. Stat. § 971.15(3). The burden on the
defendant is not "beyond a reasonable doubt," but instead "to a
reasonable certainty by the greater weight of the credible
evidence." Id. The defendant need not obtain a unanimous jury
verdict, but instead only a five-sixths verdict. Magett, 355
No. 2013AP1424-CR
18
Wis. 2d 617, ¶39. And, unlike in a criminal trial, "a judge may
grant a motion to dismiss the NGI defense or direct a verdict in
favor of the state if the defendant cannot produce sufficient
evidence to show mental disease or defect." Id.
¶30 Thus, under the posture of the current case, Lagrone
has already admitted that but for lack of mental capacity he
committed all the essential elements of the criminal offenses
charged against him. If not for his NGI plea, Lagrone would
have proceeded to sentencing for committing those crimes. With
this general background in place, we now proceed to examine in
closer detail the nature and purpose of NGI pleas and their
concomitant procedures.
¶31 Under Wis. Stat. § 971.15, "Mental responsibility of
defendant," "[a] person is not responsible for criminal conduct
if at the time of such conduct as a result of mental disease or
defect the person lacked substantial capacity either to
appreciate the wrongfulness of his or her conduct or conform his
or her conduct to the requirements of law." § 971.15(1). An
NGI plea is "an affirmative defense which the defendant must
establish to a reasonable certainty by the greater weight of the
credible evidence." § 971.15(3).
¶32 The affirmative defense of NGI established by Wis.
Stat. § 971.15(1) builds upon
the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided
No. 2013AP1424-CR
19
the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.
Powell v. Texas, 392 U.S. 514, 535-36 (1968) (plurality)
(emphasis added). We have recognized with regard to Wisconsin's
NGI plea that "[w]hether or not there should be criminal
responsibility is essentially a moral issue." Steele v. State,
97 Wis. 2d 72, 96, 294 N.W.2d 2 (1980). That is, at the heart
of any NGI inquiry is the following question:
[I]s this person who has been found guilty beyond a reasonable doubt of criminal conduct to be punished or is there to be a different disposition because, in good conscience and public morality, the defendant is a person, because of mental disease or defect, who ought not to be held criminally liable for his or her conduct[?]
State v. Koput, 142 Wis. 2d 370, 389, 418 N.W.2d 804 (1988).
Importantly, however, "a criminal defendant's right to an NGI
defense is a statutory right that is not guaranteed by either
the United States or Wisconsin Constitutions." Magett, 355
Wis. 2d 617, ¶32 (citations omitted).
¶33 Under current statutory procedures, the dual issues of
whether a defendant has committed the criminal offense alleged
and whether a defendant may be held responsible for committing
that offense are determined in separate proceedings. See Wis.
Stat. § 971.165; Burton, 349 Wis. 2d 1, ¶¶42-46.18 The
18 We explained in Burton:
If the NGI plea is not joined with a plea of not guilty, the plea admits that but for lack of mental capacity the defendant committed all the essential (continued)
No. 2013AP1424-CR
20
responsibility phase of an NGI trial, in contrast to the so
called "guilt phase," contains "elements of civil procedure" and
is "something close to a civil trial." Magett, 355 Wis. 2d 617,
¶¶36, 39-40. Specifically: (1) the burden of proof to establish
mental disease or defect, which is on the defendant, is the same
as the burden required in civil trials for most issues; (2) a
elements of the offenses charged. Then——when there is a substantive basis for finding the crimes charged—— the court will find the defendant guilty of the elements of the crimes, and the NGI plea will be left for trial.
Conversely, if the defendant pleads not guilty in conjunction with an NGI plea, Wis. Stat. § 971.165(1) provides for the bifurcation of the guilt and mental responsibility phases of trial . . . .
Burton, 349 Wis. 2d 1, ¶¶43-44 (citations omitted). Lagrone pleaded guilty to the charges against him but proceeded to trial on the question of his mental responsibility at the time of the offense. It might thus seem inaccurate to refer to the proceedings in this case as "bifurcated"; only one phase was tried. Put differently, because Lagrone did not contest that he committed the offense alleged, there was no need for "a separation of the issues [of whether Lagrone committed the criminal offense alleged and whether Lagrone is mentally responsible for committing the offense alleged] with a sequential order of proof in a continuous trial." Wis. Stat. § 971.165(1)(a).
Nevertheless, as the court of appeals and the parties referred to Lagrone's "bifurcated" criminal proceeding, see, e.g., State v. Lagrone, No. 2013AP1424-CR, unpublished slip op., ¶3 (Wis. Ct. App. Apr. 7, 2015), as the issues of Lagrone's guilt and mental responsibility were indeed determined in sequence, and as the principles enunciated in this case are equally applicable to a bifurcated NGI trial, we will, for simplicity, use the practice of referring to the proceedings at issue as "bifurcated."
No. 2013AP1424-CR
21
judge may direct a verdict in favor of the State on the issue of
mental responsibility; and (3) the defendant need only obtain a
five-sixths jury verdict on the issue of mental responsibility.
See id., ¶39 (citations omitted).
¶34 On the other hand, the mental responsibility phase is
not "purely civil." Koput, 142 Wis. 2d at 397. We have instead
characterized the mental responsibility phase as "a special
proceeding in the dispositional phase of a criminal proceeding——
a proceeding that is not criminal in its attributes or
purposes." Id.
¶35 In Koput we concluded that, given the nature of the
responsibility phase, a unanimous jury verdict on the issue of
mental responsibility was not required. Id. at 373-74. In
rejecting a contrary conclusion, we said that the guilt and
responsibility phases are not "but divisions of a single
criminal trial":
The thesis of the public defender that the responsibility phase is but one part of a single criminal proceeding, and therefore must, in all respects, be treated in the same way as the guilt phase, is unsupportable. The public defender's syllogism——a criminal defendant has a constitutional right to a unanimous verdict in a criminal case; the responsibility phase of a sequential trial is a part of a criminal trial, therefore the five-sixths verdict returned in Koput's case denied him a constitutional verdict——is flawed, because it is demonstrably evident that the responsibility phase is not a part of a "criminal" trial. The entire history of bifurcated trials . . . makes evident that the purpose of each of the two phases is entirely different.
Id. at 394-95. With regard to the purpose of the responsibility
phase, we observed that "in considering the question of
No. 2013AP1424-CR
22
insanity, 'we are largely concerning ourselves with the
difference in the institutional treatment of the defendant,'"
and added that the question to be answered in the mental
responsibility phase is "noncriminal": "[t]he mental state,
other than criminal intent, at the time of a crime is no more a
matter of criminal inquiry than an inquest into mental
responsibility at the time of the execution of a will." Id. at
392, 396 & n.17 (citation omitted). In fact, although an NGI
plea is described in Wis. Stat. § 971.15(3) as an "affirmative
defense,"
[i]t is obvious . . . that the affirmative defense mentioned in sec. 971.15(3) is of an entirely different nature from affirmative defenses utilized by defendants in the guilt phase, i.e., alibi, privilege, et cetera, which if proved result in an outright dismissal of the charge. Success on the affirmative defense of mental disease or defect does not have that result; rather, it is an affirmative defense to "responsibility"——it relieves the person of the sanctions for criminal conduct. It does not relieve the person already found guilty in the first phase of the factual finding of criminal conduct. Rather, the successful assertion of the affirmative defense in phase two results in a noncriminal-sanction disposition.
Id. at 388.
¶36 In sum, in assessing exactly what the federal and
state constitutions require in this case, we must bear in mind
that "[t]he civil hues of the responsibility phase, coupled with
the fact that bifurcation and the NGI plea are statutory in
nature, not constitutional, remove the proceeding from the
exacting demands of criminal proceedings and leave it in a
No. 2013AP1424-CR
23
category of its own." Magett, 355 Wis. 2d 617, ¶40 (citation
omitted).
C. Whether the Fundamental Right of Criminal Defendants to Testify in Their Own Defense Applies at the Responsibility Phase of Bifurcated NGI Proceedings
¶37 As stated, the right to testify identified in Rock is
not explicitly listed in any one provision of the federal
constitution, but instead has multiple "sources" in that
document. Rock, 483 U.S. at 51. It is therefore appropriate to
note that "[t]he inference of [constitutional] rights is not, of
course, a mechanical exercise. . . . [T]he right must be
independently found in the structure and history of the
constitutional text." Faretta, 422 U.S. at 819 n.15. See also
id. ("The ability to waive a constitutional right does not
ordinarily carry with it the right to insist upon the opposite
of that right" (citation omitted).). Much of what has been said
in the realm of substantive due process analysis, which
sometimes calls for the protection of rights implicit in the
text and structure of the constitution, see, e.g., Washington v.
Glucksberg, 521 U.S. 702, 719-20 (1997), is applicable to the
general practice of identifying constitutional rights not
explicitly stated in the federal or state constitutions. "By
extending constitutional protection to an asserted
right . . . we, to a great extent, place the matter outside the
arena of public debate and legislative action." Id. at 720.
"[G]uideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended. The doctrine of judicial self
No. 2013AP1424-CR
24
restraint requires us to exercise the utmost care whenever we
are asked to break new ground in this field." Collins v. City
of Harker Heights, 503 U.S. 115, 125 (1992) (citations omitted).
¶38 In Lagrone's view, we need not "break new ground" but
instead should simply apply the right identified in Rock to the
responsibility phase of bifurcated NGI proceedings. Yet, close
examination of that right establishes that it does not govern
here.
¶39 The Rock Court indicated that the right to testify it
identified was not one established in the common law at the time
of the framing of the federal constitution. Rock, 483 U.S. at
49. "[T]he historic common-law view . . . was that all parties
to litigation, including criminal defendants, were disqualified
from testifying because of their interest in the outcome of the
trial." Id. (citation omitted); see also Ferguson v. Georgia,
365 U.S. 570, 574 (1961) ("Disqualification for interest was
thus extensive in the common law when this Nation was formed.
Here, as in England, criminal defendants were deemed incompetent
as witnesses" (citation omitted).).19 The Court focused on the 19 Care should be taken to distinguish between a criminal defendant's right to testify in his or her own behalf and a defendant's ability at common law to provide unsworn testimony. See generally, e.g., Mitchell v. United States, 526 U.S. 314, 332-36 (1999) (Scalia, J., dissenting) ("[C]ommon-law evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. That is not to say, however, that a criminal defendant was not allowed to speak in his own behalf . . . . Traditionally, defendants were expected to speak rather extensively at both the pretrial and trial stages of a criminal proceeding" (emphasis added) (citation omitted).).
No. 2013AP1424-CR
25
later formation of the "considered consensus of the English
speaking world" that criminal defendants were competent to
testify in their own behalf, and concluded that "[a]t this point
in the development of our adversary system, it cannot be doubted
that a defendant in a criminal case has the right to take the
witness stand and to testify in his or her own defense." Rock,
483 U.S. at 49-50 (citation omitted).20
¶40 The fundamental right identified by the Rock Court is
not some generalized right to testify; it is instead "[t]he
right to testify on one's own behalf at a criminal trial."
Rock, 483 U.S. at 51 (emphasis added); see also id. at 45 ("The
issue presented in this case is whether Arkansas' evidentiary
rule prohibiting the admission of hypnotically refreshed
testimony violated petitioner's constitutional right to testify
on her own behalf as a defendant in a criminal case" (emphasis
added).). The right guarantees a criminal defendant the ability
to use his or her own words in order to defend against attempts
by the State to establish the defendant's criminal liability.
¶41 Thus defined, few could quarrel with the Rock Court's
statement that the existence of the right, "[a]t this point in
the development of our adversary system, [] cannot be doubted."
Id. at 49. But Lagrone faces a considerably more difficult
challenge convincing this court that the "considered consensus 20 With regard to the eventual formation of this consensus, we note that nine states had enacted competency statutes at the time of the adoption of the Fourteenth Amendment. Mitchell, 526 U.S. at 335-36 (Scalia, J., dissenting).
No. 2013AP1424-CR
26
of the English-speaking world" is that criminal defendants
possess the same fundamental right to testify: (1) at a
statutory, noncriminal proceeding to which they have no
independent constitutional right; (2) as to matters relevant,
not to the criminal question of whether they committed the
conduct alleged, but to the moral question of their future
institutional treatment. In a nutshell, the fundamental right
to testify on one's own behalf at a criminal trial does not
exist at the responsibility phase of bifurcated NGI proceedings
because "it is demonstrably evident that the responsibility
phase is not a part of a 'criminal' trial." Koput, 142 Wis. 2d
at 395. The responsibility phase does not pertain to defense
against accusations of criminal behavior.
¶42 The conception of the Rock right to testify as
belonging to criminal defendants to use in their own defense
against criminal charges follows from the nature of certain of
the right's sources as identified by the Rock Court. For
instance, the right arises from the Fifth Amendment because
"[e]very criminal defendant is privileged to testify in his own
defense, or to refuse to do so." Rock, 483 U.S. at 53 (emphasis
added) (citation omitted). The purpose of the Fifth Amendment
privilege "was to insure that a person should not be compelled,
when acting as a witness in any investigation, to give testimony
which might tend to show that he himself had committed a crime."
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (citation omitted).
The privilege thus protects against compelled incriminating
testimony——testimony relevant to the question of whether an
No. 2013AP1424-CR
27
individual has engaged in criminal conduct. See Incriminating,
Black's Law Dictionary (10th ed. 2014) (defining "incriminating"
as "[d]emonstrating or indicating involvement in criminal
activity"); Incriminating Statement, Black's Law Dictionary
(10th ed. 2014) (defining "incriminating statement" as "[a]
statement that tends to establish the guilt of someone, esp. the
person making it"). Insofar as the right to testify is a
"necessary corollary" of the Fifth Amendment, Rock, 483 U.S. at
52 (emphasis added), it guarantees individuals the right to
testify as to matters pertaining to the validity of the criminal
charges against them. Such testimony is not necessary——or
appropriate——in the responsibility phase, because that phase is
not concerned with whether a defendant has engaged in criminal
activity. Any Fifth Amendment right to testify is instead
vindicated in the guilt phase.21
¶43 Lagrone relies on State v. Langenbach, in which the
court of appeals concluded that the Fifth Amendment privilege
against self-incrimination extends to the responsibility stage
of bifurcated NGI proceedings, to argue that its corollary must
also extend to that phase. State v. Langenbach, 2001 WI App
222, 247 Wis. 2d 933, ¶20, 634 N.W.2d 916. But what we have
already said shows that that claim must fail. To the extent
that Langenbach rested its holding on the notion that Fifth
21 The same reasoning applies to the privilege against selfincrimination contained in Article I, Section 8 of the Wisconsin Constitution.
No. 2013AP1424-CR
28
Amendment protections continue past the entry of a guilty plea,
Langenbach, 247 Wis. 2d 933, ¶¶9-13, we agree that the Fifth
Amendment privilege is applicable in "any . . . proceeding,
civil or criminal, formal or informal, where the answers might
incriminate [an individual] in future criminal proceedings."
Lefkowitz, 414 U.S. at 77 (citation omitted). Yet although a
witness might incriminate herself at both criminal and civil
proceedings, the range of settings at which a witness might have
legitimate reason to offer testimony pertaining to her criminal
guilt is considerably narrower. It does not include the
responsibility phase of bifurcated NGI proceedings, which does
not pertain to issues of criminal liability.
¶44 The alternative interpretation——that the Fifth
Amendment right to testify is available wherever the Fifth
Amendment privilege is available——has no basis in the federal
constitution and is impracticable. That is, although the State
may not, without violating the privilege against self
incrimination, establish noncriminal statutory proceedings at
which to "by coercion prove a charge against an accused out of
his own mouth," Minnesota v. Murphy, 465 U.S. 420, 450 (1984)
(citation omitted), this does not require that a witness be
permitted to use "any . . . proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings," Lefkowitz, 414 U.S. at 77
(citation omitted), as a rostrum from which to protest her
innocence or attempt to reduce impending criminal penalties, no
No. 2013AP1424-CR
29
matter how irrelevant the proceeding to the witness's criminal
guilt.22
22 The Langenbach court separately premised its holding that the Fifth Amendment privilege applied at the responsibility phase on its conclusion that the responsibility phase, while not criminal in nature, "remains a part of the criminal case in general." State v. Langenbach, 2001 WI App 222, ¶19, 247 Wis. 2d 933, 634 N.W.2d 916 (citation omitted). The intended constitutional meaning of that statement is unclear. If the court meant that, regardless of whether a criminal defendant's testimony in the responsibility phase might incriminate the defendant in any future proceeding, the privilege applies because a statement might be "incriminating" for purposes of the responsibility phase itself, the court was incorrect. See Allen v. Illinois, 478 U.S. 364, 368 (1986) ("What we have here . . . is not a claim that petitioner's statements to the psychiatrists might be used to incriminate him in some future criminal proceeding, but instead his claim that because the sexually-dangerous-person proceeding is itself 'criminal,' he was entitled to refuse to answer any questions at all."). As we have explained, the responsibility phase is not criminal in nature or purpose. Therefore, a statement at that phase, by definition, could only be "incriminating" for purposes of some other proceeding. In any event, that line of reasoning was apparently not essential to the Langenbach court's holding.
The Langenbach court relied in part for this portion of its reasoning on its earlier decision in State v. Murdock, 2000 WI App 170, 238 Wis. 2d 301, 617 N.W.2d 175, where it had concluded that a criminal jury waiver statute applied to the responsibility phase. Murdock, 238 Wis. 2d 301, ¶¶2, 19. The Murdock court stated in the course of its analysis that "[t]he statutes governing the procedures for trying [NGI] pleas . . . have kept the responsibility phase and guilt phase attached in procedure even as they are detached in nature and purpose." Id. at ¶24.
(continued)
No. 2013AP1424-CR
30
¶45 As discussed, the right of criminal defendants to
testify in their own behalf also has a source in the Compulsory
Process Clause, because "[l]ogically included in the accused's
right to call witnesses whose testimony is 'material and
favorable to his defense,' United States v. Valenzuela-Bernal,
458 U.S. 858, 867 (1982), is a right to testify himself, should
he decide it is in his favor to do so." Rock, 483 U.S. at 52
(emphasis added). What is not "logically included" in such a
right, however, is a right to testify as to matters and in a
proceeding applicable, not to a defendant's criminal defense, We do not express an opinion on the merits of Murdock's holding, because the case is distinguishable. The question in Murdock did not involve the interpretation of any constitutional provisions, but instead whether the responsibility phase is part of a "criminal case[]" within the meaning of the jury waiver statute. Id., ¶19 (citation omitted). And the fact that the guilt and responsibility phases are "attached in procedure"—— i.e., both "part of the chapter on criminal procedure," id., ¶27——is arguably much more relevant to the question of whether the jury waiver statute applies equally to both phases than it is to a question involving the existence or application of a constitutional right, especially given our earlier case law explaining the noncriminal nature and purpose of NGI proceedings. See, e.g., State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; [and] in relation to the language of surrounding or closely-related statutes . . . .").
Importantly, the Murdock court did not ignore the distinct natures of the guilt and responsibility phases, but instead rested its holding in part on the fact that the purpose of the jury waiver statute is fulfilled both when the jury is sitting as fact-finder (in the guilt phase) and when it is sitting as "moral decision maker" (in the responsibility phase). See Murdock, 238 Wis. 2d 301, ¶26.
No. 2013AP1424-CR
31
but to a defendant's future institutional treatment. See, e.g.,
Taylor v. Illinois, 484 U.S. 400, 407 (1988) ("[O]ur cases
establish, at a minimum, that criminal defendants have the right
to the government's assistance in compelling the attendance of
favorable witnesses at trial and the right to put before a jury
evidence that might influence the determination of guilt"
(emphasis added) (citation omitted).). The right to testify,
insofar as it is grounded in the Compulsory Process Clause, is
the right to testify in defense against charges of criminal
wrongdoing.23
¶46 The Rock Court clearly carved out a specific right to
testify: one applicable to criminal defendants with regard to
matters pertinent to criminal liability. As we will discuss
shortly, the Fourteenth Amendment's guarantee of due process——
which is also a basis of the right identified by the Rock
Court——still has application to the responsibility phase. But
given the previous discussion, we cannot conclude that the right
which the Rock court identified——the fundamental right of
defendants to testify in their own behalf in a criminal case——of
23 The same reasoning applies to the guarantee of compulsory process in Article I, Section 7 of the Wisconsin Constitution.
No. 2013AP1424-CR
32
necessity applies to a proceeding which is neither criminal in
nature nor criminal in purpose.24
D. Whether Any Constitutional Right to Testify Exists at the Responsibility Phase of Bifurcated NGI Proceedings
¶47 Importantly, the Rock Court identified a third basis
for its right to testify: the Due Process Clause of the
Fourteenth Amendment, Rock, 483 U.S. at 51, which provides that
no state shall "deprive any person of life, liberty, or
property, without due process of law . . . ." U.S. Const.
24 In explaining that a criminal defendant's fundamental "right to testify in her own behalf at a criminal trial" is premised in multiple constitutional guarantees, the Rock Court indicated that the right is properly understood as tied to a specific type of testimony——testimony of a criminal defendant pertaining to that defendant's criminal guilt——rather than simply to any specific proceeding or set of proceedings, however denominated. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987).
Whatever might be said in defense of the "broad principles" enunciated in Rock, see id. at 64 (Rehnquist, C.J., dissenting), we are mindful in considering Rock's sources-plus-consensus methodology that "the main danger in judicial interpretation of the Constitution . . . is that the judges will mistake their own predilections for the law. . . . It is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are 'fundamental to our society.'" Antonin Scalia, Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). Rock does not provide a basis for extending the specific protection it identified to a special proceeding not criminal in nature or purpose and not mandated by the federal or state constitutions.
No. 2013AP1424-CR
33
amend. XIV.25 In the words of the Court, "A person's right to
reasonable notice of a charge against him, and an opportunity to
be heard in his defense——a right to his day in court——are basic
in our system of jurisprudence. . . ." Rock, 483 U.S. at 51
(citing In re Oliver, 333 U.S. 257, 273 (1948)). The Court
specifically pointed out in a footnote that "[t]his right
reaches beyond the criminal trial: the procedural due process
constitutionally required in some extrajudicial proceedings
includes the right of the affected person to testify." Id. at
51, n.9.26
25 Under the doctrine of incorporation, all three constitutional sources of the right to testify as applied in this case are based in the Due Process Clause of the Fourteenth Amendment. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 763 (2010). This section involves discussion of the right to due process in the sense of due process unconnected to any specific guarantee of the Bill of the Rights.
26 It was to this due process guarantee of the opportunity to be heard and offer testimony that we compared, in Denson, the Wisconsin Constitution's own guarantee that "[i]n all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel . . . ." Wis. Const. art. I, § 7; see State v. Denson, 2011 WI 70, ¶51, 335 Wis. 2d 681, 799 N.W.2d 681 (citing Wis. Const. art. I, § 7).
(continued)
No. 2013AP1424-CR
34
¶48 Although the fundamental right of criminal defendants
to testify in their own defense, even as based in the Fourteenth
Amendment, does not apply in the responsibility phase of
bifurcated NGI proceedings because that phase is not relevant to
criminal liability, the phase is not necessarily exempted from
the broad mandates of the Due Process Clause. "The requirements
of procedural due process apply . . . to the deprivation of
interests encompassed by the Fourteenth Amendment's protection
of liberty and property." Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 569 (1972). And where the Due Process
Clause applies, it requires, "at a minimum, that absent a
countervailing state interest of overriding significance,
This court has never concluded that a criminal defendant's "right to be heard by himself and counsel" provides, of its own force, the same fundamental right to testify in one's own behalf at a criminal trial as that identified by the Supreme Court in Rock. Given that criminal defendants as a group were not competent to testify as witnesses in Wisconsin until 1869—— decades after the Wisconsin Constitution was adopted——the soundness of any such conclusion would be questionable. State v. Albright, 96 Wis. 2d 122, 127, 291 N.W.2d 487 (1980); In re Estate of Johnson, 170 Wis. 436, 436, 175 N.W. 917 (1920); Ferguson v. Georgia, 365 U.S. 370, 598 (1961). Lagrone does not offer any evidence in support of such a view. See also Mitchell, 526 U.S. at 332 (Scalia, J., dissenting) ("[C]ommonlaw evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. That is not to say, however, that a criminal defendant was not allowed to speak in his own behalf . . ." (emphasis added) (citation omitted).); Moore v. State, 83 Wis. 2d 285, 298, 265 N.W.2d 540 (1978) ("Every person sui juris, who is charged with crime, has the right to try his own case if he so desires. The constitution guarantees him the right to be heard 'by himself' as well as by counsel. . . " (first emphasis added) (citations omitted).).
No. 2013AP1424-CR
35
persons forced to settle their claims of right and duty through
the judicial process must be given a meaningful opportunity to
be heard." Boddie v. Connecticut, 401 U.S. 371, 377 (1971); see
also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950) ("Many controversies have raged about the cryptic and
abstract words of the Due Process Clause but there can be no
doubt that at a minimum they require that deprivation of life,
liberty or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the
case."); Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353
(1992).
¶49 Although the State has established that Lagrone
committed the criminal conduct alleged, "the successful
assertion of the affirmative [NGI] defense in phase two results
in a noncriminal-sanction disposition." Koput, 142 Wis. 2d at
388. We can assume for the sake of argument that Lagrone
possesses a due process (as opposed to statutory) right to an
opportunity to be heard and offer evidence, including in the
form of his own testimony, at the responsibility phase of
bifurcated NGI proceedings. See Kentucky Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (procedural due process
claims are assessed "in two steps: the first asks whether there
exists a liberty or property interest which has been interfered
with by the State; the second examines whether the procedures
attendant upon that deprivation were constitutionally
sufficient" (citations omitted)); Langenbach, 247 Wis. 2d 933,
¶13 (noting the "legitimate impending threat of the deprivation
No. 2013AP1424-CR
36
of [the defendant's] liberty, either through commitment to a
mental hospital or imprisonment").
¶50 We can assume this fact because Lagrone was indeed
offered such an opportunity to be heard and to offer testimony.
Lagrone was present at a two-day proceeding during which several
individuals presented testimony relevant to Lagrone's mental
responsibility. The circuit court asked Lagrone directly at the
close of evidence whether he agreed with his attorney that he
did not wish to present any further evidence, and Lagrone
responded in the affirmative.27 We therefore need not determine
whether Lagrone possessed a due process right to an opportunity
to be heard and offer testimony at the responsibility phase of a
bifurcated NGI proceeding, and the contours of such a right,
because he was afforded such an opportunity in this case.28
E. Whether a Circuit Court is Required to Conduct a Right-to-Testify Colloquy at the Responsibility Phase of Bifurcated NGI Proceedings and Whether an Evidentiary Hearing is Required When a Defendant Alleges Waiver of a Right to Testify at That Phase
27 See supra n.13.
28 We do not in any way disavow our recent decision in Magett. In that case we examined, among other things, the ability of criminal defendants to testify during the responsibility phase, and the relative value of such testimony. See Magett, 355 Wis. 2d 617, ¶¶7-8. We also discussed the proper timing of dismissals or directed verdicts during the responsibility phase. See id., ¶9. The case did not, however, involve an inquiry into the separate question of whether a defendant has a constitutional right to testify at the responsibility phase.
No. 2013AP1424-CR
37
¶51 As stated, the fundamental right to testify in one's
own behalf as a defendant in a criminal case does not exist at
the responsibility phase of bifurcated NGI proceedings because
that phase is a noncriminal proceeding to which defendants
possess no constitutional right. At most, Lagrone possessed a
general due process right to be heard and offer testimony during
the responsibility phase, just as an individual might in other
noncriminal proceedings such as, for example, certain
proceedings under Wis. Stat. ch. 980, which governs the
commitment of sexually violent persons. See State v. Burris,
2004 WI 91, ¶22, 273 Wis. 2d 294, 682 N.W.2d 812; see also Rock,
483 U.S. at 51 n.9 (citations omitted); State ex rel. Vanderbeke
v. Endicott, 210 Wis. 2d 502, 513-14, 563 N.W.2d 882 (1997)
("Revocation of probation is a civil proceeding in Wisconsin. A
probationer is therefore not entitled to the full panoply of
rights accorded persons subject to criminal process. It is well
settled, however, that a probationer is entitled to due process
of law before probation may be revoked.").
¶52 Any such right is not independently grounded in the
Fifth or Sixth Amendments and is not the fundamental right for
which this court in Weed established the requirement that
circuit courts conduct waiver colloquies with criminal
defendants. See Weed, 263 Wis. 2d 434, ¶40. As we recognized
in Weed, "only a minority of jurisdictions impose an affirmative
duty on circuit courts to conduct an on-the-record colloquy to
ensure that a criminal defendant is knowingly, intelligently,
and voluntarily waiving his or her right to testify." Id.,
No. 2013AP1424-CR
38
¶41. Given that the general practice with regard to the
fundamental right of criminal defendants to testify in their own
behalf is not to require a colloquy, we decline to create such a
requirement where a fundamental right has not been identified.
It is difficult to see why such a requirement would not be
logically applicable to many other noncriminal proceedings.
¶53 We emphasize again that Lagrone does not challenge the
plea colloquy that occurred during the guilt phase of his
bifurcated NGI proceedings, and does not argue that he was
unaware that, by pleading guilty to the criminal charges against
him, he was waiving his fundamental right to testify at a
criminal trial pertaining to the validity of those charges.
Nothing in this opinion affects the fundamental right of a
criminal defendant to testify in his or her own behalf at a
criminal trial, and nothing in this opinion affects Weed's
instruction that a right-to-testify colloquy occur at such a
proceeding. See id., ¶2. But because this fundamental right is
not applicable in the responsibility phase of bifurcated NGI
proceedings, we decline to mandate that a colloquy occur at that
phase. While the responsibility phase is undoubtedly an
important proceeding for criminal defendants, any requirement of
a colloquy in that phase should come from the legislature. We
note, however, that it may well be the best practice for circuit
courts to ask defendants directly at the responsibility phase
whether they wish to testify. See, e.g., Denson, 335
Wis. 2d 681, ¶¶58, 67 (recommending an on-the-record colloquy
No. 2013AP1424-CR
39
regarding a criminal defendant's right not to testify as the
"better practice").
¶54 Here, without proceeding further to the responsibility
phase of the trial, Lagrone would stand convicted and poised for
sentencing. The responsibility phase is, as a practical matter,
quite distinct from the guilt phase. If the State prevails at
the guilt phase, the defendant, who then bears the burden of
proof, would seek to prove that he or she should receive mental
treatment rather than a criminal sentence. Simply stated, the
responsibility phase, wherein the defendant bears the burden of
proof, is altogether different from the guilt phase of the
trial.
¶55 To the degree that Lagrone was owed an opportunity to
be heard, he was granted such an opportunity. Lagrone has not
made the requisite showing for an evidentiary hearing; more is
required. See State v. Allen, 2004 WI 106, ¶¶9, 12-13, 274
Wis. 2d 568, 682 N.W.2d 433; cf. State v. Balliette, 2011 WI 79,
¶¶3, 18, 336 Wis. 2d 358, 805 N.W.2d 334. With regard to the
strategic decision of the specific evidence a defendant will
present during the responsibility phase in order to meet his or
her burden, "the decision whether to testify should be made by
the defendant after consulting with counsel," but "counsel, in
the absence of the express disapproval of the defendant on the
record during the pretrial or trial proceedings, may waive" any
right to testify that a defendant possesses at that hearing.
Albright, 96 Wis. 2d at 133.
No. 2013AP1424-CR
40
¶56 Here, Lagrone's attorney informed the circuit court at
the close of evidence that Lagrone had no further evidence to
present. Lagrone, when questioned by the circuit court on that
point, agreed. The record is devoid of any indication that
Lagrone voiced a wish at trial to testify, or that the circuit
court or Lagrone's attorney prevented Lagrone from testifying.29
See id. Lagrone's sole allegation is that he did not understand
that he could testify, and he does not even explain the
substance of his proposed testimony. Without more, we see no
need to remand for an evidentiary hearing. The postconviction
court did not erroneously exercise its discretion in denying
Lagrone's postconviction motion, because Lagrone was afforded
29 As discussed, supra n. 11, certain of the documents signed by Lagrone prior to the responsibility phase, such as the plea questionnaire form, contain handwritten notes in the margins potentially relevant to Lagrone's opportunity to testify. For instance, on the plea questionnaire form under the heading "Constitutional Rights," and next to the checked box reading "I give up my right to testify and present evidence at trial," the following is handwritten: "True for Phase I, not for II." Although the notes do not affect the outcome of this case, we observe that, if anything, they suggest that Lagrone and his counsel indeed understood that Lagrone could present evidence and testimony during the responsibility phase.
The provenance of the notes is unknown, and Lagrone argues before this court that their precise meaning is ambiguous, but this claim alone does not justify remand for an evidentiary hearing. Lagrone's postconviction motion does not set forth any factual allegations relevant to why the presence of the handwritten notes would mandate a hearing; he simply states in the motion, "[T]he plea questionnaire and waiver of rights form for phase one note[s] that [Lagrone] was not giving up the right to testify in the mental responsibility phase."
No. 2013AP1424-CR
41
all the process he was due. See Allen, 274 Wis. 2d 568, ¶¶9,
12-13 (if postconviction motion does not raise facts sufficient
to entitle movant to relief, or presents only conclusory
allegations, or if record conclusively demonstrates that the
defendant is not entitled to relief, circuit court has
discretion to deny evidentiary hearing, which decision is
reviewable under deferential erroneous exercise of discretion
standard).

Outcome: This is a review of an
unpublished decision of the court of appeals, State v. Lagrone,
No. 2013AP1424-CR, unpublished slip op. (Wis. Ct. App. Apr. 7,
2015), which affirmed the Milwaukee County circuit court's
judgment of conviction and order denying defendant James Elvin
Lagrone's ("Lagrone") postconviction motion for an evidentiary
hearing and a new trial on the question of Lagrone's mental
responsibility.1 1 The Honorable Richard J. Sankovitz presided over the most relevant hearings in this case and entered the judgment of conviction. The Honorable Jeffrey A. Wagner entered the order denying postconviction relief.
No. 2013AP1424-CR
2
¶2 Criminal defendants possess a fundamental
constitutional right to testify in their own defense. See,
e.g., State v. Anthony, 2015 WI 20, ¶¶46, 48, 361 Wis. 2d 116,
860 N.W.2d 10 (citing Rock v. Arkansas, 483 U.S. 44, 49 (1987)).
Further, this court has stated that a circuit court "should
conduct an on-the-record colloquy to ensure that the defendant
is knowingly, intelligently, and voluntarily waiving his or her
right to testify." State v. Weed, 2003 WI 85, ¶2, 263
Wis. 2d 434, 666 N.W.2d 485.
¶3 The question before this court is whether, upon a plea
of not guilty by reason of mental disease or defect ("NGI")
under Wis. Stat. § 971.15 (2013-14),2 such right-to-testify
colloquies are also required at the responsibility phase of the
resulting bifurcated trial established by Wis. Stat. § 971.165.
See generally State v. Magett, 2014 WI 67, ¶¶33-40, 355
Wis. 2d 617, 850 N.W.2d 42 (discussing nature and history of
bifurcated trials resulting from NGI pleas).
¶4 Lagrone does not challenge the plea colloquy that
occurred during the guilt phase of his bifurcated NGI
proceedings. He does not argue that he was unaware that, by
pleading guilty to the criminal charges against him, he was
waiving his fundamental right to testify at a criminal trial
pertaining to the validity of those charges. Instead, we must
analyze Lagrone's opportunity to testify at the responsibility 2 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.
No. 2013AP1424-CR
3
phase of his bifurcated trial. The circuit court below did not
conduct a right-to-testify colloquy with Lagrone during the
responsibility phase of his bifurcated trial, and Lagrone argues
that because he did not understand that he had a right to
testify at that phase, he is entitled to an evidentiary hearing
under State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779
N.W.2d 718, so that a court may determine whether he properly
waived his right to testify. Ultimately, determining whether a
colloquy is necessary during the responsibility phase of NGI
proceedings requires us to determine whether the fundamental
right to testify applies at that phase. The court of appeals
below decided that resolution of this "issue of first
impression" was unnecessary because, it reasoned, the harmless
error doctrine applied and any error by the circuit court was
harmless. See State v. Lagrone, No. 2013AP1424-CR, unpublished
slip op., ¶¶13, 17, 19 (Wis. Ct. App. Apr. 7, 2015).
¶5 We conclude that, although a better practice, a
circuit court is not required to conduct a right-to-testify
colloquy at the responsibility phase of a bifurcated trial
resulting from a plea of not guilty by reason of mental disease
or defect.3 Further, Lagrone is not entitled to an evidentiary
3 As we will explain, nothing in this opinion affects our instruction in State v. Weed that circuit courts conduct an onthe-record colloquy at a criminal trial, or at the guilt phase of bifurcated NGI proceedings, to ensure that the defendant is knowingly, intelligently, and voluntarily waiving his or her fundamental right to testify. State v. Weed, 2003 WI 85, ¶2, 263 Wis. 2d 434, 666 N.W.2d 485.
No. 2013AP1424-CR
4
hearing because he has not made the requisite showing for such a
hearing. Accordingly, we affirm the decision of the court of
appeals.
I. FACTUAL BACKGROUND
¶6 On April 30, 2011, at about 10:00 p.m., Lagrone
arrived at the Milwaukee home of his ex-girlfriend, B.M.J.4
Lagrone wanted to enter B.M.J.'s home, but she refused to let
him in. Lagrone nevertheless forced his way into the home and
then "proceeded to 'humiliate'" B.M.J., abusing her both
physically and sexually, until about 1:00 p.m. the following
day. This violent episode ceased only when an apparent
acquaintance of B.M.J. arrived at the home to check on her
because she was not answering his phone calls. The acquaintance
observed that the door to the home was wide open and heard
screaming. He entered the home and saw B.M.J. lying on the
floor; Lagrone was on top of her with his hands around her neck.
The acquaintance called 911 and Lagrone fled in B.M.J.'s car.
Lagrone turned himself in later that day.
II. PROCEDURAL BACKGROUND
¶7 On May 5, 2011, a criminal complaint was filed against
Lagrone charging him with: (1) strangulation and suffocation,
contrary to Wis. Stat. § 940.235(1) (2011-12); (2) false
imprisonment, contrary to Wis. Stat. § 940.30 (2011-12); (3)
4 The facts of this case are not material to the outcome of this appeal and are taken from the criminal complaint filed against Lagrone.
No. 2013AP1424-CR
5
second-degree sexual assault (force or violence), contrary to
Wis. Stat. § 940.225(2)(a) (2011-12); (4) recklessly endangering
safety (first degree), contrary to Wis. Stat. § 941.30(1) (2011
12); and (5) operating a motor vehicle without owner's consent,
contrary to Wis. Stat. § 943.23(3) (2011-12). Each count
carried the domestic abuse modifier. See Wis. Stat.
§ 968.075(1)(a) (2011-12).
¶8 On May 13, 2011, Lagrone's attorney informed the
Milwaukee County circuit court5 that she had reason to doubt
Lagrone's competency. The attorney asked the court to order a
competency evaluation of Lagrone. The court granted the
request. On May 25, 2011, Dr. Robert Rawski filed a report in
which he provided his belief to a reasonable degree of medical
certainty that Lagrone suffered from paranoid schizophrenia but
was currently competent to stand trial.
¶9 On June 9, 2011, a preliminary hearing was held and
Lagrone pleaded not guilty and NGI. On June 21, 2011, the court6
ordered that Lagrone be examined for purposes of his NGI plea.
On July 22, 2011, Dr. John Pankiewicz filed a report which
stated his belief to a reasonable degree of medical certainty
that Lagrone was suffering from schizophrenia on the date of his
offense. However, the report also stated that Dr. Pankiewicz
could not support Lagrone's NGI plea.7 On October 31, 2011, at a 5 The Honorable Mary Kuhnmuench presided.
6 The Honorable Kevin Martens presided.
7 The report stated in part:
(continued)
No. 2013AP1424-CR
6
final pretrial conference,8 Lagrone's attorney distributed a
report authored by Dr. Anthony Jurek and dated October 24, 2011.9
The report stated Dr. Jurek's opinion that Lagrone was suffering
from paranoid schizophrenia on the date of his offense and that
"the diagnosis of Paranoid Schizophrenia impaired the subject's
capacity to understand the wrongfulness of his behavior and
rendered him unable to conform his behavior to the requirements
of law." On March 5, 2012, at a final pretrial conference,
Lagrone's attorney requested an additional competency evaluation
because she had reason to doubt Lagrone's competency.10 The
court granted the request. On March 14, 2012, Dr. Deborah L.
Collins filed a report in which she provided her belief to a
reasonable degree of medical certainty that Lagrone was
presently competent to proceed. The report "urge[d] court Overall, I do not believe that there was sufficient evidence to find to a reasonable degree of medical certainty that the predominant factor in Mr. Lagrone's offense related behavior was a consequence of his mental illness. I therefore could not find to a reasonable degree of medical certainty that he lacked substantial capacity to understand the wrongfulness of his act or conform his behavior to the requirements of the law . . . .
8 The Honorable Richard J. Sankovitz presided.
9 It is not clear from the record if this report was ever actually filed with the circuit court. The report itself is in the record.
10 The attorney explained that when she had met recently with Lagrone, "Lagrone was unable to function. He was bringing up inappropriate religious things in the middle of our discussions. He was shaking."
No. 2013AP1424-CR
7
officers to remain sensitive in the event of any significant
changes in [Lagrone's] overall mental status and/or compliance
with psychiatric treatment," as "such changes [might] signal
fluctuations in his competency and warrant his re-examination."
¶10 On March 16, 2012, a plea hearing was held at which
the parties informed the court that they had negotiated an
agreement according to which Lagrone would plead guilty to all
five criminal counts against him but would proceed to try the
mental responsibility phase of the bifurcated trial. If
Lagrone's NGI plea were rejected, the State agreed to recommend
a sentence of 15 years of initial confinement and seven years of
extended supervision.
¶11 Lagrone then pleaded guilty to all five criminal
counts against him. The court confirmed that Lagrone had
reviewed or signed certain documents, including a plea
questionnaire and waiver of rights form and addendum,
correspondence between the State and Lagrone's attorney, a
penalty chart, and jury instructions.11 The court also confirmed
that Lagrone understood his rights as listed in certain of the
documents and the fact that he was waiving some of the rights by
pleading guilty, but that he was not waiving his right to the
11 Some of these documents, such as the plea questionnaire form, feature handwritten notes in the margins. For example, on the plea questionnaire form under the heading "Constitutional Rights," and next to the checked box reading "I give up my right to testify and present evidence at trial," the following is handwritten: "True for Phase I, not for II."
No. 2013AP1424-CR
8
second phase of the bifurcated trial.12 The court asked
Lagrone's attorney whether she was "satisfied Mr. Lagrone
understands all the rights that he gives up about pleading
guilty in phase one"; Lagrone's attorney indicated that she was
satisfied.
¶12 On March 23, 2012, and April 27, 2012, the court
conducted the responsibility phase of the bifurcated trial.
Testimony was offered at this phase by: (1) the police officer
12 A portion of the exchange proceeded as follows:
THE COURT: Do you see all the rights listed in these documents?
THE DEFENDANT: Yes.
THE COURT: Do you understand them?
THE DEFENDANT: Yes.
THE COURT: Do you understand that by pleading guilty in the first phase of this case, you give up all those rights, like the right to have a trial on whether you committed these crimes and the right to force the State to prove you committed these crimes and the right to present witnesses about whether you committed the crimes, all those rights, did you understand all those and understand that you're giving them up?
THE DEFENDANT: Yes.
THE COURT: Now, there's an important right that you did not give up by pleading guilty. That's the right to have the second part of the trial. That's the right to have the court decide whether you should be held responsible; do you understand that?
THE DEFENDANT: Yes.
No. 2013AP1424-CR
9
to whom Lagrone had first spoken when Lagrone had turned himself
in; (2) a social worker who had interacted with Lagrone on
several occasions; (3) Dr. Jurek, who supported Lagrone's NGI
plea; and (4) Dr. Pankiewicz, who did not support Lagrone's NGI
plea. On April 27, 2012, the court found that Lagrone had "not
satisfied the court on Phase Two of this two-phase trial" and
that "he should be held responsible for the crimes for which he
was convicted in the first phase." The court adjudged Lagrone
guilty of the five counts against him and entered a judgment of
conviction.
¶13 At no time during the responsibility phase did the
court inform Lagrone that he had a right to testify or ask
Lagrone whether he was waiving his right to testify.13 On 13 At the close of evidence, however, the following conversation took place between the court, Lagrone, and Lagrone's attorney:
THE COURT: Ms. Erickson, does Mr. Lagrone want to present any additional evidence?
MS. ERICKSON: No.
THE COURT: Okay. Mr. Lagrone, did you hear what Ms. Erickson just told me?
THE DEFENDANT: (Nods head.)
THE COURT: You have to say "yes" or "no."
THE DEFENDANT: Yes.
THE COURT: Do you understand what she told me?
THE DEFENDANT: Yes.
THE COURT: Do you agree with her?
(continued)
No. 2013AP1424-CR
10
May 25, 2012, the court sentenced Lagrone to a cumulative six
years of initial confinement and six years of extended
supervision.
¶14 On May 17, 2013, Lagrone filed a postconviction
motion. According to the motion, "At no point during the court
trial did the court conduct an on-the-record colloquy regarding
Mr. Lagrone's right to testify. . . . Lagrone asserts that he
did not understand that he had a right to testify at the mental
responsibility phase." Lagrone argued that "the fundamental
right to testify . . . is applicable to the mental
responsibility phase" of a bifurcated trial resulting from an
NGI plea, and requested an evidentiary hearing "at which the
State carries the burden to show by clear and convincing
evidence that the defendant's waiver of the right to testify at
trial was knowing and voluntary." Lagrone also requested an
order granting a new trial on the responsibility phase. He did
not provide information regarding the content of his proposed
testimony.
¶15 On May 29, 2013, the circuit court14 issued a decision
and order denying Lagrone's motion. The court concluded:
[Lagrone] does not have a fundamental constitutional right to testify during the mental responsibility phase . . . . In the absence of either a fundamental right or a statutory duty on the part of the court to conduct a colloquy concerning the right to testify in
THE DEFENDANT: Yes.
14 The Honorable Jeffrey A. Wagner presided.
No. 2013AP1424-CR
11
a Phase II proceeding, the court declines to hold an evidentiary hearing, particularly where the defendant has not set forth anything in his motion of what his testimony would have been.
¶16 On June 17, 2013, Lagrone filed a notice of appeal.
On April 7, 2015, the court of appeals affirmed the decision of
the circuit court in an unpublished decision. Lagrone,
unpublished slip op., ¶19. The court of appeals acknowledged
that the question of whether circuit courts are required to hold
a right-to-testify colloquy at the responsibility phase of a
bifurcated trial resulting from an NGI plea was an "issue of
first impression," but resolved the case on other grounds. Id.,
¶13. Relying on State v. Nelson, which held that "the denial of
a defendant's right to testify is subject to harmless error
review," State v. Nelson, 2014 WI 70, ¶43, 355 Wis. 2d 722, 849
N.W.2d 317, the court of appeals concluded that "a trial court's
failure to hold an evidentiary hearing following the failure to
conduct a colloquy regarding a defendant's right to testify is
no different than the direct denial of a defendant's right to
testify at trial" and that harmless error review therefore
applied. Lagrone, unpublished slip op., ¶¶16-17. The court
subsequently determined that any error that had occurred was
harmless. Id., ¶19.
¶17 On May 7, 2015, Lagrone filed a petition for review in
this court. On September 9, 2015, this court granted the
petition.
No. 2013AP1424-CR
12
III. STANDARD OF REVIEW
¶18 This court "review[s] constitutional questions, both
state and federal, de novo." State v. Schaefer, 2008 WI 25,
¶17, 308 Wis. 2d 279, 746 N.W.2d 457 (citation omitted).
IV. ANALYSIS
A. The Fundamental Constitutional Right of Criminal Defendants to Testify in Their Own Defense
¶19 In 1980 we confronted the question of whether criminal
defendants possess a constitutional right to testify in their
own behalf at a criminal trial. State v. Albright, 96
Wis. 2d 122, 126-29, 291 N.W.2d 487 (1980), modified, Weed, 263
Wis. 2d 434. We explained that although the United States
Supreme Court had never determined whether a criminal defendant
possesses a constitutional right to testify, the right was "part
of the due process rights of the defendant protected by the
Fourteenth Amendment." Albright, 96 Wis. 2d at 128. We thus
concluded that with reference to a criminal trial, wherein the
State bears the burden to prove the defendant's guilt beyond a
reasonable doubt, "there is a constitutional due process right
on the part of the criminal defendant to testify in his own
behalf." Id. at 129.
¶20 We also examined in Albright whether a criminal
defendant's right to testify is a "fundamental" constitutional
right such that, as with rights ranging from the right to an
appeal to the right to the assistance of counsel, only a
defendant's personal waiver of the right is an effective waiver.
No. 2013AP1424-CR
13
Id. at 129-30 (citations omitted). While recognizing that a
criminal defendant's right to testify is "important," we
declined to characterize it as fundamental, ultimately
concluding, "We perceive no need for courts in post conviction
hearings to delve into the processes by which an attorney and
his client determine whether the defendant should waive his
right to testify." Id. at 130-32. Instead, "counsel, in the
absence of the express disapproval of the defendant on the
record during the pretrial or trial proceedings, may waive the
defendant's right to testify." Id. at 133.
¶21 Less than a decade later, in Rock v. Arkansas, the
United States Supreme Court recognized that the United States
Constitution guarantees "a defendant in a criminal
case . . . the right to take the witness stand and . . . testify
in his or her own defense." Rock, 483 U.S. at 49. Although the
Court did not isolate any single explicit statement of the right
in the federal constitution, and although the Court acknowledged
that the right "is a change from the historic common-law view,
which was that all parties to litigation, including criminal
defendants, were disqualified from testifying because of their
interest in the outcome of the trial," id., the Court explained
that the right "is essential to due process of law in a fair
adversary system" and "has sources in several provisions of the
Constitution." Id. at 51 (citing Faretta v. California, 422
U.S. 806, 819, n.15 (1975)).
¶22 First, the Court explained, a criminal defendant's
right to testify is a "necessary corollary to the Fifth
No. 2013AP1424-CR
14
Amendment's guarantee against compelled testimony." Id. at 52.
The Fifth Amendment of the United States Constitution states in
part, "No person . . . shall be compelled in any criminal case
to be a witness against himself . . . ." U.S. Const. amend. V.15
The Court reasoned that a privilege against self-incrimination
is exercised when an accused decides whether to testify;
"[e]very criminal defendant is privileged to testify in his own
defense, or to refuse to do so." Rock, 483 U.S. at 53 (quoting
Harris v. New York, 401 U.S. 222, 230 (1971)).
¶23 Second, a criminal defendant's right to testify is
located in the Compulsory Process Clause of the Sixth Amendment
of the United States Constitution. Id. at 52. The amendment
provides in part, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process
for obtaining witnesses in his favor . . . ." U.S. Const.
amend. VI.16 "Logically included in the accused's right to call
witnesses whose testimony is 'material and favorable to his
defense' is a right to testify himself, should he decide it is
in his favor to do so." Rock, 483 U.S. at 52 (citation
omitted).
15 The Fifth Amendment privilege applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).
16 The Sixth Amendment's Compulsory Process Clause applies to the states through the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 17-19 (1967).
No. 2013AP1424-CR
15
¶24 Finally, "[t]he necessary ingredients of the
Fourteenth Amendment's guarantee that no one shall be deprived
of liberty without due process of law include a right to be
heard and to offer testimony. . . ." Id. at 51. The Rock Court
added in a footnote that "[t]his right reaches beyond the
criminal trial: the procedural due process constitutionally
required in some extrajudicial proceedings includes the right of
the affected person to testify." Id. at 51 n.9. The Court
cited as examples cases involving probation revocation, parole
revocation, and the termination of welfare benefits. Id.
(citations omitted).
¶25 After Rock this court revisited Albright and concluded
that a criminal defendant's constitutional right to testify in
his or her behalf is a fundamental right. Weed, 263
Wis. 2d 434, ¶¶37-39. We further concluded that "a circuit
court should conduct a colloquy with the defendant in order to
ensure that the defendant is knowingly and voluntarily waiving
his or her right to testify," though recognizing that only a
minority of jurisdictions required the practice. Id. at ¶¶40
41.
¶26 Most recently, we recognized that the right to testify
identified in Rock finds additional support in the Wisconsin
Constitution. State v. Denson, 2011 WI 70, ¶¶49-54, 335
Wis. 2d 681, 799 N.W.2d 831. Article I, Section 7 of the
Wisconsin Constitution states in part, "In all criminal
prosecutions the accused shall enjoy the right to be heard by
himself and counsel . . . [and] to have compulsory process to
No. 2013AP1424-CR
16
compel the attendance of witnesses in his behalf . . . ." Wis.
Const. art. I, § 7. Article I, Section 8 of the Wisconsin
Constitution states in part, "No person . . . may be compelled
in any criminal case to be a witness against himself or
herself." Wis. Const. art. I, § 8(1). Thus the due process,
compulsory process, and non-incrimination sources of the federal
constitutional right of criminal defendants to testify in their
own behalf have analogues in our state constitution.
¶27 Given this history, Lagrone now argues that an on-the
record colloquy regarding waiver of his fundamental right to
testify should also be required at the responsibility phase of
his bifurcated trial. In order to test the merits of this
claim, we must review the nature and purpose of NGI pleas and of
the responsibility phase of bifurcated NGI trials.17
B. NGI Pleas and the Responsibility Phase of the Bifurcated Trial Resulting From an NGI Plea
¶28 At the outset, it is critical to understand the
essential differences between a plea of not guilty and a plea of
not guilty by reason of mental disease or defect. Typically,
upon a plea of not guilty, the parties proceed to trial wherein
the State bears the burden of securing a unanimous jury verdict 17 We recently had occasion to thoroughly examine the nature and history of both Wisconsin's NGI plea and the bifurcated trial resulting from such a plea. See generally State v. Magett, 2014 WI 67, ¶¶32-40, 355 Wis. 2d 617, 850 N.W.2d 42; State v. Burton, 2013 WI 61, ¶¶42-46, 349 Wis. 2d 1, 832 N.W.2d 611. We do not repeat in full the discussion that occurred in these cases, but instead set out only the principles most germane to the issues before us.
No. 2013AP1424-CR
17
that it has proven each essential element of the offense charged
against the criminal defendant beyond a reasonable doubt. See,
e.g., Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 88
(1979). A court may not direct a verdict of guilt against a
defendant in a criminal case. State v. Peete, 185 Wis. 2d 4,
19, 517 N.W.2d 149 (1994) (citation omitted). After the jury
renders a guilty verdict, the circuit court sentences the
defendant. See, e.g., In re Eckart, 85 Wis. 681, 681, 56
N.W. 375 (1893).
¶29 If, however, a criminal defendant enters a plea of NGI
(without joining it with a plea of not guilty), the defendant
thereby "admits that but for lack of mental capacity the
defendant committed all the essential elements of the offense
charged in the indictment, information or complaint." Wis.
Stat. § 971.06(1)(d). "[T]he court will find the defendant
guilty of the elements of the crimes, and the NGI plea will be
left for trial." State v. Burton, 2013 WI 61, ¶43, 349
Wis. 2d 1, 832 N.W.2d 611. This trial, however, is much
different than the criminal trial previously discussed. In this
proceeding——which is concerned with the criminal defendant's
mental responsibility——the defendant, not the State, bears the
burden of establishing mental disease or defect excluding
responsibility. See Wis. Stat. § 971.15(3). The burden on the
defendant is not "beyond a reasonable doubt," but instead "to a
reasonable certainty by the greater weight of the credible
evidence." Id. The defendant need not obtain a unanimous jury
verdict, but instead only a five-sixths verdict. Magett, 355
No. 2013AP1424-CR
18
Wis. 2d 617, ¶39. And, unlike in a criminal trial, "a judge may
grant a motion to dismiss the NGI defense or direct a verdict in
favor of the state if the defendant cannot produce sufficient
evidence to show mental disease or defect." Id.
¶30 Thus, under the posture of the current case, Lagrone
has already admitted that but for lack of mental capacity he
committed all the essential elements of the criminal offenses
charged against him. If not for his NGI plea, Lagrone would
have proceeded to sentencing for committing those crimes. With
this general background in place, we now proceed to examine in
closer detail the nature and purpose of NGI pleas and their
concomitant procedures.
¶31 Under Wis. Stat. § 971.15, "Mental responsibility of
defendant," "[a] person is not responsible for criminal conduct
if at the time of such conduct as a result of mental disease or
defect the person lacked substantial capacity either to
appreciate the wrongfulness of his or her conduct or conform his
or her conduct to the requirements of law." § 971.15(1). An
NGI plea is "an affirmative defense which the defendant must
establish to a reasonable certainty by the greater weight of the
credible evidence." § 971.15(3).
¶32 The affirmative defense of NGI established by Wis.
Stat. § 971.15(1) builds upon
the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided
No. 2013AP1424-CR
19
the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.
Powell v. Texas, 392 U.S. 514, 535-36 (1968) (plurality)
(emphasis added). We have recognized with regard to Wisconsin's
NGI plea that "[w]hether or not there should be criminal
responsibility is essentially a moral issue." Steele v. State,
97 Wis. 2d 72, 96, 294 N.W.2d 2 (1980). That is, at the heart
of any NGI inquiry is the following question:
[I]s this person who has been found guilty beyond a reasonable doubt of criminal conduct to be punished or is there to be a different disposition because, in good conscience and public morality, the defendant is a person, because of mental disease or defect, who ought not to be held criminally liable for his or her conduct[?]
State v. Koput, 142 Wis. 2d 370, 389, 418 N.W.2d 804 (1988).
Importantly, however, "a criminal defendant's right to an NGI
defense is a statutory right that is not guaranteed by either
the United States or Wisconsin Constitutions." Magett, 355
Wis. 2d 617, ¶32 (citations omitted).
¶33 Under current statutory procedures, the dual issues of
whether a defendant has committed the criminal offense alleged
and whether a defendant may be held responsible for committing
that offense are determined in separate proceedings. See Wis.
Stat. § 971.165; Burton, 349 Wis. 2d 1, ¶¶42-46.18 The
18 We explained in Burton:
If the NGI plea is not joined with a plea of not guilty, the plea admits that but for lack of mental capacity the defendant committed all the essential (continued)
No. 2013AP1424-CR
20
responsibility phase of an NGI trial, in contrast to the so
called "guilt phase," contains "elements of civil procedure" and
is "something close to a civil trial." Magett, 355 Wis. 2d 617,
¶¶36, 39-40. Specifically: (1) the burden of proof to establish
mental disease or defect, which is on the defendant, is the same
as the burden required in civil trials for most issues; (2) a
elements of the offenses charged. Then——when there is a substantive basis for finding the crimes charged—— the court will find the defendant guilty of the elements of the crimes, and the NGI plea will be left for trial.
Conversely, if the defendant pleads not guilty in conjunction with an NGI plea, Wis. Stat. § 971.165(1) provides for the bifurcation of the guilt and mental responsibility phases of trial . . . .
Burton, 349 Wis. 2d 1, ¶¶43-44 (citations omitted). Lagrone pleaded guilty to the charges against him but proceeded to trial on the question of his mental responsibility at the time of the offense. It might thus seem inaccurate to refer to the proceedings in this case as "bifurcated"; only one phase was tried. Put differently, because Lagrone did not contest that he committed the offense alleged, there was no need for "a separation of the issues [of whether Lagrone committed the criminal offense alleged and whether Lagrone is mentally responsible for committing the offense alleged] with a sequential order of proof in a continuous trial." Wis. Stat. § 971.165(1)(a).
Nevertheless, as the court of appeals and the parties referred to Lagrone's "bifurcated" criminal proceeding, see, e.g., State v. Lagrone, No. 2013AP1424-CR, unpublished slip op., ¶3 (Wis. Ct. App. Apr. 7, 2015), as the issues of Lagrone's guilt and mental responsibility were indeed determined in sequence, and as the principles enunciated in this case are equally applicable to a bifurcated NGI trial, we will, for simplicity, use the practice of referring to the proceedings at issue as "bifurcated."
No. 2013AP1424-CR
21
judge may direct a verdict in favor of the State on the issue of
mental responsibility; and (3) the defendant need only obtain a
five-sixths jury verdict on the issue of mental responsibility.
See id., ¶39 (citations omitted).
¶34 On the other hand, the mental responsibility phase is
not "purely civil." Koput, 142 Wis. 2d at 397. We have instead
characterized the mental responsibility phase as "a special
proceeding in the dispositional phase of a criminal proceeding——
a proceeding that is not criminal in its attributes or
purposes." Id.
¶35 In Koput we concluded that, given the nature of the
responsibility phase, a unanimous jury verdict on the issue of
mental responsibility was not required. Id. at 373-74. In
rejecting a contrary conclusion, we said that the guilt and
responsibility phases are not "but divisions of a single
criminal trial":
The thesis of the public defender that the responsibility phase is but one part of a single criminal proceeding, and therefore must, in all respects, be treated in the same way as the guilt phase, is unsupportable. The public defender's syllogism——a criminal defendant has a constitutional right to a unanimous verdict in a criminal case; the responsibility phase of a sequential trial is a part of a criminal trial, therefore the five-sixths verdict returned in Koput's case denied him a constitutional verdict——is flawed, because it is demonstrably evident that the responsibility phase is not a part of a "criminal" trial. The entire history of bifurcated trials . . . makes evident that the purpose of each of the two phases is entirely different.
Id. at 394-95. With regard to the purpose of the responsibility
phase, we observed that "in considering the question of
No. 2013AP1424-CR
22
insanity, 'we are largely concerning ourselves with the
difference in the institutional treatment of the defendant,'"
and added that the question to be answered in the mental
responsibility phase is "noncriminal": "[t]he mental state,
other than criminal intent, at the time of a crime is no more a
matter of criminal inquiry than an inquest into mental
responsibility at the time of the execution of a will." Id. at
392, 396 & n.17 (citation omitted). In fact, although an NGI
plea is described in Wis. Stat. § 971.15(3) as an "affirmative
defense,"
[i]t is obvious . . . that the affirmative defense mentioned in sec. 971.15(3) is of an entirely different nature from affirmative defenses utilized by defendants in the guilt phase, i.e., alibi, privilege, et cetera, which if proved result in an outright dismissal of the charge. Success on the affirmative defense of mental disease or defect does not have that result; rather, it is an affirmative defense to "responsibility"——it relieves the person of the sanctions for criminal conduct. It does not relieve the person already found guilty in the first phase of the factual finding of criminal conduct. Rather, the successful assertion of the affirmative defense in phase two results in a noncriminal-sanction disposition.
Id. at 388.
¶36 In sum, in assessing exactly what the federal and
state constitutions require in this case, we must bear in mind
that "[t]he civil hues of the responsibility phase, coupled with
the fact that bifurcation and the NGI plea are statutory in
nature, not constitutional, remove the proceeding from the
exacting demands of criminal proceedings and leave it in a
No. 2013AP1424-CR
23
category of its own." Magett, 355 Wis. 2d 617, ¶40 (citation
omitted).
C. Whether the Fundamental Right of Criminal Defendants to Testify in Their Own Defense Applies at the Responsibility Phase of Bifurcated NGI Proceedings
¶37 As stated, the right to testify identified in Rock is
not explicitly listed in any one provision of the federal
constitution, but instead has multiple "sources" in that
document. Rock, 483 U.S. at 51. It is therefore appropriate to
note that "[t]he inference of [constitutional] rights is not, of
course, a mechanical exercise. . . . [T]he right must be
independently found in the structure and history of the
constitutional text." Faretta, 422 U.S. at 819 n.15. See also
id. ("The ability to waive a constitutional right does not
ordinarily carry with it the right to insist upon the opposite
of that right" (citation omitted).). Much of what has been said
in the realm of substantive due process analysis, which
sometimes calls for the protection of rights implicit in the
text and structure of the constitution, see, e.g., Washington v.
Glucksberg, 521 U.S. 702, 719-20 (1997), is applicable to the
general practice of identifying constitutional rights not
explicitly stated in the federal or state constitutions. "By
extending constitutional protection to an asserted
right . . . we, to a great extent, place the matter outside the
arena of public debate and legislative action." Id. at 720.
"[G]uideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended. The doctrine of judicial self
No. 2013AP1424-CR
24
restraint requires us to exercise the utmost care whenever we
are asked to break new ground in this field." Collins v. City
of Harker Heights, 503 U.S. 115, 125 (1992) (citations omitted).
¶38 In Lagrone's view, we need not "break new ground" but
instead should simply apply the right identified in Rock to the
responsibility phase of bifurcated NGI proceedings. Yet, close
examination of that right establishes that it does not govern
here.
¶39 The Rock Court indicated that the right to testify it
identified was not one established in the common law at the time
of the framing of the federal constitution. Rock, 483 U.S. at
49. "[T]he historic common-law view . . . was that all parties
to litigation, including criminal defendants, were disqualified
from testifying because of their interest in the outcome of the
trial." Id. (citation omitted); see also Ferguson v. Georgia,
365 U.S. 570, 574 (1961) ("Disqualification for interest was
thus extensive in the common law when this Nation was formed.
Here, as in England, criminal defendants were deemed incompetent
as witnesses" (citation omitted).).19 The Court focused on the 19 Care should be taken to distinguish between a criminal defendant's right to testify in his or her own behalf and a defendant's ability at common law to provide unsworn testimony. See generally, e.g., Mitchell v. United States, 526 U.S. 314, 332-36 (1999) (Scalia, J., dissenting) ("[C]ommon-law evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. That is not to say, however, that a criminal defendant was not allowed to speak in his own behalf . . . . Traditionally, defendants were expected to speak rather extensively at both the pretrial and trial stages of a criminal proceeding" (emphasis added) (citation omitted).).
No. 2013AP1424-CR
25
later formation of the "considered consensus of the English
speaking world" that criminal defendants were competent to
testify in their own behalf, and concluded that "[a]t this point
in the development of our adversary system, it cannot be doubted
that a defendant in a criminal case has the right to take the
witness stand and to testify in his or her own defense." Rock,
483 U.S. at 49-50 (citation omitted).20
¶40 The fundamental right identified by the Rock Court is
not some generalized right to testify; it is instead "[t]he
right to testify on one's own behalf at a criminal trial."
Rock, 483 U.S. at 51 (emphasis added); see also id. at 45 ("The
issue presented in this case is whether Arkansas' evidentiary
rule prohibiting the admission of hypnotically refreshed
testimony violated petitioner's constitutional right to testify
on her own behalf as a defendant in a criminal case" (emphasis
added).). The right guarantees a criminal defendant the ability
to use his or her own words in order to defend against attempts
by the State to establish the defendant's criminal liability.
¶41 Thus defined, few could quarrel with the Rock Court's
statement that the existence of the right, "[a]t this point in
the development of our adversary system, [] cannot be doubted."
Id. at 49. But Lagrone faces a considerably more difficult
challenge convincing this court that the "considered consensus 20 With regard to the eventual formation of this consensus, we note that nine states had enacted competency statutes at the time of the adoption of the Fourteenth Amendment. Mitchell, 526 U.S. at 335-36 (Scalia, J., dissenting).
No. 2013AP1424-CR
26
of the English-speaking world" is that criminal defendants
possess the same fundamental right to testify: (1) at a
statutory, noncriminal proceeding to which they have no
independent constitutional right; (2) as to matters relevant,
not to the criminal question of whether they committed the
conduct alleged, but to the moral question of their future
institutional treatment. In a nutshell, the fundamental right
to testify on one's own behalf at a criminal trial does not
exist at the responsibility phase of bifurcated NGI proceedings
because "it is demonstrably evident that the responsibility
phase is not a part of a 'criminal' trial." Koput, 142 Wis. 2d
at 395. The responsibility phase does not pertain to defense
against accusations of criminal behavior.
¶42 The conception of the Rock right to testify as
belonging to criminal defendants to use in their own defense
against criminal charges follows from the nature of certain of
the right's sources as identified by the Rock Court. For
instance, the right arises from the Fifth Amendment because
"[e]very criminal defendant is privileged to testify in his own
defense, or to refuse to do so." Rock, 483 U.S. at 53 (emphasis
added) (citation omitted). The purpose of the Fifth Amendment
privilege "was to insure that a person should not be compelled,
when acting as a witness in any investigation, to give testimony
which might tend to show that he himself had committed a crime."
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (citation omitted).
The privilege thus protects against compelled incriminating
testimony——testimony relevant to the question of whether an
No. 2013AP1424-CR
27
individual has engaged in criminal conduct. See Incriminating,
Black's Law Dictionary (10th ed. 2014) (defining "incriminating"
as "[d]emonstrating or indicating involvement in criminal
activity"); Incriminating Statement, Black's Law Dictionary
(10th ed. 2014) (defining "incriminating statement" as "[a]
statement that tends to establish the guilt of someone, esp. the
person making it"). Insofar as the right to testify is a
"necessary corollary" of the Fifth Amendment, Rock, 483 U.S. at
52 (emphasis added), it guarantees individuals the right to
testify as to matters pertaining to the validity of the criminal
charges against them. Such testimony is not necessary——or
appropriate——in the responsibility phase, because that phase is
not concerned with whether a defendant has engaged in criminal
activity. Any Fifth Amendment right to testify is instead
vindicated in the guilt phase.21
¶43 Lagrone relies on State v. Langenbach, in which the
court of appeals concluded that the Fifth Amendment privilege
against self-incrimination extends to the responsibility stage
of bifurcated NGI proceedings, to argue that its corollary must
also extend to that phase. State v. Langenbach, 2001 WI App
222, 247 Wis. 2d 933, ¶20, 634 N.W.2d 916. But what we have
already said shows that that claim must fail. To the extent
that Langenbach rested its holding on the notion that Fifth
21 The same reasoning applies to the privilege against selfincrimination contained in Article I, Section 8 of the Wisconsin Constitution.
No. 2013AP1424-CR
28
Amendment protections continue past the entry of a guilty plea,
Langenbach, 247 Wis. 2d 933, ¶¶9-13, we agree that the Fifth
Amendment privilege is applicable in "any . . . proceeding,
civil or criminal, formal or informal, where the answers might
incriminate [an individual] in future criminal proceedings."
Lefkowitz, 414 U.S. at 77 (citation omitted). Yet although a
witness might incriminate herself at both criminal and civil
proceedings, the range of settings at which a witness might have
legitimate reason to offer testimony pertaining to her criminal
guilt is considerably narrower. It does not include the
responsibility phase of bifurcated NGI proceedings, which does
not pertain to issues of criminal liability.
¶44 The alternative interpretation——that the Fifth
Amendment right to testify is available wherever the Fifth
Amendment privilege is available——has no basis in the federal
constitution and is impracticable. That is, although the State
may not, without violating the privilege against self
incrimination, establish noncriminal statutory proceedings at
which to "by coercion prove a charge against an accused out of
his own mouth," Minnesota v. Murphy, 465 U.S. 420, 450 (1984)
(citation omitted), this does not require that a witness be
permitted to use "any . . . proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings," Lefkowitz, 414 U.S. at 77
(citation omitted), as a rostrum from which to protest her
innocence or attempt to reduce impending criminal penalties, no
No. 2013AP1424-CR
29
matter how irrelevant the proceeding to the witness's criminal
guilt.22
22 The Langenbach court separately premised its holding that the Fifth Amendment privilege applied at the responsibility phase on its conclusion that the responsibility phase, while not criminal in nature, "remains a part of the criminal case in general." State v. Langenbach, 2001 WI App 222, ¶19, 247 Wis. 2d 933, 634 N.W.2d 916 (citation omitted). The intended constitutional meaning of that statement is unclear. If the court meant that, regardless of whether a criminal defendant's testimony in the responsibility phase might incriminate the defendant in any future proceeding, the privilege applies because a statement might be "incriminating" for purposes of the responsibility phase itself, the court was incorrect. See Allen v. Illinois, 478 U.S. 364, 368 (1986) ("What we have here . . . is not a claim that petitioner's statements to the psychiatrists might be used to incriminate him in some future criminal proceeding, but instead his claim that because the sexually-dangerous-person proceeding is itself 'criminal,' he was entitled to refuse to answer any questions at all."). As we have explained, the responsibility phase is not criminal in nature or purpose. Therefore, a statement at that phase, by definition, could only be "incriminating" for purposes of some other proceeding. In any event, that line of reasoning was apparently not essential to the Langenbach court's holding.
The Langenbach court relied in part for this portion of its reasoning on its earlier decision in State v. Murdock, 2000 WI App 170, 238 Wis. 2d 301, 617 N.W.2d 175, where it had concluded that a criminal jury waiver statute applied to the responsibility phase. Murdock, 238 Wis. 2d 301, ¶¶2, 19. The Murdock court stated in the course of its analysis that "[t]he statutes governing the procedures for trying [NGI] pleas . . . have kept the responsibility phase and guilt phase attached in procedure even as they are detached in nature and purpose." Id. at ¶24.
(continued)
No. 2013AP1424-CR
30
¶45 As discussed, the right of criminal defendants to
testify in their own behalf also has a source in the Compulsory
Process Clause, because "[l]ogically included in the accused's
right to call witnesses whose testimony is 'material and
favorable to his defense,' United States v. Valenzuela-Bernal,
458 U.S. 858, 867 (1982), is a right to testify himself, should
he decide it is in his favor to do so." Rock, 483 U.S. at 52
(emphasis added). What is not "logically included" in such a
right, however, is a right to testify as to matters and in a
proceeding applicable, not to a defendant's criminal defense, We do not express an opinion on the merits of Murdock's holding, because the case is distinguishable. The question in Murdock did not involve the interpretation of any constitutional provisions, but instead whether the responsibility phase is part of a "criminal case[]" within the meaning of the jury waiver statute. Id., ¶19 (citation omitted). And the fact that the guilt and responsibility phases are "attached in procedure"—— i.e., both "part of the chapter on criminal procedure," id., ¶27——is arguably much more relevant to the question of whether the jury waiver statute applies equally to both phases than it is to a question involving the existence or application of a constitutional right, especially given our earlier case law explaining the noncriminal nature and purpose of NGI proceedings. See, e.g., State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; [and] in relation to the language of surrounding or closely-related statutes . . . .").
Importantly, the Murdock court did not ignore the distinct natures of the guilt and responsibility phases, but instead rested its holding in part on the fact that the purpose of the jury waiver statute is fulfilled both when the jury is sitting as fact-finder (in the guilt phase) and when it is sitting as "moral decision maker" (in the responsibility phase). See Murdock, 238 Wis. 2d 301, ¶26.
No. 2013AP1424-CR
31
but to a defendant's future institutional treatment. See, e.g.,
Taylor v. Illinois, 484 U.S. 400, 407 (1988) ("[O]ur cases
establish, at a minimum, that criminal defendants have the right
to the government's assistance in compelling the attendance of
favorable witnesses at trial and the right to put before a jury
evidence that might influence the determination of guilt"
(emphasis added) (citation omitted).). The right to testify,
insofar as it is grounded in the Compulsory Process Clause, is
the right to testify in defense against charges of criminal
wrongdoing.23
¶46 The Rock Court clearly carved out a specific right to
testify: one applicable to criminal defendants with regard to
matters pertinent to criminal liability. As we will discuss
shortly, the Fourteenth Amendment's guarantee of due process——
which is also a basis of the right identified by the Rock
Court——still has application to the responsibility phase. But
given the previous discussion, we cannot conclude that the right
which the Rock court identified——the fundamental right of
defendants to testify in their own behalf in a criminal case——of
23 The same reasoning applies to the guarantee of compulsory process in Article I, Section 7 of the Wisconsin Constitution.
No. 2013AP1424-CR
32
necessity applies to a proceeding which is neither criminal in
nature nor criminal in purpose.24
D. Whether Any Constitutional Right to Testify Exists at the Responsibility Phase of Bifurcated NGI Proceedings
¶47 Importantly, the Rock Court identified a third basis
for its right to testify: the Due Process Clause of the
Fourteenth Amendment, Rock, 483 U.S. at 51, which provides that
no state shall "deprive any person of life, liberty, or
property, without due process of law . . . ." U.S. Const.
24 In explaining that a criminal defendant's fundamental "right to testify in her own behalf at a criminal trial" is premised in multiple constitutional guarantees, the Rock Court indicated that the right is properly understood as tied to a specific type of testimony——testimony of a criminal defendant pertaining to that defendant's criminal guilt——rather than simply to any specific proceeding or set of proceedings, however denominated. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987).
Whatever might be said in defense of the "broad principles" enunciated in Rock, see id. at 64 (Rehnquist, C.J., dissenting), we are mindful in considering Rock's sources-plus-consensus methodology that "the main danger in judicial interpretation of the Constitution . . . is that the judges will mistake their own predilections for the law. . . . It is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are 'fundamental to our society.'" Antonin Scalia, Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). Rock does not provide a basis for extending the specific protection it identified to a special proceeding not criminal in nature or purpose and not mandated by the federal or state constitutions.
No. 2013AP1424-CR
33
amend. XIV.25 In the words of the Court, "A person's right to
reasonable notice of a charge against him, and an opportunity to
be heard in his defense——a right to his day in court——are basic
in our system of jurisprudence. . . ." Rock, 483 U.S. at 51
(citing In re Oliver, 333 U.S. 257, 273 (1948)). The Court
specifically pointed out in a footnote that "[t]his right
reaches beyond the criminal trial: the procedural due process
constitutionally required in some extrajudicial proceedings
includes the right of the affected person to testify." Id. at
51, n.9.26
25 Under the doctrine of incorporation, all three constitutional sources of the right to testify as applied in this case are based in the Due Process Clause of the Fourteenth Amendment. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 763 (2010). This section involves discussion of the right to due process in the sense of due process unconnected to any specific guarantee of the Bill of the Rights.
26 It was to this due process guarantee of the opportunity to be heard and offer testimony that we compared, in Denson, the Wisconsin Constitution's own guarantee that "[i]n all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel . . . ." Wis. Const. art. I, § 7; see State v. Denson, 2011 WI 70, ¶51, 335 Wis. 2d 681, 799 N.W.2d 681 (citing Wis. Const. art. I, § 7).
(continued)
No. 2013AP1424-CR
34
¶48 Although the fundamental right of criminal defendants
to testify in their own defense, even as based in the Fourteenth
Amendment, does not apply in the responsibility phase of
bifurcated NGI proceedings because that phase is not relevant to
criminal liability, the phase is not necessarily exempted from
the broad mandates of the Due Process Clause. "The requirements
of procedural due process apply . . . to the deprivation of
interests encompassed by the Fourteenth Amendment's protection
of liberty and property." Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 569 (1972). And where the Due Process
Clause applies, it requires, "at a minimum, that absent a
countervailing state interest of overriding significance,
This court has never concluded that a criminal defendant's "right to be heard by himself and counsel" provides, of its own force, the same fundamental right to testify in one's own behalf at a criminal trial as that identified by the Supreme Court in Rock. Given that criminal defendants as a group were not competent to testify as witnesses in Wisconsin until 1869—— decades after the Wisconsin Constitution was adopted——the soundness of any such conclusion would be questionable. State v. Albright, 96 Wis. 2d 122, 127, 291 N.W.2d 487 (1980); In re Estate of Johnson, 170 Wis. 436, 436, 175 N.W. 917 (1920); Ferguson v. Georgia, 365 U.S. 370, 598 (1961). Lagrone does not offer any evidence in support of such a view. See also Mitchell, 526 U.S. at 332 (Scalia, J., dissenting) ("[C]ommonlaw evidentiary rules prevented a criminal defendant from testifying in his own behalf even if he wanted to do so. That is not to say, however, that a criminal defendant was not allowed to speak in his own behalf . . ." (emphasis added) (citation omitted).); Moore v. State, 83 Wis. 2d 285, 298, 265 N.W.2d 540 (1978) ("Every person sui juris, who is charged with crime, has the right to try his own case if he so desires. The constitution guarantees him the right to be heard 'by himself' as well as by counsel. . . " (first emphasis added) (citations omitted).).
No. 2013AP1424-CR
35
persons forced to settle their claims of right and duty through
the judicial process must be given a meaningful opportunity to
be heard." Boddie v. Connecticut, 401 U.S. 371, 377 (1971); see
also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950) ("Many controversies have raged about the cryptic and
abstract words of the Due Process Clause but there can be no
doubt that at a minimum they require that deprivation of life,
liberty or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the
case."); Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353
(1992).
¶49 Although the State has established that Lagrone
committed the criminal conduct alleged, "the successful
assertion of the affirmative [NGI] defense in phase two results
in a noncriminal-sanction disposition." Koput, 142 Wis. 2d at
388. We can assume for the sake of argument that Lagrone
possesses a due process (as opposed to statutory) right to an
opportunity to be heard and offer evidence, including in the
form of his own testimony, at the responsibility phase of
bifurcated NGI proceedings. See Kentucky Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (procedural due process
claims are assessed "in two steps: the first asks whether there
exists a liberty or property interest which has been interfered
with by the State; the second examines whether the procedures
attendant upon that deprivation were constitutionally
sufficient" (citations omitted)); Langenbach, 247 Wis. 2d 933,
¶13 (noting the "legitimate impending threat of the deprivation
No. 2013AP1424-CR
36
of [the defendant's] liberty, either through commitment to a
mental hospital or imprisonment").
¶50 We can assume this fact because Lagrone was indeed
offered such an opportunity to be heard and to offer testimony.
Lagrone was present at a two-day proceeding during which several
individuals presented testimony relevant to Lagrone's mental
responsibility. The circuit court asked Lagrone directly at the
close of evidence whether he agreed with his attorney that he
did not wish to present any further evidence, and Lagrone
responded in the affirmative.27 We therefore need not determine
whether Lagrone possessed a due process right to an opportunity
to be heard and offer testimony at the responsibility phase of a
bifurcated NGI proceeding, and the contours of such a right,
because he was afforded such an opportunity in this case.28
E. Whether a Circuit Court is Required to Conduct a Right-to-Testify Colloquy at the Responsibility Phase of Bifurcated NGI Proceedings and Whether an Evidentiary Hearing is Required When a Defendant Alleges Waiver of a Right to Testify at That Phase
27 See supra n.13.
28 We do not in any way disavow our recent decision in Magett. In that case we examined, among other things, the ability of criminal defendants to testify during the responsibility phase, and the relative value of such testimony. See Magett, 355 Wis. 2d 617, ¶¶7-8. We also discussed the proper timing of dismissals or directed verdicts during the responsibility phase. See id., ¶9. The case did not, however, involve an inquiry into the separate question of whether a defendant has a constitutional right to testify at the responsibility phase.
No. 2013AP1424-CR
37
¶51 As stated, the fundamental right to testify in one's
own behalf as a defendant in a criminal case does not exist at
the responsibility phase of bifurcated NGI proceedings because
that phase is a noncriminal proceeding to which defendants
possess no constitutional right. At most, Lagrone possessed a
general due process right to be heard and offer testimony during
the responsibility phase, just as an individual might in other
noncriminal proceedings such as, for example, certain
proceedings under Wis. Stat. ch. 980, which governs the
commitment of sexually violent persons. See State v. Burris,
2004 WI 91, ¶22, 273 Wis. 2d 294, 682 N.W.2d 812; see also Rock,
483 U.S. at 51 n.9 (citations omitted); State ex rel. Vanderbeke
v. Endicott, 210 Wis. 2d 502, 513-14, 563 N.W.2d 882 (1997)
("Revocation of probation is a civil proceeding in Wisconsin. A
probationer is therefore not entitled to the full panoply of
rights accorded persons subject to criminal process. It is well
settled, however, that a probationer is entitled to due process
of law before probation may be revoked.").
¶52 Any such right is not independently grounded in the
Fifth or Sixth Amendments and is not the fundamental right for
which this court in Weed established the requirement that
circuit courts conduct waiver colloquies with criminal
defendants. See Weed, 263 Wis. 2d 434, ¶40. As we recognized
in Weed, "only a minority of jurisdictions impose an affirmative
duty on circuit courts to conduct an on-the-record colloquy to
ensure that a criminal defendant is knowingly, intelligently,
and voluntarily waiving his or her right to testify." Id.,
No. 2013AP1424-CR
38
¶41. Given that the general practice with regard to the
fundamental right of criminal defendants to testify in their own
behalf is not to require a colloquy, we decline to create such a
requirement where a fundamental right has not been identified.
It is difficult to see why such a requirement would not be
logically applicable to many other noncriminal proceedings.
¶53 We emphasize again that Lagrone does not challenge the
plea colloquy that occurred during the guilt phase of his
bifurcated NGI proceedings, and does not argue that he was
unaware that, by pleading guilty to the criminal charges against
him, he was waiving his fundamental right to testify at a
criminal trial pertaining to the validity of those charges.
Nothing in this opinion affects the fundamental right of a
criminal defendant to testify in his or her own behalf at a
criminal trial, and nothing in this opinion affects Weed's
instruction that a right-to-testify colloquy occur at such a
proceeding. See id., ¶2. But because this fundamental right is
not applicable in the responsibility phase of bifurcated NGI
proceedings, we decline to mandate that a colloquy occur at that
phase. While the responsibility phase is undoubtedly an
important proceeding for criminal defendants, any requirement of
a colloquy in that phase should come from the legislature. We
note, however, that it may well be the best practice for circuit
courts to ask defendants directly at the responsibility phase
whether they wish to testify. See, e.g., Denson, 335
Wis. 2d 681, ¶¶58, 67 (recommending an on-the-record colloquy
No. 2013AP1424-CR
39
regarding a criminal defendant's right not to testify as the
"better practice").
¶54 Here, without proceeding further to the responsibility
phase of the trial, Lagrone would stand convicted and poised for
sentencing. The responsibility phase is, as a practical matter,
quite distinct from the guilt phase. If the State prevails at
the guilt phase, the defendant, who then bears the burden of
proof, would seek to prove that he or she should receive mental
treatment rather than a criminal sentence. Simply stated, the
responsibility phase, wherein the defendant bears the burden of
proof, is altogether different from the guilt phase of the
trial.
¶55 To the degree that Lagrone was owed an opportunity to
be heard, he was granted such an opportunity. Lagrone has not
made the requisite showing for an evidentiary hearing; more is
required. See State v. Allen, 2004 WI 106, ¶¶9, 12-13, 274
Wis. 2d 568, 682 N.W.2d 433; cf. State v. Balliette, 2011 WI 79,
¶¶3, 18, 336 Wis. 2d 358, 805 N.W.2d 334. With regard to the
strategic decision of the specific evidence a defendant will
present during the responsibility phase in order to meet his or
her burden, "the decision whether to testify should be made by
the defendant after consulting with counsel," but "counsel, in
the absence of the express disapproval of the defendant on the
record during the pretrial or trial proceedings, may waive" any
right to testify that a defendant possesses at that hearing.
Albright, 96 Wis. 2d at 133.
No. 2013AP1424-CR
40
¶56 Here, Lagrone's attorney informed the circuit court at
the close of evidence that Lagrone had no further evidence to
present. Lagrone, when questioned by the circuit court on that
point, agreed. The record is devoid of any indication that
Lagrone voiced a wish at trial to testify, or that the circuit
court or Lagrone's attorney prevented Lagrone from testifying.29
See id. Lagrone's sole allegation is that he did not understand
that he could testify, and he does not even explain the
substance of his proposed testimony. Without more, we see no
need to remand for an evidentiary hearing. The postconviction
court did not erroneously exercise its discretion in denying
Lagrone's postconviction motion, because Lagrone was afforded
29 As discussed, supra n. 11, certain of the documents signed by Lagrone prior to the responsibility phase, such as the plea questionnaire form, contain handwritten notes in the margins potentially relevant to Lagrone's opportunity to testify. For instance, on the plea questionnaire form under the heading "Constitutional Rights," and next to the checked box reading "I give up my right to testify and present evidence at trial," the following is handwritten: "True for Phase I, not for II." Although the notes do not affect the outcome of this case, we observe that, if anything, they suggest that Lagrone and his counsel indeed understood that Lagrone could present evidence and testimony during the responsibility phase.
The provenance of the notes is unknown, and Lagrone argues before this court that their precise meaning is ambiguous, but this claim alone does not justify remand for an evidentiary hearing. Lagrone's postconviction motion does not set forth any factual allegations relevant to why the presence of the handwritten notes would mandate a hearing; he simply states in the motion, "[T]he plea questionnaire and waiver of rights form for phase one note[s] that [Lagrone] was not giving up the right to testify in the mental responsibility phase." all the process he was due. See Allen, 274 Wis. 2d 568, ¶¶9,
12-13 (if postconviction motion does not raise facts sufficient
to entitle movant to relief, or presents only conclusory
allegations, or if record conclusively demonstrates that the
defendant is not entitled to relief, circuit court has
discretion to deny evidentiary hearing, which decision is
reviewable under deferential erroneous exercise of discretion
standard).
V

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